Today's show is an hour-plus-long question & answer session answers some (but not all!) of the 110 questions our Patrons submitted on this thread. As always, Andrew has no advance knowledge of these questions and answers everything off the cuff! After the Q&A, we end with the answer to Thomas Take the Bar Exam Question #38 regarding the admissibility of prior consistent statements. And don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at openarguments@gmail.com
If you or anyone you know has ever cared what color the fringe on the U.S. flag is, you will not want to miss this episode. Yes, by popular request, we once again tackle the wild and wacky world of sovereign citizen loons! First, though, the guys read a listener comment from Tony Wall who actually toured with KISS (!!) and can give us some insight as to Gene Simmons's copyright practices. In the main segment, Andrew walks through Gray v. Texas, a 2009 decision of the Texas Court of Appeals that delightfully debunks a great many "sovereign citizen" claims. Next, the guys answer a question from Revan, who wants to know whether criminal and civil cases wind up in the same courtroom or even in front of the same judge. Finally, we end with an all-new Thomas Takes the Bar Exam Question #38 about the admissibility of prior consistent statements by a witness. Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Show Notes & Links
Today's show deals with a number of issues that all surround what your employer can (and cannot) fire you for. First, we begin by revisiting the "Google manifesto" topic from Opening Arguments Episode #94 as Thomas and Andrew respond to some hate mail from a listener who no longer wants to listen to the show after that episode. Does he have a point? Listen and find out. Next, the guys break down whether employees can discuss their salaries with co-workers on the job. After that, Andrew and Thomas answer a question from Patron April who wants to know how much an employer can control your social media use. Finally, we end with the answer to Thomas Take the Bar Exam Question #37 regarding installment contracts. And don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances None. Have us on your show! Show Notes & Links
In June 2017, the Supreme Court decided two cases involving habeas corpus petitions filed by state prisoners challenging the validity of their convictions and/or sentences: Davila v. Davis and McWilliams v. Dunn. -- The petition in Davila v. Davis involved a claim of ineffective assistance of counsel. Erick Davila was convicted in a Texas court of capital murder. Although his trial attorney had objected to one of the court’s jury instructions on intent, the court had overruled the objection. On direct appeal his appellate counsel raised various claims, but did not challenge the jury instruction ruling. His conviction and sentence were affirmed by the state’s highest criminal court, and the U.S. Supreme Court denied cert. Davila then initiated a collateral attack on his conviction: he sought habeas relief in state court, but his attorney challenged neither the jury instruction ruling nor the failure of his appellate counsel to raise the alleged instructional error on direct appeal. Texas’ highest criminal court ultimately denied relief and the U.S. Supreme Court again denied cert. Davila next raised a habeas claim in federal court, alleging that his appellate counsel provided ineffective assistance by failing to challenge the allegedly erroneous jury instruction on direct appeal. Although his failure to have raised that claim in his state habeas petition ordinarily constituted a fatal procedural default, Davila argued for an exception on the grounds that the failure was itself the result of ineffective assistance by his state habeas counsel. The federal district court denied Davila’s petition and the U.S. Court of Appeals for the Fifth Circuit denied a certificate of appealability for further review. The Supreme Court granted certiorari, however, to consider whether the ineffective assistance of postconviction counsel provided cause to excuse the procedural default. -- By a vote of 5-4, the Supreme Court affirmed the judgment of the Fifth Circuit. In an opinion delivered by Justice Thomas, the Court held that the ineffective assistance of postconviction counsel does not provide cause to excuse the procedural default of claims of ineffective assistance of appellate counsel. Justice Thomas’ majority opinion was joined by the Chief Justice and Justices Kennedy, Alito, and Gorsuch. Justice Breyer filed a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor, and Kagan. -- The petition in McWilliams v. Dunn involved the scope of a state’s duty, identified by the Supreme Court in its 1985 decision in Ake v. Oklahoma, to provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense, and independent from the prosecution, to effectively “assist in evaluation, preparation, and presentation of the defense.” In 1986, James McWilliams, Jr. was convicted by an Alabama jury of capital murder. Although a state commission, convened after McWilliams’s counsel requested a psychiatric evaluation, found that he was competent to stand trial and had not been suffering from mental illness at the time of his alleged crime, his counsel had also asked for neurological and neuropsychological testing while the parties awaited sentencing. The examining doctor concluded that McWilliams had some genuine neuropsychological problems, and his attorney also received various updated mental health records just before the sentencing hearing convened. Although the attorney sought a continuance and the assistance of someone with psychological expertise to evaluate this new material, the trial court denied those requests and sentenced McWilliams to death. Alabama’s appellate courts affirmed his conviction and sentence on direct appeal, and his effort to obtain state postconviction relief also failed. On federal habeas review, the district court found that the requirements described in Ake had been satisfied and denied McWilliams relief. The U.S. Court of Appeals for the Eleventh Circuit affirmed, but the Supreme Court granted certiorari to consider whether the Alabama Court of Criminal Appeals’ determination that McWilliams got all the assistance to which Ake entitled him was “contrary to, or involved an unreasonable application of, clearly established Federal law” under the federal habeas statute. -- By a vote of 5-4, the Supreme Court reversed the judgment of the Eleventh Circuit and remanded the case. In an opinion delivered by Justice Breyer, the Court indicated that “Alabama’s provision of mental health assistance fell [] dramatically short of what Ake requires” and therefore concluded that the Alabama court decision affirming McWilliams’s conviction and sentence was “contrary to, or involved an unreasonable application of, clearly established Federal law.” Although the Eleventh Circuit had alternatively held that any error by the Alabama courts lacked the “substantial and injurious effect or influence” required to warrant a grant of habeas relief, the Supreme Court indicated that the Eleventh Circuit should reconsider on remand “whether access to the type of meaningful assistance in evaluating, preparing, and presenting the defense that Ake requires would have mattered” to the outcome of McWilliams’s case. Justice Breyer’s majority opinion was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Alito filed a dissenting opinion, in which the Chief Justice and Justices Thomas and Gorsuch joined. -- And now, to discuss the cases, we have Joseph Tartakovsy, Deputy Solicitor General for the State of Nevada.
On June 5, 2017, the Supreme Court decided Kokesh v. Securities and Exchange Commission. In 2009, the Securities and Exchange Commission (SEC) alleged that Charles Kokesh had violated various securities laws by concealing the misappropriation of roughly $35 million in various development ventures dating back as far as 1995. Since the 1970s, the SEC has ordered disgorgement in addition to monetary civil penalties in its enforcement proceedings. In effect, the violator must not only pay monetary civil penalties, but also “disgorge” the profit he or she gained by the unlawful action. Under 28 U. S. C. §2462, however, a five-year limitations period applies to “an action, suit or proceeding for the enforcement of any civil fine, penalty or forfeiture” when the SEC seeks monetary civil penalties. In Kokesh’s case, the District Court concluded that the five-year limitations period did not apply to disgorgement. The U.S. Court of Appeals for the Tenth Circuit affirmed, holding that disgorgement was neither a penalty nor a forfeiture within the meaning of section 2462. As a result Kokesh could be required to disgorge the full $35 million, with interest. -- By a vote of 9-0, the Supreme Court reversed the judgment of the Tenth Circuit. In an opinion delivered by Justice Sotomayor, a unanimous Court held that disgorgement, as it is applied in SEC enforcement proceedings, operates as a penalty under section 2462. Thus, any claim for disgorgement in an SEC enforcement action must be commenced within five years of the date the claim accrued. -- And now, to discuss the case, we have Janet Galeria, who is Senior Counsel for Litigation for the US Chamber Litigation Center at the US Chamber of Commerce.
Today's special episode devotes all three segments to the tragedy in Charlottesville, VA. First, the guys answer a question regarding the police declaration that the Unite the Right rally as an "unlawful gathering" right before the scheduled start time, illustrating the principles of time, place, and manner restrictions. During the main segment, Andrew breaks down the law of hate speech and also explains the charges filed against the individual who drove his car into the protestors. After that, Andrew answers another listener question, this one regarding Texas A&M's decision to cancel a "White Lives Matter" rally in light of the tragedy in Charlottesville. Finally, we end with an all-new Thomas Takes the Bar Exam Question #37 about the failure to timely pay on an installment contract. Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was a guest on Episode #15 of the Right to Reason podcast, arguing politics and whether your vote can be a message. Show Notes & Links
Our discussion with Travis Wester regarding the Berkeley College Republicans lawsuit took place back in Opening Arguments Episode #73. You might want to re-listen!
The "fire in a crowded theater" case is Schenck v. U.S., 249 U.S. 47 (1919) -- give it a read and you'll understand (and appreciate!) why it is no longer good law.
The modern rule on hate speech stems from Brandenberg v. Ohio, 395 U.S. 444 (1969).
Today's show is a companion to Episode 67 of Serious Inquiries Only regarding the Violent Crime Control and Law Enforcement Act of 1994. We begin, however, with a question about progressivity and fines from listener Noah Lugeons. In the main segment, Andrew tells the story of how Michael Dukakis, Slayer, and race-baiting by Newt Gingrich led to the worst aspects of the omnibus crime bill. Next, the guys cover perhaps their most anticipated "Breakin' Down the Law" ever: defending Milo Yiannopoulos, along with the ACLU. Finally, we end with the answer to Thomas Take the Bar Exam Question #36 regarding defamation. And don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances Andrew was a guest on Episode #15 of the Right to Reason podcast, arguing politics and whether your vote can be a message. Show Notes & Links
On May 22, 2017, the Supreme Court decided TC Heartland LLC v. Kraft Foods Group Brands LLC, a dispute over the proper venue for a patent infringement suit. Section 1400(b) of the patent venue statute states in relevant part that a civil action for patent infringement may be brought in the judicial district “where the defendant resides.” In the 1957 case Fourco Glass Co. v. Transmirra Prods. Corp, the Supreme Court held that for purposes of section 1400(b) a domestic corporation “resides” only in its State of incorporation--a narrower understanding of corporate “residence” than that applicable under section 1391 of the general venue statute. Under section 1391, a corporate defendant is typically deemed to reside in any judicial district where it is subject to the court’s “personal jurisdiction” with respect to the civil action in question. -- TC Heartland LLC (Heartland) is organized under Indiana law and headquartered there. Kraft Food Brands LLC (Kraft) sued Heartland in federal district court in Delaware (where Kraft is organized), alleging that products Heartland shipped to Delaware infringed on Kraft’s patents for similar products. Heartland moved to dismiss the claim or transfer venue to Indiana, arguing that it did not reside in Delaware for purposes of section 1400(b). The district court rejected these arguments and the U.S. Court of Appeals for the Federal Circuit denied mandamus relief, because its circuit precedent had concluded that more recent statutory amendments to section 1391 had effectively superseded the Fourco interpretation of “reside” in section 1400(b) and thus the broader understanding expressed in section 1391 now applied to section 1400(b) too. -- By a vote of 8-0, the Supreme Court reversed the judgment of the Federal Circuit and remanded the case. In an opinion by Justice Thomas, the Court held that the amendments to section 1391 did not modify the meaning of section 1400(b) as interpreted in Fourco; as applied to domestic corporations, “residence” for purposes of section 1400(b) still refers only to the state of incorporation. All other members of the Court joined in Justice Thomas’ opinion except Justice Gorsuch, who took no part in the consideration or decision of this case. -- And now, to discuss the case, we have J. Devlin Hartline, who is Director, Center for the Protection of Intellectual Property (CPIP) and Adjunct Professor, Antonin Scalia Law School, George Mason University.
The Biologics Price Competition and Innovation Act of 2009 (BPCIA) provides an abbreviated pathway for obtaining Food and Drug Administration (FDA) approval of a drug that is biosimilar to an already licensed biological product. Among other things, BPCIA provisions require applicants for approval of a new biosimilar to provide the manufacturer of the already licensed product with a notice of commercial marketing and certain information about the biosimilar. Failure to comply permits the manufacturer to pursue infringement litigation against the applicant on an accelerated basis. -- Amgen claims to hold patents on methods of manufacturing and using filgrastim--a biologic used to stimulate the production of white blood cells--and markets one such product, Neupogen. Sandoz sought FDA approval to market a biosimilar called Zarxio. When the FDA accepted Sandoz’s application for review, Sandoz notified Amgen that Sandoz intended to market Zarxio upon receipt of FDA approval. Sandoz also indicated that it would not share with Amgen the relevant application and manufacturing information as required by the BPCIA and invited Amgen immediately to sue for infringement. Amgen did so, and further asserted claims for “unlawful” conduct in violation of California’s unfair competition law. The basis for the latter claims was Sandoz’s alleged failure to comply with the BPCIA requirements that Sandoz (a) share the application and manufacturing information pertaining to Zarxio, and (b) provide a notice of commercial marketing prior to obtaining FDA licensure. Amgen sought injunctive relief in federal district court to enforce both requirements against Sandoz, which counterclaimed for declaratory judgments that Amgen’s patent was invalid and not infringed, and that Sandoz had not violated the BPCIA. -- While the litigation was pending, the FDA licensed Zarxio, and Sandoz provided Amgen with further notice of commercial marketing. The district court thereafter granted partial judgment in favor of Sandoz on its BPCIA counterclaims and dismissed Amgen’s unfair competition claims with prejudice. A divided U.S. Court of Appeals for the Federal Circuit affirmed in part, vacated in part, and remanded the case. The Federal Circuit held that Sandoz had not violated the BPCIA disclosure requirements and that Amgen could not pursue state law remedies to enforce the BPCIA. The court also held that an applicant may provide effective notice of commercial market only after FDA licensure and therefore enjoined Sandoz from marketing Zarxio until 180 days passed after Sandoz’s second notice. -- By a vote of 9-0, the Supreme Court unanimously vacated in part and reversed in part the judgment of the Federal Circuit and remanded the case. In an opinion by Justice Thomas, the Court held that the BPCIA’s requirement on sharing application and marketing information is not enforceable by an injunction under federal law, but that the Federal Circuit should determine on remand whether a state-law injunction is available. The Supreme Court further held that an applicant may provide the requisite notice of commercial marketing before obtaining FDA licensure; therefore Sandoz fully complied with this requirement through its initial notice, the Federal Circuit erred in enjoining Sandoz from marketing Zarxio on this basis, and Amgen’s state law unfair competition claim predicated on the view that the BPCIA forbids pre-licensure notice must fail. Justice Breyer issued a concurring opinion. -- And now, to discuss the case, we have Erika Lietzan, who is Associate Professor of Law at the University of Missouri School of Law.
In today's episode, we interview Geoffrey Blackwell from the American Atheists Legal Center. First, the guys break down the recent lawsuit filed by two LGBTQ advocacy organizations challenging President Trump's tweets regarding transgender service in the military. During the main segment, we ask Geoff what the AALC does, what kinds of cases are on his plate, and whether Trinity Lutheran v. Comer is as bad as we think it is. After that, Andrew answers a question from listener Thomas S. regarding Google's firing of an employee who wrote a bizarre, 10-page anti-woman manifesto. Finally, we end with an all-new Thomas Takes the Bar Exam Question #36 about defamation. Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! Have us on your show! Show Notes & Links
