Category: 3-LawSometimeCommentary

It's our first Flashback Friday!  On today's episode, we revisit topics from previous episodes that are once again back in the news. We begin with the breaking-est of breaking news, the new Senate version of the AHCA that literally just got released right before the show was scheduled to record.  What's in the new bill?  Listen and find out! After that, our main segment goes through the recent Supreme Court victory for our friend Simon Tam of the Slants, who previewed this case for us way back on Episode 33.  Find out what the ruling means and how it might impact future issues (like a certain D.C.-area football team). After that, we take a look at the Supreme Court's recent grant of certiorari in the Wisconsin gerrymandering case we discussed back in Episode 54.  What's the prognosis for whether the Supreme Court will finally do something about partisan gerrymandering?  Listen and find out! Finally, we end with a brand new Thomas (and Denise) Take the Bar Exam Question #29, in which next week's guest, Denise Howell, joins the guys for a preview and plays along.  Remember that you too can 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).  Answers, as always, drop on Tuesday. Recent Appearances None.  But if you're on the East Coast, you should check out Andrew's speech to the Lehigh Valley Skeptics on "Skepticism and the Law" on July 2, 2017 at 11 am by clicking here. Show Notes & Links

1. Flash back to our first discussion with Simon Tam of the Slants on Episode 33, and keep groovin' with gerrymandering by listening to Episode 54.
2. This is the text of the Senate's version of the AHCA.
3. MACPAC's analysis of the ACA referenced on the show is here.
4. This table shows the DSH allotment by state for 2016.
5. Here is the full text of the Supreme Court's opinion in Matal v. Tam (formerly Lee v. Tam).
6. Finally, here's the text of the Cooper v. Harris decision we discussed on Episode 72 that gives Andrew some cause for concern.

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In this episode, Thomas and Andrew break down the Trump Administration's decision to withdraw from the Paris Agreement regarding climate change. First, however, we celebrate Thomas being prescient in taking an in-depth look at the Ninth Circuit's rather surprising decision regarding Trump's EO 13780, the so-called "Muslim Ban." In the main segment, Andrew and Thomas answer some questions and bust some myths regarding the U.S.'s withdrawal from the Paris Agreement.  Can Trump do that?  Can the states pick up the slack?  Is there one weird trick that will solve climate change?  The answers may surprise you. After that, Andrew tackles a fun question from patron Myk Dowling about disclaimers. Finally, we end with the answer to Thomas Takes the Bar Exam Question #28, which involved a pizza joint defaming a nearby burger hut.  Can Thomas start a new, 2-game winning streak?  Listen and find out!  And, as always, we'll release a new #TTTBE question this Friday and answer that question the following Tuesday.  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), and don't forget that patrons who support us at any level get early access to the answers (and usually a fun post analyzing the question in more detail). Recent Appearances Andrew was just a guest on Episode 390 of This Week in Law, throwin' down the devil horns.  Give it a listen! Show Notes & Links

1. You can read the Ninth Circuit's recent opinion here.
2. This is the text of Executive Order 13780.
3. This is the text of Goldwater v. Carter, 444 U.S. 996 (1979), the odd case on whether a President can unilaterally withdraw from a treaty.
4. This is a link to NASA's data regarding climate change.
5. And this is the text of the U.N. Framework Convention on Climate Change, to which the U.S. was a signatory in 1992.

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If it's Friday, it's a current events episode, and if it's current events, we're probably talking about Donald Trump. We begin, however, with Breakin' Down the Law, in which Andrew answers the question raised by every single person in the universe this week:  can Jeff Sessions really do that? In our main segment, we look at the recent emoluments lawsuit brought by the Attorneys General for Maryland and Washington DC. After that, Yodel Mountain returns with a look at the Washington Post's breaking news that Donald Trump is under investigation by the FBI, as well as the GOP's purported talking points as to why this is no big deal. Finally, we end with a brand new Thomas Takes the Bar Exam question #28 about a malicious pizza store owner.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  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 today's (6/16/2017) episode of This Week in Law, as well as on Episode 24 of the Scenic City Skeptics show.  Check 'em out! Show Notes & Links

1. We first discussed obstruction of justice in Episode #70, and analyzed the status of Executive Order 13780 in Episode #51.
2. You can read the text of U.S. v. Nixon, 418 U.S. 683 (1974) here.
3. Here is a link to the Maryland/DC complaint against Trump.
4. And here is a link to Trump's motion to dismiss the CREW lawsuit.
5. This is the Washington Post story breaking news of the investigation by the FBI into Trump.
6. Here are the ostensible (and terrible) GOP "talking points" about the investigation.
7. And this is the text of the Rosenstein order appointing Mueller as special counsel.

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In this episode, Thomas and Andrew talk to the co-host of one of their favorite podcasts, Oh No Ross and Carrie, along with the show's lawyer, Matthew Strugar -- proving once and for all that other podcasts need lawyers, too. First, however, Andrew breaks down a recent viral story about whether Donald Trump's Twitter account can be a "designated public forum," a term our listeners should remember from Episode #73's discussion with Travis Wester. In the main segment, Carrie Poppy sits down for a fun and wide-ranging interview about her job and the potential legal perils that stem from investigating pseudoscience, the paranormal, and potentially dangerous religious cults. After that, the much-beloved "Are You A Cop?" segment returns with a question from listener Brian Babcock about how to deal with standard-form contracts. Finally, we end with the answer to Thomas Takes the Bar Exam Question #27, which was a complicated fact pattern involving drunk driving, punitive damages, insurance limits, and cross-examination.  Did Thomas break his streak?  Listen and find out.  And, as always, we'll release a new #TTTBE question this Friday, and, as always, answer that question the following Tuesday.  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), and don't forget that patrons who support us at any level get early access to the answers (and usually a fun post analyzing the question in more detail). Recent Appearances: Andrew was just a guest on Episode #84 of the Cellar Door Skeptics Podcast; give it a listen here. Show Notes & Links

1. Check out the Oh No Ross and Carrie podcast!
2. This is the link to Matthew Strugar's law firm in California.
3. If you want to brush up on the concept of a "designated public forum," you can revisit our discussion with Travis Wester in Episode #73 by clicking here.
4. Here is the text of the Knight First Amendment Institute's letter to Donald Trump regarding Twitter.
5. ...and here is the text of Davison v. Loudon County, 2017 WL 58294 (E.D. Va. Jan. 4, 2017), the case cited in the footnotes.

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In his much-anticipated testimony on Capitol Hill this week, former FBI Director James Comey described several uncomfortable interactions with President Trump that preceded his firing. The big question for all watching was: could any of those interactions be considered “obstruction of justice?” On this week’s episode, we put the question to Stanford Law School Professor Robert Weisberg.

We also discuss the ongoing litigation around President Trump’s executive order on immigration with Kate Shaw, an associate professor at the Cardozo School of Law and a Supreme Court analyst for ABC News. Shaw is the author of a new article in the Texas Law Review that considers what sorts of presidential speech is and isn’t admissible in a court of law. [Read Shaw’s recent New York Times op-ed on the subject here.]

Transcripts of Amicus are available to Slate Plus members, several days after each episode posts. For a limited time, get 90 days of free access to Slate Plus in the new Slate iOS app. Download it today at slate.com/app.

Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com.

Podcast production by Tony Field. 

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In his much-anticipated testimony on Capitol Hill this week, former FBI Director James Comey described several uncomfortable interactions with President Trump that preceded his firing. The big question for all watching was: could any of those interactions be considered “obstruction of justice?” On this week’s episode, we put the question to Stanford Law School Professor Robert Weisberg.

We also discuss the ongoing litigation around President Trump’s executive order on immigration with Kate Shaw, an associate professor at the Cardozo School of Law and a Supreme Court analyst for ABC News. Shaw is the author of a new article in the Texas Law Review that considers what sorts of presidential speech is and isn’t admissible in a court of law. [Read Shaw’s recent New York Times op-ed on the subject here.]

Transcripts of Amicus are available to Slate Plus members, several days after each episode posts. For a limited time, get 90 days of free access to Slate Plus in the new Slate iOS app. Download it today at slate.com/app.

Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com.

Podcast production by Tony Field. 

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If it's Friday, it's a current events episode, and if it's current events, we're probably talking about Donald Trump. We begin, however, with the second installment of a hopefully infrequent segment about stuff Andrew gets wrong.  In this case, it's actually two things.  First, Andrew clarifies the terminology related to immunity, and second, Andrew admits to falling for a hoax (!) In our main segment, we look at James Comey's testimony before the Senate regarding his firing.  How far up Yodel Mountain does this take us?  Listen and find out! After that, fan favorite Breakin' Down the Law returns with an analysis of what's going on with the Trump Administration's appeal of Executive Order 13780, the so-called "Muslim Ban," which we last discussed in Episode #51. Finally, we end with a brand new (and tricky) Thomas Takes the Bar Exam question #27 about the admissibility of a question on cross-examination regarding the availability of insurance proceeds.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  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 recent guest on Episode #84 of the Cellar Door Skeptics podcast; give it a listen. Show Notes & Links

1. We first discussed obstruction of justice in Episode #70, and analyzed the status of Executive Order 13780 in Episode #51.
2. Snopes debunked the Berkeley Breathed letter here.
3. The relevant obstruction statutes are 18 U.S.C § 1501 et seq.
4. The two cases Andrew found that involve valid prosecutions for obstruction of justice where the defendant used the "I hope" construction in threatening a witness are U.S. v. Bedoy, 827 F.3d 495 (5th Cir. 2016) and U.S. v. McDonald, 521 F.3d 975 (8th Cir. 2008).
5. This is the text of Executive Order 13780.

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In this freewheeling episode, Andrew walks through a recent decision in California regarding a key employee who worked on self-driving cars and was recruited by a competitor. First, however, the guys talk about Episode #73's discussion with Travis Wester and what lessons hopefully we all can take away from it, including answering a listener question from Lyman Smith on how to go about finding primary sources. Next, the guys discuss "Mr. Met" and the doctrines of factual and legal impossibility.  Can a four-fingered mascot really give anyone the "middle" finger?? In the main segment, Andrew breaks down the recent federal court opinion in California enjoining a former Waymo employee from working on Uber's self-driving car program, and along the way highlights the differences between non-compete clauses, non-solicitation clauses, and trade secrets. After that, Andrew tells a fun story in answering a listener question from Michael Grace regarding the craziest legal argument Andrew's ever heard. Finally, we end with the answer to Thomas Takes the Bar Exam question #26 about composite sketches inspired by dead witnesses.  We'll release a new #TTTBE question this Friday, and, as always, answer that question the following Tuesday.  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), and don't forget that patrons who support us at any level get early access to the answers (and usually a fun post analyzing the question in more detail). Recent Appearances: None!  Have us on your show! Show Notes & Links

1. Here's the Tweet from Darren Rovell that inspired our "A" segment.
2. ..and here's the link to the Wikipedia entry on the Impossibility defense, as a good exercise in finding primary sources.
3. This is the New York Times article about the Waymo lawsuit; and the actual lawsuit can be found here.
4. Finally, you can revisit our lengthy discussion with Travis Wester in Episode #73 by clicking here.

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On March 22, 2017, the Supreme Court decided Czyzewski v. Jevic Holding Corporation. Jevic Transportation, Inc., a trucking company headquartered in New Jersey, was purchased by a subsidiary of Sun Capital Partners in 2006. In 2008 Jevic filed for bankruptcy under Chapter 11 of the Bankruptcy Code, at which that point it owed about $73 million to various creditors. Jevic’s former truck drivers then sued it for violating federal and state Worker Adjustment and Retraining Notification Acts, by failing to provide the requisite 60 days’ notice before a layoff. Separately, unsecured creditors filed a fraudulent conveyance action. In March 2012, representatives of all the major parties met to negotiate a settlement of the fraudulent conveyance suit. The representatives--except for the drivers’ representative--agreed to a settlement that would provide for payment of legal and administrative fees, a schedule for the payment of various creditors (though not the drivers), and ultimately a “structured dismissal” of the Chapter 11 bankruptcy. -- The drivers and US Trustee objected, arguing that the settlement would improperly distribute estate property to creditors with lower priority than the drivers, in violation of the Bankruptcy Code. The Bankruptcy Court rejected these objections and approved the proposed settlement. The U.S. District Court and then the U.S. Court of Appeals for the Third Circuit affirmed, holding that the Bankruptcy Court had not abused its discretion in approving a structured dismissal that did not adhere strictly to the Bankruptcy Code’s priority scheme. -- By a vote of 6-2, the U.S. Supreme Court reversed the judgment of the Third Circuit and remanded the case. In an opinion by Justice Breyer, the Court held that (1) the drivers have Article III standing to bring the present litigation; and (2) bankruptcy courts may not approve structured dismissals of Chapter 11 bankruptcy cases that provide for asset distributions which do not follow ordinary priority rules established by the Bankruptcy Code without the consent of affected creditors. Justice Breyer’s majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Thomas filed a dissenting opinion, in which Justice Alito joined. -- To discuss the case, we have Thomas Plank, who is the Joel A. Katz Distinguished Professor of Law at the University of Tennessee College of Law.

On May 1, 2017, the Supreme Court decided Bank of America Corp. v. City of Miami, which was consolidated with Wells Fargo & Co. v. City of Miami. In this case, the city of Miami sued Bank of America Corporation and similar defendants under the Fair Housing Act (FHA), arguing that the banks engaged in predatory lending practices that targeted minorities for higher-risk loans, which resulted in high rates of default and caused financial harm to the city. Miami also alleged that the banks unjustly enriched themselves by taking advantage of benefits conferred by the city, thus denying the city expected property and tax revenues. -- The district court dismissed the FHA claims and held that Miami did not fall within the “zone of interests” the statute was meant to protect and therefore lacked standing under the statute. The court also held that Miami had not adequately shown that the banks’ conduct was the proximate cause of the harms the city claimed to have suffered. The U.S. Court of Appeals for the Eleventh Circuit reversed, holding that FHA standing extends as broadly as Article III of the Constitution permits, that Miami had established Article III standing here, and that it had sufficiently alleged proximate causation. -- By a vote of 5-3, the Supreme Court vacated the judgment of the Eleventh Circuit and remanded the case. In an opinion by Justice Breyer, the Court held that (1) the city of Miami was an "aggrieved person" authorized to bring suit under the Fair Housing Act; and (2) the Eleventh Circuit erred in concluding that the city's complaints met the FHA's proximate-cause requirement based solely on the finding that the city's alleged financial injuries were a foreseeable results of the banks' misconduct; proximate cause under the FHA requires “some direct relation between the injury asserted and the injurious conduct alleged”; the lower courts should define, in the first instance, the contours of proximate cause under the FHA and decide on remand how that standard applies to the city's claims for lost property-tax revenue and increased municipal expenses. Justice Breyer’s majority opinion was joined by the Chief Justice and Justices Ginsburg, Sotomayor, and Kagan. Justice Thomas filed an opinion concurring in part and dissenting in part, in which Justices Kennedy and Alito joined. Justice Gorsuch took no part in the consideration or decision of the cases. -- To discuss the case, we have Thaya Brook Knight, who is associate director of financial regulation studies at the Cato Institute.