Category: 3-LawSometimeCommentary

In today's episode, we look at a recent Supreme Court decision that could have wide-ranging effects on future trials. We begin, however, by "Breakin' Down the Law" regarding House Intelligence Chairman Devin Nunes.  Did he just violate the law Republicans kept trying to insist applied to Hillary Clinton's emails?  (Yes.) In our main segment, we delve into a recent Supreme Court decision, Pena-Rodriguez v. Colorado, in which the Court held that a defendant's Sixth Amendment right to a fair trial means that jurors must be free to report blatant racial bias in otherwise-private jury deliberations, even if the law says otherwise.  How the Court came down on this issue is also reflective of the split on the Supreme Court between the originalist justices and the mainstream ones. Next, long-time friend of the show Eric Brewer returns with a question about felon voting rights. Finally, we end with a brand new Thomas Takes the Bar Exam question #17 that asks about the common law behind "as is" used cars.  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 and Thomas were guests on Eiynah's podcast, Polite Conversations, Panel Discussion #6 talking about liberals vs. conservatives on free speech.  Give it a listen! Show Notes & Links

1. Here's the story on Devin Nunes's disclosures of confidential intelligence briefings to the press and to White House flacks.
2. And this is the text of 18 U.S.C. § 793(f)(1), which is indeed the same statute Republicans sought to use against Hillary Clinton.  This counts as irony, right?
3. And finally, this is the Supreme Court's decision in Pena-Rodriguez v. Colorado.

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

On February 27, 2017, the Supreme Court heard oral argument in Packingham v. North Carolina. Lester Packingham was convicted in 2002 of taking “indecent liberties” with a minor in violation of North Carolina law, and sentenced to prison time followed by supervised release. In 2010, he was arrested after authorities came across a post on his Facebook profile--which he had set up using an alias--in which he thanked God for having a parking ticket dismissed. Packingham was charged with, and convicted of, violating a North Carolina law that restricted the access of convicted sex offenders to “commercial social networking” websites. -- Packingham challenged his conviction on First Amendment grounds, arguing that the North Carolina statute unlawfully restricted his freedom of speech and association, but the Supreme Court of North Carolina ultimately rejected his claim. The website access restriction, the Court concluded, was a content-neutral, conduct-based regulation that only incidentally burdened Packingham’s speech, was narrowly tailored to serve a substantial governmental interest, and left open ample alternative channels of communication. -- The question before the U.S. Supreme Court is whether, under the Court’s First Amendment precedents, a law that makes it a felony for any person on the state's registry of former sex offenders to “access” a website that enables communication, expression, and the exchange of information among users--if the site is “know[n]” to allow minors to have accounts--is permissible on its face and as applied to Packingham. -- To discuss the case, we have Ilya Shapiro, who is Senior Fellow in Constitutional Studies at the Cato Institute.

On February 21, 2017, the Supreme Court heard oral argument in McLane Co. v. EEOC. Damiana Ochoa worked for McLane Company, a supply chain company. After returning from maternity leave, Ochoa was required to take a “physical abilities” test, which she failed three times. Ochoa was fired by McLane but then filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that McLane violated Title VII of the Civil Rights Act of 1964. The EEOC opened up an investigation and issued a subpoena for information McLane withheld, including either “pedigree information” for each test-taker or reasons the test-taker’s employment was terminated. When McLane refused, EEOC filed a subpoena enforcement action. The district court granted enforcement of the subpoena with respect to some information (such as the gender and score of each test taker) but declined to require the production of pedigree information or the reasons why others who had failed the test were terminated. The U.S. Court of Appeals for the Ninth Circuit, reviewing the district court’s decision “de novo,” held that the district court had erred in refusing to compel production of the pedigree information, and also needed to consider whether production of the reasons for other terminations would be unduly burdensome. -- The question before the U.S. Supreme Court is whether a district court’s decision to quash or enforce an EEOC subpoena should be reviewed de novo, which only the Ninth Circuit does, or should be reviewed deferentially, which eight other circuits do. -- To discuss the case, we have Karen Harned, who is Executive Director of the National Federation of Independent Business Small Business Legal Center.

On February 21, 2017, the Supreme Court heard oral argument in Hernandez v. Mesa. In 2010, Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, died after being shot near the border between El Paso, Texas and Juarez, Mexico by Jesus Mesa, Jr., a U.S. Border Patrol Agent. Hernandez’s parents, who contend that their son was on Mexican soil at the time of the shooting, sued Mesa in federal district court in Texas, alleging violations of the Fourth and Fifth Amendments. After hearing the case en banc, the U.S. Court of Appeals for the Fifth Circuit ultimately ruled in favor of Mesa, concluding that Hernandez could not assert a Fourth Amendment claim and that Mesa was entitled to qualified immunity on the parents’ Fifth Amendment claim. -- There are three questions now before the Supreme Court: (1) whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment’s prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) whether qualified immunity may be granted or denied based on facts – such as the victim’s legal status – unknown to the officer at the time of the incident; and (3) whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents. -- To discuss the case, we have Steven Giaier, who is Senior Counsel for the House Committee on Homeland Security.

Today's episode continues our look at appellate jurisprudence, Supreme Court nominee Neil Gorsuch, and the philosophy of originalism that Andrew continues to insist is so extreme ast o be disqualifying. First, our much-beloved segment "Are You A Cop?" returns in triumphant fashion with an examination of a claim being raised by many Trump supporters; namely, that the 9th Circuit is "the most reversed appellate court in the country" with a "90% reversal rate."  Is this claim true?  (No.) In the main segment, we take a look at the Supreme Court's just-released opinion in Endrew F. v. Douglas County School District.  Is this a "unanimous reversal" of Gorsuch on appeal while Gorsuch's nomination remains pending??  As usual, we correct the news sources that got this story wrong and explain its significance to you. Next, we answer a question/comment from Ed Brayton, author of the "Dispatches From The Culture Wars" blog, who has a different take on originalism. Finally, we end with the answer to Thomas Takes the Bar Exam question #16 about apparent authority.   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 and Thomas were guests on Eiynah's podcast, Polite Conversations, Panel Discussion #6 talking about liberals vs. conservatives on free speech.  Give it a listen! Show Notes & Links

1. This Politifact Article debunks the claim that the 9th Circuit is the "most reversed" appellate court.
2. This is the text of the Endrew F v. Douglas County School Dist. opinion just issued by the Supreme Court.
3. And here is the Endrew F opinion from the 10th Circuit (not authored by Gorsuch) that was reversed.
4. Finally, this is the Luke P decision that was by Gorsuch discussed in the episode.
5. And by contrast, this is Urban v. Jefferson County School Dist., 89 F.3d 720 (1996), which you can read for yourself and see that Gorsuch deliberately misconstrued.
6. You can read Ed Brayton's excellent blog, Dispatches From The Culture Wars, by clicking here.

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  

This week, the Senate held four days of hearings on the nomination of Judge Neil Gorsuch to the vacant seat on the Supreme Court. What did we learn about Gorsuch from his 20-odd hours in the hot seat? Did the Democrats gain anything of value from the testimony? Did Gorsuch say anything of substance? And, in the end, will the hearings even matter? In this bonus episode, we reflect on the hearings with veteran political operative Ron Klain and Slate’s own Mark Joseph Stern.

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.

Amicus is brought to you by The Great Courses Plus, a video lecture service that offers lectures on all kinds of topics. Get the first full month FREE when you sign up by going to TheGreatCoursesPlus.com/amicus.

Please let us know what you think of Amicus. Our email is amicus@slate.com. Follow us on Facebook here.

Podcast production by Tony Field.

Learn more about your ad choices. Visit megaphone.fm/adchoices

This week, the Senate held four days of hearings on the nomination of Judge Neil Gorsuch to the vacant seat on the Supreme Court. What did we learn about Gorsuch from his 20-odd hours in the hot seat? Did the Democrats gain anything of value from the testimony? Did Gorsuch say anything of substance? And, in the end, will the hearings even matter? In this bonus episode, we reflect on the hearings with veteran political operative Ron Klain and Slate’s own Mark Joseph Stern.

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.

Amicus is brought to you by The Great Courses Plus, a video lecture service that offers lectures on all kinds of topics. Get the first full month FREE when you sign up by going to TheGreatCoursesPlus.com/amicus.

Please let us know what you think of Amicus. Our email is amicus@slate.com. Follow us on Facebook here.

Podcast production by Tony Field.

---

Hosted on Acast. See acast.com/privacy for more information.

In today's episode, we look at the history and potential future of gerrymandered congressional districts. We begin, however, with a listener question that's come to us from multiple sources, including Patrons Greg Boettcher and Adrian Borschow, who want to know if there's any difference between a "jail" and a "prison."  We deliver the goods! In our main segment, we delve into three recent cases regarding the time-honored practice of gerrymandering a state into congressional districts so as to maximize the number of safe seats for any one political party.  How significant is this problem, and can the courts fix it?  Listen and find out! Next, our much-beloved segment "Closed Arguments" returns with a look at a British tabloid journalist, Katie Hopkins, who was recently forced to pay more than 300,000 pounds (that's still real money, right?) after mistakenly taunting another journalist on Twitter. Finally, we end with a brand new Thomas Takes the Bar Exam question #16 that asks whether an administrative assistant has sufficient authority to bind her boss when making contracts. 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: None.  Have us on your podcast, radio or TV show, or interview us! Show Notes & Links

1. The first Supreme Court case to recognize a constitutional right to a non-gerrymandered district was Davis v. Bandemer, 478 U.S. 109 (1986).
2. Scalia (of course) attempted to overrule Davis v. Bandemer in his 2004 plurality opinion in Vieth v. Jubelirer, 541 US 267 (2004), but could only garner four votes.
3. Since then, the Supreme Court has reaffirmed the basic principle of Davis v. Bandemer in LULAC v. Perry, 548 US 399 (2006), in which only two sitting Supreme Court justices have endorsed the Scalia position.
4. This is a fairly awesome video from former California Gov. Arnold Schwarzenegger making gerrymandering the centerpiece of what is likely to be a run for the Senate in 2018.
5. This is the Whitford et al. v. Gill (Wisc.) decision on gerrymandering that contains a detailed section as to how to detect and remedy "packing" and "cracking."
6. This is the full text link to the Perez v. Abbott (W.D. Texas) decision on Texas's gerrymandered congressional districts.
7. Andrew recommends Princeton professor Sam Wang's work on gerrymandering.  The full text of his Stanford Law Review article is here.

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  

On February 22, 2017, the Supreme Court decided Life Technologies Corp. v. Promega Corp. Promega Corporation owned four patents for technology used in kits that can conduct genetic testing and was the exclusive licensee of a fifth patent. In 2010, Promega sued Life Technologies Corporation (LifeTech) for allegedly infringing on these patents. A jury found in favor of Promega but the district court nevertheless ruled for LifeTech, concluding that Promega had failed to present evidence sufficient to sustain the favorable jury verdict. The U.S. Court of Appeals for the Federal Circuit reversed that judgment, holding that the four Promega patents were ultimately invalid but agreeing that LifeTech had infringed the fifth patent and remanding to the district court for a determination of damages. In the course of its ruling, the Federal Circuit concluded that LifeTech’s supplying of a single, commodity component of a mulit-component invention had exposed LifeTech under federal law to damages liability on worldwide sales. -- The question before the Supreme Court was whether the Federal Circuit erred in holding that supplying a single, commodity component of a multi-component invention from the United States exposes a manufacturer to liability for worldwide sales. -- By a vote of 7-0, the Supreme Court reversed the judgment of the Federal Circuit and remanded the case. In an opinion by Justice Sotomayor, the Court held that the supply of a single component of a multicomponent invention for manufacture abroad does not give rise to liability under Section 271(f)(1) of the Patent Act, which prohibits the supply from the United States of "all or a substantial portion of the components of a patented invention" for combination abroad. Justice Sotomayor’s opinion was joined by Justices Kennedy, Ginsburg, Breyer, and Kagan. Justices Thomas and Alito joined the majority opinion as to all but Part II-C. Justice Alito filed an opinion concurring in part and concurring in the judgment, in which Justice Thomas joined. Chief Justice Roberts was recused. -- To discuss the case, we have Howard J. Klein who is Attorney at Law at Klein, O’Neill & Singh, LLP.

In today's episode, we take a look at a recent claim being made by Sen. Al Franken and others that Attorney General Jeff Sessions perjured himself during his confirmation hearings. First, we begin with an examination of some legal issues in the news related to the Trump administration.  What does it mean that the ABA rated Supreme Court nominee Neil Gorsuch "well qualified," and does that mean Andrew is rethinking his opinions to the contrary in Episode 40 and Episode 49?  (No.)  We also delve into a discussion of the recent (non-)story regarding the release of Donald Trump's 2005 form 1040, as well as the recent decisions by U.S. District Courts in Hawaii and Maryland to issue temporary restraining orders blocking Trump's Revised Executive Order ("Muslim Ban"). In the main segment, we break down exactly what Sessions said and whether it meets the technical requirements for perjury. Next, we answer a question from patron Anthoni Fortier, who asks us what "cert" is and why Andrew keeps saying it. Finally, we end with the answer to Thomas Takes the Bar Exam question #15 about eyewitness identification.   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: None.  Have us on your podcast, radio or TV show, or interview us! Show Notes & Links

1. This is the full text of the Hawaii decision enjoining the Revised Executive Order.
2. If you missed it, you'll want to check out OA Episode #43, in which we first discussed the 9th Circuit's Opinion that we revisit in this episode.
3. This is the full text of President Trump's revised Executive Order ("Muslim Ban").
4. And this is the decision in Church of Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), which Andrew continues to think is the touchstone for whether Trump's Revised EO violates the First Amendment.
5. Here is the full text of 18 U.S.C. § 1001, the federal perjury statute.
6. This is a timeline maintained by the Washington Post of Sessions's relevant conduct.
7. This is the tweet from John Harwood confirming that Russian officials did discuss the election with Jeff Sessions.
8. And here is an article in the National Review arguing to the contrary (largely on the grounds of 'intent').

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 Direct Download