Category: 3-LawSometimeCommentary

The “brothers-in-law” Vik and Akhil Amar have filed an amicus brief in Trump v. Anderson et al.  The brief contains a dramatic historic episode that you almost certainly knew nothing about, and which is highly relevant - perhaps decisive - to the case.  Prepare to be amazed by this story of the “First Insurrection,” which preceded and was distinguishable from the Civil War itself, and which makes clear the certain intent of the framers and ratifiers of the Fourteenth Amendment - and the course the Supreme Court should take in this case. This, and the episodes to follow, may be the most important episodes we have offered in the more than three years of this podcast. CLE credit is available from podcast.njsba.com.

The immigration fight on the U.S. - Mexico border keeps getting uglier - not between the U.S. and its southern neighbor, Mexico, but between the federal government and a Texas administration apparently unconcerned by constitutional supremacy. Earlier this month, members of the Texas Military Forces took over a public park in Eagle Pass, TX at the behest of Gov. Greg Abbott. The park, on the banks of the Rio Grande, is near a frequently used border crossing. Last weekend, Texas forces blocked Federal Border Patrol agents from reaching a woman and two children who had drowned trying to cross the river into the United States.  

The move by Abbott is certainly shocking, but it’s an example of ways the state is trying to intervene in federal police powers and responsibilities. In a series of increasingly urgent filings, the Justice Department is pleading with the Supreme Court to intervene to let Federal agents enforce Federal laws. 

Rochelle Garza, president of the Texas Civil Rights Project, joins the show to discuss how the cruelty of Abbott’s approach is undermining Texas communities and creating a constitutional crisis that may originate in Texas, but will not remain there. 

Dahlia is joined by SCOTUS-whispering wingman Mark Joseph Stern in today’s Slate Plus segment to discuss why the High Court’s response to Texas’ game of chicken with the Feds is so dangerously sluggish. Next, they explore the oral arguments in the big Chevron-overturning vehicle that is Loper Bright, a case that was supposed to be about fishermen but is actually about overturning tens of thousands of agency law decisions and grabbing power from the elected branches and handing it to the judiciary.  

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Liz and Andrew dive deeply into Alina Habba and Michael Madaio's efforts to cross-examine E. Jean Carroll and her expert, Dr. Ashlee Humphreys. Plus much, much more!

Notes Ameriekalinje v. Sun P. P. Assn, 226 N.Y. 1 (1919) https://casetext.com/case/norske-ameriekalinje-v-sun-p-p-assn

Justice Manual 9-5.000 https://www.justice.gov/jm/jm-9-5000-issues-related-trials-and-other-court-proceedings

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On January 16, 2024, the Supreme Court heard oral argument in Macquarie Infrastructure Corp. v. Moab Partners, L.P. The Court considered whether U.S. Court of Appeals for the 2nd Circuit erred in holding that a failure to make a disclosure required under Item 303 of SEC Regulation S-K can support a private claim under Section 10(b) of the Securities Exchange Act of 1934, even in the absence of an otherwise misleading statement.

Featuring:
Professor Adam Pritchard, Frances and George Skestos Professor of Law, University of Michigan Law School

After a roundup including the first day of the E. Jean Carroll trial, Liz and Andrew break down the latest SpaceX lawsuit and discuss what it might mean for the future of collective bargaining.

Notes Nathan J. Robinson, researcher, Current Affairs, “Surely We Can Do Better Than Elon Musk,” April 7, 2021 https://www.currentaffairs.org/2021/04/surely-we-can-do-better-than-elon-musk

S. Derek Turner, “Broadband Boondoggle: Ajit Pai's $886M Gift to Elon Musk,” Free Press, December 14, 2020 https://www.freepress.net/our-response/expert-analysis/insights-opinions/broadband-boondoggle-ajit-pais-886m-gift-elon-musk

NLRB proceedings against SpaceX https://www.nlrb.gov/case/31-CA-307446

NLRA, 29 U.S.C. § 151 et seq.https://www.law.cornell.edu/uscode/text/29/chapter-7/subchapter-II

NLRB damages chart https://www.nlrb.gov/reports/nlrb-case-activity-reports/unfair-labor-practice-cases/remedies-achieved/monetary-remedies

SpaceX v. NLRB docket https://www.courtlistener.com/docket/68136196/space-exploration-technologies-corp-v-national-labor-relations-board/Paragraph

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Melissa, Kate, and Leah recap oral arguments in cases about the No Fly List, the confrontation clause, and what qualifies as a government taking. They also preview the cases the Supreme Court will hear this week about Chevron, the doctrine that gives federal agencies the authority to interpret statues. Plus, they recap the arguments in the DC Circuit in which Trump argues he's immune from criminal prosecution (and in which his lawyer suggests he could freely use SEAL team 6 to assassinate a political opponent).

• Read Leah's article with Dan Deacon, "The New Major Questions Doctrine"

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Today, Liz and Andrew document Donald Trump's latest (failed) shenanigans in the E. Jean Carroll defamation trial set to begin in New York on Tuesday. Then, they break down in depth the motion to disappear the Fulton County, GA indictment on the grounds of DA Fani Willis's alleged relationship with special prosecutor Nathan Wade. NotesTrump DC Docket https://www.courtlistener.com/docket/67656595/united-states-v-trump   E. Jean Carroll v. Trump (Carroll I) docket https://www.courtlistener.com/docket/18418220/carroll-v-trump/   Roman Motion to Dismiss GA https://s3.documentcloud.org/documents/24352568/roman-motion-to-dimiss-010824.pdf   Whitworth v. State, 622 S.E.2d 21 (Ga. App. 2005) https://scholar.google.com/scholar_case?case=3050238223814330373   Paragraph

 

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There’s an ever-growing queue of cases concerning Donald Trump headed for the Supreme Court that threaten to further dent the legitimacy of an institution that has tumbled in the public’s estimation in the last few years. This week’s show examines some of the interlocking issues raising the already sky-high stakes at One, First Street. First, Dahlia Lithwick kicks off the show with an update from Slate’s Law of Trump chief correspondent Jeremy Stahl about arguments in Trump’s immunity appeal at the DC Circuit Court this week. Next, we turn to a conversation with Professor Ben Johnson, an Associate Professor of Law at the University of Florida Levin College of Law. He recently wrote about the very long history of how the Supreme Court granted itself vast power to shape the law and policy by picking and choosing not only which cases it would hear, but also which questions it would answer when it hears those cases. Next week’s arguments in Loper Bright Enterprises v Raimundo are a case in point, and the question of questions also poses a conundrum for a court in a downward legitimacy spiral, as a parade of Trump cases head toward the High Court. 

In this week’s Amicus Plus segment, Dahlia is joined by Slate’s Jeremy Stahl to discuss the bread and circus of closing arguments in the Trump Organization civil fraud trial in New York, and the next phase of litigation involving the former President and E Jean Carroll that gets underway next week. 

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Liz and Andrew describe the truly audacious plan cooked up by Trump and his counsel to disrupt his fraud trial's closing arguments.

Then, the two break down a recent TRO entered prohibiting Ohio's social media ("anti-TikTok") law from going into effect.

Notes Pew Media Poll

https://www.pewresearch.org/short-reads/2023/10/31/81-of-us-adults-versus-46-of-teens-favor-parental-consent-for-minors-to-use-social-media/

NetChoice, LLC  v. Yost, 1/5 Complaint

https://storage.courtlistener.com/recap/gov.uscourts.ohsd.287455/gov.uscourts.ohsd.287455.1.0.pdf

NetChoice, LLC v. Yost, 1/9 Order

https://storage.courtlistener.com/recap/gov.uscourts.ohsd.287455/gov.uscourts.ohsd.287455.27.0_1.pdf

Ohio Rev. Code 1349.09

https://codes.ohio.gov/ohio-revised-code/section-1349.09

OA 767

https://openargs.com/oa767-porn-wont-someone-please-think-of-the-children-feat-ari-cohn/

On November 29, 2023, the Supreme Court heard oral argument in Securities and Exchange Commission v. Jarkesy. The Court considered three questions – (1) Whether statutory provisions that empower the Securities and Exchange Commission (SEC) to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment; (2) Whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine; (3) Whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection.

Join us as we break down and analyze how oral argument went before the Court.

Featuring:
Margaret A. Little, Senior Litigation Counsel, New Civil Liberties Alliance