This week’s episode covers two cases, Sessions v. Dimaya & Esquivel-Quintana v. Sessions, which cover the Constitutionality and fairness of removal statutes that require deportation on statutory grounds.  Law starts at (09:18), but you’d be missing discussions on French politics and a special guest appearance by Nazim’s wife Katya, who discusses some helpful men’s fashion tips for the summer.

New Episode!

This mini-episode covers the recent opinions in Nelson v. Colorado, Manrique v. U.S, and the Court’s recent denial of Arkansas Death Penalty Appeals.

New Episode!

Civil SCOTUS Lightning Round

Posted: April 23, 2017 by Nazim in Uncategorized

With the 2016/2017 term plodding toward its conclusion, Brett and Nazim discuss a few civil cases that fell through the cracks, including Lewis v. Clark (covering tribal sovereign immunity for casino employees), Microsoft Corp. v. Baker (weird civil procedure moves in class action lawsuits, and Town of Chester v. Laroe Estates (intervention standards when you hate your municipality).  Law starts at (05:32).

New Episode!

Things have been pretty serious lately, so this week’s episode takes a leisurely detour into the legal implications following American Airlines forcibly dragging a passenger off the plane, which discussions on include contract law, the FAA’s agency authority, trespasser liability, and somehow Ralph Nader.  Spoiler Alert, the law mostly favors the airline and the law starts at (15:40!), so lets be careful out there, folks!

New Episode!

Three Opinions and a Gorsuch

Posted: April 9, 2017 by Nazim in Uncategorized

What started as a late night podcast covering Manuel v. City of Joliet (Ted Danson), SW General v. NLRB (Steve Guttenberg), and Moore v. Texas (Tom Selleck), ended up becoming a deeper discussion about judicial discretion and the Supreme Court nomination of Neil Gorsuch (the baby).  Law starts at (04:21).

New Episode!

a_002

WHAT HAPPENED: Tam is a member of THE SLANTS, an Asian-American rock band who sound like your friend’s band who you always get invited to see live but never want to see live because they are not very good.  Tam sought to trademark the band’s name, but was denied by the U.S. Patent and Trade Office (“the PTO”) for being an antiquated racial slur.

WHY IS THIS BEFORE THE SUPREME COURT:  The PTO has a policy in place that denies trademark protection for offensive words, which is the basis under which the PTO denied Tam’s request.  The issue in this case is not whether the term THE SLANTS is offensive, but more broadly whether or not the PTO can constitutionally ban trademark terms based on their subjective standard for obscenity.  The lower court ruled in favor of THE SLANTS and held that the PTO’s policy is void as a matter of law.

WHAT ARE THE RAMIFICATIONS – It may seem obnoxious to point out that this only benefits rock bands with offensive names, but it is worth noting that there are more offensive band names than you may realize.  I have a friend who works for a very popular death metal record label, and his email signature would promote bands like DYING FETUS and album names like SULFUR AND SEMEN, so if you’re a hairy, stocky white dude who claims to worship Satan, this case could be for your benefit.  More generally, this case speaks to what the First Amendment actually gives you from the government.  On one hand, this is a government agency who is censoring private speech,; but more specifically, the government is not imprisoning THE SLANTS, but just not granting them additional commercial protection, which is an important distinction.  Most likely, that will be what this case turns on.

ROOT FOR LEE IF:  you don’t need to curse in your albums to sell records.

ROOT FOR TAM IF: you do, so f*** Will Smith, and f*** you too.

PREDICTION:  Tam 5-3

 

a_002

WHAT HAPPENED: Appellant was convicted of a criminal offense and filed an appeal.  Subsequent to that filing, the Court imposed $4,500.00 in fines.  Appellant did not amend their Notice of Appeal, but assumed that the original notice would have encapsulated all issues present in the case.  The government argues that the notice had to be amended to include the monetary penalties.

WHY IS THIS BEFORE THE SUPREME COURT:  Stop me if you’ve heard this before in these case reviews.  A very strict application of the rules favors the government, but a very strict application of the rules would require you to bury your head in the sand and ignore the many ways that the rules are unfair and stupid.  Although the Appellant here did not follow the rules, it also does not hurt the government at all to allow the notice to include all applicable issues.

WHAT ARE THE RAMIFICATIONS – The worst part about the law is the way that Court rules set arbitrary deadlines and then strictly apply those deadlines independent of reason or mercy.  If Appellant wins, the system would make it easier for criminal defendants with either overwhelmed or bad lawyers on their side to appeal all aspects of their case, but that result is mostly likely going to make bad lawyers lazier.  Once again, the question here is whether it worth the Court’s time and energy to find a way to bend the rules, or if it is easier to let this defendant’s judgment stand to keep the rules clear and unassailable.

ROOT FOR MANRIQUE IF: you are a bad and/or overwhelmed lawyer.

ROOT FOR COLORADO IF: you are Government lawyer who likes having less work based on technicalities.

PREDICTION:  U.S. 8-0

a_002

WHAT HAPPENED: Appellant was convicted of selling meth in order to pay off treatment of cancer because apparently selling meth is lucrative.  Appellant was accused of being in a conspiracy with a former student of his with clever catch-phrases with a relative of his who kept all the money they made.  After getting caught, Appellant murdered his brother in law, went into hiding, and returned only to exact revenge on a collection of side characters and murder a warehouse full of Neo-Nazi’s was hit with a $75,0000.00 restitution order that he could not afford, because he never received any of the money that was earned in the conspiracy.

WHY IS THIS BEFORE THE SUPREME COURT:  Joint and several liability is a legal doctrine that states if more than one person is liable for a monetary amount, than each of those people are liable for the amount owed in full.   In other words, if three people are liable for $100K, then each of them could be liable for the full amount, and it does not have to be split in thirds.  Appellant here argues that it is unfair to be joint and severally liable for the restitution order because he did not actually receive the money he is liable for.  The background of the law is that conspiracy defendants are always joint and severally liable, but a weird case out of D.C. has cast doubt on whether that applies universally or if there are exceptions.

WHAT ARE THE RAMIFICATIONS – It is unlikely that the Court is going to strike down all joint and several liability, but more likely that the Court is going to clarify the weird D.C. Court case stated above.  That case in question dealt with millions of dollars in a vast drug dealing conspiracy, so it is both factually and legally distinguishable from the present issue.  Also, the government has argued that removing joint and several liability would make recouping conspiracy funds impossible, since people could just say “I don’t have it”, and give that money to someone else.  For those reasons, should the defendant win somehow, it is more likely to be on a factual nuance in this case, rather than a substantial change in the law.

ROOT FOR HONEYCUTT IF: you feel this case is pretty lame as far as Breaking Bad fan-fiction goes.

ROOT FOR U.S. IF: you know you can’t get blood from a stone, but still like to give it a squeeze.

PREDICTION:  U.S. 8-0

a_002

WHAT HAPPENED: The Plaintiffs are the parents of a Mexican teenager who was shot by a U.S. border guard standing on U.S. soil.  Plaintiffs are suing the Defendant (the guard) for Constitutional claims related to the shooting.

WHY IS THIS BEFORE THE SUPREME COURT:  Plaintiffs filed their lawsuit in the United States, and the Defendant has taken every action imaginable to dismiss the case, including arguing that the jurisdiction is wrong for a 4th amendment claim, that the Bivens analysis is incorrect, and that Defendant is immune because there is no precedent saying you can’t shoot non-citizens across the border (which is factually right, but it’s not like shooting people is ever OK).  Defendant has won at the lower level, so the case was dismissed.

WHAT ARE THE RAMIFICATIONS – There is a legal axiom that says “bad cases make bad law”.  While it is easy to look at this case and say “you shouldn’t people” (which is most of the Plaintiff’s arguments), if you stretch the borders and the rules for this case, you end up complicating other issues where a strict application of border lines and qualified immunity make sense.  The balance here is whether it is better for the Court to try to craft a rule that best resolves this question, or whether it is better to just make an unfair ruling in this case and keep the rules as is.  Adding complication to this case is the fact that an amicus brief from Border Guards have advocated for liability in this case, as the dangerous environment surrounding the border needs more civil liability to keep things under control.  Not to say that is going to sway things, but it adds context to where the situation is and why the Plaintiffs’ arguments make more sense the more you hear about facts of the case.

ROOT FOR HERNANDEZ IF: shooting people isn’t OK.

ROOT FOR MESA IF: shooting people is OK if you have a bunch of dumb rules in place to protect you.

PREDICTION:  Mesa 6-2

a_002

WHAT HAPPENED: The Appellants were convicted of criminal charges and paid fines.  Appellants subsequently won their appeal and their convictions were overturned.  Appellant asked for their fees back, but Colorado said they had to go to civil court and prove their innocence by clear and convincing evidence to get their money back.

Wait…..

(reads facts again)

HAHAHA that’s so stupid.  OK sure let’s do this.

WHY IS THIS BEFORE THE SUPREME COURT:  Colorado argues that once the fines are paid into the Court system, the money becomes the ownership of the State and that it’s the Defendant’s burden to prove that they can get it back.

(reads appellate brief again)

HAHAHAHA seriously Colorado maybe it’s time to ban weed again.

WHAT ARE THE RAMIFICATIONS – Ok, seriously this time.  You could argue that this case represents the Court stepping on State’s rights because if Colorado wants to have a stupid rule about keeping your fines, they should be allowed to do whatever they want.  That being said, this clearly violates procedural due process, probably violates substantive due process, and could colorably be classified as a government taking without due process.  Luckily we don’t have anyone from Colorado joining significant parts of the Federal judiciary with life tenure anytime soon.

(reads news)

HAHAHAHAHAHA, never change Colorado.

ROOT FOR NELSON IF: you’re not the one person whose salary is paid by defendants who are motivated enough to appeal their criminal convictions, but not motivated enough to file for the fees returned.

ROOT FOR COLORADO IF: you are Colorado

PREDICTION:  Nelson 6-2 (Alito/Thomas special).