Opening Arguments

Feb 23 2021 72 mins 7.5k

Every episode, legal expert Andrew and comic relief Thomas will tackle a popular legal topic and give you all the tools you need to understand the issue and win every argument you have on Facebook, with your Uncle Frank, or wherever someone is wrong on the Internet. It's law. It's politics. It's fun. We don't tell you what to think, we just set up the Opening Arguments.












OA462: Rittenhouse Team Commits Perjury; DC Statehood and Impeachment!
Feb 05 2021 71 mins  
This is a jam-packed, extra-length show that covers as many of the pressing stories in the news that we could cover! We begin with the breaking news that Kyle Rittenhouse's lawyers perjured themselves by filing a fraudulent address in defiance of a court order; we tell you why that's bad and what's next for the domestic terrorist. After that, it's time for a lengthy breakdown of the DC Statehood Bill, including a discussion of the potential future legal challenges (and solutions!) as well as the timing for when we can expect 2 new Senators to be seated! Then, it's time to break down former President Trump's (laughably bad) response to the Article of Impeachment. Phew! Links You can check out Rittenhouse's brief in opposition to the bond increase. Here is the full text of the DC Statehood Bill introduced by Tom Carper. You will not believe how bad the lawyering is in former President Trump's (laughably bad) response to the Article of Impeachment, and you can also read the Inquirer article on Trump's new lawyer, Bruce Castor, who seems like a real peach. Appearances None, have us on! -Support us on Patreon at: patreon.com/law -Subscribe to the YouTube Channel and share our videos! -Follow us on Twitter: @Openargs -Facebook: https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed! @oawiki -And finally, remember that you can email us at [email protected]!


OA461: SO MUCH WINNING!
Feb 02 2021 75 mins  
Today's episode focuses on two major victories that many on our side have maybe been afraid of cheering on -- first, the agreement between Chuck Schumer and Mitch McConnell on a power-sharing arrangement that will enable legislation to come out of equally-divided Senate committees, and second, the impeachment vote of 55-45 that the Senate has jurisdiction over Trump's impeachment. We'll tell you why these are real victories worth celebrating and break down some Senate Rules while we're at it! Then, we have an inspiring interview with Ruben Amaya, a 19-year-old running for the Maryland House of Delegates. Links Yes, we're aware of the Latinos for Trump lawsuit; it's crazy and hilarious and we'll be covering it in some way, we promise! On the Senate rules: (a) go read Rules XXV, XXVI 7(a)(3), or any other rule for yourself; (b) check out the 2001 plan (S.R. 8); and then (c) read this CRS report explaining "filling up the amendment tree." On impeachment, you'll want to read Brian Kalt's seminal 2001 Law Review article. Finally, if you'd like to check out Ruben Amaya's campaign, head on over to his website at rubenamaya.org! Appearances None, have us on! -Support us on Patreon at: patreon.com/law -Subscribe to the YouTube Channel and share our videos! -Follow us on Twitter: @Openargs -Facebook: https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed! @oawiki -And finally, remember that you can email us at [email protected]!

OA460: Did the Courts Really "Refuse to Hear Trump's Evidence" of Voter Fraud? (No.)
Jan 29 2021 85 mins  
We're very proud of this show, in which you can sit down your Uncle Frank who's repeating the kind of nonsense Rand Paul spouted this weekend -- that "all the court cases just dismissed Trump's lawsuits on standing and never evaluated the evidence" -- and show that it is an out-and-out lie. It's not true. And we think even Uncle Frank will have to reluctantly concede that by the end of the episode. Links: This is the terrible Gateway Pundit article by Joe Hoft whose claims we thoroughly debunk. Please don't click on it. Please do feel free to click on the polling averages at 538 or Gallup which show that the "wildly popular" President Trump averaged a 41% approval rating. This is the main spreadsheet Hoft relies on for his "81 cases." Cases (from the spreadsheet): Trump v. Boockvar, 20-00966 (W.D. Pa.): You can check out the CLOSED DOCKET with 574 entries, and then read the 138-page opinion clearly addressing the merits of Trump's voting arguments. Trump v. Way, 3:20-cv-10753-MAS-ZNQ (D.N.J.): Check out the CLOSED DOCKET. In re Canvassing Observation No. 7003 (Penn. Ct. Common Pleas.) -- here's the state court ruling on sneezing; In re Canvassing Observation, No. 1094 CD 2020 (Penn. Comm. Ct.) -- and yes, that's the same case on appeal -- and here's the only Trump win; Trump v. Boockvar, 20-02078 (M.D.Pa.): This is the 11/21 opinion addressing the merits of Trump's efforts to throw out the entire state's vote. In re Canvass of Absentee and Mail-in Ballots (Pa. state consolidated cases): Here's the ruling from the Pennsylvania Supreme Court that "no fraud or irregularity has been alleged." Trump v. Boockvar, 20-3371 (3d Cir); here's the docket showing that this appeal was closed on Nov. 27, 2020; and also Here's the Order dismissing out other shenanigans. The case is closed! Trump v. Biden, No. 2020CV007092 (Wis. Super. Ct.) -- this was Trump's challenge to the recount in Milwaukee and Madison; and here's the proof that the docket was closed. Trump v. Biden, No. 2020AP2038 (Wis.) -- you can read the Wisconsin Supreme Court's 82-page consolidated appeal addressing the merits of Trump's voter fraud claims. Trump v. Toulouse Oliver, No. 20-01289 (N.M.) -- you can read Trump's motion to dismiss his own First Amended Complaint. Trump v. Boockvar - you can read Trump's cert petition in the Pennsylvania consolidated cases, and view the Supreme Court's summary rejection of Trump's motion to expedite. Finally, Trump v. Biden -- you can also read Trump's cert petition in the Wisconsin case, and the Supreme Court's similar summary denial of Trump's motion to expedite. And that's it! Appearances None, have us on! -Support us on Patreon at: patreon.com/law -Subscribe to the YouTube Channel and share our videos! -Follow us on Twitter: @Openargs -Facebook: https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed! @oawiki -And finally, remember that you can email us at [email protected]!












































OA426: Breonna Updates; Trump's Outrageous Tax Returns
Oct 02 2020 80 mins  
We're still mad about Breonna Taylor's killing, and you should be too. A juror has come forward to say that the AG misrepresented the deliberations. We're like to get the tapes soon, but as of now we don't have them. We clarify and expand on a few things from our previous Breonna episode. Andrew also does a mini dive on the disproportionate racial breakdown of our prison population. In our main story, we talk about the blockbuster story by the NYT on Trump's tax returns. Andrew answers whether the NYT is in any legal trouble for the article, and we go into the horrifying contents of Trump's returns. Links: Breonna's family's civil suit, BOP Statistics: Inmate Race, Gap between number of blacks, whites in prison narrows, Imprisonment rate of black Americans fell by a third from 2006 to 2018, How to reduce the federal prison population, Trends in US Corrections, Immigration sends more people to federal prison, 21 US Code § 841, OA45: What Could Donald Trump's Tax Returns Tell Us?, OA46: What Could Donald Trump's Tax Returns Tell Us? part 2, Trump Paid $750 in Federal Income Taxes in 2017, 1st Presidential Debate Transcript 2020, trump public disclosure 1, 2, 26 US Code § 172 - Net operating loss deduction, 2017 tax bill, NYT v. US, Bartnicki v. Vopper (2001), OA200: Reporters and Confidential Sources, OA201: Follow Up Friday!, The BALCO reporters shielded a lying lawyer. They are no heroes., Absentee and Mail Voting Policies in Effect for the 2020 Election.


























































OA381: The Legal Eagle Interview!
Apr 28 2020 70 mins  
Today's episode... was supposed to have two bookend segments and legal analysis, but we wound up having so much fun talking to Devin Stone, the Legal Eagle himself about nontraditional careers in the law, Tiger King and Better Call Saul, and so much more! After that, it's time for the answer to the first Thomas and Devin Take The Bar Exam in which it was literally Hammer Time for two friends watching football. Did Thomas and Devin get it right or wrong? Listen and find out! Patreon Bonuses Our next LIVE Q&A is scheduled for Friday, May 1, at 8 pm Eastern / 5 pm Pacific, and you can post and vote on which questions you want to see answered! And don’t forget that we’ve released Law’d Awful Movies #39, Class Action, starring Gene Hackman and Mary Elizabeth Mastrantonio, and featuring guest performer Matt Donnelly of the Ice Cream Social podcast! Appearances Andrew was just a guest on Episode 121 of the Skepticrat, talking crazy legal stories in the news, and Episode 375 of the Scathing Atheist, breaking down the latest legal nonsense from Kansas. And if you’d like to have either of us as a guest on your show, event, or in front of your group, please drop us an email at [email protected] Show Notes & Links Don't forget to check out the Legal Eagle YouTube channel. -Support us on Patreon at: patreon.com/law -Follow us on Twitter: @Openargs -Facebook: https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed! @oawiki -Remember to check out our YouTube Channel for Opening Arguments: The Briefs and other specials! -And finally, remember that you can email us at [email protected]!



















































OA339: Who is Jonathan Turley, Anyway?
Dec 06 2019 72 mins  
Today's episode is a timely impeachment-themed deep dive into the testimony of George Washington University law professor -- and legitimate legal scholar -- Jonathan Turley before the House Judiciary Committee. How should you evaluate his arguments? We walk you through them, of course! We begin, however, with a new segment: the Wingnut Lightning Round(TM), in which we evaluate -- or rather, make fun of -- two preposterous new lawsuits filed this week by two complete idiots. After that, it's time for an #AndrewWasWrong about Ronald Burris, the interim Senator nominated by Rod Blagojevich to fill Barack Obama's unexpired Senate seat. Find out the twists and turns to this rather fascinating story as a side bonus to Andrew's well-deserved comeuppance. Then, it's time for the main segment: the news that the House is going to draft articles of impeachment against President Trump despite the testimony of Jonathan Turley. How do the lone Republican-called witness's arguments stack up? (Hint: they're not good.) Surely the Republicans wouldn't have called someone who's on the record saying the exact opposite of what he's presently saying 20 years ago, right? (Guess.) After all that, it's time for a fiendishly hard #T3BE about a trial, a videotape, and a jogging plaintiff. You won't want to miss it -- and you'll want to play along! Appearances Thomas was just the main guest on Episode 498 of the Cognitive Dissonance podcast, and Thomas and Andrew make additional appearances to roast and be roasted for Vulgarity for Charity. If you’d like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Oh man, you just have to read batshit-crazy Rep. Devin Nunes's eleventy million trillion dollar lawsuit against CNN. For more of the Roland Burris story, check out Wikipedia. Click here to read Turley's testimony for yourself. -Support us on Patreon at: patreon.com/law -Follow us on Twitter: @Openargs -Facebook: https://www.facebook.com/openargs/, and don’t forget the OA Facebook Community! -For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed! @oawiki -And finally, remember that you can email us at [email protected]!



























































































































OA242: Larry Klayman is Still Crazy After All These Years
Jan 08 2019 68 mins  
Today's episode features a deep dive into the Bivens action, with a little help from everyone's favorite nutso conspiracy theorist lawyer, Larry Klayman -- and his newest client, Roger Stone sidekick Jerome Corsi. Find out what sorts of wacky shenanigans these guys have been up to, and why they think they've hit a $350 million jackpot. (Hint: they haven't.) First, though, we begin with an insightful question from a listener regarding Clarence Thomas's jurisprudence and whether the frequent criticism of Justice Thomas as lazy is tinged with racism. During the main segment, it's time for the breakdown of the latest Corsi lawsuit. It's a doozy -- it's everything you'd expect from someone who hired Larry Klayman (on purpose!) to be his lawyer. Then, we answer a fun listener question about court filings, time zones, and the international date line. It's Around Opening Arguments In 80 Days! After all that, it's time for the answer to Thomas Takes The Bar Exam #108 regarding civil procedure. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links This Vice article collects some of the strangest facts about Clarence Thomas, and this is the Jeff Jacoby op-ed that (factually) reports regarding Thurgood Marshall's declining years and -- in Andrew's opinion -- was misrepresented by Corey Robin. Click here to read Corsi's lawsuit against Robert Mueller, and here to read Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the recent Supreme Court case limiting Bivens actions. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]


OA240: Libertarianism is Still Bad & You Should Still Feel Bad
Jan 01 2019 64 mins  
Today's special, hangover-free New Years' episode follows up on some of the things we discussed during our Episode 238 interview with Matt Donnelly of the Ice Cream Social podcast, including the never-controversial subject of libertarianism. Strap in; it's been an interesting year! We begin with a listener question from Ricardo, who asks some follow-up questions to our original hot take on libertarianism waaaaaay back in Episode 22. Is there a robust theory of property rights that serves as a side-constraint on government action? You'll have to listen and find out! (Hint: no.) After that, Andrew further explains the "Are You A Cop?"-style segment from Episode 238 regarding whether Brett Kavanaugh "voted with the liberals" in an abortion case. (Hint: no.) You'll figure out all you need to know about the Supreme Court's denial of certiorari in Gee v. Planned Parenthood and Andersen v. Planned Parenthood... as well as getting a deep dive into Clarence Thomas's dissent and an explainer on the Medicaid Act, 42 U.S.C. § 1396a! After all that, it's time for the answer to Thomas (and Matt) Take The Bar Exam #107 regarding defamation. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Check out Matt & Mattingly's Ice Cream Social podcast! We first discussed libertarianism back in Episode 22. You can click here to read Clarence Thomas's blistering (and inaccurate) dissent from the Court's denial of cert in the Planned Parenthood cases; click here to check out 42 USC § 1396a(a)(23), the statute at issue; and click here to read the Washington Examiner article discussed on the show. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA239: The Fourth Circuit's Puzzling Emoluments Ruling
Dec 28 2018 83 mins  
Today's episode takes a deep dive into the just-released one-page order by the Fourth Circuit staying all discovery in the Emoluments litigation brought by Maryland Attorney General Brian Frosh. How do we fill more than an hour's worth of time on one page? Why is this ruling really, really bad for everyone?? Listen and find out! We begin, however, with a brief foray up Yodel Mountain to discuss (1) the reports circulating that Michael Cohen's phone was in Prague in the summer of 2016, and (2) the ethics review of "Acting" Attorney General Matthew Whitaker concerning the Mueller probe. After that, it's time for a deep dive into the Emoluments litigation, the strange procedural posture of Trump's response, and what this means for civil litigation generally (and this case in particular). You won't want to miss it! Then we end with an all new Thomas Takes The Bar Exam #107 on defamation. As always, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Click here to read the Whitaker ethics review letter, and here to read the Steele dossier. We last discussed the Emoluments litigation in Episode 226. You can check out all of these documents: the Fourth Circuit's order, the motion to stay, and the opposition filed by Frosh. Trump's argument is based on 28 USC § 1292(b) and relies on Fernandez-Roque v. Smith, 671 F.2d 426 (11th Cir. 1982). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]



OA237: Lowering the... Barr (Memo)
Dec 21 2018 89 mins  
Today's Rapid Response episode takes a look at the just-released Law'd Awful Memo written by Attorney General nominee Bill Barr and sent to Deputy AG Rod Rosenstein concerning the Mueller investigation. Are the argument(s) raised in the memo any good? What does this mean for the future of the Mueller investigation? Listen and find out! We begin, however, with a brief foray into everyone's favorite show topic: BASEBALL LAW! Find out about the agreement reached between MLB and Cuba, and how (of course) Donald Trump can screw it up. After that, it's time for an Andrew Was Wrong (and Maybe Not Wrong) on David Pecker and AMI. Along the way, we'll learn about the corruption case against Sun-Diamond Growers in connection with former Agriculture Secretary (and nearly-Senator) Mike Espy. Then, we delve deeply into the Barr memo, taking apart the legal "arguments" and featuring a guest appearance from one Antonin Scalia! Then, it's time to tackle the rather surprising decision by Judge Sullivan in the Michael Flynn sentencing phase. What happened? Did he go off the rails? After all that, we end with an all new Thomas (and Matt!) Takes The Bar Exam #106 on how to best transport heroin from Kansas City to Chicago and what the judge can instruct the jury... it's complicated, but you won't want to miss it! And, as always, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Check out Matt & Mattingly's Ice Cream Social podcast! Baseball law: Here's the press release from MLB. We discussed U.S. v. Sun-Diamond Growers of Calfornia, 138 F.3d 961 (D.C. Cir. 1998), aff'd, 526 U.S. 398 (1999). Don't forget to read the Barr memo for yourself, and you can also check out the Wall Street Journal article that leaked it. ...And here's our good buddy Antonin Scalia smacking down the logic used therein. You can check out the government's sentencing memorandum in Michael Flynn's case as well as the memo filed by Covington & Burling on Flynn's behalf. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected] [podcast src="https://html5-player.libsyn.com/embed/episode/id/8001044/height/360/theme/standard/thumbnail/yes/preload/no/direction/forward/" height="360" width="100%" placement="bottom" theme="standard"] Download Link

OA236: Stairway to... the Supreme Court??
Dec 18 2018 89 mins  
Today's deep-dive Tuesday tackles a long-running lawsuit by the estate of Randy California -- the founder, lead singer, and guitarist for the band Spirit -- alleging that Led Zeppelin stole the iconic riff for "Stairway to Heaven" from Spirit's 1968 song "Taurus." With assistance from Thomas on guitar, we tackle all of the fun issues that are currently pending before the 9th Circuit... and possibly headed to the Supreme Court! We begin, however, with two follow-up questions that got cut from Friday's blockbuster show regarding the American Media, Inc. plea agreement: (1) Could David Pecker still be indicted? and the big one: (2) Can Donald Trump pardon a corporation? The answer... may surprise you! After that, it's time for a deep dive into the law regarding musical copyright and an exploration of the similarities and differences between "Taurus" and "Stairway to Heaven." Where do Andrew and Thomas come out? You'll have to listen to find out! After that, it's time for the answer to Thomas Takes The Bar Exam #105 regarding a bank and a car dealership attempting to modify a contract. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links We discussed the AMI deal in Episode 235. You can check out Spirit's "Taurus" by clicking here. Click here to read the original (and awesome!) Randy California v. Led Zeppelin complaint; you can also read (1) the jury verdict by the trial court; (2) the brief filed by Taurus in the 9th Circuit; (3) the opposition brief filed by Led Zeppelin; (4) the 9th Circuit's ruling; (5) the petition for rehearing en banc filed by Led Zeppelin; (6) the opposition to that motion for rehearing en banc; and (7) the just-filed reply brief by Led Zeppelin (filed 12-10-08). Phew! Finally, click here for a mashup of "My Sweet Lord" (George Harrison) and "He's So Fine" (The Chiffons). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA235: Corporations Are People, My Friend... Criminal People
Dec 14 2018 81 mins  
Today's Rapid Response episode takes a look at three breaking stories related to the White House: (1) the recent ruling requiring Stormy Daniels to pay Trump's attorneys' fees; (2) the sentencing of Trump's former lawyer, Michael Cohen; and (3) most importantly, the plea deal signed by American Media, Inc. -- parent company to the National Enquirer -- to cooperate with the Special Counsel's Office. We begin by revisiting the question of whether, in fact, Stormy Daniels is still a legal genius. (Hint: she is.) But what does it mean that a court just ordered her to pay Trump nearly $300,000 -- and why could it have been much, much worse? Listen and find out. After that, we check out Trump's ex-"fixer" and the former Taxi King of New York, Michael Cohen, who was just sentenced to three years in prison. Then it's time for a fascinating look into a non-prosecution agreement reached between the Special Counsel's Office and American Media, Inc. that tell us an awful lot about where Yodel Mountain is headed. Finally, we end with an all new Thomas Takes The Bar Exam #105 on modifications to a contract. As always, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Here's the merits ruling defamation we referenced during the show; you can also check out Trump's motion for attorneys' fees, Avenatti's (rather weak) opposition brief, and the court's ruling directing Stormy to pay almost $300,000. And because it never ends, check out the mediation questionnaire filled out by Avenatti for their appeal to the 9th Circuit. You know you want to read the press release regarding Michael Cohen's sentence; after that, you can check out the sentencing memoranda filed by the SCO's office ("good cop") as well as the brief filed by the SDNY ("bad cop"). Finally, this is the AMI agreeement as well as the DOJ guidelines on prosecuting corporations. Oh, and just for fun, here's Jose Canseco's audition to be Trump's Chief of Staff. #YesWeCanseco Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA234: Civil Forfeiture, Berkeley & More!
Dec 11 2018 75 mins  
Today's deep-dive Tuesday tackles a viral oral argument before the Supreme Court in Timbs v. Indiana regarding civil forfeiture -- and a delightful question (that inspired the graphic for the show notes) about whether the state can seize your Bugatti for speeding. Oh, and we check back in on the Ann Coulter v. Berkeley lawsuit that was recently settled. What happened? Listen and find out! We begin with the Berkeley settlement, and break down exactly what the University did (and didn't) promise to do going forward. Is this a "big win" for the right wing? (Hint: no.) Then, it's time to delve deeply into Timbs v. Indiana and discuss the law of civil asset forfeiture, the doctrine of proportionality, and even the concept of incorporation. Yes, it's a crazy Civ Pro kinda day.. you won't want to miss it! Then, it's time for a BRAND NEW SEGMENT -- "Yodel Mountain Remembers!" We think you're gonna love it! Oh, and we also tackle a terrific listener question about the "apology doctrine" and the nation that made apologies famous -- Canada (of course). After all that, it's time for the answer to Thomas Takes The Bar Exam #104 regarding government action and the warrant requirement of the Fifth Amendment. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Click here to read the Berkeley settlement. This is a link to the oral argument in Timbs v. Indiana. Finally, you can check out Maryland's "apology law," Maryland Code, Courts and Judicial Proceedings Article, § 10-920(b), by clicking here. This is the delightfully demented Corsi lawsuit against Mueller, Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]


OA233: [REDACTED] & Wisconsin
Dec 07 2018 86 mins  
Today's Rapid Response episode takes a look at two pressing issues: (1) Mueller's [REDACTED] sentencing memorandum with respect to Michael Flynn, and (2) the naked power grab by lame-duck Republicans in Wisconsin. Along the way, we'll also cover a bunch more legal stories, but you knew that already! We begin high atop Yodel Mountain, where we cover not only the [REDACTED] Flynn memorandum but also Roger Stone taking 5 and a truly bizarre conspiracy theory advanced by Rudy Giuliani. Then, it's time for the main segment, in which we tackle Wisconsin SB 887 and its component bills that are designed to weaken drastically the strength of the incoming Democratic governor, Tony Evers. Is it as bad as everyone says it is? (It's worse.) After that, it's time for a brief Andrew Was Wrong segment. Turns out Andrew Was Wrong about both Julian Assange and American paddlefish! Finally, we end with an all new Thomas Takes The Bar Exam #102 on evidence and the admissibility of hearsay. Find out how Thomas outsources the decision and more. And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances Andrew was recently a guest on the David Pakman show talking court-packing and more. Give it a listen! And, as always, if you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links You can read the (non-censored) baseline Sentencing Memorandum filed by Mueller here, and the [REDACTED] Supplemental by clicking here. Here are the texts of the various Wisconsin bills: SB 884, SB 886, and the final bill, SB 887. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA232: Trump's Plan to Weaponize the Census (& Bridgegate!)
Dec 04 2018 71 mins  
Today's deep-dive Tuesday takes us back to a time in which politically-motivated revenge was actually seen as a scandal; namely, Chris Christie's Bridgegate. There's a new ruling out of the Third Circuit that affects two Christie staffers, and... well, you'll just have to listen and find out! Then, it's time to take a long look at ongoing litigation surrounding the Trump Administration's efforts to deter Democrats from registering for the Census, thus reducing their voting power. What does a trial in district court have to do with the Supreme Court's recent grant of certiorari? After that, we answer a terrific Patron listener question regarding the European loser-pays-legal fees model versus the American pay-your-own-way model. Yes, the American model seems counter-intuitive at best (and downright regressive at worst), but is shifting to a loser-pays model the answer? Andrew talks about his experiences and the guys go through a bunch of options. And finally, we end with the answer to Thomas Takes The Bar Exam #103 on the Takings Clause! As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances Andrew was recently a guest on the David Pakman show talking court-packing and more. Give it a listen! And, as always, if you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links You can read the 3rd Circuit's opinion in Bridgegate by clicking here. Click here to read the Court's order in the Census litigation, which shows that Thomas-Alito-Gorsuch would have granted a stay. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]


OA230: TOO MUCH MEAT!
Nov 27 2018 69 mins  
Today's deep-dive Tuesday tackles that viral case caption you've probably seen floating around Twitter: "United States v. 1,855.6 pounds of American Paddlefish Meat." Is the sack of fish meat really going to have to show up in court? Will it have a lawyer??!? Listen and find out! We begin, however, with a roundup of all the lawsuits filed against Matthew Whitaker, including the most recent one brought by Senators Blumenthal and Hirono. Oh, and we check with an op-ed written by... the Torture Guy? What's going on here?? The main segment delves into in rem jurisdiction in order to explain the "paddlefish meat" caption. If you like legal minutiae -- and let's be honest, you're listening to this podcast -- you'll love this segment. Then, it's time for a truly great listener question holding Andrew's feet to the fire on Net Neutrality and the Munsingwear doctrine. It's not an Andrew Was Wrong, but it is an... Andrew Could Have Explained That Better? Either way, you won't want to miss it. Finally, we end with the answer to Thomas Takes The Bar Exam #102 on hearsay. Find out if Thomas's coin can pass the bar exam! And as always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Click here to check out Lawfareblog's clearing house for Whitaker complaints, and click here to read John Yoo's (surprising) op-ed arguing that Whitaker's appointment was illegal. If you want to read the actual meat filing, click here. Special shout-out to law professor Brian L. Frye for tipping us off to United States v. 43 1/2 Gross Rubber Prophylactics! Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA229: Andrew Miller & the Appointments Clause
Nov 22 2018 77 mins  
Today's Thanksgiving Special / Rapid Response episode takes a look at the single most important Yodel Mountain case pending right now: Andrew Miller's lawsuit before the Court of Appeals for the District of Columbia Circuit. Find out what it all means! We begin, however, with a brief Andrew Was Right and roundup on the status of the Jim Acosta lawsuit, which has been mooted thanks to the injunctive relief won by CNN (and the White House's decision to restore Acosta's credentials). Then, it's time for the deep dive into Andrew Miller and his Don Quixote-esque foray into our legal system to challenge Robert Mueller's authority. Along the way you'll find out who Andrew's Shattered Glass doppelganger is, and learn more than you ever thought possible about the U.S. Constitution's "Appointments Clause." Finally, we end with an all new Thomas Takes The Bar Exam #102 on evidence and the admissibility of hearsay. Find out how Thomas outsources the decision and more. And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links The "recalcitrant witness" statute is 28 U.S.C. § 1826. Click here to read Judge Howell's U.S.D.C. trial court opinion. We pulled a ton of documents for you in the Miller case, including (a) Concord's motion to intervene; (b) Concord's amicus brief on the merits; (c) the eminently silly Sibley amicus brief; (d) Robert Mueller's merits brief; (e) Andrew Miller's merits brief; (f) Andrew Miller's supplemental brief; and (g) Rober Mueller's supplemental brief. Phew! Don't be afraid to check out In Re Sealed Case, 829 F.2d 50 (D.C. Cir. 1987) for the case that's directly on point. Finally, you can read the "nearly a heart attack" regs on Mueller's funding (28 CFR § 600.8(a)(2)) here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]


OA228: Jim Acosta, Sovereign Immunity & More!
Nov 20 2018 69 mins  
Today's Deep Dive Tuesday tackles the motion for preliminary injunction and underlying lawsuit brought by CNN and Jim Acosta against the Trump White House for revoking his press credentials. You'll get to hear about how Andrew Was Right... last Thursday (!) As a bonus, you'll get a listener question that segues into a mini-deep-dive on the "sovereign immunity" doctrine! We begin, however, with some initial information about the still-sketchy situation surrounding Michael Avenatti and his arrest for domestic violence. After that, it's time to traipse through the CNN/Acosta lawsuit, which is still relevant today (even though the PI was, as Andrew predicted, granted). Then, it's time to answer a really interesting listener question about Oklahoma's new anti-vax governor that winds up with a discussion of the sovereign immunity doctrine. It's a rabbit trail you'll want to go down! Finally, we end with the answer to Thomas Takes The Bar Exam #101 on SPACE LAW. Find out Lando's (and Thomas's!) fate! Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links On Avenatti, you can see the "SurefireIntel" tweet here. You can read the Acosta/CNN underlying complaint, the accompanying memorandum of law supporting the Acosta TRO motion, and the Trump response. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA227: Brian Frosh Takes On Matthew Whitaker & More!
Nov 16 2018 86 mins  
Today's Rapid Response Friday takes a deep dive into the recent lawsuit filed (actually, amended) by Maryland's ace Attorney General, Brian Frosh, challenging the appointment of Matthew Whitaker as Acting Attorney General. We begin, however, with an Andrew Was Right (and Wrong, sadly) roundup of a bunch of issues: (1) whether the midterm elections were a "Blue Wave" (they were); (2) the formation of a new breakaway conservative legal group; (3) Jeff Flake's efforts to protect Robert Mueller; (4) Whitaker's recusal status; and (5) the election of Kyrsten Sinema to the U.S. Senate in Arizona. Phew! After that, it's time for the deep dive into Maryland's ACA lawsuit that.. somehow morphed into a judicial request to determine that Matthew Whitaker cannot be the Attorney General? How is that even possible?? We explain it all... and along the way, we let you know what arguments the State of Maryland has raised that the next Attorney General should be Rod Rosenstein instead. It's a fascinating lawsuit, and you'll even get a brief discussion of the "canon of constitutional avoidance." (!!) After that, we (briefly) discuss the California wildfires in light of.. SEC disclosure requirements??!? Hey, that's why you listen, right? Finally, we end with an all new Thomas Takes The Bar Exam #101 on SPACE LAW, involving deadbeat Ewoks and Lando Calrissian. (No, really.) You'll have to listen and find out! And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Click here to read 538's "Yes, It Was a Blue Wave" article. Here is the announcement of the formation of the "Checks and Balances" legal society. Lawfare has filed a FOIA request for all documentation regarding Whitaker's ethics advice and potential recusal. Click here to read Maryland's motion for preliminary injunction; here to read the Flood memorandum that contains Trump's likely responses; and here to read the court's scheduling order. Finally, click here to read the SEC's guidelines on when to file a form 8-K, and here to read the 8-K filed by PG&E. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]









OA219: Harvard and Affirmative Action
Oct 19 2018 80 mins  
Today's Rapid Response Friday takes us to the front lines of the affirmative action debate with the trial of Students For Fair Admissions, Inc. v. Harvard, a lawsuit brought by a single-issue right-wing activist determined to end diversity as a criterion in school admissions. (And yes, we tell you what we really think!) We begin, however, with some news regarding the Monsanto trial we profiled back in Episode 202. After that, it's time for a deep dive into the nuances of affirmative action with the SFFA v. Harvard lawsuit. What exactly does it allege? What's the status of affirmative action law? Where is this lawsuit going? Listen and find out! Then it's time for a brief Andrew Was segment, in which Andrew Was Wrong about the UK Supreme Court, and Andrew Was... Something... about the good news coming out of the Florida Supreme Court. Finally, we end with an all new Thomas Takes The Bar Exam #98 regarding constitutional standards. Thomas needs to go 2-for-3 after a recent audit showed a bank error in his favor. Can he do it? You'll have to listen and find out! And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links We first covered the Monsanto trial back in Episode 202; go check it out! Click here to read the Students For Fair Admissions, Inc. v. Harvard lawsuit. To understand the history of affirmative action, listen to our Episode 93, and check out both Regents of the University of California v. Bakke, 438 U.S. 265 (1978) and Grutter v. Bollinger, 539 U.S. 306 (2003), the cases we discussed in the episode. I mentioned the Etzkowitz et al. article on critical mass; you can read that here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]


OA218: Ashers Baking Co., Net Neutrality & Stormy!
Oct 16 2018 76 mins  
Today's (thankfully) Kavanaugh-free episode -- in honor of Thomas's appearance at QED in Manchester -- takes an in-depth look at the Ashers Baking Co. case, as well as developments at the state level to push for Net Neutrality. Oh, and we revisit OA's favorite legal genius, Stormy Daniels. Strap in, it's going to be a fun ride! We begin with a lengthy discussion of the UK Supreme Court's ruling in Ashers Baking Co., which has been called the "Masterpiece Cakeshop of the UK." Is that accurate? Listen and find out! Next, we walk through California's effort to protect Net Neutrality in that state, and the lawsuits filed by parties on all sides. What's going to happen? We tell you! Finally, we take a brief look at Stormy Daniels and update you on the status of her lawsuit in California. And then, of course, we end with an all new Thomas (and Chad) Take The Bar Exam #97 regarding the tort of negligent misrepresentation. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Click here to read the UK Supreme Court's ruling in Ashers Baking Co. We first discussed the Trump FCC's decision to roll back Net Neutrality in Episode 125. You can read the 22-state lawsuit challenging that order here. This is California's Bill SB-822, and you can also check out the industry brief filed in the lawsuit challenging it. Oh, and if you need more Hobbs Act (28 U.S.C. § 2342) in your life, we've got you covered. Finally, click here to check out Trump's motion to dismiss Stormy's lawsuit, and here to read her interview in "The Cut" (??) where she regrets body-shaming Trump. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA217: Can Ethics Complaints Take Down Kavanaugh?
Oct 12 2018 71 mins  
Today's Rapid Response Friday follows up on the State of Florida and... sadly... returns one last time to the story of Brett Kavanaugh and the ethics complaints lodged against him and referred to the Tenth Circuit. Oh, and we give you real stuff you can do to make a positive difference! You have to listen! We begin with a follow-up to Tuesday's episode where we break some news regarding the Democratic Party's lawsuit in Florida to extend registration for voting in the 2018 midterms before checking in on the Common Cause/League of Women Voters lawsuit we first discussed on Episode 216. Then it's time to tackle the ethics complaints filed against Brett Kavanaugh and referred out by Supreme Court Chief Justice John Roberts to the Court of Appeals for the Tenth Circuit. Finally, we end with an all new Thomas Takes The Bar Exam #97 regarding the tort of negligent misrepresentation. Thomas needs to go 4-for-4... can he do it? You'll have to listen and find out! And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances Thomas will be at QED in Manchester, UK on Oct. 13 and 14. Show Notes & Links This episode is sponsored by Audible! Go to audible.com/lawpod or text lawpod to 500500 for the 30-day trial and free audiobook! Click here to read the court's denial of the TRO filed by the Democratic Party's in Florida to extend registration for voting in the 2018 midterms. And click here to read the newly-filed Common Cause/League of Women Voters lawsuit we first discussed on Episode 216. We first discussed the Code of Judicial Ethics on Episode 193. This is the Roberts letter referring the Kavanaugh complaints to the Court of Appeals for the Tenth Circuit. Click here to read the Rules of Judicial Conduct and Judicial Disability, with proposed changes. The law we discussed is 28 U.S.C. § 351 et seq. WHAT YOU CAN DO! Click here to comment on the proposed changes to the Rules of Judicial Conduct and Judicial Disability. And if you want to apply to work for Fix The Court, check out their notice here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA216: Court Packing & More (w/guest Chad Schneider)
Oct 09 2018 77 mins  
Today's (thankfully) Kavanaugh-free episode takes a look at Florida Governor Rick Scott's blatant court packing attempt with the Florida Supreme Court, and the lawsuit filed by Common Cause to try and stop him. What will happen? Listen and find out! First, though, we begin by revisiting our controversial episode (197) on 3-D printed guns by bringing on a real-life expert in 3-D printing to handle some technical questions and understand the arguments and counter-arguments regarding the proliferation of cheap and dangerous handguns. After that, we delve into Florida Gov. Rick Scott's transparent attempt to game the system to pack the Florida Supreme Court. What does this mean for "Constitutional Hardball" and the state of the law in Florida? Listen and find out! Then, we give you a brief preview of next week's story on California's net neutrality law. Finally, we end with an all new Thomas (and Chad) Take The Bar Exam #96 regarding the breach of an employment contract. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Thomas will be at QED in Manchester, UK on Oct. 13 and 14. Show Notes & Links We first discussed 3-D printed guns back in Episode 197. Click here to read the Slate article on Scott's effort to pack the Florida Supreme Court, and you can also read the 2017 lawsuit filed by Common Cause (and others) that was rejected by the Florida Supreme Court. Check out guest Chad Schneider's business, Root3 Labs. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA215: Is Gamble v US the Real Reason Behind Kavanaugh?
Oct 05 2018 78 mins  
Today's Rapid Response Friday tackles the #1 emailed story to us this past week: is the real story behind the Kavanaugh nomination that the Trump administration needs him on the Supreme Court to rule in Gamble v. U.S. regarding the dual sovereignty doctrine as it applies to double jeopardy? We begin with a quick note about the New York Times story on Trump's taxes which will be covered on Serious Inquiries Only. Then it's time to figure out this claim about Gamble v. U.S. that fact-checking website Snopes rated as "true." Is it, though? (Hint: no.) We'll tell you everything you need to know about the 5th Amendment's double jeopardy clause and what it might mean for anyone Trump pardons once Kavanaugh gets to the Court. And speaking of which, we segue from that claim to an update on all things Kavanaugh this week, including the Mitchell letter, the FBI investigation, Flake's statements, and even (gasp!) an Andrew Was Wrong. Finally, we end with an all new Thomas Takes The Bar Exam #96 regarding the breach of an employment contract, with next week's guest Chad Schneider playing along. Thomas needs to go 5-for-5... can he do it? You'll have to listen and find out! And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances Thomas will be at QED in Manchester, UK on Oct. 13 and 14. Show Notes & Links You can read the New York Times story on Trump's taxes, and listen for Thomas's take on Serious Inquiries Only. The leading case on the "dual sovereign" doctrine as applied to the double jeopardy clause is Heath v. Alabama, 474 U.S. 82 (1985). Click here to read the administration's opposition brief in Gamble v. U.S., and here to check out the entire docket. This is the Jed Shugerman article we referenced regarding New York's "dual sovereigns" law. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected] Download Link

OA214: Free Speech, NAFTA & Trump's Trans Ban
Oct 02 2018 70 mins  
Today's Kavanaugh-free episode is a classic, three-story, Deep Dive Tuesday into (1) a recent free speech case involving protesters at a Trump rally; (2) the status of Trump's efforts to ban trans service personnel from the military; and (3) whether Trump can unilaterally abrogate NAFTA. Strap in -- it's going to be a long ride! We begin with an examination of Nwanguma v. Trump at both the district court level and the recent decision from the 6th Circuit. Should protesters be allowed to sue Trump and his campaign staff for incitement to riot? Listen and find out! After that, we examine the status of Trump's latest (Mar. 23, 2018) order on trans personnel in the military. Is there... good news out of the Ninth Circuit??!? Then, we check out the history of presidential withdrawals from treaty obligations, a case involving a former Presidential candidate (Barry Goldwater) versus a sitting President (Jimmy Carter), and Donald Trump's constant claims that he can abrogate the North American Free Trade Agreement. Is any of this true? The answer almost certainly will surprise you! Finally, we end with Thomas Takes the Bar Exam Question #95 regarding the Congressional delegation of rule-making authority to the Forest Service. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Thomas will be at QED in Manchester, UK on Oct. 13 and 14. Show Notes & Links If you want to check out our Kavanaugh patron-only special, sign up here and then click here for the bonus download! You can read the Nwanguma v Trump district court decision as well as the decision by the 6th Circuit. Click here to read Trump's latest (Mar. 23, 2018) order on trans personnel in the military, and here is you want to check out the Ninth Circuit's stay order. On NAFTA: you can read the NAFTA treaty itself (including Art. 2205), the NAFTA Implementation Act, and you'll definitely enjoy perusing Goldwater v. Carter, 444 U.S. 996 (1979). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]


OA213: Rachel Mitchell to Cross-Examine Dr. Ford at Kavanaugh Hearings
Sep 27 2018 74 mins  
Today's Rapid Response Friday tackles (ugh) the ongoing Judiciary confirmation hearings for Supreme Court Associate Justice nominee Brett Kavanaugh in light of Dr. Ford's allegations, before segueing into an interesting question from super-listener Teresa Gomez. If you want to know everything about Rachel Mitchell (and so much more!) -- well, you've come to the right place! We begin with some good news about QED in Manchester, UK and your ability to hang out with Thomas! After that, it's time to figure out what's going on with Kavanaugh. We examine (1) the political landscape; (2) the status of Blumenthal v. Nat'l Archives, Case No. 18-02143-RDM seeking FOIA information from the National Archives and the CIA; (3) the unprecedented appointment of career sex crimes prosecutor Rachel Mitchell to handle the questioning of Dr. Ford and Kavanaugh; (4) the strange circumstances surrounding Michael Avenatti's claim to represent additional women allegedly harrassed by Kavanaugh; and (5) what Dianne Feinstein wants. Phew! After that, we somehow have time to answer a fascinating question about pro se litigants giving testimony in court! Finally, we end with an all new Thomas Takes The Bar Exam #95 regarding Congressional delegation of rule-making authority. Will Thomas get back on track with just one extra wrong answer to give in the next six questions? Yu'll have to listen and find out! And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances Thomas will be at QED in Manchester, UK on Oct. 13 and 14. Show Notes & Links For an in-depth analysis of Dr. Ford's allegations against Kavanaugh, listen to Episode 158 of Serious Inquiries Only. On politics: here's the 538 polling data that Kavanaugh becgan historically unpopular and is getting worse. And this is the (overblown) HuffPo story on the Judicial Crisis Network. Check out the docket entries in the Blumenthal case! Rachel Mitchell has no Wikipedia entry (yet!), but was profiled in the National Law Journal and gave this interview to the "Foundations Baptist Fellowship International." Bill Montgomery's endorsement was reported in this Arizona Central story. Avenatti's client, Julie Swetnick, signed an affidavit under penalties of perjury that you can read here. We detailed Avenatti's ethical lapses on Episode 181. Check out Sen. Feinstein's letter on the Kavanaugh hearings. Finally, in answering Teresa's question, we relied on U.S. v. Nivica, 887 F.2d 1110 (1st Cir. 1989)... scroll down to part C! Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA212: Rod Rosenstein and... G. Zachary Terwilliger?
Sep 25 2018 78 mins  
Today's episode is that rare Rapid Response Tuesday, necessitated by the persistent rumors that Donald Trump is about to fire Deputy Attorney General Rod Rosenstein. Is it true? How bad are things if it is? And who is this mysterious G. Zachary Terwilliger? You'll have to listen to know for sure! We begin by examining the New York Times reporting that predicated the efforts to force out Rosenstein. Listen and you'll learn why is Andrew confident that these reports are false -- and get a rare "Randall Was Right" segment to boot! After that, we look to the statutory line of succession if Rosenstein is indeed fired, and we wind up at Noel Francisco and... Sideshow Zach? How did THAT happen? Bonus: Is Francisco a Trump hack? All signs point to... Then, we look to the statutory protections for Mueller even if Rosenstein is fired. Will the entire Russia investigation be fed into a Fargo/Deadpool 2-style woodchipper? And, if all that wasn't enough, we also have a mini-deep dive into the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq. Does it matter if Rosenstein was fired or if he resigned? Finally, we end -- at long last! -- with Thomas Takes the Bar Exam Question #94 regarding the Forest Service's new rules. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Lots! Thomas will be at QED in Manchester, UK on Oct. 13 and 14. Andrew will be debating originalist (and Kavanaugh clerk!) Justin Reed Wilson in Louisville, Kentucky on September 27 at Impellizzeri's Pizza; to attend, just RSVP on this Facebook link. Show Notes & Links This is the first New York Times hit piece on Rosenstein from Friday, 9/21, and this is the follow-up suggesting he would "resign." You can, of course, read the 25th Amendment's Section 4 for yourself; you'll quickly ascertain that it is, in fact, a 'clown horn' argument. The 28 U.S.C. § 508 sets forth the statutory line of succession for the DOJ. Here's the initial Senate confirmation vote on Francisco. You can also read his "oopsie" letter to the Supreme Court below: This is the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq. We first discussed it back in Episode 126. Finally, click here to read all about G. Zachary Terwilliger! Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA211: Manafort Flips (and more on Kavanaugh)
Sep 21 2018 81 mins  
Today's Rapid Response Friday tackles (1) Paul Manafort's plea deal and (2) the surprise resumption of the Senate Judiciary confirmation hearings for Supreme Court Associate Justice nominee Brett Kavanaugh in light of Dr. Ford's allegations, which are discussed in depth on Episode 158 of Serious Inquiries Only. What should you look for during Monday's hearings? Listen and find out! We begin with an acknowledgment of the story sent to us by several hundred thousand listeners regarding crazy person Cody Wilson. After that, it's time for an important Andrew Was Wrong: Paul Manafort did not plea over the weekend; he pled guilty pretty much the second we stopped recording! We break down everything there is to know about his deal, including the strong incentives Manafort has not only to cooperate but to roll over and expose his belly to Mueller's team in hopes of being thrown a bone or two. Oh, and we time-travel back to the 19th century to answer a super-interesting listener question on asset forfeiture! Then, it's time to discuss Kavanaugh again, in light of the troubling accusations made by Dr. Ford and other issues, including the Democratic Senators's FOIA lawsuit compelling the production of Kavanaugh's documents that are being withheld while the Republicans try and cram through his nomination. It's not a pretty segment, but we think you'll walk away equipped to understand Monday's hearings. After all that, we end with an all new Thomas Takes The Bar Exam #94 regarding Congressional delegation of rule-making authority. Will Thomas get back on track with just one extra wrong answer to give in the next six questions? Yu'll have to listen and find out! And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances Andrew will be debating originalist (and Kavanaugh clerk!) Justin Reed Wilson in Louisville, Kentucky on September 27; click here for the Facebook RSVP link if you'd like to attend! Show Notes & Links For an in-depth analysis of Dr. Ford's allegations against Kavanaugh, listen to Episode 158 of Serious Inquiries Only. You should really read through Mr. Ostrich-Jacket's plea deal for yourself. (And yes, that's the show graphic.) This is the TPM article Andrew criticizes; as you'll see from the Sentencing Table, Manafort faces 210-262 (or more) months in prison. Here's the polling aggregator from our friends at 538.; as of today, Democrats have a 1-in-3 chance of retaking the Senate. Click here to read Blumenthal v. US Nat'l Archives, the FOIA complaint filed by the Senate Judiciary Democrats, and here to read the Motion for TRO (which does not yet have an accompanying Memorandum). FOIA is 5 U.S.C. § 552. Finally, this is the text of the Sanai letter describing Alex Kozinski and seeking an investigation into Kavanaugh's knowledge and testimony. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA210: Cash Bail, Glucksburg and More
Sep 18 2018 81 mins  
Today's episode takes two deep dives: first, into California SB10, which eliminates the "cash bail" system of pretrial detention in California, and second, into the Supreme Court's 1997 decision in Washington v. Glucksberg. What does it all mean? You'll have to listen to know for sure! We begin, however, with an update on Wells Fargo's $1 billion remediation plan first discussed in Episode 169. After that, we tackle California SB10, which is now law -- even though it won't go into effect until October of 2019. Is this a good or a bad thing? Would it change your mind to learn that the ACLU flip-flopped on this bill? Listen and find out! From there, we move into an in-depth analysis of Glucksburg and what it means for the future of the Supreme Court. Then, we give you a little retroactive speculation regarding the possiblity that Paul Manafort might plead guilty. Yes, it's a living record of the fact that we record on Thursdays -- but we think you'll like the analysis anyway. Finally, we end with Thomas Takes the Bar Exam Question #93 regarding double jeopardy. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew will be debating originalist (and Kavanaugh clerk!) Justin Reed Wilson in Louisville, Kentucky on September 27 at Impellizzeri's Pizza; to attend, just RSVP on this Facebook link. Show Notes & Links We first discussed Wells Fargo's fine and remediation requirements in Episode 169; you can check the OCC's News Releases for yourself to see when the rejection becomes public (if ever). For now, we had to make due with this Reuters article. You can read California SB10, as well as check out the opposition from both Human Rights Watch and the ACLU. Here is the full decision in Washington v. Glucksberg, 521 U.S. 702 (1997). During the Glucksburg segment, we discussed Sen. Coons's question to Kavanaugh about it, and, of course, Ted Cruz's "Washington Generals" questions during the confirmation hearings. Also, we referenced earlier written answers from Elena Kagan during her confirmation hearings discussing Glucksburg. Glucksburg was explicitly distinguished in the Obergefell decision. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA209: Kavanaugh's Confirmation
Sep 14 2018 81 mins  
Today's Rapid Response Friday is all about the conclusion of the Supreme Court Confirmation Hearings for Brett Kavanaugh. What did we learn? What's still outstanding? Are liberals really guilty of trying to bribe Susan Collins? And, most importantly: what can we do about any of this?? Listen and find out! We begin, however, with an important Andrew Was Wrong. After that, we delve into all the week's issues surrounding the Kavanaugh confirmation hearings, including: (1) the status of Kavanaugh's nomination; (2) whether liberal crowdfunding efforts really count as efforts to "bribe" Republican Sen. Susan Collins; (3) an in-depth look at Kavanaugh's written answers to the Senate Judiciary Committee; (4) a shockingly misleading question from Opening Arguments's good friend, Sen. Ted Cruz; and finally (5) a preview of next Tuesday's discussion of a weird case called Glucksburg. Phew! After all that, we end with an all new Thomas Takes The Bar Exam #93 regarding double jeopardy. Did Thomas learn enough from the Ashley Judd Law'd Awful Movie of the same name?? We'll find out! And, of course, if you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Appearances Andrew will be debating originalist (and Kavanaugh clerk!) Justin Reed Wilson in Louisville, Kentucky on September 27 at Impellizzeri's Pizza. Be there and be square! Show Notes & Links This is the (ugh) Newsmax exclusive about Collins's accusations of "bribery;" you can click here to see what Ad Fontes thinks about Newsmax as an organization. The bribery law, of course, is 18 U.S.C. § 201., and the court decision we discuss is McDonnell v. U.S., 136 U.S. 2355 (2016). Here's the late-breaking Feinstein letter. We strongly recommend reading Kavanaugh's answers. If you can stomach his misuse of the word "precedent" every few lines. This is the transcript of Ted Cruz's "Washington Generals" questions of Kavanaugh, and if you want a head start on next week, you can start reading Washington v. Glucksberg, 521 U.S. 702 (1997). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]



OA207: Brett Kavanaugh's Confirmation Hearings
Sep 07 2018 75 mins  
Today's Rapid Response Friday tackles the ongoing Supreme Court Confirmation Hearings for Brett Kavanaugh -- including an analysis of documents that broke literally after we recorded the show! Find out if any of this can slow down Kavanaugh's presumed path the SCOTUS. We begin, however, with listener feedback on our rather controversial Episode 205 (with Andrew Seidel) as well as follow-up emails regarding 3-D guns and our contributions to SwingLeft. After that, we break down the critical documents leaked today by Sen. Cory Booker (D-N.J.) that show 1) Kavanaugh's nakedly partisan approach to the court; 2) Kavanaugh's nonexistent view of the value of precedent when it comes to Roe v. Wade; and 3) possible perjury. Is this a big deal? YES. Will it move the needle? We'll see. After that, we return to Yodel Mountain to discuss Paul Manafort's impending DC trial and the somewhat-overlooked plea by W. Samuel Patten. Who's that? Listen and find out! Finally, we end with an all new Thomas Takes The Bar Exam #92 regarding impeaching the testimony of a gang member at trial. If you'd like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Thomas was recently the guest masochist on this week's God Awful Movies, reviewing "New World Order." It's hilarious -- don't miss it! And if you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Here are the Kavanaugh email and Kavanaugh email 2 documents discussed during the main segment. For more Kavanaugh document fun, check out this comprehensive New York Times article. This is W. Samuel Patten's Criminal Information, to which he pled guilty, and here is the Statement of the Offense, which explains the connection to the Trump campaign and White House. Finally, this is the late-breaking document showing possible perjury. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA206: Will This ONE WEIRD TRICK Unravel the Mueller Investigation?
Sep 04 2018 73 mins  
Today's episode takes us back to Yodel Mountain, where we take a look at a popular article making the rounds suggesting that (you guessed it) this ONE WEIRD TRICK might unravel the entire Mueller investigation. Should you be worried? (No.) We begin, however, with the rare (but delightful!) Thomas Was Right segment revisiting 3-D guns and the Arms Export Control Act. What's going on? Listen and find out! In the main segment, we take apart this Politico story suggesting that McKeever v. Sessions hold the key to Yodel Mountain. After that, we tour what's left of Yodel Mountain to discuss the latest developments with our buddy Paulie M. Did he really try to plead out in advance of his next trial? What's next on the horizon for everyone's favorite ostrich-vest-wearing money launderer? Then, we end with Thomas (and Andrew!) Take the Bar Exam Question #91 regarding the separation of church and state and graduation prayers. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Here's the injunction granted in the 3-D guns case. This is the Politico story regarding McKeever v. Sessions. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA205: More on Masterpiece, Younger & the Catholic Church (w/guest Andrew Seidel)
Aug 31 2018 68 mins  
Today's episode tackles two big church/state separation stories currently circulating right now: the recent lawsuit filed by the owner of the Masterpiece Cakeshop, and the Pennsylvania grand jury investigation of the Catholic Church. And, of course, there's no better guide to these issues than friend of the show and Director of Strategic Response for the Freedom From Religion Foundation, Andrew Seidel. We begin the Masterpiece, going in depth on the case we first discussed back in Episode 201. Find out what the Andrews think will happen to this case -- and along the way, you'll learn something about Younger abstention! After that, we turn to the Pennsylvania grand jury investigation regarding the Catholic Church, discuss statutes of limitation, and learn what we can do about it going forward. Finally, we end with an all new Thomas (and Andrew!) Take The Bar Exam #91 involving -- by sheer coincidence! -- the First Amendment and prayers at a student graduation. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links To sign up for the FFRF's action alerts, text FFRF to 52886. We first discussed the new Masterpiece proceeding in Episode 201; you can also check out the case we discussed on Younger abstention, Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619 (1986). You can click here to read the full Pennsylvania grand jury report. Please read Andrew Seidel's article, "It's Time To Quit the Catholic Church." Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA204: The Perjury Trap (w/guest Randall Eliason)
Aug 28 2018 77 mins  
Today's episode welcomes back one of our favorite guest experts, former prosecutor and current law professor Randall Eliason of the Sidebars blog, who will help us break down what exactly a "perjury trap" is -- and whether Robert Mueller is laying one for the President. Of course, when we have a guest this good, we also have to take advantage of his expertise in a couple of other areas. So we begin by checking in on the news of the day: Mueller has already reportedly offered immunity to David Pecker, the CEO of the National Inquirer, whom we discussed at great length on Episode 203 in connection with the Cohen plea. After that, we delve into Rudy Giuliani's contention that Mueller is laying a "perjury trap" for the President. Is that a thing? Is that what he's doing? Listen and find out! After that, we revisit the issue of reporters and confidential sources, where Professor Eliason has been a consistent voice opposing a federal privilege. Is that a view he still holds? There's only one way to know for sure! Finally, it's time for the answer to Thomas Takes the Bar Exam, where our intrepid hero tries to inch closer to the coveted 60% mark with a question about torts. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Prof. Eliason first guested on the show way back in Episode 70. Here is the link to the NPR interview with Prof. Eliason discussed on the show. To read more of Prof. Eliason's work, click here to visit the Sidebars blog. Here is a transcript of Prof. Eliason's statement on reporter's privilege in the age of Trump. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected] Direct Download


OA203: Paul Manafort Convicted, Michael Cohen Pleads
Aug 23 2018 88 mins  
Today's extra-long, extra-early Rapid Response episode tackles the two biggest stories in the news right now: Paul Manafort's conviction, and Michael Cohen's plea deal. We tell you exactly what these two big stories actually mean. We begin with Paul Manafort. What did the jury decide? Why did they fail to reach a verdict on 10 counts? What were those counts? How long is Paulie M going to stay in prison and what's next? And, most importantly: what does this mean for Yodel Mountain? How likely is Paulie M to flip on Donald Trump? We answer all of these questions and more! After that, we turn to everyone's favorite weasel, Michael "I Would Take A Bullet For Donald Trump" Cohen, who... has not taken a bullet for Donald Trump but has in fact pled guilty to eight separate crimes. What are they, what does it mean, and what comes next? Listen and find out! And if all that wasn't enough, we end with an all new Thomas Takes The Bar Exam #90 involving foreseeability, cross-motions for summary judgment, and tortious conduct. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links You'll want to start with the Manafort indictment, and you can also read the Manafort verdict. Of the eight guilty counts, Manafort was convicted under 18 U.S.C. § 1344, 26 U.S.C. § 7206(1), and 31 U.S.C. § 5322. We first discussed the Federal Sentencing Guidelines back in Episode 162; you can check out the full manual (long!) and also the FSG Sentencing table to figure out how long Paulie M is going away. And don't forget Manafort still has another trial pending in DC! We gave you a primer on that back in Episode 194, and you can check out the pending indictment in that case. If Paulie M flips, it will be to take advantage of Rule 35(b) of the Federal Rules of Criminal Procedure. Of course, we first covered how Stormy Daniels is a Legal Genius back in Episode 154, and then the Karen McDougal story in Episode 158. Here's Cohen's plea deal; here are the conditions of his release; and here's the article quoting his allocution. Sneak preview of the bonus episode: here's the DOJ manual on prosecuting campaign finance violations that proves Alan Dershowitz is lying. Again. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA202: Roundup (With Special Guest the SciBabe!)
Aug 21 2018 66 mins  
Today's episode takes an in-depth look at the recent $289 million dollar verdict handed down by a California state jury for a man who alleges that the herbicide Roundup (TM) gave him cancer. First, we break down the facts of the lawsuit. Then, we have on special guest Yvette d'Entremont -- a.k.a. the SciBabe -- to break down the science behind glyphosate (the active chemical in Roundup). After that, it's time for everyone's favorite Thomas (& Yvette) Take the Bar Exam, where our dynamic duo attempts to get it right when it comes to the proper measure of damages for breach of contract. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links If you'd like to read some of the original court documents, here's the Roundup complaint, the Roundup motion to strike; and finally, here's the Roundup verdict. In the legal analysis, we discussed Rule 702 of the Federal Rules of Evidence and the standards set forth in Daubert v. Merrell Dow, 509 U.S. 579 (1993). And, of course, you should check out the SciBabe's website. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA201: Follow Up Friday!
Aug 17 2018 74 mins  
Today's Rapid Response Friday is actually a Follow Up Friday! We revisit four stories from recent episodes and go into more depth on each one, particularly in light of recent developments. We begin with our most recent story regarding reporter's privilege in Episode 200. What's the other side of the argument? Find out why friend of the show Randall Eliason thinks that reporter's ought not to have the right to keep their sources confidential! After that, we move back one more episode to Episode 199 and tackle some important listener questions about asbestos. Along the way, we discuss the difference between strict liability and negligence and delve into theories of market share liability. Our main segment covers the unsurprising fact that Masterpiece Cakeshop is back in the news. What does this mean? How has the Supreme Court's decision changed the landscape for religious exemptions to laws? Listen and find out! After that, we go back to Yodel Mountain and check in with the conclusion of the Manafort trial. Phew! And if all that wasn't enough, we end with an all new Thomas (and Yvette) Take The Bar Exam #89 involving the appropriate damages for breach of contract. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links We discussed reporter's privilege in Episode 200; for the other side, check out this 2007 article by Randall Eliason on the BALCO scandal or this law review article in the American University Law Review. Of course, we discussed asbestos in Episode 199, but we first broke down the law of negligence way back in Episode 29. We cite to the Restatement (Second) of Torts § 520 and Sindell v. Abbott Labs, 607 P.2d 924 (1980). Click here to read the new Masterpiece Cakeshop complaint. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA200: Reporters and Confidential Sources
Aug 14 2018 75 mins  
Today's episode takes an in-depth look at the legal protections reporters have (and don't have) to keep their sources confidential. We begin, however, with an update on how "Elections Have Consequences," this time, looking at the state of the House of Representatives in light of last week's special election in OH-12. After that, we dive deeply into reporter privilege, beginning with a discussion of the Supreme Court's decision in Branzburg v. Hayes and continuing through to the recently-proposed Free Flow of Information Act of 2017. Next, the guys break down the Electronic Frontier Foundation's take on the 3-D guns. Do Andrew and Thomas change their minds? Listen and find out! Finally, we end the answer to Thomas Takes The Bar Exam #88 about waiver and/or modification of contract. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was recently a guest on The Thinking Atheist podcast with Seth Andrews. If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Some political links: click here to read The Hill's report on Trump claiming that he was "5-for-5," and here to check out the Cook Political Report's revisions to House races in light of the Balderson-O'Connor race in OH-12, Click here to read the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), and here to read the recently-proposed Free Flow of Information Act of 2017. We discussed 3-D guns in Episode 197, and you can read the EFF's take here. The EFF's primary case is Herceg v. Hustler Magazine, 814 F.2d 1017 (5th Cir. 1987). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected] Direct Download

OA199: Asbestos??!? (Or: Why Is This Man Smiling?)
Aug 10 2018 75 mins  
Note: the SaneBox url in this episode is incorrect. Please go to https://www.sanebox.com/opening to take advantage of a great deal on their product! Today's Rapid Response Friday breaks down everything you need to know regarding the Trump EPA's recent rules change regarding asbestos. Is it as ominous as it sounds? (Yes.) We begin, however, with the oddest OA segment of all time: Devin Nunes was right! What was he right about, and what's a Michael Kinsley gaffe? You'll just have to listen and find out! After that, in a bonus segment, the guys break down the recent indictment of Chris Collins (R-NY-27) for insider trading. The main segment breaks down the EPA's Significant New Use Rule (SNUR) regarding asbestos and help you evaluate the competing claims being lobbed back and forth. Did the Trump Administration open up the use of asbestos in household products? Or did they make it harder to use asbestos as the EPA claims? We give you a definitive answer. After that, Andrew partially answers a listener question in light of Rick Gates's testimony in the Manafort trial while teasing that the rest will get answered sometime soon. And if that wasn't enough, we end with an all new Thomas Takes The Bar Exam #88 involving a contract, waiver and modification, and subsequent assignment to another party. Phew! If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was recently a guest on The Thinking Atheist podcast with Seth Andrews. If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Here's a link to the NBC story on the Devin Nunes tape; and here's a link to one in the Washington Post; they're both delightful. This is the Collins indictment, and this is the text of 17 CFR 240.10b-5. The TSCA is 15 U.S.C. § 2601 et seq. Here's the letter that the ACC wrote to the EPA back in August of 2016 arguing that they should be able to use asbestos. For an in-depth critique of the Trump EPA's evaluative process, you can check out the annotated source documents and the summary article in the New York Times. Here's the text of the new EPA SNUR, and here's the (laughable) EPA dissembling as to what it means. Finally, here's the report on Rick Gates's cross-examination over his affairs. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected] Direct Download


OA198: What Is Alan Dershowitz Thinking?
Aug 07 2018 87 mins  
Today's episode takes an in-depth look at Donald Trump's favorite "liberal," Harvard Law professor Alan Dershowitz as seen through the eyes of one of his former students. We begin, however, with an update from the Paul Manafort trial, taking a look at the prosecution's strategy, witness list, and some preliminary rulings by Judge Ellis. After that, we dive very deeply into what looks like a very weird phenomenon: why is Alan Dershowitz carrying water for a President whom he ostensibly opposes? Why is he saying things that are demonstrably and indefensibly untrue about the law? Andrew has a theory. Mostly, though, he has stories and research... but they lead to a theory (we promise)! Finally, we end the answer to Thomas Takes The Bar Exam #87 regarding constitutional law and a state vs. the federal Confrontation Clause. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links This is the article in The Hill indicating that the prosecution would, in fact, call Rick Gates; earlier, friend of the show Randall Eliason gave a bunch of reasons why they might not. Oh, and Eliason also has you covered as to why 'collusion' is, in fact, a crime. This is the laughable Fox News report on how Judge Ellis hates the prosecution; for a dose of reality, you might want to check out this other article in The Hill about how Judge Ellis chastised both sides's lawyers. If you missed it, this is our Episode 107 where we tackled Serial. Here's the PBS retrospective on Dershowitz and the OJ trial. Our Dershowitz story on 'testilying' begins with Mapp v. Ohio, 367 U.S. 643 (1961) and the origins of the exclusionary rule; Dershowitz coined the term 'testilying' in this New York Times article from 1994. Testilying is, of course, a consistent problem today (see A, B) -- but Dershowitz hasn't spoken about it since 1998 (and even then, in an entirely different context). Instead, he attacked Baltimore's decision to indict the police in the Freddie Gray case in 2015. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA197: Undetectable, Untraceable, 3-D Printed Guns
Aug 03 2018 72 mins  
Today's Rapid Response Friday breaks down all of the legal wrangling regarding the Trump Administration's secret settlement with a self-described "crypto-anarchist" who uploaded material that allows anyone with access to a 3-D printer to make their own plastic, undetectable, untraceable firearm. We begin, however, with a listener who's considering coming over to the "dark side" and wants an honest answer about getting electoral help from overseas. What if the Irish want to help elect Liz Warren in 2020? Listen and find out! The main segment breaks down the "Defense Distributed" settlement and subsequent litigation -- and along the way you'll learn about Cold War arms sales, the Export Control Act, F-15s, Richard Nixon, and... well, let's just say there's a lot on the table! Finally, we end with an all new Thomas Takes The Bar Exam #87 regarding a state supreme court ruling over whether witnesses must face their accusers. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links We most recently discussed election law and the relevant statute, 52 U.S.C. § 30121, back in Episode 116 with Beth Kingsley. The seminal Foreign Affairs (1982) article referenced by Andrew is here; and you can also verify the current arms sales numbers from this report in Newsweek. This is the confidential Trump administration's settlement with Defense Distributed; here is the Complaint filed by 8 states, along with the opposition brief filed by Wilson as well as the one filed by the Government. Ultimately, the Court granted the TRO. You can read the Arms Export Control Act, 22 U.S.C. § 2751 et seq., and the implementing regulations at 22 C.F.R. § 125.4(b). The Pentagon Papers case is more formally known as New York Times Co. v. U.S., 403 U.S. 713 (1971). Here's a Harvard Law Review article summarizing Wilson's loss at the 5th Circuit. Finally, check out the author note for (but please do not buy!) the Anarchist Cookbook, for sale on Amazon. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA196: Voting and Sore Losers
Jul 31 2018 60 mins  
Today's episode tells you everything you need to know about voting, including in particular West Virginia's "Sore Loser" law and whether it applies to big fat racist criminal loser Don Blankenship... and, in turn, what that means for Joe Manchin's chances of holding on to his Senate seat in the 2018 midterms. Phew! We begin, however, with... *sigh*... Andrew Was Wrong. This time, an astute listener clarifies where Andrew elided over two different sections of the Voting Rights Act when discussing the Supreme Court's opinion in Shelby County v. Holder (2013). Oh, and we have more on McDonald's, too! After that, it's time to dig into West Virginia's "sore loser" law. What does this mean for the upcoming Senate elections? Listen and find out! Then, the guys tackle a very good listener question from listener Greg regarding freedom of the press, freedom of speech, limited public fora, and more. Finally, we end the answer to Thomas Takes The Bar Exam #86 regarding the sale of an automobile and a slippery salesman. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Don't forget to tune in to our live Q&A this Tuesday, 7/31, at 7 pm Eastern / 4 Pacific. And, of course, participate in the questions thread! We most recently discussed the Voting Rights Act and Shelby County v. Holder back in Episode 188. If you want to know more about big fat racist criminal loser Don Blankenship, heck, you could start with his Wikipedia page. He's not shy about being a big fat racist criminal. (He does not yet grasp that he's a loser, though.) We cited two provisions of the West Virginia Code: W. Va. Code §§ 3-5-7(d)(6) and 3-5-23. And just in case you've forgotten how conservative Patrick Morrisey is, here's the quote he gave to CBS news. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA195: Lordy, There Are Tapes!
Jul 27 2018 85 mins  
Today's Rapid Response Friday breaks down all of a busy week's developments in the Trump Administration's trip up Yodel Mountain, including the surprising revelation that Michael Cohen has audio tapes of his conversations with Donald Trump. What does it all mean? Listen and find out! We begin, however, with a challenging listener question regarding legal ethics and summer associates that hearkens back to our last episode. The main segment tackles an entire week's worth of yodeling, including the Cohen tapes, the emoluments lawsuit, and the Manafort trial. Phew! After that, we check in with our buddy Andrew Seidel from the FFRF about a recent victory in the 9th Circuit regarding prayers at public school board meetings. Finally, we end with an all new Thomas Takes The Bar Exam #86 involving the questionable sale of a used car. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Don't forget to tune in to our live Q&A this Tuesday, 7/31, at 7 pm Eastern / 4 Pacific. And, of course, participate in the questions thread! Here's the Reuters report that there are 12 Cohen-Trump tapes; we've heard just part of the first one regarding Karen McDougal, whom we first discussed back in Episode 158. You can read the Emoluments ruling for yourself; we covered this most recently back in Episodes 160 and 162. For our original two-part interview with Seth Barrett Tillman, check out Episodes 35 and 36. Some documents from the Manafort trial: 2018.07.22 Yanukovich govt response; 2018.07.20 Yanukovich motion in limine; 2018.07.25 orders on motions in limine; and 2018.07.26 government jury response. And, of course, you should take a look at the government's Exhibit List. We discussed the "Bernie Sanders" lawsuit against the DNC back in Episode 106. Finally, for some good news, check out the 9th Circuit's opinion in FFRF v. Chino Valley Unified School District; we discussed Town of Greece v. Galloway in Episode 85. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA194: Paul Manafort is Going to Trial! (& McDonald's!)
Jul 24 2018 88 mins  
Today's episode tells you everything you need to know before Paul Manafort's trial in the Eastern District of Virginia, which begins Wednesday, July 25, 2018. Oh, and we break down the recent lawsuit against McDonald's to boot! We begin, however, with a very good listener question from "Judicial Noir" regarding ethics, science, and a summer internship! After that, it's time to discuss an actual lawsuit over actual cheese. Yes, there's a class action lawsuit against Thomas's favorite restaurant (McDonald's) -- and we're here to help you separate fact from fiction! Oh, and along the way, you might learn something about Microsoft, illegal tying arrangements, and antitrust law! Then, it's back to Yodel Mountain to explain in depth exactly what's going on with our buddy Paulie M, and what you can expect over the next two weeks. Finally, we end the answer to Thomas Takes The Bar Exam #85 regarding real property. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances If you didn't see Andrew's live appearance on Left-Right Radio with Chuck Morse, you can check out the YouTube archive of it. And if you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Before we get to McDonald's, you'll need to read all about US v. Microsoft, 253 F.3d 34 (2001). While you're at it, you might as well brush up on the Sherman Anti-Trust Act, 15 U.S.C. § 1 et seq. After that, you can read the class action lawsuit against McDonald's regarding the Quarter Pounder and Double Quarter Pounder. Andrew first broke down Judge Ellis in Episode 172. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]


OA193: This Is Worse Than Watergate - PLUS Mandalay Bay Suing Victims?
Jul 20 2018 90 mins  
Today's Rapid Response Friday breaks down the recent lawsuit filed by the Mandalay Bay casino regarding the 2017 Las Vegas shooting. Is it true that the casino is suing the victims? What's that all about?? Listen and find out! Also, we check in with Yodel Mountain and figure out, once and for all, if this is really worse than Watergate. (Hint: yes.) We begin, however, with everybody's favorite segment, Andrew Was Wrong, in which we revisit the Supreme Court with a few corrections. The main segment tackles the Mandalay Bay lawsuit and explains the concept of a declaratory judgent as well as the 2002 SAFETY Act upon which Mandalay Bay is attempting to rely. Next, we return to Yodel Mountain to discuss the recent Mueller indictments, Donald Trump's Treason Summit with Russia, and ingenue Mariia Butina. It's as salacious as OA ever gets! Finally, we end with an all new Thomas Takes The Bar Exam #85 involving (ugh) real property. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances If you didn't see Andrew's live appearance on Left-Right Radio with Chuck Morse, you can check out the YouTube archive of it. And if you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links This is the link to the 2011 Ethics Report authored by Chief Justice John Roberts. Here's the Above The Law article we mentioned at the start of the main segment. We've uploaded a copy of the MGM/Mandalay Bay lawsuit so you can read it for yourself. The SAFETY Act can be found at 6 U.S.C. § 441 et seq., and the implementing regulations are at 6 CFR § 25.7. We discussed the Senate Intelligence Committee's report in Episode 190. Here's the link to the Mother Jones article about Butina documenting the claims made in the C segment. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA192: Capital Punishment, the Eighth Amendment &... Obergefell?
Jul 17 2018 71 mins  
Today's episode takes an in-depth historical look at the Eighth Amendment's prohibition on "cruel and unusual punishment" and what that might mean for the future of Obergefell v. Hodges in the next Supreme Court. What does capital punishment have to do with gay marriage? Listen and find out! We begin, however, with a discussion of the District Court's refusal to modify the Flores settlement we discussed in Episode 184. Find out what the court thinks of Trump's Executive Order to "keep families together" at the border... by indefinitely detaining minors in violation of the law. After that, it's time for a double-length dive into the history of Eighth Amendment jurisprudence, and in particular, the Supreme Court's decision outlawing capital punishment in 1972 (Furman v. Georgia) and then reversing itself just four years later (Gregg v. Georgia). Is this a blueprint for what the next SCOTUS will do? Listen and find out! Finally, we end the answer to Thomas Takes The Bar Exam #84 regarding spousal privilege. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances By the time you download this, Andrew will have been a guest discussing Judge Kavanaugh with conservative talk show host Chuck Morse. If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links We first discussed the President's Executive Order regarding family separation in Episode 184; and you can click hear to read the District Court's Order refusing to modify the Flores settlement. The first case we discussed was Pavan v. Smith, 137 S.Ct. 2075 (2017), in which Roberts refused to sign on with the hard-right dissent. Our two main cases we broke down were Furman v. Georgia, 408 U.S. 238 (1972) and Gregg v. Georgia, 482 U.S. 153 (1976). Finally, we strongly recommend reading Justice Brennan's 1986 Oliver Wendell Holmes lecture in which he explains his view of the Eighth Amendment. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA191: Fact and Fiction About Brett Kavanaugh
Jul 13 2018 80 mins  
Today's Rapid Response Friday does not take a victory lap about our successful prediction that Brett Kavanaugh would be Donald Trump's next nominee to the Supreme Court (but seriously, we called that right, y'all.) Instead, Andrew and Thomas break down some of the current stories surrounding Kavanaugh to separate fact from fiction and try and articulate the best mainstream case against confirming Kavanaugh to the Supreme Court. In the pre-show, we give a shout-out to everyone who made the Opening Arguments Wiki possible -- go check it out! It's amazing! After that, Andrew Was Wrong returns with a clarification from Episode 187 where Andrew misspoke. And also, the guys have a slight laugh at Andrew's inability to pronounce locations of things. The main segment tackles a bunch of current stories surrounding Judge Kavanaugh, including: (1) the allegation that Judge Kavanaugh has concluded that sitting Presidents can't be indicted; (2) the Yale open letter opposing his nomination; (3) a truly stupid article in The Hill arguing for a lawsuit to block Kavanaugh; (4) the potential conflict of interest with Kennedy's retirement; and (5) the notion of "packing the Court" in 2020. Phew! Next, Andrew gives us an eight-second sneak peek at a court's refusal to permit the Trump administration to modify the Flores settlement and why that's good news. Finally, we end with an all new Thomas Takes The Bar Exam #83 involving spousal privilege. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was just a guest co-host on Episode 75 of the Skepticrat podcast; go check it out! Also, Andrew will be discussing Judge Kavanaugh with conservative talk show host Chuck Morse. If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links For starters, here is the Tweet from Alexandria Ocasio-Cortez we criticized, along with the pretty funny humor piece from Andy Borowitz. You should definitely read Kavanaugh's 2009 Law Review article “Separation of Powers During the Forty-Fourth Presidency and Beyond” in the Minnesota Law Review. This is the Yale Open letter. This is the dreadful Ken Levy article in The Hill that Andrew debunks. These are the actual Senate Rules, and remember that we broke down the "nuclear option" way back in Episode 59. On Anthony Kennedy's negotations, check out Rule 3(C)(1) of the Code of Conduct for U.S. Judges, which we previously discussed in Episode 129. As homework for next week, read the Court's order denying the Trump Administration's request to modify the Flores settlement, which we first covered in Episode 184. Finally, NEVER ENDING FAME AND FORTUNE goes to:Paul Duggan, Zach Aletheia, Eric Brewer, Teresa Gomez, Andrew Hamilton, Robin Hofmann, and Beverly Karpinski-Theunis for creating the OA Wiki! Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at [email protected]

OA190: Good News, Everyone! (On Abortion Rights & More)
Jul 10 2018 72 mins  
Today's episode -- at long last -- brings us some good news from two rather unlikely sources: first, from the state of Iowa (regarding abortion rights), and second, from the Republican-controlled Senate Intelligence Committee. You won't believe your ears! We begin, however, with a segment that's good news for everyone except Andrew: yes, it's the ever-popular Andrew Was Wrong. This time, Andrew owns up to a serious mistake regarding the fingerprinting regulations at the border, and an almost-as-serious mistake regarding the bustling metropolis of Olathe, Kansas. In the main segment, Andrew breaks down Planned Parenthood v. Reynolds, a recent state supreme court opinion invalidating a 3-day waiting period (with other onerous restrictions on abortion) that provides optimism and a way forward for progressives as we prepare for decades of a right-wing federal judiciary. Find out how states can protect reproductive freedom and abortion rights separate from the U.S. Supreme Court. After that, it's time for a return trip to Yodel Mountain, where we check in on the Senate Intelligence Committee's endorsement of the joint agency report from January 2017 concluding that the Russian government deliberately interfered in the US elections with a strong preference for Donald Trump to Hillary Clinton. Finally, we end the answer to Thomas Takes The Bar Exam #83 regarding the tort of assault and an unloaded firearm. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was just a guest co-host on Episode 75 of the Skepticrat podcast; go check it out! And if you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Click here to read the Planned Parenthood v. Reynolds opinion. For future activism, click this link to determine whether your state has elected or appointed state supreme court judges. The Intelligence Community Assessment is here; you can also read the Senate Intelligence Committee's report validating that assessment here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA189: Supreme Court Justice Brett Kavanaugh
Jul 06 2018 70 mins  
Today's Rapid Response Friday gives you a sneak preview of what to expect from the person we predict will become Donald Trump's next nominee to the Supreme Court, Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit. We discuss: Why it's likely to be Kavanaugh and not any of the other rumored contenders, especially flavor-of-the-minute Amy Coney Barrett Kavanaugh's view of the First Amendment's establishment clause and the future of Lemon v. Kurtzman Kavanaugh's views on abortion How Kavanaugh differs (and how he doesn't!) from Neil Gorsuch when it comes to Chevron deference The weird conservative hit squad out to get Kavanaugh And much, much more! After all that, we end with an all new Thomas Takes The Bar Exam #83 involving assault with an unloaded gun. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Thomas was just a guest on Episode 421 of the Cognitive Dissonance Podcast. If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links If you want a head start on Tuesday's show, check out the just-released Senate Select Committee on Intelligence report. This is the Notre Dame speech/law review article in which Kavanaugh lays out his judicial philosophy and essentially auditions for the Supreme Court. We discussed the following cases: Good News Club v. Milford Central School, 533 U.S. 98 (2001), Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), Priests for Life v. Department of Health & Human Services, 808 F.3d 1 (D.C. Cir. 2015) (en banc), Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017) (en banc), United States Telecom Ass’n v. FCC (D.C. Cir., 2017) (en banc), PHH v. Consumer Financial Protection Bureau, 881 F.3d 75 (2018) (en banc), Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir 2011), and Heller v. D.C., 670 F.3d 1244 (D.C. Cir. 2011)! Right-wing weirdo roundups: Here's the National Review endorsement of Kavanaugh; this is the truly bizarre Jacobs piece in The Federalist; and here is the Federalist Society's own rebuttal. Finally, a preemptive Andrew Was Wrong: Here's Raymond Kethledge's University of Michigan address on how bad Chevron deference is. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]


OA188: Three Cases About Voting Rights
Jul 03 2018 61 mins  
Today's episode takes a look at three recent decisions from this Supreme Court and how each one will affect voting in the midterm elections: Husted v. Randolph Institute, Abbott v. Perez, and (surprisingly) Janus v. AFSCME. First, though, we begin by addressing a conspiracy theory that's making the rounds suggesting some nefarious relationship between Anthony Kennedy's son, Justin, and Donald Trump. Does this story hold water? Listen and find out! Then, we break down each of the three cases: Husted, involving Ohio's efforts to purge voters from its rolls; Abbott, involving Texas's efforts to racially gerrymander Congressional districts; and Janus, which will result in drastically weaker public sector unions. What does this mean for the midterms? (Hint: it's not good.) Finally, we end the answer to Thomas Takes The Bar Exam #82 regarding the search and seizure of heroin from plain sight. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Thomas was just a guest on Episode 421 of the Cognitive Dissonance Podcast. If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links If you missed last year's Fourth of July Spectacular, that was Episode 83. You can read the Liptak & Haberman New York Times article about Trump and Kennedy by clicking here. The Ohio case is Husted v. Randolph Institute, and the Texas cdase is Abbott v. Perez. Before you read Janus v. AFSCME, you may want to check out our extensive coverage of the case back in Episode 150. The statute the 5-4 majority blatantly ignores in Abbott is 28 U.S.C. § 1253. Finally, this is the research Andrew mentioned regarding the correlation between right-to-work states and lower voter turnout and lower Democratic share of the vote. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA187: Lowering the Lukumi Bar?
Jun 30 2018 64 mins  
Today's Bonus Episode asks if there's a way to make sense of the Supreme Court's Lukumi jurisprudence in light of this week's rulings in Trump v. Hawaii (the Travel Ban), Masterpiece Cakeshop, and the somewhat surprising decision to remand the Arlene's Flowers case back to the state of Washington. We begin, however, by checking in with the Southern District of New York's Order approving the Taint Team's review of documents seized from Michael Cohen's offices by the Department of Justice. How many documents did the Team recommend the Court withhold as privileged? The answer may surprise you! After that, we revisit the thesis advanced by Andrew Seidel in Episode 180 that the Supreme Court's decision in Masterpiece Cakeshop might result in a more vigorous application of its 1993 decision in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). Next, we break down the Supreme Court's 5-4 decision in NIFLA v. Becerra, in which the Court struck down a California law regulating so-called "crisis pregnancy centers." After all that, we end with an all new Thomas Takes The Bar Exam #82 involving the legality of a search for heroin. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Check out the Southern District of New York's Order regarding Cohen's meager haul of privileged documents. Andrew Seidel set forth his "Lukumi bar" thesis in Episode 180; you can read Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) for yourself and then compare it with both Trump v. Hawaii and Masterpiece Cakeshop. We discussed Planned Parenthood v. Casey at length in a two-part series: Episode 27 and Episode 28; you might want to compare the statute approved in that case with the one struck down by the Court in NIFLA v. Becerra. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA186: Anthony Kennedy & the Future of the Supreme Court
Jun 29 2018 62 mins  
Today's Rapid Response Friday comes after a busy week at the Supreme Court, capped off by the (somewhat) surprising announcement that Associate Justice Anthony Kennedy intends to retire as of July 31, 2018. We break down everything about this news, including: What the Trump administration is likely to do next Who President Trump might nominate to fill Kennedy's spot How the Democrats should respond What the next Supreme Court might look like How all of this plays in with the 2018 midterms and 2020 Presidential election And much, much more! We're also going to bring you a bonus episode to make sure you're fully informed as to all the other goings-on in the law this week! After all that, we end with an all new Thomas Takes The Bar Exam #82 involving the legality of a search for heroin. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links We broke down the "nuclear option" in Episode 59. Mitch McConnell announced that the Senate would not recess for the summer on June 5. Here are the (generally reliable) Cook Political Report ratings of the 2018 Senate races. This is the Mother Jones article on Anthony Kennedy's 2017-2018 votes. This is the list of Trump's 25 potential Supreme Court nominees. These are the resources discussed in the future segment, including the When Every Vote Counts law review article, the Slate article on 5-4 splits, and the SCOTUSBlog data regarding the 2017-2018 term. Finally, if you're feeling nostalgic, you might want to reread Obergefell v. Hodges while it's still good law. An d if you're feeling super optimistic, you can even check out the "Above the Law" blog post arguing that it will survive Kennedy's departure (it won't). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at openar[email protected]

OA185: Gerrymandering & Other Good (?) News
Jun 26 2018 64 mins  
Today's episode tries to put a positive spin on some recent developments, including the Supreme Court's gerrymandering decisions, the Department of Justice OIG report on the 2016 election, and the triumphant return of Everyone's Favorite Segment (TM): "Are You A Cop?" We begin with the Office of the Inspector General's 2016 Election Final Report, which we modestly point out validates literally everything we said in one of our favorite Episodes, OA 13, "Hillary Clinton's Damned Emails." There's so much more to learn, so you'll want to listen up! After that, we tackle the main segment, looking for some good news out of the Supreme Court's recent "decisions" on gerrymandering in Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland). These 9-0 decisions are widely viewed as having punted on gerrymandering; is that right, and if so, what does the future hold? After that, we tackle a trope that "everyone knows" in fan-favorite segment "Are You A Cop?" This week, it's that "everyone knows" cops can't have sex with people in their custody, right? RIGHT? Well, thanks to one Democratic legislator in a deep red state, it's now true in Kansas, at least. Finally, we end the answer to Thomas Takes The Bar Exam #81 regarding a law designed to target two college professors who crafted campus hate speech codes. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links We first discussed Hillary Clinton's emails and the Comey investigation way back in Episode 13, and if you haven't listened, you should check it out! Then, compare what we said then to the just-released Office of the Inspector General's 2016 Election Final Report. Our explainer on Gerrymandering is Episode 54; we then talk about the Wisconsin case in Episode 80 and the Maryland case in Episode 148. Of course, you can (and should!) read the Supreme Court's recent decisions on gerrymandering in Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland). Here is the text of Kansas HB2621, which amends KSA Supp. 21-5512(a), defining "unlawful sexual relations." A "Severity Level 5 Person felony" is subject to 50-55 months in prison as per the Kansas Sentencing Guidelines. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA184: Families at the Border
Jun 22 2018 76 mins  
Today's Rapid Response Friday helps separate fact from fiction when it comes to the heartwrenching issue of families being separated at the border. Is the Trump administration to blame? Did the recent Executive Order fix the problem? Listen and find out. First, though, we bring back (almost) everyone's favorite segment: Andrew Was Wrong! Specifically, Andrew was wrong when he predicted back in Episode 83 that Maajid Nawaz didn't have much of a defamation case against the Southern Poverty Law center, and in Episode 84 that he didn't have much leverage, either. Well, both of those predictions looked foolish now that the SPLC has agreed to pay Nawaz $3,375,000 and issue an unconditional apology. In the main segment, we break down Trump's EO regarding separating families at the border and requesting a modification to the Flores v. Reno settlement. It's bad. And if it weren't bad enough, we also discuss the administration's change in asylum policy. After that, we discuss the Supreme Court's recent opinion in Pereira v. Sessions. Surely that can't be bad news, too? (Don't call us Shirley.) Finally, we end with an all new Thomas Takes The Bar Exam #81 involving the constitutionality of a state legislature retaliating against two professors for pushing campus speech codes. Have we piqued your interest yet? Listen and find out! And if you'd like to play along , just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was recently a guest on the David Pakman Show, with a two-part appearance discussing whether President Trump can be indicted and if so, whether he can pardon himself. You can watch the video on YouTube. Show Notes & Links We first discussed Maajid Nawaz's legal threats in Episode 83 and Episode 84. You can read the final Settlement Agreement for yourself as well as check out the SPLC's apology to Nawaz. Click here to read the Snopes article conclusively debunking the political claim that this policy was put into place "by Democrats." You can read Trump's recent Executive Order and also check out the original 1997 Flores v. Reno settlement. The operative laws discussed during the main segment were: 8 U.S.C. § 1158 (asylum); 8 U.S.C. § 1325 (“improper entry by alien”); and, of course, 18 U.S.C. § 46 (“transportation of water hyacinths”). You can also read the Attorney General's Interim Decision #3929 on refugees for yourself. As promised, this is the full list of Class B federal misdemeanors. We also discussed this Washington Post article on refugees being turned away at the border. This is the Supreme Court's recent opinion in Pereira v. Sessions. Finally, a secret Yodel for you folks who read the show notes: here's the link to the news that Michael Cohen's fired his old lawyers (McDermott, Will & Emery) and hired a new one (Guy Petrillo). What does this mean? Only time will tell. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]


OA183: Dissenting on the Supreme Court
Jun 19 2018 69 mins  
**Today's episode is brought to you by Framebridge! To custom frame your favorite things, go to framebridge.com promo code: OA** Today's episode takes a deep dive into two recent 8-1 decisions by the Supreme Court: Collins v. Virginia and Sveen v. Melin. What makes a decision nearly unanimous, and what causes that lone Justice to dissent? Listen and find out! Our first 8-1 case involves two unique aspects of the 4th Amendment: the "curtilage" exception and the "automobile" exception. Which one takes precedence, why, and which Supreme Court justice vehemently disagreed? Find out if you agree with Thomas -- and whether the law is "a ass." (Seriously!) Our second 8-1 case is Sveen v. Melin, which involves whether the state of Missouri can legislate certain presumptions regarding "governing instruments." It's the Contracts Clause! Seem arcane? It won't after you listen to our breakdown! After that, we answer a fun listener question about how a law firm makes someone a partner in light of our assessment of the Eagan Avenatti law firm in Episode 181. Finally, we end the answer to Thomas Takes The Bar Exam #80 regarding negligence per se and an impromptu ice rink. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was recently a guest on the David Pakman Show, with a two-part appearance discussing whether President Trump can be indicted and if so, whether he can pardon himself. You can watch the video on YouTube. And if you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Click here to read the Supreme Court's opinion in Collins v. Virginia, and here to check out Sveen v. Melin. The other decision Andrew referred to was the landmark case of Shelley v. Kraemer, 334 U.S. 1 (1948). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected] Direct Download

OA182: Paul Manafort is Going to Prison
Jun 15 2018 71 mins  
**Today's episode is brought to you by The Great Courses Plus! Go to thegreatcoursesplus.com/OA to start your free month!** Today's Rapid Response Friday spends a lot of time on Yodel Mountain, and in particular evaluating whether Paul Manafort is headed to prison for violating the terms of his pre-trial release as per 18 U.S.C. § 3148(b)(1)(A). You'll know soon enough, but we're predicting that Paulie M is headed to prison. Of course, no trip to Yodel Mountain has just a single stop, so we also discuss the late-breaking New York state lawsuit filed against Donald Trump, his kids, and the Trump Foundation; the status of the media's efforts to unseal the Mueller documents, and much, much more! After that lengthy trip to Yodel Mountain, we also update you on the recent court decision upholding the AT&T / Time Warner merger first discussed in Episode 128. Finally, we end with an all new Thomas Takes The Bar Exam #80 which asks how a court would rule in a convoluted case involving car-washing, sudden deep freezes, and incompetent trial attorneys. Have we piqued your interest yet? Listen and find out! And if you'd like to play along , just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was recently a guest on the David Pakman Show, with a two-part appearance discussing whether President Trump can be indicted and if so, whether he can pardon himself. You can watch the video on YouTube. Show Notes & Links Click here to read the just-filed New York state lawsuit against Donald Trump, his kids, and the Trump Foundation. Here's the government's motion to revoke Paul Manafort's pretrial release pursuant to 18 U.S.C. § 3148(b)(1)(A) ; here's the superseding indictment; and here's Manafort's response to the government's motion. Witness tampering is a crime under 18 U.S.C. § 1512. You can read the primary case relied upon by Manafort's lawyers, U.S. v. Edlind, 887 F.3d 166 (4th Cir. 2018) for yourself. A (federal) criminal motion for a "bill of particulars" is governed by Rule 7(f) of the Federal Rules of Criminal Procedure. You can also check out Judge Jackson's Order denying Manafort's Motion for Bill of Particulars, We first discussed the press's motion to unseal the Mueller investigation documents in Episode 168; now you can read the Media Coalition Response brief to the government and Manafort's separate objections to unsealing the documents. We broke down the AT&T/Time Warner merger in Episode 128, and you can read Judge Leon's Order Approving the Merger. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA181: Michael Avenatti is Never Going To Come On Our Show (#NotAllLawyers)
Jun 12 2018 77 mins  
Today's episode takes a deep dive into allegations of attorney misconduct. We begin with following investigative reporting concerning the involuntary bankruptcy of the Eagan Avenatti firm, and discover some potentially disturbing facts about the lawyer who's currently outfoxing the bad guys at every turn, Michael Avenatti. After that, we discuss the Supreme Court's recent unanimous per curiam decision in Azar v. Garza, the tragic case of the young woman denied her constitutional right to an abortion and subjected to harassment and "crisis pregnancy center" anti-abortion counseling until the D.C. Circuit Court of Appeal stepped in. So... why did the Supreme Court just vacate that opinion? It (potentially) has to do with attorney misconduct. Oh, and this story also tells you everything you needed to know about price ceilings on underwear in the 1940s. (Really!) Then, we examine the biggest example of attorney misconduct at the moment -- Donald Trump's ever-fluctuating team of lawyers defending the indefensible. Specifically, we take a look at the recently-leaked Dowd memorandum and its central claim that the President cannot obstruct justice with otherwise-legal behavior. (That's false.) Finally, we end the answer to Thomas Takes The Bar Exam #79 regarding the conveyance of property to a church with conditions attached. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances If you can't get enough of our analysis of the Masterpiece Cakeshop opinion, you can get even more on Episode 142 of Serious Inquiries Only (with more Andrew Seidel) and Episode 277 of The Scathing Atheist (with way more profanity). And if you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links This is the investigative piece on the Eagan Avenatti bankruptcy published by the Los Angeles Times. We last discussed Garza v. Hargan on Episode 165. You can read the Supreme Court's opinion (now captioned Azar v. Garza) here. And if you want to read United States v. Munsingwear, Inc., 304 U.S. 36 (1950), you can do that too! Finally, if you can stomach it, here's a link to the Dowd memo. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA180: Masterpiece Cakeshop
Jun 07 2018 87 mins  
Join us for an early Rapid Response Friday, in which we break down the Supreme Court's decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission. To tackle a topic this big, we needed a little extra help, so we brought back our favorite guest, Andrew Seidel, attorney with the Freedom From Religion Foundation. But that's not all! We recorded so much information that we decided to do a crossover episode with Serious Inquiries Only, so you can have over two hours of Andrew-on-Andrew (and Thomas!) action. We begin, however, on Yodel Mountain, with two pieces of news arising out of Paul Manafort's criminal trial. Is Paulie M going to jail? Did he engage in illegal witness tampering? Did he back up his encrypted WhatsApp messages on an unencrypted iCloud? Listen and find out! We also delve into Manafort's response to the press's motion to unseal the Mueller investigation documents first discussed in Episode 168. And, as long as we're yodeling, we might as well catch up on what's going on in the Summer Zervos lawsuit first discussed in Episode 176. After that, it's time to figure out exactly what's going on in Masterpiece Cakeshop. Is this a narrow decision? Is it a win for anti-LGBTQ forces? Is it a nothing-burger? Listen and find out! Finally, we end with an all new Thomas Takes The Bar Exam #79 about the real property conveyance to a church. Yes, it's more 13th-Century Saxony law! And if you'd like to play along , just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew and Andrew continued to talk Masterpiece Cakeshop on Serious Inquiries Only, and Andrew was a guest talking the same thing on Episode 177 of The Scathing Atheist. Show Notes & Links Here's the government's motion to revoke Paul Manafort's pretrial release. Witness tampering is a crime under 18 U.S.C. § 1512. We first discussed the press's motion to unseal the Mueller investigation documents in Episode 168, and the Summer Zervos lawsuit back in Episode 176. We've uploaded Supreme Court's decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission so you can read it for yourself. If you love Andrew Seidel, you might want to go back to his FIVE previous appearances on the show, Episode 82 (on Trinity Lutheran), Episode 85 (which was originally a Patreon-only exclusive),Episode 111, Episode 131, and most recently, Episode 171. Finally, please consider supporting the Freedom From Religion Foundation. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA179: Abortion and Plea Bargaining
Jun 05 2018 62 mins  
Today's episode takes a deep dive into two developments concerning the right to an abortion in the U.S., followed by our continuing discussion on plea bargaining with listener comments from prosecutors, public defenders, the U.S. judiciary, and even international listeners. You won't want to miss it! We begin with an in-depth examination of the so-called "gag rule" just proposed by Trump's Department of Health and Human Services. Is it really a gag rule? (Yes.) After that, we look into the Supreme Court's recent decision not to grant certiorari in Planned Parenthood v. Jegley, allowing an 8th Circuit decision to stand that, in turn, denied a preliminary injunction blocking a restrictive Arkansas abortion law, HB1394. Is this a bad sign? (Yes.) After that, we return to the subject of plea bargaining that's been a hot topic in our inbox for weeks, capped off by the Iowa Supreme Court's discussion of the issue in Schmidt v. Iowa. Finally, we end the answer to Thomas Takes The Bar Exam #78 regarding whether the jury can read a treatise on mill grinding. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links For context on the Trump HHS gag rule, you can read Title X, 42 USC § 300 et seq. Planned Parenthood v. Jegley, 864 F.3d 953 (8th Cir. 2017), denied a preliminary injunction, allowing HB1394 to take effect. You can read the cert petition here. If you're feeling good about Schmidt v. Iowa and need to be reminded that "actual innocence" is not a ground for federal habeas corpus relief, check out Herrera v. Collins, 506 U.S. 390 (1993). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]


OA178: Trump and the NFL
Jun 01 2018 73 mins  
Join us for yet another Rapid Response Friday, in which we continue to evaluate claims on the left challenging the legality of the NFL's policy regarding the national anthem, as well as discuss two items that are also of interest to Donald Trump. We begin with a listener question we didn't get to during our Q&A regarding the similarities and differences between the John Edwards affair and the Stormy Daniels affair. Is this the kind of thing that should give Trump comfort? (Hint: no.) Oh, and you might also learn something about an "Allen charge" if you follow us all the way down all our rabbit trails! After that, we break down the "state action doctrine" while considering some liberal arguments making the rounds ostensibly challenging the legality or constitutionality of the NFL's new rules. Andrew still isn't buying it! Then, we trek back to Yodel Mountain to discuss the recent developments in Michael Cohen's case in the Southern District of New York. Was Andrew... wrong? Listen and find out! Finally, we end with an all new Thomas Takes The Bar Exam #78 regarding whether the jury can read a treatise on mill grinding. It's more interesting than it sounds, we promise! If you'd like to play along , just retweet our episode on Twitter or share it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links In the pre-show, we (don't) discuss, among other things, the Trump administration's breaking decisions on steel tariffs; for analysis, we refer you to our coverage of this issue back in Episode 162. This is the text of the 6-count John Edwards indictment, and we also quoted from the coverage of the acquittal by ABC News. We covered the "Paid Patriotism in the NFL" report in Episode 108; you can also read that report directly by clicking here. Oh, and this is the Mike Florio PFT article, if you want to read more about how the NFL is in Jerry Jones's pocket. If you like semi-old-timey Supreme Court decisions, you should definitely read Marsh v. Alabama, 326 U.S. 501 (1946) about First Amendment rights in a company town. Once you've gotten through that, you can tackle Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) on the entanglement doctrine. This is the Ben Sachs Vox article we discussed. Your guide to Yodel Mountain includes this awesome NYT flowchart as well as this solid narrative article in Politico. Finally, this is the full text of Avenatti's withdrawal of his pro hac vice motion. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA177: Neil Gorsuch's Epic Decision & the NFL (feat. Chris Kristofco)
May 29 2018 76 mins  
Today's episode takes a deep dive into the recent Supreme Court decision in Epic Systems Corp. v. Lewis, a Gorsuch opinion that is exactly what we told you to expect back when he was nominated to the Court. Oh, and we also tackle the latest policy issued by the NFL with our four-time guest, Chris Kristofco. And that's where we begin: with a detailed breakdown of the legal implications of the NFL's just-announced policy prohibiting on-field peaceful protests during the national anthem. You won't want to miss it! During the main segment, we break down the Supreme Court's 5-4 decision upholding the use of mandatory arbitration clauses that waive the right to class action lawsuits in take-it-or-leave-it contracts of adhesion. But -- because this is a Gorsuch opinion -- you won't be surprised to learn that it's so very much worse than you thought. After that, we move into a listener comment on plea bargaining that foreshadows an upcoming episode.... Finally, we end with the answer to Thomas Takes the Bar Exam Question #77 about the constitutional requirements (if any) to a 12-person jury and/or a unanimous one. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was just a guest on the Dumb All Over Podcast, episode 70. Go check it out! Show Notes & Links If you liked Chris and want to hear more, you can check out his excellent sportsball podcast, Titletown Sound Off, or you can check out his previous appearances on the show: Episode 6 (on the NFL), Episode 32 (on Phil Ivey's gambling), and Episode 68 (on Aaron Hernandez). Also, our guest Chris Kluwe predicted something like this back in Episode 115. Click here to read the Supreme Court's opinion in Epic Systems Corp. v. Lewis. If you want to check out the data cited in Ginsburg's dissent; that's here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA 176: It's Summer (Zervos) Time!
May 25 2018 77 mins  
It's time for another Rapid Response Friday, which means we get to break down whether Donald Trump has to respond to the Summer Zervos defamation lawsuit. (Hint: yes) We begin, however, with a potential Stormy Setback. What's the deal with press reports of a $10 million judgment entered against Stormy Daniels' attorney, Michael Avenatti? Could it jeopardize the pending litigation? Listen and find out! After that, we break down the recent federal district court opinion in Knight First Amendment Institute v. Trump, which we covered when the case was first filed way back in Episode 77. Are Donald Trump's Tweets really a "protected forum" to which the First Amendment applies? Listen and find out! Then, we break down exactly how duplicitious Donald Trump's personal lawyer has been regarding the Summer Zervos lawsuit. It's exactly as much as you'd expect! Finally, we end with an all new Thomas Takes The Bar Exam #77 regarding the constitutional requirement to a trial by jury. If you'd like to play along with our new Patreon perk, just retweet our episode on Twitter or share it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was just a guest on the Dumb All Over Podcast, episode 70. Go check it out! Show Notes & Links We discussed Michael Avenatti's pro hac vice motion in Episode 174; you can also read the LA Times article about the bankruptcy judgment, as well as check out both the Avenatti involuntary bankruptcy petition and the Avenatti creditors list. We analyzed several cases, the most hilarious of which is Kohlmayer v. AMTRAK, 124 F.Supp.2d 877 (D.N.J. 2000). Trump's Tweets were first discussed in Episode 77, along with the Davison v. Loudon County decision. You should read the Knight First Amendment Institute v. Trump decision. This is the Supreme Court's decision in Clinton v. Jones, 520 U.S. 681 (1997), and if you want to read Marc Kasowitz's deliberately misleading statements yourself, you can do so here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA175: Defending a Client In the Shadow of the Death Penalty (& So Much More!)
May 22 2018 69 mins  
Today's episode takes a deep dive into two important Supreme Court opinions decided last week: McCoy v. Louisiana, which prohibits attorneys from conceding their client's guilt over that client's objections in a capital murder trial, and Murphy v. NCAA, which struck down the Professional and Amateur Sports Protection Act (PASPA), 28 U.S. Code § 3701 et seq. In both cases, we hope to show that these cases have two legitimate sides. We begin, of course, with sportsball. What is PASPA, why did the Court strike it down, does it make sense, and most importantly: when can you bet against the San Jose Sharks? In the main segment, we break down the difficult questions surrounding the representation of capital murder defendants. After that, we head back overseas with a really insightful listener comment that takes us deeper into the law of treaties. Finally, we end with the answer to Thomas Takes the Bar Exam Question #76 about present recollection refreshed. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links The first case we break down is Murphy v. NCAA, which struck down the Professional and Amateur Sports Protection Act, 28 U.S. Code § 3701 et seq. After that, we turn to McCoy v. Louisiana, which prohibits attorneys from conceding their client's guilt over that client's objections in a capital murder trial, distinguishing the Court's earlier decision in Florida v. Nixon, 543 U.S. 175 (2004). We discussed treaty obligations in Episode 173. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA174: Is Michael Avenatti Fit To Practice Law In New York?
May 18 2018 77 mins  
It's time for another Rapid Response Friday, which means we get to break down Michael Avenatti's response to the opposition to his motion to appear pro hac vice in the Southern District of New York -- amongst many, many other issues! We begin, however, with a brief Andrew Lived Through The 1980s segment (formerly: Andrew Was Wrong), that segues into an update on the Panmunjom Declaration discussed in Episode 173. After that, it's time to go yodeling, where we break down Paul Manafort's other criminal trial, Michael Avenatti's ethical responsibilities regarding SARs, Donald Trump's financial disclosures, and (sadly) much, much more. Finally, we end with an all new Thomas Takes The Bar Exam #76 regarding the admissibility of witness testimony. If you'd like to play along with our new Patreon perk, just retweet our episode on Twitter or share it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Here is the text of the Panmunjom Declaration we first discussed in Episode 173. You can read Judge Jackson's ruling denying Manafort's Motion to Dismiss, and also Avenatti's Response to Michael Cohen's Opposition to his motion to appear pro hac vice. The primary case relied upon by Avenatti in his response is In re JPMorgan Chase Bank N.A., 799 F.3d 36 (1st Cir. 2015), which is directly on point. We've also uploaded a copy of Trump's 2018 Financial Disclosures, which admits the Cohen payment. Finally, we highly recommend Ronan Farrow's New Yorker reporting regarding the Cohen SARs. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected] Direct Download


OA173: The Foreign Policy Show - Korea, Iran, and... Ann Coulter?
May 15 2018 75 mins  
Today's episode heads overseas to discuss foreign policy; specifically, the Trump administration's actions with respect to Iran and North and South Korea. Is there a common thread here? Listen and find out! First, though, we update you on the Young America Foundation lawsuit against the University of California at Berkeley regarding Ann Coulter and an (alleged) hidden Secret Evil Cabal Conspiracy to Silence Conservatives. After that, we crank up the time machine and go back... all the way back to World War II to discuss what happened on the Korean Peninsula that paved the way for the recent Panmunjom Declaration. If you've ever wanted Opening Arguments to go all Ken Burns, well, this is the show for you! Then, we take a look at the Joint Comprehensive Plan of Action signed in Vienna on July 14, 2015 -- or, as Trump calls it, the "terrible Iran deal." Is it a terrible deal? What are the legal ramifications? We've got you covered! Finally, we end with the answer to Thomas Takes the Bar Exam Question #75 about subsequent oral modifications to contract. Don't forget to listen and find out why Andrew would have gotten this question wrong! Also, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links We first discussed the "Ann Coulter" lawsuit during Episode 73; if you want to read the latest ruling, it's embedded in this article. Click here to read the Howard Levie law review article from the Akron Law Review, and here to read the final Armistice Agreement (drafted by Levie). This is the text of the original JCPOA; and click here to read the CFR's backgrounder on it that was referenced during the show. If you want the Washington Post's fact-checker article on Trump's statements about the JCPOA showing that virtually everything he's said is a lie, that's here. This is the link that contains the letter written by the Obama Administration to then-Rep. Mike Pompeo describing the JCPOA as a "political document." Finally, if you want to read the 1969 Vienna Convention, grab a tall beverage and curl up with it right here. The actual treaty begins on page 384. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA172: Private Prisons, Judge Ellis & More
May 11 2018 86 mins  
It's time for another SUPER-SIZED Rapid Response Friday, which means we get to break down Judge Ellis's statements in the Paul Manafort criminal trial (amongst many, many other issues)! We begin, however, with a brief Andrew (well, mostly ABC and NBC) Was Wrong. After that, the guys discuss a recent 10th Circuit opinion regarding the treatment of detainees in private prisons. What does it mean for the future of class action litigation? Listen and find out! After that, it's back to Yodel Mountain, where we break down not only Judge Ellis, but all the developments in or connected to the Mueller investigation, including Michael Flynn and Michael Cohen's "follow the money" report. Phew! Finally, we end with an all new Thomas Takes The Bar Exam #75 about a contract and a subsequent oral modification that Andrew admits he would have muffed. If you'd like to play along and show Andrew you're the better lawyer, just retweet our episode on Twitter or share it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Here's the link to a Washington Times story covering the correction regarding Michael Cohen's supposed "wiretap" (that turned out to be a pen register). The case we discussed in the main segment was Menocal v. GEO Group (10th Cir., Feb. 9, 2018). Click here to read the 2016 Obama directive on ending privatized prisons, or (if you're a masochist) here to read the 2017 Trump directive rescinding it. If you only read one thing from this show, please do read the transcript of the May 4 hearing before Judge Ellis. It's great. I love this guy. The opposition to Michael Avenatti's pro hac vice motion is here; it also contains the "Executive Summary" laying out Avenatti's "follow the money." If you prefer to see it in chart form, click here (H/T Washington Post). The TPM article suggesting that Avenatti must have had access to SARs is here. To understand bribery, we highly recommend this primer by Randall Eliason. Finally, please click here to check out Thomas's May 19 talk in New Orleans. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA171: Andrew Seidel Joins the Five-Timers Club
May 08 2018 65 mins  
Today’s episode welcomes back one of our favorite guests — and the show’s only five-time guest, Andrew Seidel, attorney with the Freedom From Religion Foundation. Together, Andrew, Andrew, and Thomas tackle a bunch of church and state separation issues. First, they break down Andrew Seidel’s recent success in convincing the New Jersey Supreme Court to strike down a grant program that spent taxpayer dollars rebuilding churches and saved the citizens of New Jersey more than a quarter of a billion dollars! Then, the gang does a deep dive into a pending law in Kansas that would permit adoption agencies within the state to discriminate on the basis of sexual orientation (or anything else that offended the organization's... wait for it... sincerely-held religious beliefs). Finally, we end with the answer to Thomas (and Andrew!) Take The Bar Exam question #74 about the admissibility of evidence. Don’t forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was the recent guest masochist on Episode 141 of the God Awful Movies podcast, reviewing "Cries of the Unborn." Check it out! Show Notes & Links Click here to read the Morris County Opinion discussed during the "A" segment. And if you want to see the legislative notes from the Kansas adoption bill, you should click here. We broke down the Masterpiece Cakeshop case in Episode 105, and you can follow along with the guys by reading the transcript of the Masterpiece Cakeshop oral argument before the Supreme Court! If you love Andrew Seidel, you might want to go back to his FOUR previous appearances on the show, Episode 82 (on Trinity Lutheran), Episode 85 (which was originally a Patreon-only exclusive),Episode 111, and most recently, Episode 131. Finally, please consider supporting the Freedom From Religion Foundation. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA170: All Yodel, All the Time
May 04 2018 79 mins  
Well, it's another Rapid Response Friday, and we're here with everything you need to know about Yodel Mountain, including: Breaking news regarding the wiretap of Michael Cohen's office several weeks before the search warrant issued and that the SDNY has at least one conversation between Cohen and Trump Rudy Giuliani's rather bizarre appearance on Hannity, during which he admitted that President Trump is DD and paid Michael Cohen back for the $130,000 in hush money paid to Stormy Daniels -- directly contradicting the President's own earlier statement Whether the repayment scheme alleged by Giuliani (a) makes sense and/or (b) constitutes money laundering The "leaked questions" regarding Mueller's efforts to interview Trump Trump's decision to replace Ty Cobb with Emmett Flood The House Freedom Caucus's efforts to impeach Deputy Attorney General Rod Rosenstein; and, of course Stormy Daniels's latest defamation lawsuit against President Trump Our tip to journalists -- the question you want to ask is "What 'information' does Stormy Daniels have under Paragraph 2.1 of the Agreement?" Finally, we end with an all new Thomas (and next week's guest Andrew Seidel) Take The Bar Exam #74 that's not about real property, but is instead about the rules of evidence and whether a particular line of questioning is permissible. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was just a guest on Episode 141 of the God Awful Movies podcast, reviewing "Cries of the Unborn." Check it out! Show Notes & Links We first discussed how unhinged Rudy Giuliani is way back in Episode 13, "Hillary Clinton's Damned Emails" -- which is one of our all-time favorites. This is the not-to-be-missed Laura Ingraham reaction video to Giuliani's Hannity appearance, which led to this set of tweets from the President. The money-laundering statute is 18 U.S.C. § 1956. This is the New York Times article we mentioned that breaks down the political implications of the switch from Cobb to Flood, and here is the list of questions Mueller wants to ask Trump. Finally, this is the Stormy Daniels defamation complaint. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA169: Wells Fargo Goes To Jail?
May 01 2018 79 mins  
Today's episode discusses the recent fines levied against Wells Fargo in connection with two specific acts of egregious fraud against consumers. Is it enough? Is it proof that Trump (and Mick Mulvaney) intend rigorous defense of consumers at the CFPB? Listen and find out! First, we delve into a grab bag of items, beginning with a heartfelt apology and Andrew Was Wrong regarding trans language. Next, we deal with a couple of wacky legal cases, before settling in on a bevy of new gun control laws passed in Maryland. Phew! Then, we move into a discussion of Trump v. Hawaii, which was argued before the Supreme Court last week. What's the latest on the Travel Ban? After that, our "C" segment breaks down everything Wells Fargo. Finally, we end with the answer to Thomas Takes the Bar Exam Question #73 about lessees, assignees, and joint and several liability. Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances As this show comes out, Andrew was the guest masochist on Episode 141 of God Awful Movies; check it out! And if you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links From our grab bag: here is a link to the Kobach memo that's PROBABLY NOT WORTH ARGUING; this is the New York Post report on the hilarious Make America Great Again bar lawsuit; and this is the link to all the gun control bills passed in Maryland. We first discussed outgoing Federal Reserve Chair Janet Yellen's cease-and-desist order against Wells Fargo back in Episode 146. The current enforcement action by the OCC can be read here. We first discussed Trump's (then only proposed) Muslim ban way back in Episode #16, when the conventional wisdom was that it was so unthinkably awful it might lead the Republican Party to replace him at the top of the ticket. Ah, good times. Since then, we've discussed the legality of the ban again (in Episode 39), the 9th Circuit's ruling on EO-1 (in Episode 43), and, most recently, the status of OA-2 in Episode 114. In this episode, we cite to the Government's reply brief before the Supreme Court. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]


OA168: Michael Cohen Takes Five
Apr 27 2018 68 mins  
In the main segment, we discuss the intersection between the Paul Manafort criminal trial and the public's right to know about the Mueller investigation. Oh, and ... isn't there a bill pending to protect Mueller? We break down that, too. But we're not done! After that we delve into all things Michael Cohen, including his efforts to stay the California civil suit and his less-than-likely efforts to stay out of criminal trouble in New York. If you love Stormy Daniels -- and who doesn't? -- you won't want to miss it. Finally, we end with an all new Thomas Takes The Bar Exam #73 about landlord-tenant-friend relationships. If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links From our grab bag: here is a link to the Kobach memo that's PROBABLY NOT WORTH ARGUING; this is the New York Post report on the hilarious Make America Great Again bar lawsuit; and this is the link to all the gun control bills passed in Maryland. Click here if you want to read the Comey memos. We first discussed the Manafort trial back in Episode 118; this is the Government's Memorandum in Opposition to Manafort's Motion to Suppress, and here is the press motion to unseal portions of the Mueller investigation. Oh, and this is Morrison v. Olson, 487 U.S. 654 (1988), discussed during the show. Here's the link to the Washington Post article reporting that Trump has conceded that Michael Cohen "represents me with this crazy Stormy Daniels deal." In this segment, we discuss Kastigar v. U.S., 406 U.S. 441 (1972). Finally, you can click here to read the government's status report filed in Cohen's New York investigation. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA167: Neil Gorsuch, Secret Liberal?
Apr 24 2018 62 mins  
Today's episode tackles the recent (and shocking) Supreme Court decision in which Neil Gorsuch voted with the Court's liberal justices to produce a very unusual 5-4 alignment. Is this a sign that Gorsuch isn't the right-wing hack we all thought he was? Listen and find out! (Hint: No.) After that, we break down the 6th Circuit's recent opinion in EEOC v. R.G & G.R. Harris Funeral Homes, Inc., the first decision of its kind recognizing that discrimination on the basis of an individual who is transgender or transitioning violates Title VII of the Civil Rights Act of 1964. After that, we answer a listener question about selecting a contingent fee attorney and discuss some of the actual pitfalls as well as misconceptions about those lawyers who take "no money down!" Finally, we end with the answer to Thomas Takes the Bar Exam Question #72 about real property and the transfer of a deed. Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links We first warned you about Neil Gorusch way back in Episode 40, and we're definitely not backing down now. If you want to check out his concurrence, you can click here to read the Supreme Court's decision in Sessions v. Dimaya. And, as we discussed on the show, the should-have-been-straightforward holding of this case stems directly from the Court's prior opinion in Johnson v. United States. You can read the 6th Circuit's recent opinion in EEOC v. R.G & G.R. Harris Funeral Homes, Inc., and for more coverage of Title VII, check out our discussion of Hively v. Ivy Tech from Episode 60, as well as our most recent update in Episode 152. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA166: The Taint Team (& Also, Alex Jones)
Apr 19 2018 91 mins  
In this rapid-response episode, Thomas and Andrew take a look at the attorney-client privilege issues relating to the FBI's search of the offices of Michael Cohen, alleged lawyer to Donald Trump and... Sean Hannity?!? First, we begin with a finishing move from one of our pro wrestler listeners, updating our story that we first covered in Episode 163. (Is it the Million Dollar Dream? Listen and find out!) In the main segment, we break down all that happened (and all that's yet to come!) in the ongoing legal case against Michael Cohen we first discussed in Episode 164. How strong is Cohen's argument that he's entitled to protect the privilege of his legal clients? After that, we take a look at three lawsuits against Alex Jones and InfoWars and start the discussion about what to do about blatantly false, politically-motivated conspiracy theories. Are defamation lawsuits the answer? Finally, we end with an all-new TTTBE #72 about real property law. If you've ever thought about playing along, just retweet our episode on Twitter or share it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links We first discussed the search of Cohen's offices in Episode 164. You can read Michael Cohen's Motion for TRO, which was denied on Monday April 15, as well as his revised request for a special master, which remains pending. This is the Gilmore Complaint filed and Alex Jones, and here is a New York Times story on the other two defamation complaints filed by parents of victims of the Sandy Hook shooting. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA165: You Heard It Here First! (Abortion Rights, Gun Control, and Offensive Trademarks)
Apr 17 2018 68 mins  
Note: The "C" segment of this episode (and the show notes) contain hilarious explicit language in order to discuss a recent development in trademark law. You've been warned! In the preshow, we tamp down on some unwarranted liberal freakout regarding a recent White House Executive Order regarding the last few fraying strands of our social safety net. After that, we revisit three cases we told you we'd be keeping an eye on. First, we look at the aftermath of Jane Doe v. Wright, which we first discussed in Episodes 117 and 133. Back then, we told you about the fate of a single young woman in state custody who was denied her right to an abortion; today, we tell you about the nationwide class action that was just certified in Garza v. Hargan. Next, we revisit Kolbe v. Hogan, which we called a "landmark" case way back in Episode 47. Find out how a federal district court judge in Massachusetts just applied Kolbe in upholding the Massachusetts ban on assault weapons and large capacity magazines. For our third revisit, we take a look at another trademark case in light of the Slants case (Matal v. Tam) that we first discussed with Simon Tam way back in Episode 33 and reported on Tam's victory before the Supreme Court in Episode 80. The Slants's victory paved the way for disparaging and offensive trademarks, but what about garden-variety "immoral or scandalous" ones, like FUCT clothing or "Big Dick Nick" towels? Listen and find out! Finally, we end with the answer to the fiendishly hard Thomas Takes the Bar Exam Question #71 about whether a state can discriminate against out-of-state competitors. Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links This is Alphr's list of the "15 Best Podcasts of 2018" -- and wow, we're in some good company! You can click here to read the White House Executive Order on "Reducing Poverty in America;" we quoted from Section 5 at the end. We first discussed Jane Doe v. Wright in Episodes 117 and 133. We first told you about Kolbe v. Hogan in Episode 47; now, you can read the Massachusetts decision in Worman v. Healey. Also, if you like briefs, you can read the petition for certiorari, the State of Maryland's opposition, and the petitioners' reply. We told you about the Slants's case back in our Episode 33 interview with Simon Tam and reported on Tam's Supreme Court win in Episode 80; today, we discuss In re Brunetti, which applies the Matal v. Tam holding to the rest of 15 U.S.C. § 1052(a). Finally, the link you've been waiting for: the Deadspin article about "Big Dick Nick." Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA164: As American As Baseball, Hush Money, and... Segregated Schools?
Apr 13 2018 81 mins  
In this rapid-response episode, Thomas and Andrew take a look at the FBI's search of the offices of Michael Cohen, Donald Trump's personal lawyer and alleged "fixer." First, we begin with a discussion of a curious legal move by the Miami Marlins, alleging that they are, in fact, a ... citizen of the British Virgin Islands?? In the main segment, we find out that Andrew Was Right when he declared Stormy Daniels "A Legal Genius." How right? Listen and find out! Next, we take a return trip to Yodel Mountain, where we discuss Paul Ryan's impending retirement, Wendy Vitter's comically bad confirmation hearing, and more! Finally, we end with an all-new TTTBE #71 about constitutional law that is the toughest question we've asked to date. If you've ever thought about playing along, now's the time; just retweet our episode on Twitter or share it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links This is Alphr's list of the "15 Best Podcasts of 2018" -- and wow, we're in some good company! If you love procedural questions (and you hate Derek Jeter), you'll want to read the Marlins Notice of Removal as well as Miami's Opposition. Oh, and this is the relevant legal provision, 9 U.S.C. § 202. This is the U.S. Attorneys' Manual; § 9-13.420 governs searching law firm offices. Here's the report on Paul Ryan's fundraising from Politico, announced two days before he decided to retire. Finally, here's a link to the video of Wendy Vitter refusing to answer whether she supports Brown v. Board of Education. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]


OA163: Whatcha Gonna Do, Brother? OA vs. Sinclair Broadcasting, the CLOUD Act & the WWE
Apr 10 2018 61 mins  
Today's episode runs wild with an in-depth look a the CLOUD Act slipped in to the latest omnibus spending bill. First, however, we break down the recent viral video from Deadspin showing dozens of Sinclair-owned TV stations reading pro-Trump talking points on the air. How did this happen? What leverage does Sinclair have over your local newscaster? Listen and find out. During the main segment, the guys break down the CLOUD Act and what it means for international data privacy. After that, we answer a listener question about the WWE and independent contractors. Finally, we end with the answer to Thomas Takes the Bar Exam Question #70 about contracts. Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Click here to watch the viral video from Deadspin; you can see excerpted bits from the Sinclair contract sent out via Twitter here and here. This is the text of the CLOUD Act, and you can click here to read the EFF's warnings about it. Finally, for guidance about independent contractors vs. employees, you can check out the Department of Labor's Fact Sheet 13 as well as the guidelines promulgated by the IRS. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at ope[email protected]

OA162: Tariffs and Trade
Apr 06 2018 64 mins  
In this rapid-response episode, Thomas and Andrew take a look at the Trump administration's recently-announced tariffs on China, China's response, and the future of free trade. In the pre-show segment, it's time for a lengthy Andrew Was Wrong segment. From .22s to time zones, Andrew cops to the things he got wrong last week, ending with a discussion of the emoluments lawsuit discussed in Episode 160. In the main segment, Andrew discusses the Trade Act of 1974 and whether it allows Trump to wage a trade war with China. After that, it's time for our weekly trip to Yodel Mountain, this time with a breakdown of the Alex van der Zwaan sentencing as well as Paul Manfort's motion to dismiss and the government's response. Finally, we end with an all-new TTTBE #70 about breach of contract. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links Andrew was wrong links: 15 U.S.C. § 260a (time zones), Florida HB 1013, and, if you want to re-listen to our discussion of the emoluments lawsuit, check out Episode 160. In the main segment, the guys discuss the Trade Act of 1974. This is the CNN list of the 106 products on which China is raising tariffs, and this is a link to the New York Times article suggesting that the Trump administration is considering re-joining the TPP. This is the Alex van der Zwaan sentencing memorandum; he pled guilty to 18 U.S.C. § 1001. If you'd like to plot that out on the Sentencing Guidelines table, you can do so by clicking here. You can click here to read the Christopher Miller story suggesting that "Person A" is Konstantin Kilimnik; that was just validated by this report from Business Insider. Finally, you can click here to read the DOJ's response to Manafort's motion to dismiss. For reference, This is Rod Rosenstein’s Order appointing Mueller, No. 3915-2017, and this is 28 U.S.C. § 515, which plainly authorizes it. We discussed this in full detail back in Episode 136. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA161: Gun Control & the Constitution
Apr 03 2018 59 mins  
Today's episode takes an in-depth look at gun control. First, we answer two listener questions about originalism and the Second Amendment, including a provocative one about whether DC v. Heller deserves stare decisis respect under Andrew's model of jurisprudence. The answer may surprise you! In the main segment, we examine HR 5087, the most recent gun control bill to be introduced in Congress. What's in it? What kinds of laws are Democrats looking to pass in light of the Parkland massacre? After that, we check in on the state of Pennsylvania's efforts to combat gerrymandering. Could there actually be good news in this episode? Listen and find out. Finally, we end with the answer to Thomas Takes the Bar Exam Question #69 about the firefighter's rule. Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was recently a guest on Episode 255 of the Phil Ferguson Show and Episode 96 of the Naked Mormonism Podcast. If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links This episode builds on our two-part masterclass in the Second Amendment: Episode 21 (Part 1) and Episode 2 (Part 2). The two primary cases discussed are DC v. Heller and McDonald v. City of Chicago. This is the text of HR 5087, the proposed gun control legislation, which amends 18 U.S.C. § 921 and 922. We discussed the Parkland massacre in Episode 148. You can read Chief Justice Thomas Saylor's statement here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA160: Schrodinger's Andrew
Mar 30 2018 72 mins  
In this rapid-response episode, Thomas and Andrew take a look at the things Andrew Was Right about over the past few weeks (yay!) as well as the things Andrew Was Wrong about (boo!). It's Schrödinger's Andrew Day! In the pre-show segment, the guys go through the scenario for all of our Opening Arguments Community March Madness potential winners. After that, it's time for Andrew Was Right! (TM). We cover the Alex van der Zwaan sentencing memorandum and what it means for Yodel Mountain, as well as both the Amended Complaint and the Motion for Expedited Trial filed by our next Attorney General, Stormy Daniels. You won't want to miss it! After that, it's time for Andrew Was Wrong (TM), in Andrew owns up to a few corrections about Watergate and revisits the emoluments lawsuit discussed way back in Episode 78. Andrew was skeptical then; has he changed his mind? Finally, we end with an all-new TTTBE #69 that questions your knowledge of the "firefighter's rule" and whether it protects cops who get sideswiped. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was recently a guest on Episode 255 of the Phil Ferguson Show and Episode 96 of the Naked Mormonism Podcast. If you'd like to have either of us as a guest on your show, drop us an email at [email protected] Show Notes & Links This is the Alex van der Zwaan sentencing memorandum; he pled guilty to 18 U.S.C. § 1001. You can click here to read the Christopher Miller story suggesting that "Person A" is Konstantin Kilimnik. This is the Amended Complaint filed by Stormy Daniels; you can also read the Notice of Removal filed by EC and the Motion for Expedited Trial filed by Daniels. Stormy's expedited trial motion is pursuant to 9 U.S.C. § 4. This is the Washington Post article on Alexander Butterfield, which is definitely worth a read. Here's the District Court's opinion in the emoluments litigation, which we first discussed back in Episode 78. If you want to dive more into emoluments, you can read Mississippi v. Johnson, 71 U.S. 475 (1867), or listen to our two-parter with originalist Seth Barrett Tillman: Episode 35 (Part 1) and Episode 36 (Part 2). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA159: What Was So Bad About Watergate? Part 1: The Saturday Night Massacre
Mar 27 2018 67 mins  
Today's episode takes our time machine back to 1972, as Richard Nixon's Committee to Re-Elect the President ("CREEP") planned the break-in to the Watergate Hotel Complex that set in motion the criminal conduct that led to the only time in our nation's history when a President has resigned in disgrace. Exactly what happened? In this episode, we talk about the "Saturday Night Massacre," and what it means today. First, though, we examine the unintended consequences of the Republican tax bill crammed through the Senate in the waning moments of 2017. Might the bill actually prevent the major sports franchises, such as Major League Baseball, from trading players?? Listen and find out! After the main segment, Andrew tackles a listener question regarding the "Guarantee Clause" of the Constitution. What is it, and why should you care? Listen and find out! Finally, we end with the answer to Thomas Takes the Bar Exam Question #67 about breach of contract. Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! Have us on your show! Show Notes & Links The provision of the tax code discussed in the "A" segment is 26 U.S.C. § 1031, and you can click here to read about the previous IRS opinions regarding major sports franchises and like-kind exchanges. You can also check out the New York Times article that first revealed this uncertainty. The primary cases we discussed regarding Watergate were Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973) and United States v. Nixon, 418 U.S. 683 (1974). The two cases analyzed in the "C" segment were Luther v. Borden, 48 U.S. 1 (1849) and dicta from New York v. United States, 505 U.S. 144 (1992). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]


OA158: Cambridge Analytica
Mar 23 2018 72 mins  
In this rapid-response episode, Thomas and Andrew discuss the scandal regarding Cambridge Analytica. Is there a legal angle? Have crimes been committed? Listen and find out! In the pre-show segment, Andrew helps out our reporters by giving theme the question they need to be asking regarding Stormy Daniels, which is: "Now that you’ve acknowledged that you’re DD, and you’ve sued Stormy Daniels for $20 million, can you tell us what claims you had against Ms. Daniels that you believe you settled in that agreement? What could you have sued her for?" You're welcome. That segues into the "A" segment, where the guys discuss the differences (and one strange overlap) between the recent lawsuit filed by Karen McDougal and the top-of-Yodel-Mountain Stormy Daniels lawsuit. After the main segment, we tackle a listener question regarding the difference between textualism and originalism, inspired by our most recent episode, Episode 157. Finally, we end with an all-new TTTBE #68 that requires some math to figure out the appropriate measure of damages for breach of contract. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook 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 This is the National Review article that actually gets Stormy's story right. Here's Mike Murphy's article expressing skepticism of CA's claims. This is the Price v. Facebook class action civil lawsuit, arising out of California's Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. And here's the statement from NY Attorney General Eric Schneiderman. If you wanted to set up a SuperPAC, Andrew's old pals at Covington & Burling have drafted a simple how-to guide for you. Finally, here's a hilarious Tweet from Peter Drice Wright that highlights a key problem with textualism. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA157: Are Originalist Judges Qualified? (w/guest David Michael)
Mar 20 2018 86 mins  
Way back in Episode 49, Andrew argued that lawyers who claim to follow in the footsteps of Antonin Scalia-style originalism should be disqualified from serving on the U.S. Supreme Court, and that Democrats on the Senate Judiciary Committee need to be challenging Scalia's acolytes (like Neil Gorsuch) on their underlying philosophy and not just their compassion (or lack thereof). In this episode, friend of the show David Michael challenges some of the points made by Andrew in the original episode , as well as raises new ones. Along with Thomas, we have a great three-way discussion about U.S. history, the Federalist papers, key cases, the underlying work of Robert Bork, and more. Does Andrew change his mind? Does Thomas? Listen and find out! After the lengthy interview, we end with the answer to an all-new TTTBE #67 about a gang party where the boss just wanted to "send a message." Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook 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 You can listen to our (ahem) original episode on originalism, Episode 49. Please also check out David Michael's new podcast, The Quorum! Here’s a link to the full text of the Federalist Papers. United States v. Carolene Products, 304 U.S. 144 (1938). Harmelin v. Michigan, 501 U.S. 957 (1991) is the infamous decision in which Scalia declared that the Eighth Amendment only bars punishments that are both “cruel” and “unusual in the Constitutional sense.” Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA156: Conor Lamb & Pennsylvania Recounts
Mar 16 2018 71 mins  
In this rapid-response episode, Thomas and Andrew discuss Congressman-elect Conor Lamb's victory in Tuesday's PA-18 special election and whether the Republicans will be able to recount the results. After that, Andrew walks through the history of prior restraint under the First Amendment in light of a recent Nevada decision denying the request of the family of one of the Las Vegas massacre victims to suppress his autopsy report... and what that might mean for friend of the show Stormy Daniels. That segues into another Q&A segment where we tackle Yet More Of Your Stormy Questions; this time relating to (1) choice of law and (2) whether Stormy can simply buy back the settlement for $130,000. Finally, we end with an all-new TTTBE #67 about a gang party where the boss just wanted to "send a message." Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook 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 Thomas discussed the political implications of the Lamb election on Episode 128 of Serious Inquiries Only. We discussed con artist Jill Stein's "recounts" way back in Episode 25 of this show, and the Pennsylvania order denying standing is here. You can also read up on Pennsylvania's Election law, Title 25, Chapter 14.; we specifically discussed §§ 3154(g) (mandatory recounts); 3261-63 (voluntary recounts); and 3459 (bonding requirement). The key case for prior restraint is New York Times v. U.S., 403 U.S. 713 (1971); you can also read the Nevada Supreme Court opinion. Please also check out David Michael's new podcast, The Quorum! Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA155: Corporations Are People, My Friend... (and More Stormy)
Mar 13 2018 80 mins  
Today's episode tackles a popular article in The Atlantic which implies that, but for the machinations of one dude in the 1880s, corporations might not be "people," today. Is it true? Listen and find out! First, though, we continue to examine the legal genius of Stormy Daniels by answering some of the most common questions raised in response to our episode. This begins (sadly) with a brief "Andrew Was Wrong" clarification about the operative campaign disclosure requirements as well as an analysis of the arbitration order that came to light just after we went to press with Episode 154, and more! In the main segment, Andrew takes a trip through the history of corporate personhood. After that, we answer a delightful question about hearsay from listener Dr. Jeff Otjen. Finally, we end with the answer to Thomas (and David) Take the Bar Exam Question #66 about murderous political candidates appearing on an "Iron Chef" knockoff... look, you'll just have to listen for yourself. Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! Have us on your show! Show Notes & Links We first discussed the Stormy Daniels lawsuit (and linked her complaint) back in Episode 154. Since then, Susan Simpson has done some pretty top-notch investigative work as to where the Trump campaign may have hid the payoff to Stormy. The case referred to in the "A" segment is Amendariz v. Foundation Health, 6 P.3d 669 (Cal. 2000). Our main segment discusses Adam Winker's article in The Atlantic, focusing on Santa Clara County v. Southern Pacific R.R. Co., 118 U.S. 394 (1886). Finally, the answer to Dr. Jeff's question references two different provisions of the Federal Rules of Evidence: Rule 801 (defining hearsay) and Rule 803 (listing the exceptions). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]



OA153: March Madness on Yodel Mountain
Mar 06 2018 67 mins  
Today's episode takes an in-depth look at the recent FBI investigation into NCAA basketball. First, though, the guys take another trip to Yodel Mountain, stopping at base camp to discuss Michael Rogers, Hope Hicks, Jared Kushner, Rick Gates, and everyone's favorite villain, Paul Manafort. During the main segment, Andrew and Thomas cover the recent expose by Yahoo regarding college basketball coaches allegedly paying for top talent. What does this mean for the future of the sport right before March Madness? Listen and find out! After that, we revisit the funniest lawsuit in recent memory, namely, Bob Murray of Murray Energy's defamation lawsuit against John Oliver, which we first covered back in Episode 84. Finally, we end with the answer to Thomas Takes the Bar Exam Question #65 about an overzealous Eli Bosnick disciple who accidentally poisoned a meat-eater. Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! Have us on your show! Show Notes & Links Here is the link to the New York Times story about Adm. Michael Rogers's testimony. This is the superseding indictment filed against Gates and Manafort. This is the Yahoo story on the FBI probe into the NCAA. and these are the NCAA bylaws. We first discussed the Murray Energy lawsuit in Episode 84 and the amicus brief filed by Jamie Lynn Crofts ("the best legal brief ever written") in Episode 93. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA152: Discrimination is for Dick's?
Mar 02 2018 84 mins  
In this rapid-response episode, Thomas and Andrew discuss the 2nd Circuit Court of Appeals' en banc decision in Zarda v. Altitude Express, ruling that Title VII of the Civil Rights Act of 1964's ban on discrimination on the basis of sex applies to sexual orientation as well. This is a follow-up to our prior discussions of this issue back in Episode 60 and Episode 91. In the initial segment, Andrew tackles a question from Twitter about the James Damore lawsuit and employment law in general after our most recent coverage in Episode 150. After the main discussion of Zarda, the guys discuss some of the fallout from the Parkland shooting, including decisions by Dick's Sporting Goods and Wal-Mart to cease certain kinds of gun sales. Is this inappropriate age discrimination? Listen and find out! Finally, we end with an all-new TTTBE #65 about vegan criminal law. You won't want to miss it! Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook 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 We discussed Hively v. Ivy Tech Community College of Indiana back in Episode 60, and we discussed the panel decision in Zarda v. Altitude Express in Episode 91. You can read the en banc decision of the Second Circuit in Zarda by clicking here. In the "C" segment, the case discussed regarding Ladies' Night is Koire v. Metro Car Wash, 707 P.2d 195 (Cal. 1985). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA151: Equal Access, the Americans With Disabilities Act, and HR 620
Feb 27 2018 63 mins  
Today's episode takes a look at HR 620. What does it mean, and why does Congress want to make changes to one of the most successful, bipartisan, and beloved pieces of legislation in the past 30 years? First, though, the guys update break down a recent decision from the Eastern District of New York also enjoining Trump's rescission of DACA. Why did a second court block Trump's order? Listen and find out! During the main segment, Andrew walks us through the history of the Americans with Disabilities Act and what restrictions HR 620 would impose on would-be plaintiffs. Is it as bad as people are saying? (Hint: yes.) After that, we answer a somewhat off-the-wall question from listener Mark Lunn that's a follow-up to Episode 147 with Lucien Greaves. Finally, we end with the answer to Thomas Takes the Bar Exam Question #64 about dog law, accidental trespass, and... well, you'll just have to listen. Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! Have us on your show! Show Notes & Links Don't forget to show up for the monthly Q&A this Wednesday, February 28th, at 8:30 pm Eastern / 5:30 pm Pacific. You can submit your questions here. We covered the first court decision enjoining Trump's order on DACA in Episode 140. You can read the second (New York) decision here. The relevant provision of the ADA modified by HR 620 is 42 U.S.C. § 12188. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA150: Janus, The Angry Roman God Of Doorways (And Labor Law?)
Feb 23 2018 73 mins  
In this fast-breaking episode, Thomas and Andrew preview a significant labor case scheduled for oral argument before the Supreme Court this coming Monday, Janus v. AFSCME. You'll know all about it before the news breaks! In the initial segment, "Andrew Was Wrong" returns with listener criticism over our repetition of the common media statement that Parkland was the "18th" school shooting of 2018. After that, Andrew walks us through Janus v. AFSCME and its implications on the future of unions. Next, the guys revisit ex-Google employee James Damore and discuss the significance of a recent memorandum issued by the National Labor Relations Board regarding his termination. Is The Most Important Lawsuit In The History of Western Civilization still on track? Listen and find out. Finally, we end with an all-new TTTBE #64 about criminal dog law. You won't want to miss it! Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Check out the NEW PODCAST created by our very own Thomas Smith and friend-of-the-show Aaron Rabi, "Philosophers in Space." You'll be glad you did! Show Notes & Links Janus is, in fact, the angry god of doorways. We covered the Parkland school shooting in Episode 148. This is the Washington Post article critical of the "Everytown for Gun Safety" statistics, and here is a link to Everytown's actual database of incidents. Judge for yourself! Here is Abood v. Detroit Board of Education, 431 U.S. 209 (1977), discussed extensively during the show. You can read the NLRB memo advising dismissal here. We covered the (still-pending) James Damore lawsuit on Episode 111 of Serious Inquiries Only. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]

OA149: Russian Indictments & Utah Silence (feat. Bryce Blankenagel)
Feb 20 2018 88 mins  
Today's emergency episode breaks down the indictments issued in the Mueller probe on Friday, focusing on the shadowy, Putin-funded Internet Research Agency. What does this mean in terms of Yodel Mountain? Listen and find out! After that, we have a lengthy interview with friend of the show Bryce Blankenagel of the Naked Mormonism podcast. Bryce comes on the show to break down the Rob Porter scandal, an innocuous-sounding bill before the Utah state legislature, and the puppet-mastery of the Mormon Church of all things political in that state. After that, we end with the answer to Thomas Takes the Bar Exam Question #63, another very difficult question, this one about hearsay. Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Check out the NEW PODCAST created by our very own Thomas Smith and friend-of-the-show Aaron Rabi, "Philosophers in Space." You'll be glad you did! Also, Andrew was just a guest on Episode 6 of the Wayward Willis Podcast -- give it a listen. Show Notes & Links The case referenced in the A segment is United States v. Yousef, 327 F.3d 56 (2003). This is the text of Utah HB 330, and this is the article Bryce referenced during the show. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]


OA148: The Parkland Massacre
Feb 16 2018 78 mins  
In this emotional episode, Thomas and Andrew begin by discussing the recent school shooting at Marjory Stoneman Douglas HS in Parkland, Florida. After that, the guys break down the recent settlement between Waymo (the Google-backed automotive company) and Uber regarding allegations of stolen trade secrets in the nascent self-driving car industry. Then, Andrew updates us on the state of gerrymandering litigation in Pennsylvania and before the Supreme Court. Finally, we end with an all-new Thomas Takes the Bar Exam #63 about hearsay. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was just a guest on Episode 6 of the Wayward Willis Podcast -- give it a listen! Show Notes & Links We discussed a modest proposal for gun control in Episode 110., and the 1994 Omnibus Crime Bill in Episode 95. Andrew quoted from this CNN article when referencing teacher Melissa Falkowski; from this Washington Post article about Colt's decision to suspend sales of the AR-15 in 1989, and from this blog post on "The Firearm Blog" by the AR-15's designer, Jim Sullivan. California's Roberti-Roos Assault Weapons Control Act of 1989 can be found at California Penal Code § 30150 et seq. This is the Waymo v. Uber lawsuit, and here is the link where you can view the Powerpoint used during the REAL OPENING STATEMENTS by Waymo's attorneys. Finally, we last discussed gerrymandering in Pennsylvania and elsewhere way back in Episode 146. If you're curious, this is what MD-6 looks like today, and this is what it looked like before the 2011 redistricting. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at [email protected]


OA146: Clearing the White Board!
Feb 09 2018 60 mins  
In this "lightning round" episode, Andrew tackles more than the typical three stories we cover on the show. How much more?? Listen and find out! Potential topics include: the budget showdown and sequestration, the recent Supreme Court rulings on gerrymandering, the Nunes memo, the Federal Reserve, stock market, and Wells Fargo fraud, and ... possibly even more?? Finally, we end with an all-new Thomas (and Lucien!) Take the Bar Exam #62 involving the statute of frauds. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook 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 You can read all 652 pages of the proposed budget deal here. The Pennsylvania redistricting case is League of Women Voters v. Pennsylvania, 159 MM 2017. We discussed the North Carolina gerrymandering decision in Episode 138; the Supreme Court's brief order staying that decision is here. And, of course, you'll want to review the 2008 Powerpoint and 2010 "Snidely Whiplash" REDMAP Powerpoint. This is the full text of the Nunes memo. We discussed FISA courts in depth in Episode 106, which covered 50 U.S.C. § 1805, the authorizing legislation. Finally, you can read the Federal Reserve's cease-and-desist against Wells Fargo; the enabling legislation is 12 U.S.C. § 1818 et seq. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]


OA144: Our Football-Free Superb Owl Edition
Feb 02 2018 63 mins  
If you want football-themed Opening Arguments, check out Episode 57 and Episode 58, which tell the tale of how one Donald J. Trump destroyed the USFL. Everyone else can enjoy today's sports-free episode, which begins with a discussion of California SB 183 and so-called "sanctuary cities" in light of the State of the Union. In the main segment, Andrew and Thomas break down news about a proposed Department of Labor rule regarding the "tip credit." After that, the guys discuss yesterday's landmark opinion holding the Consumer Financial Protection Bureau constitutional. Finally, we end with our third Dungeons & Dragons-themed Thomas Takes the Bar Exam (Question #61) involving lightning, wildfires, an experienced woodsman, and possible assault by an errant crossbow bolt. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook 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 You can read the text of Cal. SB 183 here. This is the Bloomberg News article on the Trump DOL burying the factfinding report; here is a link to the NPRM. Finally, you can read PHH Corp. v. Consumer Financial Protection Bureau, the D.C. Circuit opinion discussed during the "C" segment. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]


OA143: Same-Sex Couples and Citizenship
Jan 30 2018 58 mins  
Today's episode features a deep dive into two recently-filed lawsuits on behalf of same-sex couples where the government literally wants to break up their families. And don't forget to tune in for our LIVE Q&A this Wednesday, 1/31, at 7 pm EST / 4 pm Pacific. First, though we return to the wild and wacky world of sovereign citizens by examining a recent bill introduced in the New Hampshire state legislature. Does it really threaten cities in New Hampshire with a $10,000 fine if they don't subscribe to sovereign citizen nonsense? Listen and find out! In the main segment, we cover the Blixt and Dvash-Banks lawsuits. Did INS really make a determination that one twin is a U.S. citizen and the other isn't? The answer (yes) probably won't surprise you. After that, we answer a listener question about whether the Supreme Court is as political as it seems. And, as always, we end with the answer to Thomas Takes the Bar Exam Question #60 about trespass, signs, electrical storms, and deadly arrows. Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None. Have us on your show! Show Notes & Links Get your Q&A Questions in and vote for your favorites! You can read the full text of New Hampshire HB 1653 here, and, if you're not up on your sovereign citizen lingo, be sure to check out LAM 13 ("Meet Your Strawman"). Oh, and don't forget to check out Wes Jensen's amazing sovereign citizen wackiness ("Hiding Behind the BAR") if you want to know the secrets they won't tell you. The 14th Amendment's birth citizenship clause is implemented by 8 U.S.C. § 1401, and then further interpreted by 7 FAM 1140, Appendix E. Finally, here's the NPR article on Gorsuch voting with Thomas 100% of the time. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA142: The Opioid Crisis -- A (Mostly) Non-Partisan Friday
Jan 26 2018 69 mins  
Today's episode features a deep dive into our nation's opioid crisis. First, the guys take a look at a recent bad court thingy filed by Paul Manafort's lawyers in connection with his criminal prosecution. What does it mean? Listen and find out! In the main segment, Andrew and Thomas break down the just-released Senate Subcommittee Report on illegal opioid use in this country and discuss how an obscure 1874 treaty organization affects international drug trafficking. You won't want to miss it! After the main segment, Andrew answers a question from one of our youngest listeners, high school sophmore Brian about a recent free speech case at the University of Alabama. You may be surprised at the answer! Finally, we end with our second of three Middle Earth-themed Thomas Takes the Bar Exam (Question #60) involving lightning, wildfires, an experienced woodsman, and an errant crossbow bolt. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook 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 Manafort's accidentally-included legal memo can be found here. You can hear Deborah Smith and Zach Law discuss opioids here. This is the Senate Subcommittee Report on Opioid Interdiction, and this is the text of SB 708. Finally, here's a link to Papish v. Board of Curators, 410 U.S. 667 (1973), the case we discussed in answering Brian's question. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]


OA140: DACA and More!
Jan 19 2018 76 mins  
Today's episode features a deep dive in the latest legal news surrounding the DACA program. First, the guys tackle a listener question regarding the difference between the James Damore case against Google and Colin Kaepernick's grievance against the NFL. Are the two cases similar? After the main segment, Andrew walks us through a case that was just argued before the Supreme Court, McCoy v. Louisiana, in which a lawyer conceded his client's guilt during a capital murder trial over the client's objections. Finally, we end with an all-new Game of Thrones-themed Thomas Takes the Bar Exam (Question #59) involving lightning, wildfires, an experienced woodsman, and an errant crossbow bolt. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook 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 This Week In News With Kevin and Benedict, talking felon voting rights; give it a listen! Show Notes & Links We discussed the James Damore lawsuit on Episode 111 of Serious Inquiries Only, and the Kaepernick grievance on OA Episode 115. The Sherman Antitrust Act begins at 15 U.S.C. § 1. We first discussed the DACA recission on Episode 102. You can read the District Court decision on DACA here. The primary case we discussed in the assistance of counsel section was Faretta v. California, 422 U.S. 806 (1975). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA139: Cara Santa Maria & Why Two Dudes Named Iqbal and Twombly Are Hanging Out On Yodel Mountain
Jan 16 2018 68 mins  
Today's episode features a full-length interview with the one and only Cara Santa Maria! First, though, we pore through the Fusion GPS testimony that was leaked by Sen. Dianne Feinstein and we look at a companion defamation lawsuit filed by one of Trump's lawyers, Michael Cohen, against Fusion GPS founder Glenn Simpson. Click here to read the Cohen Complaint. Andrew also sneakily uses this as an excuse to teach us all about federal motions to dismiss and the Iqbal and Twombly cases. Next, we talk to Cara, who talks skepticism, the law, and science education with us. Finally, we end with the answer to Thomas and CaraTake the Bar Exam Question #58 about breach of contract for the hottest tech gadget of 1987, the Walk-n-Talkman. Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was just a guest on Episode 111 of Serious Inquiries Only, discussing the James Damore lawsuit against Google, as well as This Week In News With Kevin and Benedict discussing felon voting rights. Check 'em out! Show Notes & Links You'll want to check out Michael Wolff's response to the Trump cease-and-desist letter we made fun of back in Episode 137. You can read the Fusion GPS testimony by clicking here. Finally, you should go check out Cara Santa Maria's website for all things Cara! Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]


OA138: Pot, Gerrymandering, and Net Neutrality
Jan 12 2018 82 mins  
Today's episode tackles a number of breaking legal issues. First, the guys break down the recent memorandum by Attorney General Jeff Sessions on marijuana. What does this mean for the average recreational user in a state where pot is legal, like California? Listen and find out! Next, Andrew walks us through the recent decision by a three-judge panel in North Carolina invalidating that state's electoral districts. After that, the guys tackle a question from listener Jeremy Feldman about Net Neutrality and the Congressional Review Act. Finally, we end with an all-new Thomas (and Cara Santa Maria!) Take the Bar Exam Question #58 about the hottest new gadget, the Mitsubishi Walk-and-Talkman! Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook 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 This Week In News With Kevin and Benedict, talking felon voting rights; give it a listen! Show Notes & Links The Controlled Substances Act is 21 U.S.C. § 801 et seq. You can read the Cole Memo here, and then the Sessions Memo rescinding it. This is the US Attorney's Manual discussed on the show. We first discussed gerrymandering back in OA 54, and then again in OA 72 and OA 80. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA137: How to (Almost) Defame Someone and Get Away With It -- The SciBabe Story (w/guest Yvette d'Entremont)
Jan 09 2018 75 mins  
Today's episode is all about the First Amendment and features a full-length interview with the one and only SciBabe, Yvette Guinevere d'Entremont! First, though, we answer a listener question from Secular Saint about the free press clause that was raised during our most recent patron-only Q&A show. Next, we talk to Yvette, who shares some amazing stories about her life taking down rich and powerful celebrities like Gwyneth Paltrow, Vani Hari (the "Food Babe"), and David Avocado Wolfe. After that, we tackle Trump's cease-and-desist letters sent to Steve Bannon and the publishers of the new book Fire and Fury: Inside the Trump White House . Special thanks to Niall O'Donnell and Deborah Smith of the Opening Arguments Facebook Community for finding the texts of these letters! Finally, we end with the answer to Thomas and Yvette Take the Bar Exam Question #57 about a frostbitten drifter wandering through what might be a libertarian paradise. (Seriously!) Don't forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! Have us on your show! Show Notes & Links In answering Secular Saint's question, Andrew discussed Sonja West's UCLA Law Review article, "Awakening the Press Clause" as well as this op-ed by Eugene Volokh. We discuss the New York Times v. Sullivan standard for libel in numerous episodes, but in particular in Episode 84 about John Oliver's lawsuit. Yvette has some great articles that we talked about, including "The Unbearable Wrongness of Gwyneth Paltrow" and "David Avocado Wolfe is the Biggest Asshole in the Multiverse." Trump's cease-and-desist to Steve Bannon is here (Twitter screencap), and the one to Steve Rubin and Michael Wolff is here. You can compare it to the laughable Roy Moore litigation hold letter we discussed in Episode 122. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA136: Chevron Deference Has Consequences -- Particularly For Paul Manafort!
Jan 05 2018 63 mins  
Today's episode tackles the recent lawsuit filed by Paul Manafort against the Department of Justice, Asst. AG Rod Rosenstein, and Robert Mueller. First, we share some insights from our listeners about our recent deep dive into cryptocurrency, and promise a return visit Real Soon Now. After that, we take a deep dive into Chevron deference, Neil Gorsuch's mommy, and the legal landscape set more than 30 years ago... and why that's all come under fire by one Paul S. Manafort. It's an extra-long, double-length segment but we think you'll love it! Finally, we end with an all-new Thomas (and Yvette!) Take the Bar Exam Question #57 about a wanderer stuck in a snowstorm who breaks into a cabin... look, you'll just have to listen, okay? Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook 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 We first discussed cryptocurrency in OA 134. You should read the Manafort lawsuit, and then to understand it, try and tackle Chevron U.S.A., Inc. v. Natural Resource Defense Council, 467 U.S. 837 (1984). We started warning you about Neil Gorsuch way back in Epsiode 40. We were right. The case in which he salivates about overturning Chevron deference is Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (2016). Count I of the complaint arises under the Administrative Procedure Act, 5 U.S.C. § 701 et seq. Count II arises under the Declaratory Judgments Act, 28 U.S.C. § 2201. This is Rod Rosenstein's Order appointing Mueller, No. 3915-2017, and this is 28 U.S.C. § 515, which plainly authorizes it. Finally, you can read Morrison v. Olson, 487 U.S. 654 (1988) and also laugh at the fantastic what-if comic about Ted Olson. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]


OA134: Do Intergalactic Extraterrestrial Anchor Babies Use Cryptocurrency?
Dec 29 2017 68 mins  
Today's episode is a deep dive into cryptocurrency. First, we're delighted to share some breaking news with you that follows up on our Episode 132 about a student and his crazy-person lawyer trying to introduce creationism at Thomas's old high school, Bret Harte High. As it turns out, friend of the show and FFRF attorney Andrew Seidel has written a masterful letter to the school and offered to co-counsel with them pro bono. In the extra-length main segment, we discuss some of the issues surrounding cryptocurrency and the law. Finally, we end with an all-new Thomas Takes the Bar Exam Question #56 about the fraudulent sale of a stove. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was recently a guest on Episode 14 of the How-To Heretic podcast! Give it a listen! Show Notes & Links We first discussed Bret Harte High in our Episode 132; you can also read an account of the school board hearing; visit crazy person Greg Glaser's website and read all about the evils of vaccinations, numerological theology, and (of course) his proposed Earth Constitution. Andrew Seidel's letter is republished (with his permission) here. The actual cases relevant to the dispute are Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969) and Kitzmiller v. Dover, 400 F.Supp.2d 707 (M.D. Pa. 2005). If you love Andrew Seidel, you might want to go back to his previous appearances on the show, Episode 82 (on Trinity Lutheran), Episode 85 (which was originally a Patreon-only exclusive),Episode 111, and Episode 131. And if that's still not enough Andrew for you, you can catch up on Andrew Seidel's most recent writings: his op-ed on Masterpiece Cakeshop, which you can read here; his blog post on right-wing legal organizations; and, of course, his FFRF press release celebrating the victory in keeping Mateer and Talley off the federal bench. You can view the IGM survey we discuss here. This is the bitcoin FAQ. The case I discuss is SEC v. Shavers, 2013 WL 4028182 (E.D. Texas Aug. 6, 2013, Case No. 4:13-cv-416). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]


OA133: So You Want To Go To Law School?
Dec 26 2017 88 mins  
Happy holidays, everyone! Today's special episode tackles a number of issues about being in law school and being a lawyer. First, however, we begin with an update on the Trump administration's efforts to restrict the reproductive rights of young women in federal custody first discussed in Episode 117. In the main segment, Andrew solicits some advice from some lawyer and law student friends-of-the-show and tries to answer some of your most recurring questions like "Should I go to law school?" "If so, where?" "What's it like?" "Will I like being a lawyer?" and so forth. If you've ever dreamed about sitting in the chair opposite Thomas, this is the show for you! Finally, we end with the answer to Thomas TakeS The Bar Exam question #55 about water damage to a boat. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! Have us on your show! Show Notes & Links We broke down Jane Doe v. Wright in Episode 117. You can read the government's stay application in Hargan v. Garza by clicking here, and the court's Order here. Resources for law students include the National Association of Law Placement's 2017 research, the in-depth reports put out by Law School Transparency, the somewhat off-color "Law School Sewage Pit Profiles" site, and the ATL report on cheapest law schools in the country. Finally, if you're dying to know what a scorpion bowl is, you can check out the Kong's website. It's a Harvard institution! Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]


OA132: The Thomas Show! Can He Serve on the Federal Bench? Why is His High School Crazy? & More!
Dec 22 2017 76 mins  
Today's episode is all about the budding legal expert co-host of this show, one Thomas Smith, Esq. soon-to-be of Thomas's Second Chance Law Firm. First, taking a cue from the hilarious failed nomination of Matthew Petersen to the federal bench, Andrew asks Thomas the same kinds of basic questions. Is Thomas more qualified than Trump's judicial nominees? (The answer will not surprise you.) In the main segment, the guys break down a threatened "God's Not Dead 2"-style lawsuit at Thomas's old high school, Bret Harte High. Strap in for a bumpy ride, because this one is a roller coaster of crazy. Finally, we end with an all-new Thomas Takes the Bar Exam Question #55 about damaging a boat. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook 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 The fabulous "Thomas's Second Chance Law Firm" graphic was designed by fan of the show Kristen Hansen; you can follow her @wrathofkhansen on Twitter. If you haven't yet watched Sen. Kennedy (R-LA) humiliate laughably unqualified former Trump federal judicial nominee Matthew Petersen, you really should. You can read all about the hearing at Thomas's high school here. Crazy person Greg Glaser is a serial blogger who writes about the evils of vaccinations, numerological theology; and (of course) his proposed Earth Constitution. The actual cases relevant to the dispute are Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969) and Kitzmiller v. Dover, 400 F.Supp.2d 707 (M.D. Pa. 2005). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA131: Andrew^2 (w/guest Andrew Seidel)
Dec 19 2017 69 mins  
Today's episode welcomes back one of our favorite guests -- and the show's only three-time guest, Andrew Seidel, attorney with the Freedom From Religion Foundation. Together, Andrew, Andrew, and Thomas tackle a bunch of church and state separation issues. First, they break down Andrew Seidel's recent success in convincing the Senate Judiciary Committee to reject their most unqualified judges, Jeff Mateer and Brett Talley. Then, the gang does a deep dive into the oral arguments in the Masterpiece Cakeshop hate-bakery case. After that, Andrew Seidel gives us his take on a new Christian right-wing lobbying group co-founded by Gordon Klingenschmitt. Finally, we end with the answer to Thomas (and Andrew!) Take The Bar Exam question #54 about witness statements and overlapping privilege. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was just a guest on Episode 75 of The Science Enthusiast podcast and Episode 229 of the Atheist Nomads podcast. Give 'em a listen! Show Notes & Links We broke down the Masterpiece Cakeshop case in Episode 105, and you can follow along with the guys by reading the transcript of the Masterpiece Cakeshop oral argument before the Supreme Court! If you love Andrew Seidel, you might want to go back to his previous appearances on the show, Episode 82 (on Trinity Lutheran), Episode 85 (which was originally a Patreon-only exclusive), and Episode 111. And if that's still not enough Andrew for you, you can catch up on Andrew Seidel's most recent writings: his op-ed on Masterpiece Cakeshop, which you can read here; his blog post on right-wing legal organizations; and, of course, his FFRF press release celebrating the victory in keeping Mateer and Talley off the federal bench. Find out all about Go Klings's latest right-wing "legal" group here. Finally, consider supporting the Freedom From Religion Foundation. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA130: California on Fire
Dec 15 2017 66 mins  
Today's episode talks about the disastrous wildfires that have ravaged Thomas's home state of California, and who winds up footing the bills for these disasters. It's exactly as much insurance law as you wanted to learn! First, we begin with some news items, including an update on the Net Neutrality vote, a new mega-merger, and the Supreme Court's denial of certiorari in Evans v. Georgia Regional Hospital, a case we discussed back in Episode 112. After the main segment, Andrew and Thomas also update on the pending tax bill and some other items in the news. Finally, we end with an all-new Thomas Takes the Bar Exam Question #54 about witness statements and overlapping privileges. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was just a guest on Episode 229 of the Atheist Nomads podcast; give it a listen! Show Notes & Links We discussed the AT&T/Time Warner merger in OA 128; you can read about the new Disney/Fox merger here. This is the petitioners' brief for cert in Evans, and this is the response brief filed by the hospital. We discussed several provisions of the California Insurance Code, including Section 1861.05 ("Proposition 103" that prohibits rate hikes); Section 2032 (a consumer protection provision); and Section 2071 (standard form fire insurance policy). Here's a New York Times article about the impending tax deal, and this is the begging letter sent by the American Bar Association. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]


OA129: "Don't Talk To The Police"
Dec 12 2017 69 mins  
Should you take legal advice from a viral video on YouTube? Today's episode is all about judges, lawyers, attorney-client privilege, and the police. We begin with the news that Supreme Court Justice Elena Kagan has recused herself in the case of Jennings v. Rodriguez; why? After that, the guys break down a video called "Don't Talk To The Police" and discuss some hallmarks of legal videos online. After that, Andrew tackles Donald Trump Jr.'s assertion that whenever a lawyer enters the room, attorney-client privilege shields everything. Is that really true? (No.) Finally, we end with the answer to Thomas Takes The Bar Exam question #53 about witness impeachment. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was just a guest on Episode 75 of The Science Enthusiast podcast; give it a listen! Show Notes & Links This is the recusal letter sent on behalf of Justice Kagan; and here is the Code of Conduct for U.S. Judges. You can watch the "Don't Talk To The Police" video. Here's the data on Regent University's fake law school. The first out-of-context quote comes from Watts v. Indiana, 338 U.S. 49 (1949). The second out-of-context quote comes from Justice Breyer's dissent in Rubin v. U.S., a 1998 cert petition regarding the extent of executive privilege. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA128: Antitrust, Part Two
Dec 08 2017 68 mins  
Today's episode concludes the discussion begun in Episode 125 about antitrust law in light of the proposed AT&T/Time Warner merger. First, though, we begin with some news items, including an update on Patreon practices and the status of Leandra English's lawsuit to become Acting Director of the CFPB. In the main segment, Andrew breaks down the Department of Justice's lawsuit against AT&T and Time Warner with an eye towards answering the question "is this just an effort to punish CNN?" After the main segment, fan favorite "Closed Arguments!" returns with an evaluation of Alan Dershowitz and John Dowd's claims that the President cannot obstruct justice. Finally, we end with an all-new Thomas Takes the Bar Exam Question #53 about witness impeachment. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was recently a guest on The Science Enthusiast podcast; you can watch the video of that here. Show Notes & Links Here's the update on the Leandra English lawsuit. Before tackling this week's episode you might want to re-listen to Episode 125 and read the Department of Justice's lawsuit. The principal case that applies to Trump's claims of immunity is U.S. v. Nixon, 418 U.S. 683 (1974). And as always, we recommend friend-of-the-show Randall Eliason's Washington Post article on the practical implications of the immunity argument. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]


OA126: Mick Mulvaney & The Consumer Financial Protection Bureau
Dec 01 2017 71 mins  
Today's episode breaks down the recent kerfuffle over the simultaneous claims of Leandra English and Mick Mulvaney to be Acting Director of the Consumer Financial Protection Bureau (CFPB). First, we begin with an "Andrew Was Wrong (?)" segment that gives voice to an anti-Net Neutrality argument, a clarification on the Obama administration's antitrust policies, and a factual clarification on the Anheuser-Busch/InBev merger. After the main segment, Andrew and Thomas answer a fun question about speeding and evidence AND tease the upcoming Law'd Awful Movies #13. Finally, we end with an all-new Thomas Takes the Bar Exam Question #52 about the constitutionality of a cigarette tax and accompanying program. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook 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 For Jaqen and others, we recommend OA22: "Libertarianism is Bad and You Should Feel Bad." Here is the lawsuit filed by Leandra English; and this is the memorandum supporting her motion for TRO. On the other side, you can read the memorandum issued by Asst. Attorney General Steven A. Engel and the companion memo authored by CFPB Counsel Mary McLeod. The statutes we cited during the show are two sections of the Federal Vacancies Reform Act, 5 U.S.C. § 3345 and 5 U.S.C. § 3347, as well as a portion of Dodd-Frank, 12 U.S.C. § 5491. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA125: Net Neutrality and Antitrust, Part One
Nov 28 2017 71 mins  
Today's episode takes two deep dives into complicated legal issues in the news. First, we tackle the FCC's recent "Order Restoring Internet Freedom," which is being characterized as ending Net Neutrality. Is that true? The answer... probably won't surprise you, actually. Then, Andrew and Thomas discuss general principles of antitrust law with an eye towards the recent news that the Trump Department of Justice has sued to block the AT&T/Time Warner merger. Finally, we close with the answer to Thomas Takes the Bar Exam Question #51 involving class action lawsuits in Tenntucky. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew is going to be on the Wednesday broadcast of the David Pakman show; give it a listen! Show Notes & Links We first discussed Net Neutrality in Episode 64 and Episode 65. The text of the Open Internet Order of 2015 is here. You can also read the Heritage Foundation's plea to have internet regulations fall under FTC rather than FCC jurisdiction. The interim vote to reverse the Open Internet Order of 2015 is here. This is the full Declaratory Ruling, Report and Order, and Order ("Restoring Internet Freedom"). This is FTC Commissioner Clyburn's Minority Report and guide to the order. We first discussed antitrust laws in connection with the USFL lawsuit in Episode 57 and Episode 58. Here is the DOJ's lawsuit attempting to block the AT&T/Time Warner merger. The main citations we relied upon in the show were 15 U.S.C. § 1 (The Sherman Antitrust Act of 1890); 15 U.S.C. § 18 (The Clayton Antitrust Act of 1914), and 15 U.S.C. § 45 (the FTC Act of 1914). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]


OA124: Happy Thanksgiving!
Nov 24 2017 66 mins  
Today's episode is the Happiest Episode Ever (TM)! First, the guys discuss "the real meaning of Thanksgiving," cribbing from a blog post Andrew wrote for his old firm back in 2013. In the main segment, Andrew and Thomas break down a pending case before the U.S. District Court for the District of Columbia regarding Donald Trump's tweets and the Freedom of Information Act, as well as an update on the status of Trump's "Sanctuary Cities" executive order first discussed on OA 65. Then, Thomas answers a delightful listener question about what he likes. The answer WILL surprise you! Finally, we end with an all-new Thomas Takes the Bar Exam Question #51 about justiciability and standing. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was a return guest on the How-To Heretic Podcast; give it a listen! Show Notes & Links Check out "The Real Meaning of Thanksgiving" here. The Freedom of Information Act can be found at 5 U.S.C. § 551 et seq. We discussed the influential Garland opinion of ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013). We first discuss the "Sanctuary Cities" EO in Episode 65, and you can read the permanent injunction here. Finally, you can submit your show quotes here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA123: Cards Against Humanity (And Thomas), "Magic Words" & so much more!
Nov 21 2017 65 mins  
In this fun, pre-Thanksgiving episode, we delve into a number of interesting topics. We begin with the popular (if much maligned by Thomas) card game "Cards Against Humanity" and their pitch to "save America." Are you surprised that it turns into a deep dive about eminent domain? (You shouldn't be.) After that, Andrew answers a listener question about whether, in fact, there are "magic words" in the law. How does this relate to the infamous lawyer dog? Listen and find out! Next, the guys discuss Trump's secret war on the judiciary, beginning with a judge less qualified than Thomas and most OA listeners. It's depressing! It's true! It's... depressing. The episode closes with the answer to Thomas Takes the Bar Exam Question #50 involving hot rods, cruisin', and assault with a deadly car hood. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was a return guest on Episode 7 of the How-To Heretic Podcast; give it a listen! Show Notes & Links Check out Cards Against Humanity Saves America! Oh, and afterwards, give Episode 52 of Comedy Shoeshine a listen and hear how Thomas really feels about adult Apples-to-Apples! You can read this Washington Post story about the infamous "lawyer dog" by clicking here. And, of course, you can always read Kelo v. City of New London, 545 U.S. 469 (2005). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]






OA118: Indictment Monday & the View From Yodel Mountain
Nov 03 2017 64 mins  
Today's rapid-response episode tackles -- of course -- the indictment of former Donald Trump campaign manager Paul Manafort and his protege, Rick Gates, as well as the guilty plea entered by Trump campaign official George Papadopoulos. What does it all mean? Listen to a special full-length episode and find out! After our full discussion, we end with a timely new Thomas Takes the Bar Exam Question #48 about co-conspirator confessions. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook 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 6 of the How-To Heretic Podcast; give it a listen! Show Notes & Links You can (and should) read the Papadopoulos statement of offense. Papadopoulos has pled guilty to providing a false statement to a government official, 18 U.S.C. § 1001. After that, you can read the Manafort and Gates indictment by clicking here. Manafort and Gates are collectively charged with 12 crimes, including conspiracy to commit an offense against or to defraud the United States, 18 U.S.C. § 371; conspiracy to launder money,18 U.S.C. § 1956; seven counts of record-keeping violations under 31 U.S.C. § 5314; two separate violations of the Foreign Agent Registration Act, 22 U.S.C. § 612 et seq.; and, of course, providing false statements to a government official, 18 U.S.C. § 1001. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA117: Restricting Abortion Rights (& a Deep Dive into Res Judicata)
Oct 31 2017 65 mins  
Today's episode takes a look at a tragic case currently unfolding of a pregnant young woman being detained for being in this country illegally and the Trump administration's efforts to deny her the right to an abortion. We begin with a quick procedural update on the 9th Circuit's ruling on EO-2 before taking a deep dive into the nuts and bolts behind Zarda v. Altitude Express, which we first discussed back in Episode 91. Thanks to some great questions from our listeners, Andrew and Thomas get into the civil procedure weeds with concepts like "claim-splitting" and res judiciata. In the main segment, the guys break down Jane Doe v. Wright, and discuss whether the government can prohibit an minor alien in this country outside of legal status from seeking an abortion. Next, Andrew and Thomas discuss a prominent tweet within the skeptical community and whether it is fair to characterize the statement itself as "sexual harassment." Finally, we end with the answer to Thomas Takes the Bar Exam Question #47 about landlord responsibility and immunity. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! Have us on your show! Show Notes & Links The recent news regarding the 9th Circuit was reported by Bloomberg News and other outlets. We first discussed Zarda v. Altitude Express in Episode 91. New York's Human Rights Law can be found in the New York Consolidated Laws, Art. 15, § 290 et seq. We took you through the current status of abortion in our detailed two-part discussion of Planned Parenthood v. Casey in Episode 27 and Episode 28. You can read Jane Doe's complaint, as well as the en banc decision of the Court of Appeals for the D.C. Circuit in Jane Doe v. Wright. The regulations implementing sexual harrassment under Title VII can be found at 29 C.F.R. § 1604.11. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA116: Hillary Clinton, Donald Trump & The Russians - Election Law (w/guest Beth Kingsley)
Oct 27 2017 69 mins  
Today's rapid-response episode tackles the recent news that Hillary Clinton's campaign and/or the DNC paid for the "Russian dossier" on Donald Trump. What does that mean in terms of U.S. election law? Listen and find out! We begin with a quick news update on various lawsuits against poker pro Phil Ivey, a story we covered way back in Episode 32 with guest Chris Kristofco. Next, we take a quick look at New York's use of the Uniform Bar Exam (UBE) and what this might mean for Thomas's Second-Chance Law Firm! In our main segment, we talk to election law expert Beth Kingsley on the "Trump Dossier" and the role played by the Hillary Clinton campaign and the DNC. Is it time to "Lock Her Up?" After that, we examine the recent Senate vote against the Consumer Financial Protection Bureau's rule regarding class action lawsuits. What does it mean, and did Andrew contradict himself with his earlier support for arbitration? Listen and find out! Finally, we end with a new Thomas Takes the Bar Exam Question #47 about landlord immunity. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook 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 You can listen to the fascinating tale of Phil Ivey's edge-sorting scheme by checking out Episode 32, and if you would like to hear more from Chris Kristofco, check out his podcast, "Titletown Sound Off." This is the Yahoo News article about Ivey. Here are the New York bar exam results, courtesy of Above the Law. We first discussed Donald Trump, Jr.'s meeting with the Russians back in Episode 86, and then again in Episode 93 when we answered Sage's question. The relevant election law statute is 52 U.S.C. § 30121. Here is the CFPB rule that was just voted down by the Senate. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA115: Colin Kaepernick's Grievance Against the NFL (Featuring Chris Kluwe)
Oct 24 2017 74 mins  
Today's episode features former NFL punter, social justice advocate, and game designer Chris Kluwe, who sued his former NFL team for wrongful termination after he alleged that they cut him for standing up for marriage equality. Kluwe brings his unique behind-the-scenes knowledge to help us understand Colin Kaepernick's recently-filed grievance against the NFL, and gives us some bold predictions as to what's going to happen next. Even if you're not a football fan, we think you'll love this conversation. After that, Andrew and Thomas break down a recent story circulating about former FBI Director James Comey and (of course) Hillary Clinton's "damned emails," which we first discussed way back in Episode 13. (If you haven't listened to that episode, you probably should; it's really good!) Finally, we end with the answer to Thomas Takes the Bar Exam Question #46 as to whether pre-nuptial agreements must be in writing. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! Have us on your show! Show Notes & Links You too can read Colin Kaepernick's arbitration demand; we archived a copy of it here. We first discussed Hillary Clinton's "damned emails" and the Comey investigation back in Episode 13. Here is a link to the (almost entirely redacted) email chain regarding Comey's statement. Finally, you should absolutely check out Kluwe's new card game, Twilight of the Gods, 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 [email protected] Direct Download


OA114: Presidential Powers - Obamacare and the Travel Ban
Oct 20 2017 70 mins  
Today's rapid-response episode begins with an update on the Allergan patent licensing scheme discussed in Episode 107. What does a federal judge think of this One Weird Trick to avoid certain legal proceedings? Listen and find out! Next, our main segment looks at Donald Trump's efforts to undermine Obamacare from the Oval Office. Does this violate the Constitution? Is there anything we can do about it? The answer might surprise you! After that, we continue the theme by looking at the two recent injunctions handed down by U.S. District Courts in Hawaii and Maryland regarding the third iteration of President Trump's Travel Ban. Finally, we end with a new Thomas Takes the Bar Exam Question #46 about prenuptial agreements. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Thomas was on Episode 60 of the "Atheists on High" podcast; give it a listen! Show Notes & Links We first discussed the Allergan patents for Restasis back in Episode 107, along with no other controversial things at all. The court's opinion regarding Allergan's joinder of the native American tribe can be found here; and the main opinion on the validity of the patent can be found here. This is a link to the Vox article by Prof. Gluck alleging that Trump has violated the "Take Care" clause of the Constitution. The Nixon-era case we discuss is Train v. City of New York, 420 U.S. 35 (1975). This is the text of Presidential Proclamation 9645 ("EO-3"). Here is a link to the Hawaii opinion; and here is a link to the Maryland opinion. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA 113: Our Cruel & Unusual Podcast Heads to International Waters
Oct 17 2017 63 mins  
Today's episode is entirely Trump-free, and features a deep dive into the Cruel and Unusual Punishment Clause of the 8th Amendment. We begin, however, with a great listener question from Captain Patrick Dobbins, who wants to know the ins and outs of "international waters." Ask, and ye shall receive! After that, the guys break down the history of the 8th Amendment's prohibition on "cruel and unusual punishment" -- what does it mean, what kinds of punishments are prohibited, and when did it begin to apply to state prisons? You WILL be surprised. Then, we tackle with another listener question from Patron Cody Bond, who wants to know more about price discrimination, cake baking, and "Ladies' Night." Finally, we end with the answer to Thomas (& Andrew) Take the Bar Exam Question #45 regarding licenses for massage parlors. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None! Have us on your show! Show Notes & Links We first discussed the thorny nature of what constitutes property way back in Episode 22, "Libertarianism is Bad and You Should Feel Bad." If you'd like to read the U.N. "Law of the Sea" Treaty, get ready to settle in for a lengthy read! The two death penalty cases wediscuss are Furman v. Georgia, 408 U.S. 238 (1972) and Gregg v. Georgia, 428 U.S. 153 (1976). The Huffington Post records Antonin Scalia's 2008 interview with Nina Totenberg approving of putting people in the stocks. The case we discuss in the "C" segment outlawing "Ladies' Night" in California is Koire v. Metro Car Wash, 707 P.2d 195 (Cal. 1985). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA112: Who's Afraid of the FCC?
Oct 13 2017 69 mins  
Today's rapid-response episode begins with a discussion of a recent petition to the Supreme Court for certiorari filed in Evans v. Georgia Regional Hospital, and in particular, an amicus curiae brief submitted by 76 employers. How does this brief affect the future of gay rights in this country? Listen and find out! Next, our main segment looks at Donald Trump's recent threat to have the FCC "revoke NBC's license," and rewards you with a deep dive into what the FCC is and what it can and cannot do. (Hint: it cannot revoke NBC's "license.") Remember that we first discussed the FCC's "Common Carrier" regulatory authority back in Episode 64 and Episode 65 in evaluating the history of the net neutrality movement. After that, we answer two related listener questions from patrons John Funk and Secular Ewok about the attorney-client relationship and some crazy situations. Finally, we end with a new Thomas Takes the Bar Exam Question #45 about the Fifth and Fourteenth Amendment in the context of a business license. 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 As background to this issue: we first discussed Hively v. Ivy Tech back in Episode 60, and then followed up with our discussion of Zarda v. Altitude Express in Episode 91. This is the cert petition filed by Evans. And this is the amicus brief filed by the 76 employers that you should definitely read. Here's the New York Times story about Trump threatening NBC. And, of course, you can read the FCC's description of its own regulations. The FCC derives its authority to regulate broadcast media from 47 CFR Chapter I, Subchapter C. Finally, you can click here to read Rule 1.2 of the Model Rules of Professional Conduct for lawyers. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download


OA110: Gun Control After Las Vegas & Two Trips To Yodel Mountain
Oct 06 2017 73 mins  
Today's rapid-response episode begins with a discussion of the tragedy in Las Vegas and whether we can do anything about it. Before you dig in, you might want to take a refresher on our two-part masterclass on the Second Amendment in Episode 21 (Part 1) and Episode 26 (Part 2). Then, we take our first of two separate trips to Yodel Mountain with the recent revelation that the Trump DOJ disregarded decades of advice before issuing an opinion memo that authorized the (blatantly illegal) hiring of Jared Kushner. Is this really a Hillary Clinton story? Listen and find out! After that, we trek back up Yodel Mountain with the breaking news that the New York Attorney General's office was about to indict Donald Trump, Jr. and Ivanka Trump in 2012... until the AG received a visit (and a bag of money!) from Donald Trump's lawyer, Marc Kasowitz. Finally, we end with a new Thomas Takes the Bar Exam Question #44 about hearsay... and Thomas is joined by next week's guest, Andrew Seidel of the Freedom From Religion Foundation. 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 Our two-part masterclass on the Second Amendment begins with Episode 21 (Part 1) and continues in Episode 26 (Part 2). After that, we discussed Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017), which we also covered in depth in Episode 47. You can read the Trump Administration's talking points on Las Vegas here. This is the breaking story by Politico about the DOJ ignoring precedent. The case Andrew discusses at length is AAPS v. Clinton, 997 F.2d 898 (D.C. Cir. 1993). It is being grossly misreported in the media; see, for example, this NPR story. This is 5 U.S.C. App. § 1, the Federal Advisory Committee Act. You can read the ProPublica story here that suggests that Donald Trump Jr. and Ivanka Trump were about to be indicted in 2012. The federal bribery law is 18 U.S.C. § 201; the relevant case is McDonnell v. U.S., 579 U.S. ____, 136 S.Ct. 2355 (2016); and you can check out our friend Randall Eliason's great analysis of the bribery statute here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]



OA108: State-Sponsored Patriotism In the NFL & So Much More!
Sep 29 2017 65 mins  
Today's episode hits on some timely news stories, including Trump's latest kerfuffle with the NFL. In the pre-show, we talk a little bit about the Graham-Cassidy Bill, which is hopefully defunct by the time you hear this. But can Trump save it via Executive Order? (No.) Then, we return for a lengthy "Andrews Were Wrong!" segment in which we issue a correction from Episode 107, explain the difference between Ronnie Lott and Leon Lett, and also tackle friend of the show Andrew Seidel's recent article regarding whether churches will likely receive FEMA relief in the wake of the Trinity Lutheran decision. In the main segment, Andrew looks at the Supreme Court's recent order in Tharpe v. Warden and explains the significance in light of our prior discussion of jury deliberations. Before you listen to "Yodel Mountain," you'll want to go back and listen to Episode 57 and Episode 58, in which we go into detail on Donald Trump's rocky relationship with the NFL. Then, we answer whether Donald Trump violated federal law by threatening NFL players who refuse to stand for the national anthem & some other questions. You'll find out which senators oppose "State-Sponsored Patriotism" and the answer WILL surprise you! Finally, we end with a new Thomas Takes the Bar Exam Question #43 about whether a "Letter of Intent" is binding in a business sale. (Oooh, right in Andrew's professional wheelhouse!) 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 After being bombarded by 10,000 Twitter trolls, the guys are going to lay low for a little bit. Show Notes & Links We discussed the first GOP effort to repeal the AHCA back in Episode 80, and you can read about the changes to that bill (largely, to the slush fund) in this Bloomberg article. This CNN report suggested that Trump would "do an Executive Order" when Graham-Cassidy fails. If you want to read the trial court's ruling on ineffective assistance of counsel in the Syed case, you can do so. We first discussed whether churches will receive FEMA funds for disaster relief in Episode 102; Andrew Seidel respectfully disagreed with that conclusion in a recent article; we continue to think he's too optimistic in light of the Trinity Lutheran decision. We discussed Pena-Rodriguez v. Colorado as a "landmark case" way back in Episode 56. You can read the Supreme Court's order staying execution in Tharpe v. Warden, as well as the District Court's opinion denying reopening of Tharpe's habeas petition. We're really proud of the episodes we did on the USFL v. NFL lawsuit back in Episode 57 and Episode 58, in which we go into detail as to exactly why Trump hates the NFL (and so much more)! The relevant statute at issue with Trump threatening the NFL is 18 U.S.C. § 227. That "LawNewz" article we referenced is here; read at your own risk! Finally, we definitely recommend reading the McCain-Flake report on "paid patriotism." Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download

OA107: Adnan Syed Obviously Did It (Also: You Can Learn About Patents!)
Sep 26 2017 86 mins  
Today's super-sized show -- at long last! -- discusses season 1 of the Serial podcast. Even if you haven't heard Serial, we think you'll enjoy this application of the principles of reasonable doubt. We begin with a discussion of the recent settlement between Evergreen College and Bret Weinstein. Why does Andrew say this means the college valued Weinstein's alleged $3.8 million lawsuit at zero? In the main segment, Andrew goes through some of the issues behind the Serial and Undisclosed podcasts related to the Adnan Syed case. Next, Andrew does a mini-deep dive on patent law by looking at a strange recent deal between Allergan and the Saint Regis Mohawk Tribe. What in the world do these two entities have in common? Listen and find out! Finally, we end with the answer to Thomas Take the Bar Exam Question #42 regarding authentication of evidence. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was a guest on Episode 11 of the Reasonable Risk podcast; go check it out! Show Notes & Links Andrew quoted extensively from State v. Earp, 319 Md. 156, 170-172 (1990) on witness coaching. This is Allergan's press release regarding their deal to sell the patents to the St. Regis Mohawk Tribe. The two relevant sections from the U.S. Code relating to inter partes review are 35 USC § 102 (“no prior art”) and 35 USC § 103 (“non-obvious”). This IP website has a brief discussion of the Oil States v. Greene's Energy Group case in which the Supreme Court will consider whether the inter partes review process is constitutional. The two recent patent cases discussed in the "C" segment are Covidien, LP v. University of Florida Research Foundation, Inc. (Jan. 25, 2017) and NeoChord v. University of Maryland, Baltimore (May 23, 2017). For a refresher on sovereign immunity, you might want to check out Opening Arguments Episode #90. Finally, don't forget to check out and join the Opening Arguments Facebook Community! Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA 106: Elections Have Consequences! Donald Trump, Bernie Sanders & the DNC Lawsuit
Sep 22 2017 69 mins  
In this episode, we discuss a number of political stories making the rounds. First, "Yodel Mountain" returns with a look at the recent CNN story showing that the FBI obtained a FISA court warrant for Paul Manafort. Does this mean Trump's complaints about Obama "wiretapping" his campaign are true? Listen and find out! In the main segment, Andrew walks us through the recent ruling dismissing out the class action claims against the Democratic National Committee ostensibly by Bernie Sanders supporters. Find out what's really going on! Next, we answer a listener question from Patrick Hager about whether Congress can really overrule the Supreme Court. Learn civics with us! Finally, we end with a new Thomas Takes the Bar Exam Question #42 about whether an expert witness can authenticate crucial pieces of evidence. 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 11 of the Reasonable Risk podcast; go check it out! Show Notes & Links This is 50 U.S.C. § 1805, which governs FISA court warrants. You can read the Wall Street Journal article on how FISA warrants are "rubber-stamped" by clicking here. And this is the CNN report indicating that Manafort's investigation had been reopened by the FBI. DON'T CLICK ON THIS Observer link! Here is a link to the original lawsuit filed against the DNC. This is the DNC's Charter and Bylaws, which contain Article 5, Section 4. Here is the transcript of oral argument on April 25, 2017. This is the Wymbs v. Republican State Executive Committee of Florida decision discussed on the show. Here is the link to Jared Beck's appearance on InfoWars. And this is Elizabeth Lee Beck's interview with WorldNet Daily. Finally, this is the link to the court's ruling. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA105: More Gay Wedding Cakes
Sep 19 2017 61 mins  
Today's show discusses everyone's favorite non-issue: whether bigots who bake cakes for a living can discriminate against gays. We begin with a lightning round of questions taken from the Opening Arguments Facebook Community, which you should definitely join! In the main segment, we break down Masterpiece Cakeshop v. Colorado Civil Rights Commission, which is currently pending before the U.S. Supreme Court. Next, we explain the recent pronouncement by Donald Trump regarding enforcement of the Magnitsky Act. Are we scaling Yodel Mountain? Listen and find out! Finally, we end with the answer to Thomas Take the Bar Exam Question #41 regarding direct and circumstantial evidence in the context of a murder investigation and a shoeprint left at the scene. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None. Have us on your show! Show Notes & Links Here is where you can find the recently-created Opening Arguments Facebook Community, which you should definitely join! We answer a question about the Congressional Review Act, 5 U.S.C. § 801 et seq.; we first discussed the CRA back in Episode 61. Our next lightning round question is about revenge porn, which we first discussed in Episode 87, and the relevant statute is Cal. PEN § 647(j)(4). We end the lightning round with a question about the Apple X phone drawn from this article in Slate. You can click here to read the Appellees' brief in opposition to certiorari in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case. This is the text of the Magnitsky Act; and this is the memorandum issued by the Trump White House. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download


OA104: Equifax, Class Actions, Sham Marriages & Redistricting!
Sep 15 2017 79 mins  
Our jam-packed "breaking news" episode covers some of the biggest stories trending at the moment, including the Equifax breach. First, Closed Arguments returns by tackling a proposal from friend of the show Eli Bosnick, who asks -- in light of Trump's repeal of DACA -- whether we can't just marry off the 800,000 program participants. We can't; listen and find out why. In the main segment, Andrew walks us through the Equifax data breach, the pending class-action lawsuits, and all of the key legal issues. He even weighs in on the "chat bot" that some are saying will file your suit for you! Next, Breakin' Down the Law continues with everything you wanted to know about the Supreme Court's recent gerrymandering decision. Finally, we end with a new (and possibly too-easy!) Thomas Takes the Bar Exam Question #41 about the admissibility of footprint and shoe evidence. 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 "Adjustment of status" is governed by 8 U.S.C. § 1255, and sham marriages are prohibited by 8 U.S.C. § 1325(c). This is the Oregon lawsuit filed against Equifax. Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. Here is a link to Equifax's statement regarding the website TOC issued in response to NY Attorney General Eric Schneiderman's inquiry. We previously discussed political gerrymandering (including the "Wisconsin case") in episode 54, and racial gerrymandering and Cooper v. Harris in episode 72. This is a link to the Supreme Court's one-sentence 5-4 order in Abbott v. Perez staying the lower court's decision, and this is a link to that case, Perez v. Abbott, SA-11-CV-360 (Aug. 15, 2017). Please remember to sign up for the Opening Arguments Facebook Community! We'd love to see you there! Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA103: We Defend Trump, Part 2!
Sep 12 2017 72 mins  
Today's show discusses the Trump budget, scientist Kevin Folta's defamation lawsuit, and the recent debt ceiling deal struck between Trump and Democrats. In the wake of hurricanes Harvey and Irma, the guys encourage you to donate to either (or both) the Red Cross and/or Habitat for Humanity's hurricane relief efforts. If you do, please post your receipt on Facebook for a chance to win an Opening Arguments t-shirt. We begin with a great question from British listener David Cartwright about the Trump presidency -- and the answer will surprise you! In the main segment, the guys break down Kevin Folta's defamation lawsuit in which he alleges that the New York Times defamed him by publishing a "hit piece" implying that he's in the pocket of Monsanto. Next, we explain the practical and political ramifications of the debt ceiling agreement. Finally, we end with the answer to Thomas Take the Bar Exam Question #40 regarding jury instructions and the presumption of intent. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None. Have us on your show! Show Notes & Links This is a link to the Red Cross's page for donations for hurricane relief; and here is a link to Habitat for Humanity's hurricane relief efforts. Find out how to win a T-shirt from us by clicking here. Here is where you can find the recently-created Opening Arguments Facebook Community, which you should definitely join! This is the full list of all 54 bills that Donald Trump has signed into law. Here is a link to S.442, the $19.5 billion NASA 2017 budget. For comparison, this is the NASA press release detailing the agency's 2016 budget. Click here to read Kevin Folta's lawsuit against the New York Times (which contains the original article as an exhibit). Finally, the debt ceiling is codified at 31 U.S.C. § 3101. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA102: The Utah Nurse, DACA, & Disaster Relief
Sep 08 2017 78 mins  
This week's "breaking news" episode covers three of the biggest stories trending at the moment: the Utah nurse who was arrested for standing up for her patient's rights; Trump's repeal of DACA; and churches suing for relief funds. In the wake of hurricanes Harvey and Irma, the guys encourage you to donate to either (or both) the Red Cross and/or Habitat for Humanity's hurricane relief efforts. We begin with the story behind the arrest of Alex Wubbels, the Utah nurse who refused to take and turn over her patient's blood to the police. In the main segment, Andrew walks us through President Trump's directive to end the Deferred Action for Childhood Arrivals (DACA) program. Does Andrew actually agree with a legal opinion authored by Jefferson Beauregard Sessions III?? Listen and find out! Next, Breakin' Down the Law continues with everything you wanted to know about churches suing for funds allocated to disaster relief and recovery. Is the Friendly Atheist right when he says such a case is legally distinct from the precedent set by Trinity Lutheran v. Comer? Finally, we end with a fiendishly difficult and all-new Thomas Takes the Bar Exam Question #40 about jury instructions regarding the presumption of intent. 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 This is a link to the Red Cross's page for donations for hurricane relief; and here is a link to Habitat for Humanity's hurricane relief efforts. Here is where you can find the recently-created Opening Arguments Facebook Community, which you should definitely join! You can read the relevant Supreme Court opinion, Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), that Nurse Wubbels relied upon in refusing to take and turn over blood to the police. The guys first discussed illegal immigration on Episode 52 and then again in Episode 67. This is the original June 15, 2012 Napolitano DHS memo that became DACA. This the text of the recent memorandum by Attorney General Sessions rescinding DACA. The DAPA case relied upon by Sessions is Texas v. US, 86 F.Supp.3d 591 (S.D. Tex. 2015), aff'd, 809 F.3d 134 (5th Cir. 2015). We first analyzed the Trinity Lutheran v. Comer decision (along with Andrew Seidel) in Episode 82. Previously, we discussed Trinity Lutheran while the case was still pending during our three-part “You Be The Supreme Court” series: Part 1 (Episode 14) is available here, Part 2 is available here, and Part 3 is available here. This is the Friendly Atheist article discussed during the "C" segment attempting to distinguish Trinity Lutheran v. Comer. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA101: DreamHost and Free Speech
Sep 05 2017 65 mins  
Today's show discusses the free speech issues surrounding the Trump administration issuing a search warrant to DreamHost in connection with its hosting of a website critical of the Trump administration. We begin, however, with the triumphant return of "CLOSED ARGUMENTS" -- this time, examining a truly insane claim being made by Ron Paul supporters and other nutballs who think that the Washington Metro Safety Commission overturns the Fourth Amendment. (It doesn't.) In the main segment, we delve into all the intricacies of the DreamHost search warrant and what it means for us as internet users. Next, the guys tackle a "hypothetical" question about conspiracy that just might take place on Yodel Mountain. Finally, we end with the answer to Thomas Take the Bar Exam Question #39 regarding hearsay testimony. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None. Have us on your show! Show Notes & Links The text of House Joint Res. 76 can be found here. If you're a masochist, you can read the truly insane "ZeroHedge" post that totally misconstrues the law here. This is a copy of the initial search warrant served on DreamHost. And here is a link to all of DreamHost's discussion of their responses to the search warrant. Finally, here is a link to the Washington Post article describing various Inauguration Day riots. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA100: Trump's Trans Ban & Arpaio Pardon
Sep 01 2017 66 mins  
This week's "breaking news" episode covers two of the biggest Trump stories right now: the ban on trans soldiers in the military, and the President's pardon of Sheriff Joe Arpaio. First, though, we begin with the seldom-necessary "Andrew Was Wrong" segment. The less said about this, the better. In the main segment, Andrew walks us through President Trump's directive to the Departments of Defense and Homeland Security regarding transgender servicemembers, as well as the lawsuit filed by the ACLU challenging the directive. Next, Breakin' Down the Law continues with everything you wanted to know about the Joe Arpaio pardon. Is it legal? Does it make him civilly liable? Does it erase his prior convictions? Can he now be forced to testify? Listen and find out. Finally, we end with an all-new Thomas Takes the Bar Exam Question #39 about the admissibility of a criminal defendant's prior statement. 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 Here is a link to the Trump memorandum directing the Departments of Defense and Homeland Security regarding trans servicemembers. This is he lawsuit filed by the ACLU challenging that directive. Here is the Martin Redish New York Times article initially entitled "Why Trump Can't Pardon Arpaio." This is a paper by Stephen Greenspan, Ph.D., listing posthumous pardons that I used for research in this epsiode. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download




OA97: What Can Your Employer Fire You For?
Aug 22 2017 61 mins  
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 We first discussed the "Google manifesto" during Opening Arguments Episode #94. You can read that Google manifesto referred to during that episode as well. The National Labor Relations Act (NLRA) of 1935 can be found at 29 U.S.C. § 151 et seq. This is the text of President Obama's 2014 EO directing non-retaliation against government employees who discuss their compensation. This is the NLRB's collection of findings regarding social media. Here is a link to Three D, LLC v. National Labor Relations Board, the Second Circuit case referred to during the "C" segment. Here is a link to Rule 801 of the Federal Rules of Evidence, which explains the answer to #TTTBE. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA96: Understanding Charlottesville
Aug 18 2017 76 mins  
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! This is a link to the Vox timeline of the events in Charlottesville. Here is Washington Post reporter Joe Heim's Twitter feed, showing a picture of the heavily armed "citizens" attending the rally. This is the preliminary injunction ruling on the motion filed by Jason Kessler, organizer of the "Unite the Right" rally. The key case setting forth the principles of time, place & manner restrictions is Ward v. Rock Against Racism 491 U.S. 781 (1989). 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). This is the DOJ's list of hate crimes laws. Virginia's second-degree murder statute is Code of VA § 18.2-32. You can read Texas A&M University's statement cancelling the "White Lives Matter" protest scheduled for Sept. 11 here. You can also check out Andrew's rockin' 1980s case, Sable Communications v. FCC, 492 U.S. 115 (1989). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA95: The Great SIO Crossover & We Defend Milo!
Aug 15 2017 74 mins  
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 You should be listening to Serious Inquiries Only. This is the text of the Violent Crime Control and Law Enforcement Act of 1994. This is the longitudinal Gallup study showing the last 80 years of support for the death penalty. And here is the draft of the lawsuit filed by the ACLU against WMATA on behalf of Milo, PETA, and a family planning company. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download


OA94: Geoff Blackwell, Trump's Anti-Trans Tweets & the Google Manifesto
Aug 11 2017 67 mins  
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 Give Geoff's podcast, All Too Common Law, a listen! Here is a link to the Doe v. Trump lawsuit filed Aug. 9, 2017 challenging Trump's tweets. This is the Slate piece calling the lawsuit "ingenious"; Andrew disagrees. And this is the (weird) Mattis internal DOD memo about "ethics" to which the guys refer during the show. Finally, this is the Google manifesto referred to during the "C" segment of the show. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA93: Affirmative Action (& The Best Legal Brief Ever Written)
Aug 08 2017 70 mins  
Today's show is a deep dive into the current Constitutional status of affirmative action in higher education. We begin, however, with a question about Donald Trump from conservative listener Sage Scott. Is it really a big deal to just listen to the Russians? Couldn't you just pay them if their stuff turns out to be useful? No. The answer is no. In the main segment, the guys outline the current state of the law of affirmative action in higher education as set forth in Fisher v. University of Texas-Austin, 136 S.Ct. 1398 (2016) ("Fisher II"), and what that means in light of the Trump Administration's recent comments that it plans to focus DOJ resources on challenging college admission programs that (supposedly) disadvantage white people. Next, in a follow-up to the John Oliver defamation lawsuit we discussed in Episode 84, "Closed Arguments" returns with a dissection of the best legal brief ever written, an amicus curiae brief filed by Jamie Lynn Crofts of the ACLU of West Virginia in support of Oliver. Andrew tries to contain his jealousy. Finally, we end with the answer to Thomas Take the Bar Exam Question #35 regarding a physician's duty regarding releasing patients who are a danger to themselves or others. 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 had a busy week! He was on the follow shows: Episode #17 of the Squaring the Strange podcast Episode #14 of the Odd Atheist Friends podcast; and Episode #113 of the Utah Outcasts podcast. Show Notes & Links Here is a link to 52 U.S.C. § 30121, which you can read for yourself plainly prohibits virtually all contact between foreign nationals and any candidate for federal, state, or even local office. You can read the August 1, 2017 New York Times story on how the Trump Administration plans to challenge affirmative action in college admissions here. The most recent Supreme court case on affirmative action in higher education is Fisher v. University of Texas-Austin, 136 S.Ct. 1398 (2016) ("Fisher II"); Andrew also referenced Fisher I, 133 S.Ct. 2411 (2013). We first discussed Bob Murray's defamation lawsuit against John Oliver in Episode #84, and you can read the ACLU's outstanding amicus brief here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA92: The Unfortunate Application of Statutes of Limitation and Davino Watson
Aug 04 2017 80 mins  
In today's episode, Andrew reluctantly -- but definitively -- opines that the Second Circuit got the law right in dismissing out the claims of Davino Watson, who argued that he was falsely imprisoned by the U.S. government for 3 1/2 years. In the pre-show segment, Andrew briefly introduces new FBI Director Christopher Wray as a good nominee by Donald Trump. After that, the guys tackle a follow-up question to Episode #91; namely, isn't "sexual orientation" already a protected class? Doesn't the law just prohibit discrimination in general? (No.) In our main segment, Andrew explains why statutes of limitation are necessary and why the Second Circuit got it right in dismissing out Watson's false imprisonment claim even though the circumstances are awful. Next, the guys break down Rod Wheeler's defamation lawsuit against Fox News. Why is this part of Yodel Mountain? Listen and find out! Finally, we end with an all-new (and fiendishly hard!) Thomas Takes the Bar Exam Question #35 about a hospital's duty to third parties when releasing a patient with homicidal ideation. 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 had a busy week! He was on the follow shows: Episode #17 of the Squaring the Strange podcast Episode #14 of the Odd Atheist Friends podcast; and Episode #113 of the Utah Outcasts podcast. Show Notes & Links You can listen to the original discussion of anti-discrimination in employment in Episode #91, as well as read the text of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This is the trial court's decision in Watson v. U.S. (EDNY 2016), as well as the Second Circuit's decision from Sept. 1, 2017. Here is the Complaint filed by Rod Wheeler against Fox News. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download

OA91: More Sex (& Also Asset Forfeiture)
Aug 01 2017 59 mins  
For today's show, we revisit the topic first discussed in Opening Arguments Episode #60, namely, whether Title VII of the Civil Rights Act of 1964's prohibition of discrimination on the basis of "sex" implicitly extends to prohibiting discrimination on the basis of "sexual orientation" as well. First, however, fan favorite "Breakin' Down the Law" returns with an explanation of civil and criminal asset forfeiture and a new policy announced by Attorney General (for now) Jeff Sessions. In the main segment, we contrast the amicus brief filed by the U.S. Department of Justice in Zarda v. Altitude Express with the 7th Circuit's opinion in Hively v. Ivy Tech Community College of Indiana. Find out why your government just submitted a brief arguing that employers have the right to hang a sign that says "no homosexuals need apply." After that, Patron Jordan Keith explains a bit more about the TOR browser as a follow-up to Opening Arguments Episode #88's discussion of U.S. v. Matish. Finally, we end with the answer to Thomas Take the Bar Exam Question #34 regarding the rape shield law, FRE 412. Listen and find out if Thomas makes it back to .500! 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 just a guest on Episode 15 of Molly Unmormon's "Doubting Dogma" podcast -- give it a listen! Show Notes & Links The relevant statutes for asset forfeiture are 18 U.S.C. § 983 and 21 U.S.C. § 853, and you can also read the 2015 Holder memorandum prohibiting "adoptive forfeitures" by clicking here. We first discussed Hively v. Ivy Tech Community College of Indiana in Episode #60. And here is the link to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Here is a link to the U.S.'s amicus curiae brief in Zarda v. Altitude Express. This is the text of the opinion in U.S. v. Matish, which we first discussed in Episode #88. And finally, you can read Rule 412 of the Federal Rules of Evidence 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 [email protected]

OA90: Pardon Me? Yes, Donald Trump Can Pardon Himself
Jul 28 2017 67 mins  
In today's episode, Andrew definitively opines that the Presidential pardon power includes the right to self-pardon. We begin, however, with "Andrew Was Wrong." This time, he was wrong about Thor Heyerdahl, but right about the fate of Ken Ham's Ark Encounter. In our main segment, the guys analyze the recent claims by Laurence Tribe, Richard Painter, and Norm Eisen that Donald Trump does not have the power to pardon himself and find it less than persuasive. Next, Andrew briefly discusses the legality of Trump's tweet regarding transgender individuals serving in the military. Finally, we end with an all-new Thomas Takes the Bar Exam Question #34 about introducing a rape victim's sexual history into evidence. 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's talk before the Lehigh Valley Humanists is now up on YouTube. Show Notes & Links We first discussed AIG's Ark Encounter land sale in Opening Arguments episode #88. This is the press release from Answers in Genesis regarding their Ark Encounter fraud, and here is one news account of how the City suspended the tax breaks for the Ark Encounter and the subsequent revocation of the sale. This is the Tribe/Painter/Eisen article in the Washington Post arguing that Trump doesn't have the power to pardon himself. Here is a link to the 1974 Lawton memo. This is a link to the Autobiography of Charles Biddle; you'll want to turn to page 306-08 for the Aaron Burr story. This is "The Law as King and the King as Law" from the Hastings Law Quarterly 20:7. Schick v. Reed, 419 U.S. 256 (1974). Chisholm v. Georgia, 2 U.S. 419 (1793). Here is a link to Gov. Stevens's self-pardon in 1856. This is a link to Mayor James G. Woodward's self-pardon for public drunkenness in 1901. Finally, this is the Newsweek article referenced on the show that discusses self-pardons. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]



OA88: Noah's Ark & How Private Is The Stuff You Do On Your Computer?
Jul 21 2017 70 mins  
In today's episode, we discuss a recent court case involving an individual's expectation of privacy while browsing the Internet. We begin, however, with the question so many of our listeners wanted to know: Is it legal for Ken Ham to sell his Ark Encounter theme park to his own non-profit ministry in a presumed effort to evade taxes? In our main segment, the guys break down a recent court case involving search & seizure over the internet. Do you have an expectation of privacy for the stuff you do on your computer? The answer will surprise you. Next, Yodel Mountain returns with an in-depth examination of what it means to be a "thing of value." Finally, we end with an all-new Thomas Takes the Bar Exam Question #33 about search and seizure, coincidentally enough. 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! Schedule us to appear on your show! Show Notes & Links Here is the article from the Lexington (KY) Herald-Leader on the sale of the Ark Park land. This is a link to the U.S. v. Matish decision discussed during the main segment. The relevant election law statute is 52 U.S.C. § 30121, which prohibits a foreign national from giving any "thing of value" to a candidate for public office. The two cases Andrew discussed interpreting that phrase "thing of value" are U.S. v. Schwartz, 763 F. 2d 1054 (9th Cir. 1985) and U.S. v. Sun-Diamond Growers of California, 941 F. Supp. 1262 (D.D.C. 1996). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]



OA85: More with Andrew Seidel on Trinity Lutheran & the First Amendment
Jul 11 2017 90 mins  
For today's show, we dive deeper into the Supreme Court's recent decision in Trinity Lutheran v. Comer with guest lawyer Andrew Seidel from the Freedom From Religion Foundation. First, however, we answer a question from Patron Christopher Arguin regarding cross-examination that was inspired by TTTBE #30. In the main segment, Andrew and Andrew continue to discuss church-state separation and the First Amendment. Next, our friend Seth Barrett Tillman provides us with an update on the CREW v. Trump lawsuit regarding emoluments. Finally, we end with the answer to Thomas Take the Bar Exam Question #31 regarding the Statute of Frauds. Listen and find out if Thomas's improbable one-question winning streak will continue -- 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! But this is your last chance to join the guys at the Inciting Incident 100th Episode Live Spectacular in Carlisle, PA on July 14, 2017! Get your tickets now! Show Notes & Links We first spoke with Andrew Seidel regarding Trinity Lutheran during Episode 82. Here is a link to the Trinity Lutheran v. Comer decision. We first discussed Trinity Lutheran during our three-part "You Be The Supreme Court" series; part 1 (Episode 14) is available here, part 2 is available here, and part 3 is available here. This is the letter that the Missouri Attorney General sent indicating that, post-election, Missouri would change its policy. Finally, please check out Andrew Seidel's great work at the Freedom From Religion Foundation. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]


OA84: #CNNBlackmail, John Oliver's lawsuit, and more on Maajid Nawaz
Jul 07 2017 69 mins  
In today's episode, we discuss the recent controversy over CNN's handling of a Redditor who posted a Trump meme online. Is this really "blackmail" by CNN? We begin, however, with a follow-up from Patron Joerg regarding UK laws on personal jurisdiction/long-arm and defamation. Could Maajid Nawaz (whose potential lawsuit we discussed in Episode #83) really file against the SPLC in the UK after all? In our main segment, the guys break down CNN's conduct and see if it qualifies as blackmail, extortion, conspiracy to deprive an individual of his Constitutional rights, or any other criminal behavior. Next, by great popular demand, we tackle Bob Murray's lawsuit against John Oliver in connection with his report on "Last Week Tonight." You won't be surprised by our evaluation of the merits, but you will enjoy reading the Complaint! Finally, we end with an all-new Thomas Takes the Bar Exam Question #31 about the Statute of Frauds. 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! But you can come join the guys at the Inciting Incident 100th Episode Live Spectacular in Carlisle, PA on July 14, 2017! Get your tickets now! Show Notes & Links Here is a link to the 2013 UK Defamation Act. This is the 2010 SPEECH Act, 28 U.S.C. § 4102. And here is the SPLC's report on Maajid Nawaz labelling him an "anti-Muslim extremist.". This is 18 U.S.C. § 873, the federal blackmail statute. Here is a link to an informative Washington Post article about the CNN/HanAssholeSolo debacle. And here is a link to the Ben Shapiro opinion piece in the National Review. This is a link to the lawsuit filed by Murray against Oliver, which is a delightful read. This link contains the original Oliver segment about Murray, which is definitely worth watching. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]


OA82: Trinity Lutheran, Trump's Executive Order & More (w/guest Andrew Seidel)
Jun 30 2017 67 mins  
For today's show, we break down the Supreme Court's recent decision in Trinity Lutheran v. Comer with guest lawyer Andrew Seidel from the Freedom From Religion Foundation. We begin, however, with a parenting question from Garrett Thomas Fox in our Super-Secret Patron-Only Q&A thread that didn't get answered on our patron-only special. In our main segment, Andrew Seidel helps explain what went wrong in the Trinity Lutheran case that Andrew confidently predicted would go 6-3 the other way. After that, we tackle the Supreme Court's recent decision staying the judgment in the 4th and 9th Circuits, which in turn had enjoined the enforcement of Executive Order 13780. What does all of this mean? Listen and find out! Finally, we end with a brand new Thomas Takes the Bar Exam question #30 about cross-examination, in which our guest Andrew Seidel plays along! 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 Episode 14 of Habeas Humor, cracking lawyer-themed "yo mama" jokes. Check it out! Show Notes & Links Here is a link to the Trinity Lutheran v. Comer decision. We first discussed Trinity Lutheran during our three-part "You Be The Supreme Court" series; part 1 (Episode 14) is available here, part 2 is available here, and part 3 is available here. This is the letter that the Missouri Attorney General sent indicating that, post-election, Missouri would change its policy. Here is a link to the Supreme Court's decision allowing most of EO 13780 to go into effect. Finally, please check out Andrew Seidel's great work at the Freedom From Religion Foundation. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download

OA81: 😒😜🐿️😎 Emoji Law with Denise Howell (also: Voting Rights, Draft Kings, and FanDuel)
Jun 27 2017 70 mins  
In this episode, Thomas and Andrew interview Denise Howell from the This Week in Law podcast. First, however, we take a look at the Supreme Court's recent decision denying certiorari in an appeal of a Fourth Circuit case striking down various provisions of a North Carolina law that restricted voting rights. There's a lot of misinformation going on, so you'll want to listen! In the main segment, Denise Howell breaks down the "law of emojis" and a 🐿️ time is had by all. After that, Breakin' Down the Law returns with the recent FTC decision to try and block the FanDuel-Draft Kings merger. Finally, we end with the answer to Thomas (and Denise) Take the Bar Exam Question #29 regarding assumption of risk. Will Thomas beat the practicing lawyer? Listen and find out, 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. 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 This is the Supreme Court's denial of certiorari, which is worth reading. The underlying case is NC State Conference of NAACP v. McCrory, 831 F. 3d 204 (4th Cir. 2016). The Supreme Court's 2-line denial of the application to stay McCrory, 137 S.Ct. 27 (2016) is here. This is a link to the "American News X" (wrong) "hot take." You can read Prof. Eric Goldman's delightful law review article on emojis here. And Denise recommends falling down the Wikipedia rabbit hole by reading the history of emojis. This is the FTC complaint against Draft Kings and FanDuel. And here are a few links to articles by and about new FTC Acting Director of Bureau of Competition Tad Lipsky. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA80: Flashback Friday (featuring Health Care, The Slants, and Gerrymandering!)
Jun 23 2017 63 mins  
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 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. This is the text of the Senate's version of the AHCA. MACPAC's analysis of the ACA referenced on the show is here. This table shows the DSH allotment by state for 2016. Here is the full text of the Supreme Court's opinion in Matal v. Tam (formerly Lee v. Tam). Finally, here's the text of the Cooper v. Harris decision we discussed on Episode 72 that gives Andrew some cause for concern. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]


OA79: The Thomas Was Right Show! (Featuring Climate Change and the Paris Accords)
Jun 20 2017 63 mins  
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 You can read the Ninth Circuit's recent opinion here. This is the text of Executive Order 13780. 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. This is a link to NASA's data regarding climate change. And this is the text of the U.N. Framework Convention on Climate Change, to which the U.S. was a signatory in 1992. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA78: Jeff Sessions, "Preemptive Executive Privilege," & More on Emoluments
Jun 16 2017 73 mins  
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 We first discussed obstruction of justice in Episode #70, and analyzed the status of Executive Order 13780 in Episode #51. You can read the text of U.S. v. Nixon, 418 U.S. 683 (1974) here. Here is a link to the Maryland/DC complaint against Trump. And here is a link to Trump's motion to dismiss the CREW lawsuit. This is the Washington Post story breaking news of the investigation by the FBI into Trump. Here are the ostensible (and terrible) GOP "talking points" about the investigation. And this is the text of the Rosenstein order appointing Mueller as special counsel. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA77: Oh No Ross and Carrie (and Matthew!)
Jun 13 2017 63 mins  
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 Check out the Oh No Ross and Carrie podcast! This is the link to Matthew Strugar's law firm in California. 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. Here is the text of the Knight First Amendment Institute's letter to Donald Trump regarding Twitter. ...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. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download Direct Download

OA76: "I Hope" James Comey's Senate Testimony Shows Obstruction of Justice
Jun 09 2017 62 mins  
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 We first discussed obstruction of justice in Episode #70, and analyzed the status of Executive Order 13780 in Episode #51. Snopes debunked the Berkeley Breathed letter here. The relevant obstruction statutes are 18 U.S.C § 1501 et seq. 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). This is the text of Executive Order 13780. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA75: Opening Arguments Über Alles (Understanding Non-Compete Clauses)
Jun 06 2017 64 mins  
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 Here's the Tweet from Darren Rovell that inspired our "A" segment. ..and here's the link to the Wikipedia entry on the Impossibility defense, as a good exercise in finding primary sources. This is the New York Times article about the Waymo lawsuit; and the actual lawsuit can be found here. Finally, you can revisit our lengthy discussion with Travis Wester in Episode #73 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 [email protected]


OA74: Sippin' #Covfefe With Trump's Severed Head
Jun 02 2017 69 mins  
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 a hopefully infrequent segment about stuff Andrew gets wrong. In this case, patron Sean Keehan corrects Andrew's numbers regarding Congressional votes. After that, we answer the actual legal question behind #covfefe -- namely, whether Donald Trump can delete his Tweets. The answer... might surprise you! In our main segment, we look at the ongoing Senate investigation regarding Trump's ties with Russia and break down the Congress's power to conduct investigations and issue subpoenas, and the reasons people can give for failing to comply with them. After that, fan favorite Breakin' Down the Law returns with the question on everyone's lips: is it legal for Kathy Griffin to have posed with Donald Trump's severed head? Finally, we end with a brand new (and tricky) Thomas Takes the Bar Exam question #25 about the admissibility of a composite sketch after the primary witness has unexpectedly died. 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 show! Show Notes & Links Andrew first made the erroneous claim regarding voting results in Episode #54 on Gerrymandering, and repeated it in Episode #72. Oops. The Presidential Records Act can be found at 44 U.S.C. § 2201 et seq. The case establishing the inherent power of the Congress to issue investigations dating back to the McCarthy era is Wilkinson v. U.S., 365 U.S. 399 (1961). Finally, the landmark case establishing the applicable standard of "imminent incitement to lawless action" is Brandenburg v. Ohio, 395 U.S. 444 (1969). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA73: Berkeley, Ann Coulter, and Free Speech (w/guest Travis Wester)
May 30 2017 100 mins  
In this episode, the guys engage in a discussion with actor Travis Wester, who criticized the show's coverage of the Berkeley College Republicans' lawsuit back in the "C" segment of Episode #65. Travis comes on the show to criticize Berkeley's policy regarding the imposition of fees, while Andrew walks us through the various laws regarding the First Amendment's applicability to "time, place, and manner" restrictions in college classrooms. This episode went long, so we skipped our other segments, but obviously no Tuesday episode would be complete without the answer to Thomas Takes The Bar Exam Question #25 about smokin' weed and crashin' cars. Recent Appearances: None! Have us on your show! Show Notes & Links Here are the resources discussed in this episode: This is the link to the BCR/YAF (Ann Coulter) Complaint. Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) is the Supreme Court case decisively holding that campus groups allocating space in classrooms are a limited public forum. Ward v. Rock Against Racism, 491 U.S. 781 (1989), is the landmark Supreme Court case on time, place, and manner restrictions. Rock for Life-UMBC v. Hrabowski, 643 F.Supp.2d 729 (D. Md. 2009) is the D.Md. case that is directly on point with a university that has the exact same policies as Berkeley. The authorizing regulation is 5 CCR § 100004. The 5th Circuit case to which Travis kept referring is Sonnier v. Crain, 613 F.3d 436 (5th Cir. 2010), the opinion of which was subsequently withdrawn in part by Sonnier v. Crain, 634 F.3d 778 (5th Cir. 2011). Finally, the Supreme Court case cited by Travis within the Sonnier opinion is Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992), in which the Supreme Court held that content-based restrictions, including excessive security fees, violate the 1st Amendment. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download

OA72: Body Slamming Journalists PLUS Political vs. Racial Gerrymandering
May 26 2017 66 mins  
In this episode, we revisit what Andrew has called the worst problem in American politics: gerrymandering -- but this time with a twist. We begin, however, with a listener question from Anna Bosnick, who is also our special guest for Law'd Awful Movies #7 - Legally Blonde! Anna watched the movie and listened to our intro and wants to know: what exactly is habeas corpus, anyway? Then, we tackle the recent news about Montana Congressional candidate Greg "Body Slam" Gianforte. Can he really take office if he's convicted of assault? In the main segment, Andrew and Thomas walk through the recent Supreme Court decision in Cooper v. Harris and discuss what it might mean for the future of gerrymandering legislation. After that, Andrew answers another listener question, this one from the exceptionally prescient Garry Myers, who wants to know whether corporations can assert 5th Amendment rights. Finally, we end with a brand new Thomas Takes the Bar Exam question #25 about smoking pot and crashing 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: None! But check out our Law'd Awful Movies guest, Anna Bosnick, and her amazing ukulele work over at worthyfools.com. Show Notes & Links Don't forget to check out our prior Episode #54 on Gerrymandering. In the case of Herrera v. Collins, 506 U.S. 390 (1993), Scalia opined that "of course" being actually innocent isn't grounds for habeas corpus relief, although that was walked back by the Supreme Court in McQuiggin v. Perkins, 133 S.Ct. 1924 (2013). You can also check out the Cooper v. Harris decision here. Finally, the case discussed in the C segment is Hale v. Henkel, 204 U.S. 43 (1906). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download

OA71: Free Speech Left and Right (featuring the Grand Canyon)
May 23 2017 67 mins  
In this episode, the guys address whether the political left or the political right is the biggest threat to freedom of speech in the United States. Their answer probably won't surprise you, but it will give you some ammunition during your next twitter fight with some dude with a Pepe the Frog icon. To tee up this subject, the guys examine the case of journalist Dan Heyman, who was just arrested (!) for trying to ask a question about the AHCA to a rather reluctant Tom Price, the guy who's Secretary of Health and Human Services and who's job description includes answering these kinds of questions. In the main segment, the guys compare the real threat to free speech with the latest complaint filed by our friends over at the Alliance Defending Freedom. This particular lawsuit was filed on behalf of creationist lunatic Andrew Snelling, who wants to steal rocks from the Grand Canyon so he can prove something something Jesus moon lasers something and therefore, the earth is only 6,000 years old. What you won't expect: Andrew actually praises this Complaint! Multiple times! After that, Andrew tackles a question from listener Thomas McCormick who -- perhaps somewhat tongue-in-cheek? -- wonders why churches are tax-exempt at all. In (not) answering the question, Andrew also points out some special benefits churches get under the tax code. Finally, we end with the answer to Thomas Takes the Bar Exam question #24 about double hearsay. 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, but you should check out Thomas's other show, Serious Inquiries Only, and in particular episode #41 featuring Michael Shermer backpedaling on his the-left-is-killing-free-speech tweets and articles. Show Notes & Links Mediaite has the video and some contemporaneous tweets of the Heyman arrest. This is a copy of the Complaint the ADF filed on behalf of Andrew Snelling. Finally, two of the special statutes that benefit churches (and only churches) cited by Andrew in the "C" segment are 26 U.S.C. § 508(c) and 26 U.S.C. § 7611. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA70: Donald Trump & Obstruction of Justice - Are We at the Peak of Yodel Mountain?
May 19 2017 65 mins  
This episode begins the switch to a new, more responsive format in which we are better able to cover breaking news within a day of its release. And, of course, what better way to kick off that format by addressing the most pressing topic of the moment: is Donald Trump guilty of obstruction of justice in his firing of James Comey in light of the recent evidence? We break it down for you with the help of a guest expert, Prof. Randall Eliason of the Sidebars blog. First, though, we continue our ascent up Yodel Mountain with the question as to whether it's legal for Donald Trump to surreptitiously record White House conversations (as Press Secretary Sean Spicer recently failed to deny). In the main segment, the guys turn to a former prosecutor and expert on public corruption and the obstruction of justice, Prof. Randall Eliason, and ask about the strengths and weaknesses of mounting a case against the President for obstruction of justice. After that, Andrew answers a question from Jake (the Fake Jake) who wants to know whether the President has immunity from civil lawsuits, as he's claimed. Finally, we end with a brand new Thomas Takes the Bar Exam question #24 about hearsay-within-hearsay. 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 show! Show Notes & Links Check out Prof. Eliason's blog, Sidebars, and in particular the most recent post on this subject. Here is the link to the L.A. Times story about how Press Secretary Sean Spicer won't deny that President Trump is secretly taping White House conversations, and this is the link to the operative statute, § 23-542 of the D.C. Code. This is the text of Acting AG Rod Rosenstein's order appointing Robert Mueller as special counsel. The operative regulations governing the special counsel can be found at 28 CFR § 600.4 et seq. This is a link to the CNN story regarding Gen. Flynn's refusal to comply with the Senate's subpoena duces tecum. Finally, here is a link to Clinton v. Jones, 520 U.S. 681 (1997), the Supreme Court case that established that Presidents do not have immunity from civil suit while in office. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]


OA69: The Tuesday Massacre - Trump Sacks FBI Director James Comey
May 16 2017 70 mins  
In this episode, the guys analyze the justification given by Deputy Attorney General Rod Rosenstein for President Trump to fire former FBI Director James Comey. First, though, fan-favorite Yodelin' Trump returns with a related question from our listeners (including Kevin Hicks), who ask whether Trump's tweet about Sally Yates violated the law. In our main segment, Andrew breaks down the Rosenstein memo. Then, we answer a great listener question from Patron Ben Hatcher, who wants to know exactly what things are admissible in the record on appeal. Finally, we end with the answer to Thomas Takes the Bar Exam Question #23 about a class action breach-of-contract lawsuit against a scammer who sells your private information. 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: Thomas was recently a guest on Det. Matthew Maxon's new podcast, ______, and Andrew was recently a guest on Episode #116 of the Gaytheist Manifesto. Go check 'em out! Show Notes & Links This is the text of 18 U.S.C. § 1512, the statute that governs witness tampering. And this is the text of Deputy Attorney General Rod Rosenstein's letter recommending the firing of Director Comey. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA68: Did Aaron Hernandez Cash In By Committing Suicide? (w/guest Chris Kristofco)
May 12 2017 59 mins  
In this episode, the guys tackle a recent Internet meme regarding convicted murderer Aaron Hernandez's suicide with help from NFL expert and friend of the show Chris Kristofco of the Titletown Sound podcast. First, though, Andrew tackles a question from listener Joel Forman who asks whether Andrew can help secure him a "letter of marque." What is a letter of marque and why does Joel want one? Listen and find out! In the main segment, the guys break down the law regarding Aaron Hernandez's suicide. Does it really vacate Hernandez's conviction for murder? Are the Patriots really on the hook for $6 million? Is it all a big conspiracy? We tell the hard truths. After that, Andrew answers a question from Hall of Fame patron R.J. Rautio about an obscure procedural quirk in the confirmation of Supreme Court Justice Neil Gorsuch. Does this mean President Elizabeth Warren can kick Gorsuch off the Court in 2020?? Finally, we end with a brand new Thomas Takes the Bar Exam question #23 about a breach of contract lawsuit for stealing your personal information. 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 recently a guest on Episode #116 of the Gaytheist Manifesto. Go check it out! Show Notes & Links Check out Chris Kristofco's fabulous podcast, Titletown Sound. This is the hilarious (and serious!) article from the Federalist Society's web page on bringing back letters of marque. No, seriously: a real person wrote this, unironically. This is the case of U.S. v. Pogue, 19 F.3d 663 (D.C. Cir. 1994), the case Andrew discusses on the "abatement" rule during the main segment. And here is just one example of sports media claiming that abatement puts the Patriots back on the hook for Hernandez's salary. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA67: Trump's Executive Order on Religious Freedom
May 09 2017 66 mins  
In this episode, the guys analyze the recent Presidential Executive Order Promoting Free Speech and Religious Liberty. First, though, we discuss why the show rejected a potential sponsor. Next, we answer a great listener question from our (only?) conservative listener, "Dan Dan the Conservative Man." Dan wanted to know about the exclusionary rule, so-called "illegal" aliens, a recent Supreme Court decision, and how all of those things play in to "Sanctuary Cities." We think we answered this. In our main segment, Andrew breaks down the meaningless portions of the Trump EO and contrasts them with the Definitely Unconstitutional provision. Then, we answer another listener question, this one from Shane Argo, who wants to know about the legal and philosophical reasons for treating "attempted murder" differently than regular murder. Finally, we end with the answer to Thomas Takes the Bar Exam Question #22 about a buyer who finds a priceless artifact at a yard sale and knowingly buys it for a fraction of its true value. 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 show! Show Notes & Links In Episode 52 of the show, we linked to this Facebook post by an immigration lawyer about the term "illegal" immigrant. We recommend you revisit both! Here is a link to Utah v. Strieff, 136 S.Ct. 2056 (2016), the case Dan asked about. This is the text of President Trump's Religious Liberty EO. And this is a link to David French's delightful article in the National Review complaining that Trump's EO doesn't go far enough. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA66: Sanctuary Cities
May 05 2017 63 mins  
In this episode, the guys break down the recent decision by a federal court to enjoin the enforcement of President Trump's Executive Order 13768 regarding Sanctuary Cities. First, though, Andrew tackles a popular question from Brad Kalmanson (and others) as to whether Donald Trump can really make good on his weird threat to "break up" the 9th Circuit. The answer will almost certainly surprise you. In the main segment, we analyze the Sanctuary Cities Executive Order and the Trump Administration's rather amazing legal "strategy" they orchestrated to try and defend it. If you have Trump supporters in your news feed (or are one yourself!), you'll be amazed at what the administration did. After that, Andrew answers an in-person question from David at ReasonCon about the practice of law. Finally, we end with a brand new Thomas Takes the Bar Exam question #22 about selling a priceless work of art. 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 show! Show Notes & Links This is a nice primer on the creation of the current federal judiciary, beginning with the Federal Judiciary Act of 1789. Here is a link to the decision by the Northern District of California enjoining the enforcement of EO 13768. This link is to the text of EO 13768. And this is 8 U.S.C. § 1373, referenced in the EO. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA65: How "Net Neutrality" Became "Selling the Internet" - A Choose-Your-Own Adventure, Part 2 (Plus Ann Coulter!)
May 02 2017 64 mins  
In this episode, Thomas continues his choose-your-own-adventure in which we discover how two well-meaning efforts to protect privacy on the Internet somehow left us with the "Selling The Internet" Bill, S.J.R. 34. We also tackle the wackiest of wacky lawsuits, starring everyone's favorite Internet troll, Ann Coulter. First, though, Andrew assigns homework to the listeners for the very first time, previewing what will be an in-depth discussion of the recent Federal Court order granting injunctive relief and blocking President Trump's "Sanctuary Cities" executive order. Then, we return to our story from Friday's show, unraveling the connections between the FCC, the FTC, Internet Privacy, and the Republican Congress. After that, we discuss the Berkeley College Republicans' lawsuit against the school in connection with Milo Yiannopolous and Ann Coulter. Is this lawsuit as hilarious as it seems? (Yes. Yes it is.) Finally, we end with the answer to Thomas (and Phil!) Take the Bar Exam Question #21 about a state choosing first to recognize gay marriage and then trying to repeal it via a ballot initiative. 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 Episode 209 of the Phil Ferguson Show; please give it a listen! Show Notes & Links Here is a link to the decision by the Northern District of California enjoining the enforcement of EO 13768 that Andrew assigned as homework. This is the single sentence text of S.J.R. 34. And these are the 2016 FCC Internet Privacy rules (all 399 pages!) that S.J.R. 34 overturned. This is the earlier 2010 Open Internet Order promulgated by the FCC... ...and this is Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014), which struck down those rules. And this is the case of FTC v. AT&T Mobility, a 2016 decision from the 9th Circuit, discussed in depth in this episode. Finally, this is a link to the text of the Berkeley College Republican/Ann Coulter lawsuit, which is some truly hilarious reading. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]


OA64: How "Net Neutrality" Became "Selling the Internet" - A Choose-Your-Own Adventure, Part 1
Apr 28 2017 60 mins  
In this episode, Thomas begins a choose-your-own-adventure in which two well-meaning trains collide, producing the so-called "Selling The Internet" Bill, S.J.R. 34. How did this happen? First, though, Andrew revisits a very difficult TTTBE question (#18), and answers a question from long-standing friend of the show Eric Brewer about the differences between a corporation and an LLC. In the main segment, Thomas gets to choose between the well-meaning FCC and the well-meaning FTC in boarding his doomed train. Choose along with Thomas and figure out where we're headed! After that, Closed Arguments looks at the Fearless Girl statue and moral rights associated with copyright. Finally, we end with a brand new Thomas Takes the Bar Exam question #21 about repealing gay marriage. 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 Episode 209 of the Phil Ferguson Show; please give it a listen! Show Notes & Links This is the single sentence text of S.J.R. 34. And these are the 2016 FCC Internet Privacy rules (all 399 pages!) that S.J.R. 34 overturned. This is the earlier 2010 Open Internet Order promulgated by the FCC... ...and this is Verizon v. FCC, 740 F.3d 623 (D.C. Cir. 2014), which struck down those rules. This is the case we discuss in depth in this part of the story. And, as a special hint to our listeners who read the show notes, Part 2 of this story airing next week will focus on the case of FTC v. AT&T Mobility, a 2016 decision from the 9th Circuit. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download

OA63: Saving Money For College Is For Suckers! (with Phil Ferguson)
Apr 25 2017 66 mins  
In this episode of Opening Arguments, Andrew and Thomas invite on Phil Ferguson, host of the cleverly-titled Phil Ferguson Show, to discuss why only suckers save money for college. First, Andrew discusses the scuttlebutt surrounding whether Ivy Tech will appeal the decision in Hively v. Ivy Tech that the guys discussed in Episode 60. After that, we look at the best(?) potential educational bill that might come before Donald Trump's desk: H.R. 529, which would make modest expansions to so-called "529" college savings plans. This, of course, is to set up our "C" segment, in which the guys interview Phil Ferguson and find out what he really thinks of 529 plans in specific and saving for college in general. How clickbaity is our episode title? You'll have to listen and find out! Finally, we end with the answer to Thomas Takes the Bar Exam Question #20 about whether a law prohibiting hiring those undergoing drug treatment or with prior drug convictions would violate the equal protection clause. 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 also a guest on Episode 209 of the Phil Ferguson Show; please give it a listen! Show Notes & Links So-called "529 plans" are governed by 26 U.S.C. § 529, which you can read here. You can see the text of H.R. 592 (no relation) by clicking this link as well as read the endorsement from The Hill here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA62: The Supreme Court's Hall of Shame
Apr 21 2017 68 mins  
In this episode, Andrew goes through five of the worst, most embarrassing cases in Supreme Court history. First, though, the guys tackle a question from Scott, who's considering becoming a patron of the show (good!) but has some questions about a standard form indemnification clause in the Patreon agreement. In the main segment, we look at the worst of the worst in Supreme Court history. From the embarrassingly racist to the embarrassingly activist, come visit the Supreme Court's "Hall of Shame" with Andrew and Thomas. After that, fan favorite Breakin' Down the Law returns with an examination of a new mandatory arbitration provision for civil cases in Cook County, Illinois. Finally, we end with a brand new Thomas Takes the Bar Exam question #20. 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 Episode 209 of the Phil Ferguson Show; please give it a listen! Show Notes & Links The worst cases in Supreme Court history, in chronological order, are: Dred Scott v. Sanford, 60 U.S. 393 (1857) Plessy v. Ferguson, 163 U.S. 537 (1896) (not discussed in this episode) Lochner v. New York, 198 U.S. 45 (1905) Buck v. Bell, 274 U.S. 200 (1927) Korematsu v. US, 323 US 214 (1944) Bowers v. Hardwick, 478 U.S. 186 (1986); and, of course, District of Columbia v. Heller, 554 U.S. 570 (2008) (not discussed in this episode) Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA61: Flyin' the Friendly Skies & Newt Gingrich Still Has a Contract on America
Apr 18 2017 65 mins  
In this episode of Opening Arguments, the guys look at both United Airlines and an obscure law from 1996 that could threaten the "administrative state" held in such disdain by our newest Supreme Court Justice, Neil Gorsuch. First, of course, Andrew breaks down the legality of the recent decision by United Airlines to forcibly remove a passenger. How badly is United going to get sued? You know we deliver the goods. Then, Andrew and Thomas discuss a little-known law passed in 1996 as part of the Republican Revolution and Newt Gingrich's "Contract With America": the Congressional Review Act. What is it, and why does it matter? Listen and find out! In the "C" segment, Andrew answers a question from his mom. Really! Finally, we end with the answer to Thomas Takes the Bar Exam Question #19 about diversity jurisdiction. 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 recently a guest on the Embrace the Void podcast, Episodes 5 and 6. Listen and enjoy! Show Notes & Links The Congressional Review Act is 5 U.S.C. § 802. ...and the Brookings Institute study can be found here. Finally, you can read Todd Gaziano's efforts to beef up the CRA here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA60: Sex and Sexual Orientation
Apr 14 2017 77 mins  
In this episode, we take a look at a landmark decision by the 7th Circuit Court of Appeals, Hively v. Ivy Tech Community College of Indiana. First, though, we tackle a question from listener Justin Wilder who wants to know about serving a subpoena on Amazon for evidence in a civil case related to information that might be stored on your Echo. We love that our listeners are becoming civil procedure geeks! In the main segment, Andrew walks us through the landmark Hively decision and discusses what it means and what the likely future of the case will be. After that, fan favorite Breakin' Down the Law returns with an examination of South Dakota SB 149 which extends protections to adoption agencies in the state with (wait for it) sincerely held religious or moral beliefs. Finally, we end with a brand new Thomas Takes the Bar Exam question #19 that asks about diversity jurisdiction in federal court between two companies. 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 just recorded a two-part episode of the Embrace the Void Podcast; you can (and should!) give Episode 5 a listen right here. Show Notes & Links FRCP 45 governs subpoenas. This is the Supreme Court's Opinion in Hively v. Ivy Tech Community College of Indiana. And here is the link to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This is the text of South Dakota SB 149, which allows adoption agencies to discriminate on the basis of a sincerely held religious or moral belief. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download


OA59: Make America Great Again! OA Defends Trump
Apr 10 2017 68 mins  
In this highly unlikely episode of Opening Arguments, the guys run through three segments in which they defend President Donald J. Trump. Sometimes truth is stranger than fiction First, listener T.Sp. asks about the just-invoked "nuclear option," and whether that vote itself could have been filibustered, thus triggering an endless loop of filibusters... Obviously the answer is no -- but why? We learn about some arcane Senate procedures and the guys conclude that the Democrats probably would have done the same thing if the situation were reversed. In the main segment, Andrew and Thomas break down the recent use of force by President Trump in Syria. Does it violate the Constitution? The War Powers Act of 1973? Some other law? (No.) Yet again, the guys defend President Trump. In the "C" segment, our beloved Yodelin' Trump returns and the guys break down a popular video by Robert Reich that lays out five grounds for impeaching Trump. How good are they? Hint: check out the title of this show. Finally, we end with the answer to Thomas Takes the Bar Exam Question #18 about a crazily unconstitutional law regarding clothing. 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 recently a guest on both the Embrace the Void podcast and The Phil Ferguson Show; links will go up when those shows release. Show Notes & Links The War Powers Act of 1973 is 50 U.S.C. § 1541 et seq. ...and the 60-day provision is found in section 1544. This is the document prepared by President Clinton's lawyers defending the 1994 invasion of Haiti. Here is the 2001 Authorization for the Use of Military Force post-9/11. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download

OA58: What Football Can Teach Us About Jury Nullification, Antitrust, and Donald Trump - Part 2
Apr 07 2017 64 mins  
Today's episode is part two of a two-part series in which Thomas and Andrew walk through the short-lived history of the USFL, an alternative football league that ran into the bulldozer that is Donald J. Trump. Along the way, we learn about jury nullification, antitrust law, and get some insight into Trump's legal strategies that just might have some relevance today.... First, though, "Breakin' Down the Law" defines "antitrust" in order to get you prepared to tackle the rest of our main story. Afterwards, we answer a question from listener Eric Johnston, who wants to know what exactly "laches" and "estoppel" are. Finally, we end with a brand new Thomas Takes the Bar Exam question #18 that asks about the Constitutionality of an oppressive new law restricting clothing. 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 just recorded a delightful and moderate discussion of the law of God's Not Dead 2 with the hosts of the "Is This Reel Life?" podcast. Show Notes & Links This is the AmLaw article Andrew mentions in which lawyers second-guessed Donald Trump's choice of litigation tactics way back in 2009. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA57: What Football Can Teach Us About Jury Nullification, Antitrust, and Donald Trump - Part 1
Apr 04 2017 63 mins  
Today's episode is part one of a two-part series in which Thomas and Andrew walk through the short-lived history of the USFL, an alternative football league that ran into the bulldozer that is Donald J. Trump. Along the way, we learn about jury nullification, antitrust law, and get some insight into Trump's legal strategies that just might have some relevance today.... First, though, "Breakin' Down the Law" defines "jury nullification" in order to get you prepared to tackle our main story. Afterwards, we answer a question from listener Collin Boots, who wants to know why Andrew was so dismissive of term limits back in Episode 54. Finally, we end with the answer to Thomas Takes the Bar Exam Question #17 about selling a lemon of a used car in "as is" condition. 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 just recorded a delightful and moderate discussion of the law of God's Not Dead 2 with the hosts of the "Is This Reel Life?" podcast. Show Notes & Links This is the AmLaw article Andrew mentions in which lawyers second-guessed Donald Trump's choice of litigation tactics way back in 2009. And here is a link to U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), in which the Court struck down state efforts to limit Congressional and Senate terms. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA56: Jury Secrecy and Pena-Rodriguez v. Colorado
Mar 31 2017 61 mins  
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 Here's the story on Devin Nunes's disclosures of confidential intelligence briefings to the press and to White House flacks. 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? 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 [email protected]

OA55: More on Gorsuch - Was He Just Unanimously Reversed By the Supreme Court?
Mar 28 2017 65 mins  
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 This Politifact Article debunks the claim that the 9th Circuit is the "most reversed" appellate court. This is the text of the Endrew F v. Douglas County School Dist. opinion just issued by the Supreme Court. And here is the Endrew F opinion from the 10th Circuit (not authored by Gorsuch) that was reversed. Finally, this is the Luke P decision that was by Gorsuch discussed in the episode. 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. 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 [email protected]


OA54: Gerrymandering
Mar 24 2017 61 mins  
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 The first Supreme Court case to recognize a constitutional right to a non-gerrymandered district was Davis v. Bandemer, 478 U.S. 109 (1986). 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. 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. 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. 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." This is the full text link to the Perez v. Abbott (W.D. Texas) decision on Texas's gerrymandered congressional districts. 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 [email protected]

OA53: Did Jeff Sessions Perjure Himself & Other Trump-Related Stories
Mar 21 2017 71 mins  
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 This is the full text of the Hawaii decision enjoining the Revised Executive Order. 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. This is the full text of President Trump's revised Executive Order ("Muslim Ban"). 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. Here is the full text of 18 U.S.C. § 1001, the federal perjury statute. This is a timeline maintained by the Washington Post of Sessions's relevant conduct. This is the tweet from John Harwood confirming that Russian officials did discuss the election with Jeff Sessions. 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 [email protected] Direct Download

OA52: Thomas Knows Words! Thomas Has The Best Words!
Mar 17 2017 61 mins  
In today's episode, we look at some legal terms that our patrons asked us to define. In a twist, however, the guys switch chairs and Andrew asks the questions while Thomas tries to offer legal definitions. How did that work out? Listen and find out! We begin, however, with a listener question from Rachel Doty, who -- in keeping with this episode's theme -- asks us to define "Alford plea." Then, based on a suggestion from patron Marie Kent, we ask Thomas to define as many legal terms as he can in half an hour. We think this would make an awesome game show, so if any of our listeners are TV producers, please give us a call. Next, we take a look at a listener who recommended a Facebook post from an immigration attorney, and the guys discuss the concept of "illegal" immigration. Finally, we end with a brand new Thomas Takes the Bar Exam question #15 that asks whether eyewitness testimony can be tainted by viewing the suspect in police custody. 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 Check out Marie's podcast, My Book of Mormon, by clicking here. This is the Facebook post from immigration lawyer Lily Axelrod that we discuss during the show. The one section of the US Code that Andrew found that uses the term "illegal alien" is 8 USC § 1365(b), which is very different from the colloquial use of the term. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download

OA51: The Grimm Reality About Transgender Bathrooms
Mar 14 2017 68 mins  
In today's episode, we take a look at the recent Supreme Court decision to rescind its grant of certiorari in the 4th Circuit opinion of Grimm v. Gloucester County School District. What happened, and what does this mean for transgender rights? First, we begin with an examination of the Trump administration's revised Executive Order (sometimes called the "Muslim Ban") restricting entry from now six Muslim-majority nations. As you may recall, we first addressed this issue back in Opening Arguments episode #43. Does this revised order comply with the law and solve the problems outlined by the 9th Circuit, or is it still "obviously unconstitutional," as many news sources claim? You'll know better than the New York Times soon enough! In our main segment, we look at Title IX's prohibition on "sex" discrimination and discuss whether it applies to discrimination on the basis of sexual orientation and gender identity while walking through the somewhat unique procedural history of the Grimm decision. Next, we evaluate whether former President Obama would be likely to prevail in a lawsuit for defamation against President Trump for the claim that Obama "wiretapped Trump Towers" prior to the election. Is this Bat Boy?? Finally, we end with the answer to Thomas Takes the Bar Exam question #14 about IIED. 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 The Gaytheist Manifesto podcast, discussing the history of Title IX. Show Notes & Links 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. This is the full text of President Trump's revised Executive Order ("Muslim Ban"). According to this Guardian article, Hawaii has already sued to block the Revised EO. This is the decision in Church of Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), which is the touchstone for whether Trump's Revised EO violates the First Amendment. Click here to read the (overconfident) New York Times article, "Don't Be Fooled" that asserts that the Revised EO is blatantly unconstitutional. This is the text of 20 U.S.C. § 1681 ("Title IX"). This is the memorandum issued by the Obama DOJ providing guidance as to how to interpret Title IX. And click here for the 4th Circuit's now-vacated opinion in Grimm v. Gloucester County School Board that we discuss during the show. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download

OA50: Obama's Fiduciary Rule (With Guest Ben Offit)
Mar 10 2017 68 mins  
In today's episode, we take a look at a rule first proposed by President Obama's Department of Labor in 2016 that would require financial advisers to abide by a "fiduciary" duty with their clients. What does that mean? Listen and find out! We begin with a relevant note about the status of the rule, which is due to be implemented in 60 days. Next, in our main segment, we take a look at the implications of the Fiduciary Rule by consulting an expert; in this case, certified financial planner Ben Offit, CFP® who has a somewhat novel take on this enhanced obligation. He breaks down what the proposed rule means for you and the financial professionals you might hire. After the main segment, we turn to a petition that has been garnering significant attention on the Internet: #ReVote2017. What is it? Is it really pending before the Supreme Court, and what does that mean? Finally, we end with a brand new Thomas Takes the Bar Exam question #14 regarding the tort of the intentional infliction of emotional distress. 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)! Show Notes & Links To find out more about Ben Offit, CFP® and his services, you can visit his firm, Clear Path Advisory, or email Ben at [email protected] This is the announcement that the Fiduciary Rule has been postponed for 60 days. You can also check out the text of the Fiduciary Rule itself. This is the hilarious petition for writ of mandamus filed by the #ReVote 2017 petitioners. And this is the docket entry for their petition, which is currently pending before the Court and will be denied on March 17, 2017, one week from today. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download


OA49: Why Originalists Don't Belong on the Supreme Court
Mar 07 2017 63 mins  
In today's episode, we take a long look at the judicial philosophy of "originalism" made popular by former Supreme Court Justice Antonin Scalia and advocated by his would-be replacement. First, we begin with a question from Jodi, who asks Andrew for his opinion of LegalZoom and other law-in-a-box services. Andrew gets a little emotional in his response.... Next, we break down originalism as a form of jurisprudence and examine why it is (1) internally incoherent and contradictory; (2) dangerous and unconstrained; and (3) contrary to the fundamental purpose of the judiciary. Andrew's argument is that originalists do not belong on the Supreme Court. Period. Finally, we end with the answer to Thomas Takes the Bar Exam question #13 about hearsay. 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 panel guest on The Thinking Atheist episode "Donald Trump's America," which you can listen to by clicking right here. Show Notes & Links Here are Andrew's two blog posts -- one about Legal Zoom and one about downloading contracts off the internet. His law firm site is here. This Huffington Post piece quotes Scalia's 2008 interview with Nina Totenberg about the Eighth Amendment not prohibiting 18th-century forms of torture. Here's a link to the full text of the Federalist Papers. Marbury v. Madison, 5 U.S. 137 (1803). United States v. Carolene Products, 304 U.S. 144 (1938). Scalia's dissent in Atkins v. Virginia, 536 U.S. 304, 347-48 (2002) and opinion in Printz v. United States, 521 U.S. 898 (1997) are where he makes fun of citations to international law. Harmelin v. Michigan, 501 U.S. 957 (1991) is the infamous decision in which Scalia declared that the Eighth Amendment only bars punishments that are both "cruel" and "unusual in the Constitutional sense." Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA48: Three Cases You Care About - Planned Parenthood, Gay Florists, and Litigious Quacks
Mar 03 2017 65 mins  
Today's episode is a little bit different than our usual format; today, we take a look at three cases that our listeners have asked about on Twitter and Facebook. First up is an order entered by the U.S. District Court for the Western District of Texas enjoining the state of Texas (and nitwit Attorney General Ken Paxton) from disqualifying Planned Parenthood as an authorized Medicaid service provider on the basis of fake videos. Next, we tackle a recent ruling by the Washington Supreme Court applying that state's anti-discrimination law to a florist that decided she couldn't sell wedding flowers if the participants were gay. Is this really the worst violation of individual freedom in the history of Western Civilization? Third, we look at the recent victory in the 11th Circuit by our colleague Dr. Steven Novella of the Skeptic's Guide to the Universe Podcast, and discuss what the ruling means for (say) podcasters who get sued for libel. Finally, we end with a brand new Thomas Takes the Bar Exam question #13 regarding hearsay. 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: Thomas was interviewed by Conatus News about the development of the atheist community on the internet, including the role played by his other podcast, Serious Inquiries Only. Andrew was a guest panelist on an episode of The Thinking Atheist show, "Donald Trump's America." Show Notes & Links This is the W.D. Texas order restraining the state from blocking Medicaid funding to Planned Parenthood. Here is a link to Washington's anti-discrimination law. Click here to read David French's hilariously over-the-top description of this case in the right-wing garbage mag, the National Review. This is the 11th Circuit's ruling in Tobinick v. Novella. Click here to check out Dr. Novella's podcast, the Skeptic's Guide to the Universe. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA47: Is This The Gun Control Case That Could Overrule DC v. Heller?
Feb 28 2017 63 mins  
In today's episode, we take a look at the just-decided case of Kolbe v. Hogan out of the United States Court of Appeals for the Fourth Circuit. Is this case as big a deal as people are saying it is? We begin, however, with a preliminary question from patron Alice Ashton, who asks about the controversial flavor-of-the-week, recently deplatformed Milo Yiannopolous. Does knowing about a crime and not reporting it make you an accessory after the fact? Find out! Next, we break down Kolbe v. Hogan and explain whether this recent decision lives up to the hype (and why)! After our main segment, we answer another patron question, this one from Derek Timp, who has some questions about the separation of church and state. Finally, we end with the answer to Thomas Takes the Bar Exam question #12 about that criminal squirrel-feeder. 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 panel guest on The Thinking Atheist episode "Donald Trump's America," which you can listen to by clicking right here. Also, Seth Andrews, host of the Thinking Atheist, has just released his "Secular State of the Union" address which you can listen to right here. Show Notes & Links Thomas did a fabulous, full-length episode of Serious Inquiries Only about Milo; you should give that a listen. Alice's question referenced a post and attached video on the Joe.My.God. website which you can see here. This is the text of the Kolbe v. Hogan decision. And here is DC v. Heller, 554 U.S. 570 (2008). Here's a brief rundown of clergy serving in Congress. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download

OA46: What Could Donald Trump's Tax Returns Tell Us? (With Guest Tony Di Fatta) - Part 2
Feb 24 2017 64 mins  
Today's episode concludes our two-part look at one of your most requested questions: what might be in Donald Trump's taxes! We begin, however, with a listener criticism from Peter Crinklaw, who thinks Andrew gave short shrift to the policy argument for educational vouchers. Next, we conclude our two-part interview Tony Di Fatta, a practicing CPA, to take a deep-dive into all the things we might -- and might not -- find in the event that Donald Trump's taxes are ever disclosed. All of this is meant to shed some light on the question: should Democrats be focused on finding out what's in Trump's taxes? After our main segment, we tackle another listener question; this one from our top patron Zabby, who wants to know about the recently-passed Jacksonville, Florida Human Rights Ordinance. Finally, we end with a brand new Thomas Takes the Bar Exam question #12 regarding witness credibility. 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: Thomas was interviewed by Conatus News about the development of the atheist community on the internet, including the role played by his other podcast, Serious Inquiries Only. Andrew was a guest on the David Pakman show; you can watch the 14-minute video interview here. Andrew was also a guest on the Biskeptical Podcast, episode #19, with Trav Mamone and Morgan Stringer, discussing free speech and Milo Yiannopolous. Hall of Fame Patron Charone Frankel started her own legal comedy podcast, Habeas Humor. Go check it out. Show Notes & Links This is the economist survey regarding vouchers mentioned by Peter. To find out more about Tony, click here for his website, or give him a call at (443) 791-5726. This is a link to Donald Trump's 2016 financial disclosures. Here's the hilarious Onion article, "You People Made Me Give Up My Peanut Farm!" This is the text of the Jacksonville HRO. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download

OA45: What Could Donald Trump's Tax Returns Tell Us? (With Guest Tony Di Fatta) - Part 1
Feb 21 2017 65 mins  
In today's episode, we take a look at one of your most requested questions: what might be in Donald Trump's taxes! We begin, however, with a preliminary question from Jim Sabatowski, who asks us what's the big deal with Trump's tax returns, anyway? Is there a good reason to think we can get information that's necessary to evaluate a candidate? Next, we give you part one of our two-part interview Tony Di Fatta, a practicing CPA, to take a deep-dive into all the things we might -- and might not -- find in the event that Donald Trump's taxes are ever disclosed. All of this is meant to shed some light on the question: should Democrats be focused on finding out what's in Trump's taxes? After our main segment, we inaugurate a new segment about how close President Trump is to impeachment with a question about 18 USC § 1001 and the prohibition against making false statements. With a bonus reference to The Price Is Right! Finally, we end with the answer to Thomas Takes the Bar Exam question #11 about the best evidence rule. 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: Thomas was interviewed by Conatus News about the development of the atheist community on the internet, including the role played by his other podcast, Serious Inquiries Only. Andrew was a guest on the David Pakman show; you can watch the 14-minute video interview here. Andrew was also a guest on the Biskeptical Podcast, episode #19, with Trav Mamone and Morgan Stringer, discussing free speech and Milo Yiannopolous. Show Notes & Links To find out more about Tony, click here for his website, or give him a call at (443) 791-5726. This is a link to Donald Trump's 2016 financial disclosures. Here's the hilarious Onion article, "You People Made Me Give Up My Peanut Farm!" This is the text of 18 USC § 1001. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download


OA44: All About Arbitration
Feb 17 2017 63 mins  
In today's episode, we take a look at arbitration, an increasingly popular device being used to take disputes out of the courtroom. What might arbitration mean for you? Listen and find out! We begin, however, with a question from patron Faye Reppas, who asks about HR 2802, the so-called "First Amendment Defense Act." Next, in our main segment, we take a look at the implications of arbitration -- particularly in the employment context, where your employer may have inserted a mandatory arbitration clause in your employment agreement. What does arbitration do? Can you be compelled to do it? We break it all down for you. After our main segment, we tackle another listener question; this one from Eric Walls about corporate personhood. Finally, we end with a brand new Thomas Takes the Bar Exam question #11 regarding the testimony of a plaintiff who's had surgical sponges accidentally left inside of her (a surprisingly common occurrence). 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)! Show Notes & Links This is the text of the proposed HR 2802, the First Amendment Defense Act. Andrew wrote two articles on arbitration for his firm blog: you can read Part 1 and Part 2 for more in-depth analysis. Here's a link to the Federal Arbitration Act, 9 U.S.C. § 1 et seq. Here is a link to Andrew's appearance on the David Pakman show. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA43: Explaining the 9th Circuit's Ruling on Trump's Muslim Ban
Feb 14 2017 71 mins  
In today's episode, we take a look at the ongoing status of Executive Order 13769 (often referred to as the "Muslim Ban"). What exactly did the 9th Circuit decide, and how does it affect the status of efforts to restrict emigration going forward? We begin, however, with a Breakin' Down the Law segment where we examine the so-called "Johnson Amendment." What is it? Would it be a bad thing if the Trump administration repeals it? Does it really make a difference? We break down the law so you'll be armed with the information you need to answer these questions. Next, we take a deep-dive into the 9th Circuit's recent ruling denying the Government's emergency motion for a stay. What does that mean? Where is this lawsuit headed next? You won't know if you only read The New York Times, but you will know if you listen to this show! After our main segment, we turn to a question from listener Schofield Miller about why courts hand down multiple-life sentences that run to hundreds of years. Figure out what it means to be sentenced to "ten consecutive life sentences." Finally, we end with the answer to Thomas Takes the Bar Exam question #10 about witness testimony. 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)! Also: Andrew was recently on Episode #103 of the Gaytheist Manifesto podcast talking about executive orders more generally; give it a listen! Show Notes & Links Andrew also discussed the Johnson Amendment when he was a guest on The Scathing Atheist podcast episode #208. Andrew also did a guest spot on episode #103 of the Gaytheist Manifesto talking about executive orders. Judge Robart of the U.S. District Court for the Western District of Washington's Order issuing a temporary restraining order (TRO) blocking the Executive Order is here. And the 9th Circuit's opinion refusing to issue a stay 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 [email protected]

OA42: Denny Hastert and the Limits of Contract Law
Feb 10 2017 62 mins  
Today's episode is brought to you by Audible! Go to audible.com/lawpod for your free 30 day trial!! In today's episode, we take a look at the law of contracts, and particularly in the context of the recent lawsuit involving former Speaker of the House Denny Hastert. We begin, however, with a related question from patron Michael, who asks whether the Scientologists can really enforce that billion-year contract to join to Sea Org. (This answer will not surprise you.) That leads into our main segment, where we look at the strange and tragic lawsuit being brought against Hastert by a victim of his past sexual assault. Hastert agreed to pay the victim $3.5 million for his silence, and then stopped paying after he came under federal investigation. Recently, Hastert counter-sued to recover the hush money previously paid, and we break down all the intricacies of contract law to try and figure out who's likely to get what. After our main segment, we tackle another listener question; this time, about whether employers can fire you for smoking marijuana in the privacy of your own home if you live in a state like Colorado that's legalized marijuana use. Finally, we end with a brand new Thomas Takes the Bar Exam question #10 which is another very, very hard question. 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)! Show Notes & Links This Chicago Tribune article sets forth the facts of the Hastert case. And this Tribune article contains the actual text of Haster's counterclaim that we discuss during the show. On Thursday, Andrew was a guest on The Scathing Atheist podcast episode #208. That same day (he's a busy guy!), Andrew also did a guest spot on episode #103 of the Gaytheist Manifesto podcast. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA41: Betsy DeVos and School Vouchers
Feb 07 2017 57 mins  
In today's episode, we examine one of the favorite policy recommendations of President Trump's Secretary of Education, Betsy DeVos: the school voucher. What is it? Is it constitutional? Listen and find out! We begin, however, with a Breakin' Down the Law segment where Andrew looks at a popular Twitter account's explanation of the odd fact that Donald Trump filed his re-election papers four years early. Is there some nefarious purpose to him having done so, or is this innocuous? We break down the law so you'll be armed with the information you need to navigate these kinds of claims. In the main segment, Andrew walks us through Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the most recent Supreme Court case to consider school vouchers, with a focus on whether providing federal tax dollars to private religious institutions violates the First Amendment's Establishment Clause. After our main segment, we turn to a question from ex-Mormon about the infamous "Mormon Extermination Order," an executive order (No. 44) signed by Missouri Gov. Lilburn Boggs in 1838. This dovetails with a two-hour discussion of the Order between Andrew and host Bryce Blankenagel during episode 47 of the "Naked Mormonism" podcast, which you should definitely check out by clicking here. Finally, we end with the answer to Thomas Takes the Bar Exam question #9 about joint tenancy. 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)! Show Notes & Links The "Resisterhood" tweets are here. Zelman v. Simmons-Harris, 536 U.S. 639 (2002). This is the original, hand-written text of Missouri Executive Order 44 (the "Mormon Extermination Order"). The main page for the "Naked Mormonism" podcast is here; and Andrew was on Epsiode 47, which you can download here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA40: Who is Neil Gorsuch, and How Scared Should You Be?
Feb 03 2017 52 mins  
In today's episode, we take a look at President Trump's Supreme Court nominee, Neil Gorsuch. The main segment was recorded before the announcement and reflects our guess (correctly!) that he would be the nominee, so you'll hear some speculative language. We begin, however, with a question from David Durman who wants to know if a citizen can bring a private civil suit against President Trump while he's in office. The answer may surprise you! During our main segment, we also discuss Gorsuch's originalism and some of the opinions and dissents he issued while serving on the U.S. Court of Appeals for the 10th Circuit. Oh, and he also wrote a snottly little editorial for the right-wing mag National Review. After our main segment, "Closed Arguments" returns with a question about Jared Kushner and the anti-nepotism law. Is Trump violating the law? The answer will probably not surprise you. Finally, we end with a brand new Thomas Takes the Bar Exam question #9 which is the single hardest question so far, in that it involves real property. 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)! Show Notes & Links This is a link to the Washington Post article referenced by David. If you read only one thing from the show notes, it should be this sarcastic, nasty little article Gorsuch wrote for the National Review before he joined the bench. Then, if you have the stomach for it, check out Gorsuch's opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016), in which he openly muses in the text of the opinion about repealing Chevron deference. Still think he's not an activist judge? This is the anti-nepotism law, 5 U.S.C. §3110. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]


OA39: Trump's Muslim Ban
Jan 31 2017 80 mins  
Today's episode revisits a question we tackled way back in Episode #16, namely, whether President Trump has the authority to enact his Muslim Ban. We begin with an examination of the recent CREW lawsuit seeking a declaratory judgment that President Trump has violated the Emoluments Clause. Is that lawsuit likely to prevail? What could it accomplish? Listen and find out. In the main segment, we consider not only the recent Trump Executive Order restricting the entry of aliens from seven majority-Muslim nations (the "Muslim Ban"). We address questions of legality and constitutionality, as well as break down the recent injunction handed down by the Southern District of New York in response to the ACLU's lawsuit. After our main segment, we turn to a question from a conservative listener about abortion and whether Roe v. Wade was an "activist" decision. Finally, we end with the answer to Thomas Takes the Bar Exam question #8 about a landowner's duties regarding trespassers who accidentally fall into the landowner's murder lake. 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)! Show Notes & Links The CREW lawsuit is here. We reference two decisions on the "political question" doctrine: Baker v. Carr, 369 U.S. 186 (1962) and Nixon v. U.S., 506 U.S. 224 (1993). We initially discussed the Muslim Ban way back in OA Episode #16, which is worth another listen! The authorizing statute (the "1952 Law") is 8 USC §1182(f). The "1965 Law" is 8 USC §1152(a). In light of those two provisions, we think you can spot the errors in David Bier's op-ed in the New York Times. I wrote a lot on Facebook about the ACLU lawsuit and the injunction handed down by the court on Saturday, so you can check that out if you want the relevant documents. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA38: FLSA and Exempt Employees, Part 2
Jan 27 2017 65 mins  
Today's episode is part two of our two-part series on pending changes to the Fair Labor Standards Act ("FLSA"). As we've previously mentioned, in 2016, the Obama Department of Labor promulgated new rules requiring that employees who are "exempt" from the FLSA's overtime requirements must earn at least $47,476 per year. A district court judge issued an injunction blocking those rules from going into effect; that decision is currently pending on expedited review before the 5th Circuit Court of Appeals. In this episode, Andrew continues his explanation as to why he thinks those rules are going to eventually go into effect and what that means for employers and employees. We begin, however, with a thoughtful question from friend of the show Noah Lugeons regarding how the FLSA's tipping rules interact with Title VII of the Civil Rights Act of 1964. Is it illegal for employers to rely on tips knowing how inequally tips are handed out to men and minorities? Listen and find out! After our main segment on the FLSA, we answer a delightfully mad question from Robert Rautio regarding the supposed "right to travel" in the Constitution. Answering this doozy takes us back into the weird and wonderful world of "sovereign citizens" -- you won't want to miss it! Finally, we end with a brand new Thomas Takes the Bar Exam question #8 about whether a company dumping toxic waste has a duty to warn trespassers. 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)! Show Notes & Links The relevant provisions of the FLSA for this episode are 29 USC § 207 (maximum hours) and 29 USC § 213 (exempt employees). Title VII of the Civil Rights Act of 1964 begins at 42 USC § 2000e and can be found here. This is the original rule promulgated by Obama's Department of Labor. Here is the judicial injunction blocking the implementation of the rule. And here is the judge's decision not to overturn his own injunction after a motion for reconsideration. Please laugh at -- but DO NOT FILE! -- this suggested "brief" by the weirdos at The Lawful Path who think you can get out of a traffic ticket by filing this nonsense. (You can't.) And here's another absolutely bonkers list of random string-cites that purports to show that you have an absolute right to travel guaranteed by the Constitution. (You don't.) Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download

OA37: FLSA and Exempt Employees, Part 1
Jan 24 2017 59 mins  
Today's episode is part one of a two-part series on pending changes to the Fair Labor Standards Act ("FLSA"). As we've previously mentioned, in 2016, the Obama Department of Labor promulgated new rules requiring that employees who are "exempt" from the FLSA's overtime requirements must earn at least $47,476 per year. A district court judge issued an injunction blocking those rules from going into effect; that decision is currently pending on expedited review before the 5th Circuit Court of Appeals. In this episode, Andrew explains why he thinks those rules are going to eventually go into effect and what that means for employers and employees. We begin, however, with a listener correction regarding the FLSA and tipped employees. As it turns out, Andrew mis-spoke on a prior episode and employers must ensure that an employee's total compensation (including tips) meets the federal minimum wage. After our main segment on the FLSA, the much-beloved "Are You A Cop?" segment returns with a myth about President Trump revoking the commutation of Chelsea Manning's prison sentence. Finally, we end with the answer to Thomas Takes the Bar Exam question #7 about hearsay. 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)! Show Notes & Links The relevant provisions of the FLSA for this episode are 29 USC § 207 (maximum hours) and 29 USC § 213 (exempt employees). The DOL Fact Sheet #15 referred to listener Victoria McNair is here. This is the original rule promulgated by Obama's Department of Labor. Here is the judicial injunction blocking the implementation of the rule. And here is the judge's decision not to overturn his own injunction after a motion for reconsideration. Finally, here's the New York Times story about President Obama commuting Chelsea Manning's sentence. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA36: The Emoluments Clause (w/Seth Barrett Tillman) Part 2
Jan 20 2017 76 mins  
Today's episode is part two of our two-part series on whether the Emoluments Clause of the Constitution applies to incoming President Donald Trump. We begin, however, with a listener question from Erik Alsman who asks whether the Supreme Court has the power to declare an amendment to the Constitution unconstitutional. Along the way we'll learn a little bit about the history of judicial review in the United States. In our main segment, we conclude our interview with Lecturer Seth Barrett Tillman of the Maynooth University Department of Law, exploring Tillman's thesis that the Emoluments Clause does not apply to President Trump because the Presidency is not an "office... under the United States" for purposes of Constitutional analysis. Afterwards, Thomas and Andrew break down the argument and offer their views on the issue. Next, we air some listener comments and questions regarding the difference between a "barrister" and a "solicitor" in UK law. Finally, we end with a brand new Thomas Takes the Bar Exam question #7 about the admissibility of a hearsay statement during a civil trial. 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)! Show Notes & Links This is the text of Marbury v. Madison, 5 U.S. 137 (1803), in which the Supreme Court articulated -- some say, invented! -- the doctrine of judicial review. Prof. Tillman can be found on Twitter at @SethBTillman, and here is his professional page. In November of 2016, Prof. Tillman wrote a brief piece for the New York Times summarizing his thesis about the Emoluments Clause. This 2009 Memorandum from the President's Office of Legal Counsel assumes -- without argument or citation -- that the Emoluments Clause applies to the President. In December of 2016, Norm Eisen, Richard Painter, and Laurence Tribe wrote a paper for the Brookings Institution arguing that the Emoluments Clause does apply to the President. Zephyr Teachout's law review article, The Anti-Corruption Principle sets forth her argument that the Constitution, including the Emoluments Clause, enshrines a fundamental principle to protect against corruption of our highest offices, including the Presidency. Tillman's Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle is here. Teachout's specific response to Tillman on the Emoluments Clause is here. Tillman's reply to Teachout can be found here. Teachout's final reply to Tillman can be found here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA35: The Emoluments Clause (w/Seth Barrett Tillman) Part 1
Jan 17 2017 63 mins  
Today's episode is part one of a two-part series on whether the Emoluments Clause of the Constitution applies to incoming President Donald Trump. We begin, however, by addressing another Trump-related question: Does a recent report claiming that 50+ Trump electors are ineligible provide the relief of preventing Trump from assuming the Presidency? We delve into the report and answer the question in a way that may surprise you. Our main interview segment is with Lecturer Seth Barrett Tillman of the Maynooth University Department of Law. Tillman's thesis is that the Emoluments Clause does not apply to President Trump because the Presidency is not an "office... under the United States" for purposes of Constitutional analysis. Next, we answer a listener question from William Stemmler about officeholders in the line of Presidential Succession who are themselves ineligible to become President. Could Donald Trump nominate George W. Bush to be Secretary of State? Find out! Finally, we end with the answer to Thomas Takes the Bar Exam question #6 about pre-nuptial agreements. 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)! Show Notes & Links Here's the Raw Story report on disqualified Trump electors, and the full text of the report can be downloaded from Alternet. Prof. Tillman can be found on Twitter at @SethBTillman, and here is his professional page. In November of 2016, Prof. Tillman wrote a brief piece for the New York Times summarizing his thesis about the Emoluments Clause. This 2009 Memorandum from the President's Office of Legal Counsel assumes -- without argument or citation -- that the Emoluments Clause applies to the President. In December of 2016, Norm Eisen, Richard Painter, and Laurence Tribe wrote a paper for the Brookings Institution arguing that the Emoluments Clause does apply to the President. Zephyr Teachout's law review article, The Anti-Corruption Principle sets forth her argument that the Constitution, including the Emoluments Clause, enshrines a fundamental principle to protect against corruption of our highest offices, including the Presidency. Tillman's Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle is here. Teachout's specific response to Tillman on the Emoluments Clause is here. Tillman's reply to Teachout can be found here. Teachout's final reply to Tillman can be found here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download


OA34: The "Fallout" Over Copyright
Jan 13 2017 66 mins  
Today's episode is a mini-masterclass on Copyright. We begin by answering a question from listener Sue Barnum who asks if a simple list can be copyrighted. After that, we move to the main discussion over the Copyright Act and the "fair use" defense, using as an illustration the recent story where CNN appropriated the graphic from the hit videogame Fallout 4 to illustrate a story about Russian hacking. Did this violate copyright law? Or was CNN's activity "fair use" of the game screen? Next, we answer a fun listener question from Damian Kumor about the portrayal of law in media. What's Andrew's favorite obscure legal TV show? Listen and find out! Finally, we end with Thomas Takes the Bar Exam question #6 about prenuptial agreements. 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 quoting the tweet that announces this episode along with your guess and reason(s)! Show Notes & Links Here's the text of Feist Publications v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991). This article from cnet explained CNN's use of the Fallout 4 graphic. The Copyright Act of 1976 is codified at 17 U.S.C. § 101 et seq. Learn about the incredibly low-rated cancelled TV show "Justice" at its IMDB page. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA33: Interview With The Slants
Jan 10 2017 69 mins  
Today's episode begins with Breakin' Down the Law in which we discuss the recently-enacted "Frank R. Wolf International Religious Freedom Act," and whether the Act constitutes a significant legal protection for atheists. During our main segment, we are excited to have on Simon Tam, founder of the band "The Slants," for an extended interview that follows up on our discussion of Lee v. Tam from Episode 30. Simon tells us about the history of the band, answers some tough legal questions, and also describes how he combines his music with social justice activism. After the interview, we turn to a listener comment from friend of the show Dr. Dave Hawkes, who helps answer a plausibility question we had from Law'd Awful Movies. Finally, we end with the answer to Thomas Takes the Bar Exam question #5 about the garnishment of wages. For every episode going forward, TTTBE will give you a new question on Friday, followed by the answer on Tuesday. And remember that you can play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s)! Show Notes & Links Learn all about The Slants and download authorized samples of their songs at www.theslants.com. This is the press release issued by the American Humanist Association that also contains the full text of the Frank R. Wolf Act. If you missed our initial coverage of The Slants on OA30, you should go back and listen to that episode! And if you still haven't listened to our free episode of Law'd Awful Movies #1, you can download that here. Finally, this is a copy of the Slants’ Supreme Court brief, which is reasonably entertaining for a legal brief. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA32: Phil Ivey's Gambling Winnings (with guest Chris Kristofco)
Jan 06 2017 62 mins  
Today's episode begins with a question from Adrien Thuren about the minimum wage. How come restaurants can seemingly pay wait staff less than minimum wage? And if that's legal, why don't other industries don't start paying their employees less than minimum wage too? Andrew tells us why or why not. For our main segment, we bring back guest Chris Kristofco from OA6. In addition to being an ex-lawyer and current-day blogger about the Green Bay Packers, Chris is also a casino employee and former dealer. He joins us to help break down the recent verdict in federal court in New Jersey requiring Phil Ivey to pay back $10.1 million to the Atlantic City Borgata casino. Next, "Breakin' Down the Law" returns with a segment that explains the difference between a "lawyer" and an "attorney." Be honest -- you didn't know the answer, either, did you?? Finally, we end with Thomas Takes the Bar Exam, where Thomas tackles question #5 about garnishment of wages. For every episode going forward, TTTBE will give you a new question on Friday, followed by the answer on Tuesday. And remember that you can play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s)! Show Notes & Links If you like football, and you love (or hate!) the Packers, you should listen to Chris Kristofco's excellent podcast, Titletown Sound Off. If you missed Chris's first appearance way back on OA6, you should go back and listen to his predictions about the "pending NFL apocalypse," and you'll understand why we hold his feet to the fire on this return visit. This is the Washington Post article explaining the Ivey verdict, based on the recent damage ruling. And this is the full text of the October decision by the federal court on liability, which mostly went unnoticed even though it decided the key issue in the Borgata's favor. Finally, this link contains a graphic representation of the purple Gemaco cards that were the subject of the suit as well as the "flaw" exploited by Ivey. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA31: More on the McDonald's "Hot Coffee" Lawsuit
Jan 03 2017 60 mins  
Welcome to the first Opening Arguments of 2017, and the first episode on our new two-episode-per-week schedule. Just a reminder: we will be releasing these episodes on Tuesdays and Fridays every week. More on scheduling below. Today's episode begins with a far-fetched (but interesting!) hypothetical about what would happen if Donald Trump refused to take the Presidential Oath of Office. We dig into the Constitution, the 20th Amendment, and the 25th Amendment and go down some fun rabbit trails. For our main segment, we return to the McDonald's "Hot Coffee" lawsuit we discussed in OA 29, and tackle some common questions about negligence raised by listeners. Next, "Breakin' Down the Law" returns with a segment that explains the difference between "legalizing" and "decriminalizing" ... stuff. Yeah, "stuff." Finally, we end with Thomas Takes the Bar Exam, where we find out how our intrepid co-host did in answering real-life bar exam prep question #4 about trespass. Going forward, TTTBE will always be an answer on Tuesday followed by a new question on Friday. Remember that you can play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s). Show Notes & Links If you missed OA29, you might want to go back and listen to find out all that's right and wrong about the McDonald's "Hot Coffee" lawsuit. Also, we gave you a little holiday present by releasing LAM #1: The Firm to all of our listeners. If you haven't listened already, we think you'll enjoy it. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

OA30: Little Baby Jesus in a Manger
Dec 28 2016 62 mins  
Well, it's finally here: the last Opening Arguments of 2016. We're looking forward to 2017 (and our amazing two-episode-per-week schedule). We begin with some announcements about Law'd Awful Movies, and then turn to Thomas Takes the Bar Exam, where we find out how our intrepid co-host did in answering real-life bar exam prep questions. Then, we answer a listener question from Jim Sabatowski about the foreseeability of one's negligence by taking a trip back to law school and talking about the crazy, fireworks-on-a-train-exploding-scale madness that is Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928). In our main segment, we tackle the confusion world of religious-themed holiday displays. When is it okay to put a little baby Jesus on the courthouse steps? We'll tell you insofar as the Supreme Court has told us, which... isn't always perfectly clear. In our "C" segment, we tackle yet another listener question; this one from Skeptic Sarah regarding the controversy over trademark registration for the all Asian-American band "The Slants" and their unique crowdfunding of their Supreme Court legal costs. Finally, we conclude with TTTBE #4. Remember that you can play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s). We'll see you in 2017... twice as often! Show Notes & Links Here's a link to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which will help you answer TTTBE #3. While we're at it, this is the full-text link to Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928), the case every law student knows. Lemon v. Kurtzman, 403 U.S. 602 (1971), set forth the "Lemon test" that we talk about in the main segment. Lynch v. Donnelly, 465 U.S. 668 (1984), was the 1984 case that said it was perfectly legitimate for a courthouse to display little baby Jesus in a manger. But weirdly, Allegheny County v. ACLU, 492 U.S. 573 (1989), was the case from just five years later where the Supreme Court said no, courts couldn't just display little baby Jesus in a manger, but they could display a menorah, a Christmas tree, and a liberty plaque all together. We defy you to explain the difference between Van Orden v. Perry, 545 U.S. 677 (2005), which upheld a Ten Commandments monument in Texas, and a decision handed down the exact same day, McCreary County v. ACLU, 545 U.S. 844 (2005), which struck down Ten Commandments posted on the walls out two courthouses in Kentucky. Finally, this is a copy of the Slants' Supreme Court brief, which is reasonably entertaining for a legal brief. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]



OA29: Cognitive Dissonance
Dec 21 2016 65 mins  
It's a two-episode week! In this week's Wednesday episode, we are joined by Tom & Cecil of the Cognitive Dissonance podcast for a discussion about freedom of speech and whether online platforms such as Facebook and Twitter ought to be considered "public spaces." We begin with some announcements about the schedule, including Thomas Takes the Bar Exam, which will remain a weekly feature once we move to our twice-per-week format in January. So no new question today, but you will have a few extra days to answer TTTBE #3. Then we take a look at the new Texas law requiring funereal services for aborted embryos and miscarriages, and Thomas takes a shot at analyzing the issue. Is all his hard work studying for the Bar Exam paying off? Listen and find out! Finally, the show concludes with a discussion of the 1994 McDonalds "Hot Coffee" lawsuit, Liebeck v. McDonald's Restaurants, as an example of legal myths gone awry. What exactly happened in that case, and what does it say about whether we should have caps on punitive damages or other forms of "tort reform" in the U.S.? After that, we look at the abortion-related question of the lawsuit ostensibly brought by Sofia Vergara's frozen embryos. Is this a meritorious lawsuit or a publicity stunt orchestrated by a goofball anti-abortion columnist? Show Notes & Links Check out the Cognitive Dissonance podcast! Here are the actual fetal tissue rules promulgated by the Texas Health Services that require "interment" of "the products of spontaneous or induced human abortion." A federal judge in the Western District of Texas recently issued a temporary restraining order blocking the implementation of the rules pending a preliminary injunction hearing to be held on January 3. Whole Women's Health v. Hellerstedt, 136 S.Ct. 2292 (2016), provides some guidance as to how the Supreme Court might treat the Texas abortion rules. Here's the CollegeHumor video on the McDonald's "Hot Coffee" lawsuit. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]


































5 • 10 Ratings

khroan Feb 13 2021
How did I live so long without you? With your help, I am now smarter, funnier, and guaranteed to never pass the bar.

mrew0 Nov 19 2020
Don't take legal advice from a podcast. Do listen to the great analysis of current events through the lens of Andrew and Thomas.






SteveD Oct 01 2020
I always learn something new!

[email protected] Sep 21 2020
One of my favorites.

Richard Darnall Sep 19 2020
One of the best podcasts out there! Intelligent, insightful, and funny! Thomas and Andrew are some of the best hosts one could ever hope for!

DMS Sep 14 2020
Andrew explains the law that is easy to understand plus a lot more.

avarna0920 Aug 26 2020
Awesome legal show. You don't have to know anything about the legal system to enjoy it. They break down current and last cases and make it easy for any lay person to follow along. Love how they always stay up to date on important current events too.






Finch Jun 26 2020
Fun listen

sotolf Jun 16 2020
Great podcast about law, it's a lot less boring than that sounds.

Lunatic Man Jun 09 2020
Wonderful show. They make complex legal issues much more understandable. Incredibly they actual research the subject before talking about it.