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Opening Arguments

A News, Politics and Government podcast featuring Andrew Torrez
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OA94: Geoff Blackwell, Trump's Anti-Trans Tweets & the Google Manifesto
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 openarguments@gmail.com
OA293: My Deference & Auer Deference (Kisor v. Wilkie)
Today's episode revisits a narrow area of administrative law we last discussed in Episode 266, namely, Auer deference. Andrew made a bold prediction in that episode, and find out where he was wrong -- and where he was right now that the Supreme Court has ruled in Kisor v. Wilkie. We also discuss the recent unsealing of court records thanks to a CNN reporter and we witness the return of listener favorite segment "Are You A Cop?" with a fabulous question about drinking and driving. Buckle up! We begin, however, with a look at a recent request made by CNN's Katelyn Polantz regarding certain court proceedings and records relating to the Mueller Investigation. Does this mean that "BILL BARR KILLED 7 OPEN INVESTIGATIONS?" (No.) But it is significant, and you won't want to miss why. Then, it's time for a deep-dive explainer that starts with a reminder on the principles of agency deference. Don't remember the exact difference between Chevron deference and Auer deference? We've got you covered -- including, in particular, how the latter came under attack in Kisor v. Wilkie, a case involving a retired servicemember challenging the internal agency regulations governing disability pay. Should the courts defer to an agency's interpretation of its own rules, or should it be wildly activist and defer to Neil Gorsuch's interpretation of those rules? Kisor gives us a slightly different answer than you might expect, all while angling us towards the day soon to come in which the Supreme Court greatly expands the power of the judicial branch. After that, it's time for Are You A Cop? featuring some truly terrible advice for how to beat a DUI arrest. (Please do not do this.) We talk about standards of evidence while debunking the notion that you should... drink more when you're pulled over? (It's a weird question.) As if that wasn't enough, we end with the answer to Thomas Takes The Bar Exam #132 about an escaped, de-fanged, venomous snake. Who's responsible? Listen and find out! Appearances Andrew will be a guest at the Mueller She Wrote live show in Philadelphia, PA on July 17, 2019; click that link to buy tickets, and come up and say hi! And remember: if you’d like to have either of us as a guest on your show (or at your live show!), drop us an email at openarguments@gmail.com. Show Notes & Links This is the Raw Story article we criticize during the "A" segment, and to verify what we've said is correct, you can read (a) Polantz's request; (b) the Court's order; (c) Exhibit A (Search Warrants); (d) Exhibit B (Wiretapping); and (e) Exhibit C (Pen Register/Trap & Trace). Phew! We previewed Kisor v. Wilkie (read decision) in Episode 266. And, in breaking down Justice Roberts's holding in Kisor, we also expose shoddy journalism like this Daily Beast article. -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 openarguments@gmail.com!
OA303: Katy Perry & Facebook
Today's episode checks in on the record-setting $5 billion settlement that Facebook reached with the Federal Trade Commission for, among other things, violating a prior consent order by enabling developers like Cambridge Analytica to access your data without your permission. Is this a good deal for American consumers? It's complicated. Oh, and you also get more music law with Katy Perry, and so much more! We begin with an update on the Senate's last-ditch push to nominate more than a dozen new Trump nominees for lifetime appointments on the federal bench. And yes, despite widespread opposition, despite minimal credentials in many cases, and despite all of them having disqualifying right-wing ideologies... all were confirmed before the Senate decided to take a break. (Sorry for the bad news.) Then, it's time for the deep dive into the Facebook-FTC settlement, which does indeed impose the single largest penalty ever for a consumer protection violation. Learn why the Democratic minority at the FTC thought it wasn't enough, and along the way you'll learn a lot about the FTC. After that, it's time to revisit music law, this time with a jury verdict that Katy Perry violated the copyright of Christian rapper Flame. Andrew gives you the law, and Thomas gives you the music -- you won't want to miss this segment! Then -- as if that wasn't enough -- it's time for the answer to a brand-new #T3BE involving beer, the Constitution, and the notions of justiciability and ripeness. It's not quite as good as having a beer, but it's still a good segment! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Don’t forget that there are just 2 tickets remaining for Opening Arguments Live in New York on August 10, 2019! Click here to get your tickets before they’re gone! Click here to read the FTC-Facebook settlement; click here for the Slaughter dissent; and here for the Chopra dissent. And then don't forget all the Katy Perry pleadings, including (a) the lawsuit; (b) the jury verdict; (c) the proposed jury instructions; and (d) the proposed damages instructions. -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 openarguments@gmail.com!
OA311: Opioids Are A Nuisance!
Today's episode takes an in-depth look at the recent landmark trial ruling in Oklahoma that the opioid epidemic constitutes a "public nuisance" in that state, and that Johnson & Johnson must pay $572 million to abate it. What do all of those crazy legal words mean? Is this a "good" result or a "bad" one? What's next? Listen and find out! We begin, however, with -- at long last! -- the in-depth discussion of the shameful history of the Mann Act in the United States as a way of answering why Jeffrey Epstein wasn't charged with offenses under it. Along the way, you'll learn about the worst guy's weekend ever! Then, it's time for the main segment about the public nuisance trial in Oklahoma that resulted in a landmark first-of-its-kind verdict. Find out what that means for future lawsuits and so much more. After all that, it's time for a quick follow-up on the Sheldon Whitehouse brief and some statistical analysis... as well as a call for more stats geekery from our highly-educated fans! And finally, we end the show with #T3BE 142 involving Not Taking Legal Advice From Your Tenant. Did Thomas finally manage to break the streak? Listen and find out! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links On Epstein: you can read his (now-dismissed) SDNY indictment, as well as the news of its dismissal. On the Mann Act, 18 U.S.C § 2421 et seq.; you'll also want to check out the case we discussed, Caminetti v. U.S., 242 U.S. 470 (1917). We first discussed the Oklahoma trial in Episode 292, and you can read the judge's trial verdict here. -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 openarguments@gmail.com!
OA310: Citizenship and the Military and...
Today's Rapid Response Friday takes a look at the recent Trump Administration memorandum "clarifying" the rules on military citizenship for children born to U.S. employees -- largely, those in the armed forces -- serving overseas. Is it as bad as you've heard? (Yes.) Is it actually worse than that? (Yes.) First, though, we continue to revisit the apportionment question discussed in Episode 307. Have we finally crowdsourced a solution? The answer may surprise you! After that, it's time for a deep dive into the latest policy manual update from the department of U.S. Citizenship and Immigration Services "clarifying" that servicemembers living overseas don't actually count as "living in the United States." Will this cause Trump-supporting military members to vote for Elizabeth Warren in 2020? (No.) Should it? (Yes.) Is it way, way worse than you could possibly imagine? Oh yes. After that, it's time for a very brief Andrew Was Wrong (the best kind!). Then, it's time for an all-new Thomas Takes the Bar Exam, in which we have... something approaching "Don't Take Legal Advice From A Podcast" Law? You won't want to miss this question involving a disgruntled landlord and a put-upon law student. Can Thomas break his losing streak? Listen and find out! Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We first covered the potential apportionment crisis in Episode 307. You can read the latest policy manual update from the department of U.S. Citizenship and Immigration Services for yourself. The relevant legal provisions of the Immigration and Naturalization Act are 8 U.S.C. § 1401, 8 U.S.C § 1431, and 8 U.S.C. § 1433. This is the August 15th, 2019 story about how the Trump administration continues to use the "out-of-wedlock" rule against LGBTQ couples. Finally, this is the garbage, racist National Review article on birthright citizenship, and this is U.S. v. Wong Kim Ark, 169 U.S> 649 (1898). -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 openarguments@gmail.com!
OA283: Mueller Speaks! (& Clarence Thomas Pens a Nonsensical Concurrence)
Today's episode breaks down the statement made this week by Robert Mueller in connection with his report and investigation. Is it a good sign? Is it a bad sign? Is it both? Listen and find out! We begin, however, with a bit of housekeeping, including a recommendation that you check out Episode 194 of Serious Inquiries Only (featuring Eli Bosnick!) for the official OA answer to all things milkshaking. We also preview a bit of next week's show, which involves revisiting Eddie Lampert, Steve Mnuchin, and the alleged looting of Sears. Is it worse than you think? (It's always worse than you think.) Next, we check in on four Supreme Court orders that relate to gerrymandering. Is that worse than you think? (It's always worse than you think.) After all that, we're not even halfway done! Our main segment breaks down the Supreme Court's brief, two-page per curiam order in Box v. Planned Parenthood... and the sprawling, nonsensical 20-page concurrence written by Clarence Thomas that literally repeats David Barton-level falsehoods. You'll be angry, but you won't want to miss it. Then, it's time to Yodel! We carefully break down Robert Mueller's statement regarding his investigation and what it means for the future. In so doing, we also analyze Mueller's claims regarding the now-infamous 2000 OLC memo as to whether a sitting president can be indicted. After all that, it's time for an all-new Thomas Takes The Bar Exam #128 involving a crazy criminal effort to steal money from a fast-food drive-through by pretending to have a sniper... look, you'll just have to listen and play along, okay?!? Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links For the correct take on milkshaking, check out Serious Inquiries Only Episode 194 with Eli Bosnick. We first covered the alleged looting of Sears by Eddie Lampert and Steve Mnuchin in Episode 273 and that was picked up by our friends Elizabeth Warren and AOC. These are the four orders the Supreme Court granted in gerrymandering cases: A. HOUSEHOLDER, LARRY, ET AL. V. A. PHILIP RANDOLPH INST., ET AL. B. CHABOT, STEVE, ET AL. V. A. PHILIP RANDOLPH INST., ET AL C. MICHIGAN SENATE, ET AL. V. LEAGUE OF WOMEN VOTERS, ET AL. D. CHATFIELD, LEE, ET AL. V. LEAGUE OF WOMEN VOTERS, ET AL. Click here to read the Supreme Court’s Opinion in Box v. Planned Parenthood Click here for the peer-reviewed research showing that Sanger was not a eugenicist; and here for the article showing she wasn’t a racist. This is a transcript of Robert Mueller’s testimony and this is the 2000 OLC Memo. 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 openarguments@gmail.com!
OA291: Wildcard, Clownhorns! (Non-Compete Clauses & More)
Today's SUPER SPECIAL BONUS EPISODE tackles a bunch of issues that came up during the week that we didn't want to get buried on the whiteboard, including the Flores settlement, a deep dive into non-compete clauses, and a really good Andrew Was Right & Wrong segment about the Hatch Act. It's everything you love about Opening Arguments, only more so! We begin with an examination of the oral arguments before the 9th Circuit regarding ICE detainment centers and whether those comply with the conditions mandated by the Flores settlement that require "safe and sanitary" conditions for minors separated from their families at the border. After that, it's time for a deep dive into a really good listener question from Erin regarding covenants not to compete. Learn all about the "Legitimate Business Interest" (LBI) test and how to gauge whether a noncompete clause is (likely) enforceable, plus learn about the recent economic and political trends surrounding noncompetes that may surprise you. Then, it's time for a very insightful set of comments from a listener regarding the Hatch Act; it's an Andrew Was Right/Andrew Was Wrong compliment sandwich, but we all wind up better for it! No #TTTBE this episode since it's a special bonus. Appearances None! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links We first discussed the Flores settlement and border policy back in Episode 184. For a recent report on the oral argument, check out this Courthouse News article referenced on the show. We last discussed non-compete clauses in Episode 75. -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 openarguments@gmail.com!
OA284: Drain the Swamp, Starring Gordon Hartogensis
Today's episode is a tragedy in three acts, bringing together three seemingly-unrelated stories: (1) understanding the looming crisis at the Pension Benefits ordonuarantee Corporation; (2) figuring out who Gordon Hartogensis is and why he's about to gain control over potentially hundreds of billions of dollars in assets; and finally, (3) putting together all the pieces to see how President Trump has acted to protect his crony, Treasury Secretary Steven Mnuchin, from potential criminal and civil liability in connection with his management of Sears. Strap in; it's going to be a bumpy ride! We begin in Act I, in which the guys break down the Employee Retirement Income Security Act of 1974 (ERISA), its creation, the Pension Benefits Guaranty Corporation (PBGC), and the developments over the last 45 years that have pushed the PBGC to the brink of collapse. Act II, then, takes over with the recently-appointed International Man of Mystery, Gordon Hartogensis, to lead the PBGC. Who is this guy, and what has he done to inspire confidence that he can right the ship? Listen and find out! Act III weaves these stories together with the ongoing civil lawsuit by Sears against Steven Mnuchin and his buddy Eddie Lampert, who are alleged to have looted Sears's assets, driving it into bankruptcy. You'll never guess who bought those assets in bankruptcy... or, perhaps you'll instantly guess who did. After all that, it's time for the answer to Thomas Takes the Bar Exam #128 involving a crazy fast-food heist involving an imaginary sniper and the drive-thru lane. Did you get it right?? Appearances None! If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links Check out ERISA, 29 U.S.C. §§ 1001 et seq. You can also read the text and a breakdown of the key provisions of the PPA, which passed the Senate 93-5. For a sad laugh, check out the PBGC's own scant "Who the hell is Gordon Hartogensis?" page. The first person to break this story was Politico's Ian Kullgren, who wrote this article. We first covered the Sears/Lampert/Mnuchin story back in Episode 273, and you can read the Warren/Ocasio-Cortez letter here. -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 openarguments@gmail.com!
OA38:  FLSA and Exempt Employees, Part 2
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 openarguments@gmail.com <!-- START 237 Download Link --> Direct Download <!-- END 237 Download Link -->
OA50:  Obama's Fiduciary Rule (With Guest Ben Offit)
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 ben@clearpathadvisory.com. 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 openarguments@gmail.com <!-- START 271 Download Link --> Direct Download <!-- END 271 Download Link -->
OA59:  Make America Great Again!  OA Defends Trump
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 openarguments@gmail.com Direct Download
OA83:  Law of the Fourth of July! (and Maajid Nawaz)
In this special holiday episode, Andrew and Thomas talk about fireworks law across the U.S.  Where can you go for a cherry-bombin' good time?  Listen and find out! First, however, we take a look at Maajid Nawaz's threatened lawsuit against the SPLC.  In the main segment, Andrew and Thomas figure out the best place to set off bottle rockets.  And after that, Andrew tackles another question from the patron-only Q&A mailbag. Finally, we end with the answer to Thomas (and Andrew Seidel) Take the Bar Exam Question #30 regarding cross-examination.  Will Thomas and the practicing lawyer get it wrong?   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 Andrew was a guest on Episode 14 of Habeas Humor, cracking lawyer-themed "yo mama" jokes.  Check it out! Show Notes & Links This is the SPLC's report on Maajid Nawaz labelling him an "anti-Muslim extremist." Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com  
OA62:  The Supreme Court's Hall of Shame
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 openarguments@gmail.com  
OA76:  "I Hope" James Comey's Senate Testimony Shows Obstruction of Justice
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 openarguments@gmail.com
OA70:  Donald Trump & Obstruction of Justice - Are We at the Peak of Yodel Mountain?
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 openarguments@gmail.com  
OA75:  Opening Arguments Über Alles (Understanding Non-Compete Clauses)
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 openarguments@gmail.com
OA61:  Flyin' the Friendly Skies & Newt Gingrich Still Has a Contract on America
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 openarguments@gmail.com  
OA2: The 2000 Election (#NeverForget), Part 1
On the last episode of Atheistically Speaking with Andrew Torrez (AS259), Andrew teased us with the promise that he’d be back to discuss what really happened back in the 2000 U.S. Presidential election (and promised that it might have something to do with our current Presidential election)!  Well, Andrew’s back, and in Part 1, he and I … Continue reading OA2: The 2000 Election (#NeverForget), Part 1 → The post OA2: The 2000 Election (#NeverForget), Part 1 appeared first on Opening Arguments.
OA42:  Denny Hastert and the Limits of Contract Law
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 openarguments@gmail.com.  
OA60: Sex and Sexual Orientation
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 openarguments@gmail.com Direct Download
OA56:  Jury Secrecy and Pena-Rodriguez v. Colorado
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 openarguments@gmail.com
OA102: The Utah Nurse, DACA, & Disaster Relief
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 openarguments@gmail.com  
OA99:  Q&A Extravaganza!
Today's show is an hour-plus-long question & answer session answers some (but not all!) of the 110 questions our Patrons submitted on this thread.  As always, Andrew has no advance knowledge of these questions and answers everything off the cuff! After the Q&A, we end with the answer to Thomas Take the Bar Exam Question #38 regarding the admissibility of prior consistent statements.  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)! Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com  
OA 113: Our Cruel & Unusual Podcast Heads to International Waters
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 openarguments@gmail.com  
OA132:  The Thomas Show! Can He Serve on the Federal Bench? Why is His High School Crazy? & More!
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 openarguments@gmail.com
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Podcast Details
Started
Aug 24th, 2016
Latest Episode
Nov 22nd, 2019
Release Period
Daily
No. of Episodes
340
Avg. Episode Length
About 1 hour
Explicit
No
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