Opening Arguments

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

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

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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 [email protected]

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]

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]

**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

**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]

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]

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]

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]

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]

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]

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]

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]

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

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]

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]

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]

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]

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]

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]

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]

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]

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]

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]

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 [email protected]

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]

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]

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]

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]

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]

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]

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]

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]

This emergency episode examines the Complaint filed by Stormy Daniels seeking a legal determination that the Settlement Agreement entered into between her, Donald Trump's lawyer, and (allegedly) Donald Trump is not legally binding. We honestly believe that this is a much bigger bombshell than is being portrayed by the press. Listen and find out why. We also end with an all-new TTTBE #66 featuring David Michael. 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! 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]

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]

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]

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]