Opening Arguments

In today's episode, we discuss the recent controversy over CNN's handling of a Redditor who posted a Trump meme online. Is this really "blackmail" by CNN? We begin, however, with a follow-up from Patron Joerg regarding UK laws on personal jurisdiction/long-arm and defamation. Could Maajid Nawaz (whose potential lawsuit we discussed in Episode #83) really file against the SPLC in the UK after all? In our main segment, the guys break down CNN's conduct and see if it qualifies as blackmail, extortion, conspiracy to deprive an individual of his Constitutional rights, or any other criminal behavior. Next, by great popular demand, we tackle Bob Murray's lawsuit against John Oliver in connection with his report on "Last Week Tonight." You won't be surprised by our evaluation of the merits, but you will enjoy reading the Complaint! Finally, we end with an all-new Thomas Takes the Bar Exam Question #31 about the Statute of Frauds. Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! But you can come join the guys at the Inciting Incident 100th Episode Live Spectacular in Carlisle, PA on July 14, 2017! Get your tickets now! Show Notes & Links Here is a link to the 2013 UK Defamation Act. This is the 2010 SPEECH Act, 28 U.S.C. § 4102. And here is the SPLC's report on Maajid Nawaz labelling him an "anti-Muslim extremist.". This is 18 U.S.C. § 873, the federal blackmail statute. Here is a link to an informative Washington Post article about the CNN/HanAssholeSolo debacle. And here is a link to the Ben Shapiro opinion piece in the National Review. This is a link to the lawsuit filed by Murray against Oliver, which is a delightful read. This link contains the original Oliver segment about Murray, which is definitely worth watching. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

In this special holiday episode, Andrew and Thomas talk about fireworks law across the U.S. Where can you go for a cherry-bombin' good time? Listen and find out! First, however, we take a look at Maajid Nawaz's threatened lawsuit against the SPLC. In the main segment, Andrew and Thomas figure out the best place to set off bottle rockets. And after that, Andrew tackles another question from the patron-only Q&A mailbag. Finally, we end with the answer to Thomas (and Andrew Seidel) Take the Bar Exam Question #30 regarding cross-examination. Will Thomas and the practicing lawyer get it wrong? Listen and find out, and don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances Andrew was a guest on Episode 14 of Habeas Humor, cracking lawyer-themed "yo mama" jokes. Check it out! Show Notes & Links This is the SPLC's report on Maajid Nawaz labelling him an "anti-Muslim extremist." Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

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

In this episode, Thomas and Andrew interview Denise Howell from the This Week in Law podcast. First, however, we take a look at the Supreme Court's recent decision denying certiorari in an appeal of a Fourth Circuit case striking down various provisions of a North Carolina law that restricted voting rights. There's a lot of misinformation going on, so you'll want to listen! In the main segment, Denise Howell breaks down the "law of emojis" and a 🐿️ time is had by all. After that, Breakin' Down the Law returns with the recent FTC decision to try and block the FanDuel-Draft Kings merger. Finally, we end with the answer to Thomas (and Denise) Take the Bar Exam Question #29 regarding assumption of risk. Will Thomas beat the practicing lawyer? Listen and find out, and don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances None. But if you're on the East Coast, you should check out Andrew's speech to the Lehigh Valley Skeptics on "Skepticism and the Law" on July 2, 2017 at 11 am by clicking here. Show Notes & Links This is the Supreme Court's denial of certiorari, which is worth reading. The underlying case is NC State Conference of NAACP v. McCrory, 831 F. 3d 204 (4th Cir. 2016). The Supreme Court's 2-line denial of the application to stay McCrory, 137 S.Ct. 27 (2016) is here. This is a link to the "American News X" (wrong) "hot take." You can read Prof. Eric Goldman's delightful law review article on emojis here. And Denise recommends falling down the Wikipedia rabbit hole by reading the history of emojis. This is the FTC complaint against Draft Kings and FanDuel. And here are a few links to articles by and about new FTC Acting Director of Bureau of Competition Tad Lipsky. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

It's our first Flashback Friday! On today's episode, we revisit topics from previous episodes that are once again back in the news. We begin with the breaking-est of breaking news, the new Senate version of the AHCA that literally just got released right before the show was scheduled to record. What's in the new bill? Listen and find out! After that, our main segment goes through the recent Supreme Court victory for our friend Simon Tam of the Slants, who previewed this case for us way back on Episode 33. Find out what the ruling means and how it might impact future issues (like a certain D.C.-area football team). After that, we take a look at the Supreme Court's recent grant of certiorari in the Wisconsin gerrymandering case we discussed back in Episode 54. What's the prognosis for whether the Supreme Court will finally do something about partisan gerrymandering? Listen and find out! Finally, we end with a brand new Thomas (and Denise) Take the Bar Exam Question #29, in which next week's guest, Denise Howell, joins the guys for a preview and plays along. Remember that you too can play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s). Answers, as always, drop on Tuesday. Recent Appearances None. But if you're on the East Coast, you should check out Andrew's speech to the Lehigh Valley Skeptics on "Skepticism and the Law" on July 2, 2017 at 11 am by clicking here. Show Notes & Links Flash back to our first discussion with Simon Tam of the Slants on Episode 33, and keep groovin' with gerrymandering by listening to Episode 54. This is the text of the Senate's version of the AHCA. MACPAC's analysis of the ACA referenced on the show is here. This table shows the DSH allotment by state for 2016. Here is the full text of the Supreme Court's opinion in Matal v. Tam (formerly Lee v. Tam). Finally, here's the text of the Cooper v. Harris decision we discussed on Episode 72 that gives Andrew some cause for concern. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

In this episode, Thomas and Andrew break down the Trump Administration's decision to withdraw from the Paris Agreement regarding climate change. First, however, we celebrate Thomas being prescient in taking an in-depth look at the Ninth Circuit's rather surprising decision regarding Trump's EO 13780, the so-called "Muslim Ban." In the main segment, Andrew and Thomas answer some questions and bust some myths regarding the U.S.'s withdrawal from the Paris Agreement. Can Trump do that? Can the states pick up the slack? Is there one weird trick that will solve climate change? The answers may surprise you. After that, Andrew tackles a fun question from patron Myk Dowling about disclaimers. Finally, we end with the answer to Thomas Takes the Bar Exam Question #28, which involved a pizza joint defaming a nearby burger hut. Can Thomas start a new, 2-game winning streak? Listen and find out! And, as always, we'll release a new #TTTBE question this Friday and answer that question the following Tuesday. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s), and don't forget that patrons who support us at any level get early access to the answers (and usually a fun post analyzing the question in more detail). Recent Appearances Andrew was just a guest on Episode 390 of This Week in Law, throwin' down the devil horns. Give it a listen! Show Notes & Links You can read the Ninth Circuit's recent opinion here. This is the text of Executive Order 13780. This is the text of Goldwater v. Carter, 444 U.S. 996 (1979), the odd case on whether a President can unilaterally withdraw from a treaty. This is a link to NASA's data regarding climate change. And this is the text of the U.N. Framework Convention on Climate Change, to which the U.S. was a signatory in 1992. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

If it's Friday, it's a current events episode, and if it's current events, we're probably talking about Donald Trump. We begin, however, with Breakin' Down the Law, in which Andrew answers the question raised by every single person in the universe this week: can Jeff Sessions really do that? In our main segment, we look at the recent emoluments lawsuit brought by the Attorneys General for Maryland and Washington DC. After that, Yodel Mountain returns with a look at the Washington Post's breaking news that Donald Trump is under investigation by the FBI, as well as the GOP's purported talking points as to why this is no big deal. Finally, we end with a brand new Thomas Takes the Bar Exam question #28 about a malicious pizza store owner. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances Andrew was a guest on today's (6/16/2017) episode of This Week in Law, as well as on Episode 24 of the Scenic City Skeptics show. Check 'em out! Show Notes & Links We first discussed obstruction of justice in Episode #70, and analyzed the status of Executive Order 13780 in Episode #51. You can read the text of U.S. v. Nixon, 418 U.S. 683 (1974) here. Here is a link to the Maryland/DC complaint against Trump. And here is a link to Trump's motion to dismiss the CREW lawsuit. This is the Washington Post story breaking news of the investigation by the FBI into Trump. Here are the ostensible (and terrible) GOP "talking points" about the investigation. And this is the text of the Rosenstein order appointing Mueller as special counsel. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

In this episode, Thomas and Andrew talk to the co-host of one of their favorite podcasts, Oh No Ross and Carrie, along with the show's lawyer, Matthew Strugar -- proving once and for all that other podcasts need lawyers, too. First, however, Andrew breaks down a recent viral story about whether Donald Trump's Twitter account can be a "designated public forum," a term our listeners should remember from Episode #73's discussion with Travis Wester. In the main segment, Carrie Poppy sits down for a fun and wide-ranging interview about her job and the potential legal perils that stem from investigating pseudoscience, the paranormal, and potentially dangerous religious cults. After that, the much-beloved "Are You A Cop?" segment returns with a question from listener Brian Babcock about how to deal with standard-form contracts. Finally, we end with the answer to Thomas Takes the Bar Exam Question #27, which was a complicated fact pattern involving drunk driving, punitive damages, insurance limits, and cross-examination. Did Thomas break his streak? Listen and find out. And, as always, we'll release a new #TTTBE question this Friday, and, as always, answer that question the following Tuesday. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s), and don't forget that patrons who support us at any level get early access to the answers (and usually a fun post analyzing the question in more detail). Recent Appearances: Andrew was just a guest on Episode #84 of the Cellar Door Skeptics Podcast; give it a listen here. Show Notes & Links Check out the Oh No Ross and Carrie podcast! This is the link to Matthew Strugar's law firm in California. If you want to brush up on the concept of a "designated public forum," you can revisit our discussion with Travis Wester in Episode #73 by clicking here. Here is the text of the Knight First Amendment Institute's letter to Donald Trump regarding Twitter. ...and here is the text of Davison v. Loudon County, 2017 WL 58294 (E.D. Va. Jan. 4, 2017), the case cited in the footnotes. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download Direct Download

If it's Friday, it's a current events episode, and if it's current events, we're probably talking about Donald Trump. We begin, however, with the second installment of a hopefully infrequent segment about stuff Andrew gets wrong. In this case, it's actually two things. First, Andrew clarifies the terminology related to immunity, and second, Andrew admits to falling for a hoax (!) In our main segment, we look at James Comey's testimony before the Senate regarding his firing. How far up Yodel Mountain does this take us? Listen and find out! After that, fan favorite Breakin' Down the Law returns with an analysis of what's going on with the Trump Administration's appeal of Executive Order 13780, the so-called "Muslim Ban," which we last discussed in Episode #51. Finally, we end with a brand new (and tricky) Thomas Takes the Bar Exam question #27 about the admissibility of a question on cross-examination regarding the availability of insurance proceeds. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew was a recent guest on Episode #84 of the Cellar Door Skeptics podcast; give it a listen. Show Notes & Links We first discussed obstruction of justice in Episode #70, and analyzed the status of Executive Order 13780 in Episode #51. Snopes debunked the Berkeley Breathed letter here. The relevant obstruction statutes are 18 U.S.C § 1501 et seq. The two cases Andrew found that involve valid prosecutions for obstruction of justice where the defendant used the "I hope" construction in threatening a witness are U.S. v. Bedoy, 827 F.3d 495 (5th Cir. 2016) and U.S. v. McDonald, 521 F.3d 975 (8th Cir. 2008). This is the text of Executive Order 13780. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

In this freewheeling episode, Andrew walks through a recent decision in California regarding a key employee who worked on self-driving cars and was recruited by a competitor. First, however, the guys talk about Episode #73's discussion with Travis Wester and what lessons hopefully we all can take away from it, including answering a listener question from Lyman Smith on how to go about finding primary sources. Next, the guys discuss "Mr. Met" and the doctrines of factual and legal impossibility. Can a four-fingered mascot really give anyone the "middle" finger?? In the main segment, Andrew breaks down the recent federal court opinion in California enjoining a former Waymo employee from working on Uber's self-driving car program, and along the way highlights the differences between non-compete clauses, non-solicitation clauses, and trade secrets. After that, Andrew tells a fun story in answering a listener question from Michael Grace regarding the craziest legal argument Andrew's ever heard. Finally, we end with the answer to Thomas Takes the Bar Exam question #26 about composite sketches inspired by dead witnesses. We'll release a new #TTTBE question this Friday, and, as always, answer that question the following Tuesday. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s), and don't forget that patrons who support us at any level get early access to the answers (and usually a fun post analyzing the question in more detail). Recent Appearances: None! Have us on your show! Show Notes & Links Here's the Tweet from Darren Rovell that inspired our "A" segment. ..and here's the link to the Wikipedia entry on the Impossibility defense, as a good exercise in finding primary sources. This is the New York Times article about the Waymo lawsuit; and the actual lawsuit can be found here. Finally, you can revisit our lengthy discussion with Travis Wester in Episode #73 by clicking here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

If it's Friday, it's a current events episode, and if it's current events, we're probably talking about Donald Trump. We begin, however, with a hopefully infrequent segment about stuff Andrew gets wrong. In this case, patron Sean Keehan corrects Andrew's numbers regarding Congressional votes. After that, we answer the actual legal question behind #covfefe -- namely, whether Donald Trump can delete his Tweets. The answer... might surprise you! In our main segment, we look at the ongoing Senate investigation regarding Trump's ties with Russia and break down the Congress's power to conduct investigations and issue subpoenas, and the reasons people can give for failing to comply with them. After that, fan favorite Breakin' Down the Law returns with the question on everyone's lips: is it legal for Kathy Griffin to have posed with Donald Trump's severed head? Finally, we end with a brand new (and tricky) Thomas Takes the Bar Exam question #25 about the admissibility of a composite sketch after the primary witness has unexpectedly died. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: None! Have us on your show! Show Notes & Links Andrew first made the erroneous claim regarding voting results in Episode #54 on Gerrymandering, and repeated it in Episode #72. Oops. The Presidential Records Act can be found at 44 U.S.C. § 2201 et seq. The case establishing the inherent power of the Congress to issue investigations dating back to the McCarthy era is Wilkinson v. U.S., 365 U.S. 399 (1961). Finally, the landmark case establishing the applicable standard of "imminent incitement to lawless action" is Brandenburg v. Ohio, 395 U.S. 444 (1969). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

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

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

In this episode, the guys address whether the political left or the political right is the biggest threat to freedom of speech in the United States. Their answer probably won't surprise you, but it will give you some ammunition during your next twitter fight with some dude with a Pepe the Frog icon. To tee up this subject, the guys examine the case of journalist Dan Heyman, who was just arrested (!) for trying to ask a question about the AHCA to a rather reluctant Tom Price, the guy who's Secretary of Health and Human Services and who's job description includes answering these kinds of questions. In the main segment, the guys compare the real threat to free speech with the latest complaint filed by our friends over at the Alliance Defending Freedom. This particular lawsuit was filed on behalf of creationist lunatic Andrew Snelling, who wants to steal rocks from the Grand Canyon so he can prove something something Jesus moon lasers something and therefore, the earth is only 6,000 years old. What you won't expect: Andrew actually praises this Complaint! Multiple times! After that, Andrew tackles a question from listener Thomas McCormick who -- perhaps somewhat tongue-in-cheek? -- wonders why churches are tax-exempt at all. In (not) answering the question, Andrew also points out some special benefits churches get under the tax code. Finally, we end with the answer to Thomas Takes the Bar Exam question #24 about double hearsay. We'll release a new #TTTBE question this Friday, and, as always, answer that question the following Tuesday. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s), and don't forget that patrons who support us at any level get early access to the answers (and usually a fun post analyzing the question in more detail). Recent Appearances: None, but you should check out Thomas's other show, Serious Inquiries Only, and in particular episode #41 featuring Michael Shermer backpedaling on his the-left-is-killing-free-speech tweets and articles. Show Notes & Links Mediaite has the video and some contemporaneous tweets of the Heyman arrest. This is a copy of the Complaint the ADF filed on behalf of Andrew Snelling. Finally, two of the special statutes that benefit churches (and only churches) cited by Andrew in the "C" segment are 26 U.S.C. § 508(c) and 26 U.S.C. § 7611. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

This episode begins the switch to a new, more responsive format in which we are better able to cover breaking news within a day of its release. And, of course, what better way to kick off that format by addressing the most pressing topic of the moment: is Donald Trump guilty of obstruction of justice in his firing of James Comey in light of the recent evidence? We break it down for you with the help of a guest expert, Prof. Randall Eliason of the Sidebars blog. First, though, we continue our ascent up Yodel Mountain with the question as to whether it's legal for Donald Trump to surreptitiously record White House conversations (as Press Secretary Sean Spicer recently failed to deny). In the main segment, the guys turn to a former prosecutor and expert on public corruption and the obstruction of justice, Prof. Randall Eliason, and ask about the strengths and weaknesses of mounting a case against the President for obstruction of justice. After that, Andrew answers a question from Jake (the Fake Jake) who wants to know whether the President has immunity from civil lawsuits, as he's claimed. Finally, we end with a brand new Thomas Takes the Bar Exam question #24 about hearsay-within-hearsay. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: None! Have us on your show! Show Notes & Links Check out Prof. Eliason's blog, Sidebars, and in particular the most recent post on this subject. Here is the link to the L.A. Times story about how Press Secretary Sean Spicer won't deny that President Trump is secretly taping White House conversations, and this is the link to the operative statute, § 23-542 of the D.C. Code. This is the text of Acting AG Rod Rosenstein's order appointing Robert Mueller as special counsel. The operative regulations governing the special counsel can be found at 28 CFR § 600.4 et seq. This is a link to the CNN story regarding Gen. Flynn's refusal to comply with the Senate's subpoena duces tecum. Finally, here is a link to Clinton v. Jones, 520 U.S. 681 (1997), the Supreme Court case that established that Presidents do not have immunity from civil suit while in office. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

In this episode, the guys analyze the justification given by Deputy Attorney General Rod Rosenstein for President Trump to fire former FBI Director James Comey. First, though, fan-favorite Yodelin' Trump returns with a related question from our listeners (including Kevin Hicks), who ask whether Trump's tweet about Sally Yates violated the law. In our main segment, Andrew breaks down the Rosenstein memo. Then, we answer a great listener question from Patron Ben Hatcher, who wants to know exactly what things are admissible in the record on appeal. Finally, we end with the answer to Thomas Takes the Bar Exam Question #23 about a class action breach-of-contract lawsuit against a scammer who sells your private information. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Thomas was recently a guest on Det. Matthew Maxon's new podcast, ______, and Andrew was recently a guest on Episode #116 of the Gaytheist Manifesto. Go check 'em out! Show Notes & Links This is the text of 18 U.S.C. § 1512, the statute that governs witness tampering. And this is the text of Deputy Attorney General Rod Rosenstein's letter recommending the firing of Director Comey. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

In this episode, the guys tackle a recent Internet meme regarding convicted murderer Aaron Hernandez's suicide with help from NFL expert and friend of the show Chris Kristofco of the Titletown Sound podcast. First, though, Andrew tackles a question from listener Joel Forman who asks whether Andrew can help secure him a "letter of marque." What is a letter of marque and why does Joel want one? Listen and find out! In the main segment, the guys break down the law regarding Aaron Hernandez's suicide. Does it really vacate Hernandez's conviction for murder? Are the Patriots really on the hook for $6 million? Is it all a big conspiracy? We tell the hard truths. After that, Andrew answers a question from Hall of Fame patron R.J. Rautio about an obscure procedural quirk in the confirmation of Supreme Court Justice Neil Gorsuch. Does this mean President Elizabeth Warren can kick Gorsuch off the Court in 2020?? Finally, we end with a brand new Thomas Takes the Bar Exam question #23 about a breach of contract lawsuit for stealing your personal information. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew was recently a guest on Episode #116 of the Gaytheist Manifesto. Go check it out! Show Notes & Links Check out Chris Kristofco's fabulous podcast, Titletown Sound. This is the hilarious (and serious!) article from the Federalist Society's web page on bringing back letters of marque. No, seriously: a real person wrote this, unironically. This is the case of U.S. v. Pogue, 19 F.3d 663 (D.C. Cir. 1994), the case Andrew discusses on the "abatement" rule during the main segment. And here is just one example of sports media claiming that abatement puts the Patriots back on the hook for Hernandez's salary. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

In this episode, the guys analyze the recent Presidential Executive Order Promoting Free Speech and Religious Liberty. First, though, we discuss why the show rejected a potential sponsor. Next, we answer a great listener question from our (only?) conservative listener, "Dan Dan the Conservative Man." Dan wanted to know about the exclusionary rule, so-called "illegal" aliens, a recent Supreme Court decision, and how all of those things play in to "Sanctuary Cities." We think we answered this. In our main segment, Andrew breaks down the meaningless portions of the Trump EO and contrasts them with the Definitely Unconstitutional provision. Then, we answer another listener question, this one from Shane Argo, who wants to know about the legal and philosophical reasons for treating "attempted murder" differently than regular murder. Finally, we end with the answer to Thomas Takes the Bar Exam Question #22 about a buyer who finds a priceless artifact at a yard sale and knowingly buys it for a fraction of its true value. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: None! Have us on your show! Show Notes & Links In Episode 52 of the show, we linked to this Facebook post by an immigration lawyer about the term "illegal" immigrant. We recommend you revisit both! Here is a link to Utah v. Strieff, 136 S.Ct. 2056 (2016), the case Dan asked about. This is the text of President Trump's Religious Liberty EO. And this is a link to David French's delightful article in the National Review complaining that Trump's EO doesn't go far enough. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

In this episode, the guys break down the recent decision by a federal court to enjoin the enforcement of President Trump's Executive Order 13768 regarding Sanctuary Cities. First, though, Andrew tackles a popular question from Brad Kalmanson (and others) as to whether Donald Trump can really make good on his weird threat to "break up" the 9th Circuit. The answer will almost certainly surprise you. In the main segment, we analyze the Sanctuary Cities Executive Order and the Trump Administration's rather amazing legal "strategy" they orchestrated to try and defend it. If you have Trump supporters in your news feed (or are one yourself!), you'll be amazed at what the administration did. After that, Andrew answers an in-person question from David at ReasonCon about the practice of law. Finally, we end with a brand new Thomas Takes the Bar Exam question #22 about selling a priceless work of art. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: None! Have us on your show! Show Notes & Links This is a nice primer on the creation of the current federal judiciary, beginning with the Federal Judiciary Act of 1789. Here is a link to the decision by the Northern District of California enjoining the enforcement of EO 13768. This link is to the text of EO 13768. And this is 8 U.S.C. § 1373, referenced in the EO. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

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

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

In this episode of Opening Arguments, Andrew and Thomas invite on Phil Ferguson, host of the cleverly-titled Phil Ferguson Show, to discuss why only suckers save money for college. First, Andrew discusses the scuttlebutt surrounding whether Ivy Tech will appeal the decision in Hively v. Ivy Tech that the guys discussed in Episode 60. After that, we look at the best(?) potential educational bill that might come before Donald Trump's desk: H.R. 529, which would make modest expansions to so-called "529" college savings plans. This, of course, is to set up our "C" segment, in which the guys interview Phil Ferguson and find out what he really thinks of 529 plans in specific and saving for college in general. How clickbaity is our episode title? You'll have to listen and find out! Finally, we end with the answer to Thomas Takes the Bar Exam Question #20 about whether a law prohibiting hiring those undergoing drug treatment or with prior drug convictions would violate the equal protection clause. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew was also a guest on Episode 209 of the Phil Ferguson Show; please give it a listen! Show Notes & Links So-called "529 plans" are governed by 26 U.S.C. § 529, which you can read here. You can see the text of H.R. 592 (no relation) by clicking this link as well as read the endorsement from The Hill here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Image courtesy of CheapFullCoverageAutoInsurance.com

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

In this episode of Opening Arguments, the guys look at both United Airlines and an obscure law from 1996 that could threaten the "administrative state" held in such disdain by our newest Supreme Court Justice, Neil Gorsuch. First, of course, Andrew breaks down the legality of the recent decision by United Airlines to forcibly remove a passenger. How badly is United going to get sued? You know we deliver the goods. Then, Andrew and Thomas discuss a little-known law passed in 1996 as part of the Republican Revolution and Newt Gingrich's "Contract With America": the Congressional Review Act. What is it, and why does it matter? Listen and find out! In the "C" segment, Andrew answers a question from his mom. Really! Finally, we end with the answer to Thomas Takes the Bar Exam Question #19 about diversity jurisdiction. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew was recently a guest on the Embrace the Void podcast, Episodes 5 and 6. Listen and enjoy! Show Notes & Links The Congressional Review Act is 5 U.S.C. § 802. ...and the Brookings Institute study can be found here. Finally, you can read Todd Gaziano's efforts to beef up the CRA here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

In this episode, we take a look at a landmark decision by the 7th Circuit Court of Appeals, Hively v. Ivy Tech Community College of Indiana. First, though, we tackle a question from listener Justin Wilder who wants to know about serving a subpoena on Amazon for evidence in a civil case related to information that might be stored on your Echo. We love that our listeners are becoming civil procedure geeks! In the main segment, Andrew walks us through the landmark Hively decision and discusses what it means and what the likely future of the case will be. After that, fan favorite Breakin' Down the Law returns with an examination of South Dakota SB 149 which extends protections to adoption agencies in the state with (wait for it) sincerely held religious or moral beliefs. Finally, we end with a brand new Thomas Takes the Bar Exam question #19 that asks about diversity jurisdiction in federal court between two companies. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew just recorded a two-part episode of the Embrace the Void Podcast; you can (and should!) give Episode 5 a listen right here. Show Notes & Links FRCP 45 governs subpoenas. This is the Supreme Court's Opinion in Hively v. Ivy Tech Community College of Indiana. And here is the link to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This is the text of South Dakota SB 149, which allows adoption agencies to discriminate on the basis of a sincerely held religious or moral belief. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download

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

Today's episode is part two of a two-part series in which Thomas and Andrew walk through the short-lived history of the USFL, an alternative football league that ran into the bulldozer that is Donald J. Trump. Along the way, we learn about jury nullification, antitrust law, and get some insight into Trump's legal strategies that just might have some relevance today.... First, though, "Breakin' Down the Law" defines "antitrust" in order to get you prepared to tackle the rest of our main story. Afterwards, we answer a question from listener Eric Johnston, who wants to know what exactly "laches" and "estoppel" are. Finally, we end with a brand new Thomas Takes the Bar Exam question #18 that asks about the Constitutionality of an oppressive new law restricting clothing. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew just recorded a delightful and moderate discussion of the law of God's Not Dead 2 with the hosts of the "Is This Reel Life?" podcast. Show Notes & Links This is the AmLaw article Andrew mentions in which lawyers second-guessed Donald Trump's choice of litigation tactics way back in 2009. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

Today's episode is part one of a two-part series in which Thomas and Andrew walk through the short-lived history of the USFL, an alternative football league that ran into the bulldozer that is Donald J. Trump. Along the way, we learn about jury nullification, antitrust law, and get some insight into Trump's legal strategies that just might have some relevance today.... First, though, "Breakin' Down the Law" defines "jury nullification" in order to get you prepared to tackle our main story. Afterwards, we answer a question from listener Collin Boots, who wants to know why Andrew was so dismissive of term limits back in Episode 54. Finally, we end with the answer to Thomas Takes the Bar Exam Question #17 about selling a lemon of a used car in "as is" condition. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew just recorded a delightful and moderate discussion of the law of God's Not Dead 2 with the hosts of the "Is This Reel Life?" podcast. Show Notes & Links This is the AmLaw article Andrew mentions in which lawyers second-guessed Donald Trump's choice of litigation tactics way back in 2009. And here is a link to U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), in which the Court struck down state efforts to limit Congressional and Senate terms. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

In today's episode, we look at a recent Supreme Court decision that could have wide-ranging effects on future trials. We begin, however, by "Breakin' Down the Law" regarding House Intelligence Chairman Devin Nunes. Did he just violate the law Republicans kept trying to insist applied to Hillary Clinton's emails? (Yes.) In our main segment, we delve into a recent Supreme Court decision, Pena-Rodriguez v. Colorado, in which the Court held that a defendant's Sixth Amendment right to a fair trial means that jurors must be free to report blatant racial bias in otherwise-private jury deliberations, even if the law says otherwise. How the Court came down on this issue is also reflective of the split on the Supreme Court between the originalist justices and the mainstream ones. Next, long-time friend of the show Eric Brewer returns with a question about felon voting rights. Finally, we end with a brand new Thomas Takes the Bar Exam question #17 that asks about the common law behind "as is" used cars. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew and Thomas were guests on Eiynah's podcast, Polite Conversations, Panel Discussion #6 talking about liberals vs. conservatives on free speech. Give it a listen! Show Notes & Links Here's the story on Devin Nunes's disclosures of confidential intelligence briefings to the press and to White House flacks. And this is the text of 18 U.S.C. § 793(f)(1), which is indeed the same statute Republicans sought to use against Hillary Clinton. This counts as irony, right? And finally, this is the Supreme Court's decision in Pena-Rodriguez v. Colorado. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

Today's episode continues our look at appellate jurisprudence, Supreme Court nominee Neil Gorsuch, and the philosophy of originalism that Andrew continues to insist is so extreme ast o be disqualifying. First, our much-beloved segment "Are You A Cop?" returns in triumphant fashion with an examination of a claim being raised by many Trump supporters; namely, that the 9th Circuit is "the most reversed appellate court in the country" with a "90% reversal rate." Is this claim true? (No.) In the main segment, we take a look at the Supreme Court's just-released opinion in Endrew F. v. Douglas County School District. Is this a "unanimous reversal" of Gorsuch on appeal while Gorsuch's nomination remains pending?? As usual, we correct the news sources that got this story wrong and explain its significance to you. Next, we answer a question/comment from Ed Brayton, author of the "Dispatches From The Culture Wars" blog, who has a different take on originalism. Finally, we end with the answer to Thomas Takes the Bar Exam question #16 about apparent authority. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew and Thomas were guests on Eiynah's podcast, Polite Conversations, Panel Discussion #6 talking about liberals vs. conservatives on free speech. Give it a listen! Show Notes & Links This Politifact Article debunks the claim that the 9th Circuit is the "most reversed" appellate court. This is the text of the Endrew F v. Douglas County School Dist. opinion just issued by the Supreme Court. And here is the Endrew F opinion from the 10th Circuit (not authored by Gorsuch) that was reversed. Finally, this is the Luke P decision that was by Gorsuch discussed in the episode. And by contrast, this is Urban v. Jefferson County School Dist., 89 F.3d 720 (1996), which you can read for yourself and see that Gorsuch deliberately misconstrued. You can read Ed Brayton's excellent blog, Dispatches From The Culture Wars, by clicking here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

In today's episode, we look at the history and potential future of gerrymandered congressional districts. We begin, however, with a listener question that's come to us from multiple sources, including Patrons Greg Boettcher and Adrian Borschow, who want to know if there's any difference between a "jail" and a "prison." We deliver the goods! In our main segment, we delve into three recent cases regarding the time-honored practice of gerrymandering a state into congressional districts so as to maximize the number of safe seats for any one political party. How significant is this problem, and can the courts fix it? Listen and find out! Next, our much-beloved segment "Closed Arguments" returns with a look at a British tabloid journalist, Katie Hopkins, who was recently forced to pay more than 300,000 pounds (that's still real money, right?) after mistakenly taunting another journalist on Twitter. Finally, we end with a brand new Thomas Takes the Bar Exam question #16 that asks whether an administrative assistant has sufficient authority to bind her boss when making contracts. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: None. Have us on your podcast, radio or TV show, or interview us! Show Notes & Links The first Supreme Court case to recognize a constitutional right to a non-gerrymandered district was Davis v. Bandemer, 478 U.S. 109 (1986). Scalia (of course) attempted to overrule Davis v. Bandemer in his 2004 plurality opinion in Vieth v. Jubelirer, 541 US 267 (2004), but could only garner four votes. Since then, the Supreme Court has reaffirmed the basic principle of Davis v. Bandemer in LULAC v. Perry, 548 US 399 (2006), in which only two sitting Supreme Court justices have endorsed the Scalia position. This is a fairly awesome video from former California Gov. Arnold Schwarzenegger making gerrymandering the centerpiece of what is likely to be a run for the Senate in 2018. This is the Whitford et al. v. Gill (Wisc.) decision on gerrymandering that contains a detailed section as to how to detect and remedy "packing" and "cracking." This is the full text link to the Perez v. Abbott (W.D. Texas) decision on Texas's gerrymandered congressional districts. Andrew recommends Princeton professor Sam Wang's work on gerrymandering. The full text of his Stanford Law Review article is here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

In today's episode, we take a look at a recent claim being made by Sen. Al Franken and others that Attorney General Jeff Sessions perjured himself during his confirmation hearings. First, we begin with an examination of some legal issues in the news related to the Trump administration. What does it mean that the ABA rated Supreme Court nominee Neil Gorsuch "well qualified," and does that mean Andrew is rethinking his opinions to the contrary in Episode 40 and Episode 49? (No.) We also delve into a discussion of the recent (non-)story regarding the release of Donald Trump's 2005 form 1040, as well as the recent decisions by U.S. District Courts in Hawaii and Maryland to issue temporary restraining orders blocking Trump's Revised Executive Order ("Muslim Ban"). In the main segment, we break down exactly what Sessions said and whether it meets the technical requirements for perjury. Next, we answer a question from patron Anthoni Fortier, who asks us what "cert" is and why Andrew keeps saying it. Finally, we end with the answer to Thomas Takes the Bar Exam question #15 about eyewitness identification. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: None. Have us on your podcast, radio or TV show, or interview us! Show Notes & Links This is the full text of the Hawaii decision enjoining the Revised Executive Order. If you missed it, you'll want to check out OA Episode #43, in which we first discussed the 9th Circuit's Opinion that we revisit in this episode. This is the full text of President Trump's revised Executive Order ("Muslim Ban"). And this is the decision in Church of Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), which Andrew continues to think is the touchstone for whether Trump's Revised EO violates the First Amendment. Here is the full text of 18 U.S.C. § 1001, the federal perjury statute. This is a timeline maintained by the Washington Post of Sessions's relevant conduct. This is the tweet from John Harwood confirming that Russian officials did discuss the election with Jeff Sessions. And here is an article in the National Review arguing to the contrary (largely on the grounds of 'intent'). Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download

In today's episode, we look at some legal terms that our patrons asked us to define. In a twist, however, the guys switch chairs and Andrew asks the questions while Thomas tries to offer legal definitions. How did that work out? Listen and find out! We begin, however, with a listener question from Rachel Doty, who -- in keeping with this episode's theme -- asks us to define "Alford plea." Then, based on a suggestion from patron Marie Kent, we ask Thomas to define as many legal terms as he can in half an hour. We think this would make an awesome game show, so if any of our listeners are TV producers, please give us a call. Next, we take a look at a listener who recommended a Facebook post from an immigration attorney, and the guys discuss the concept of "illegal" immigration. Finally, we end with a brand new Thomas Takes the Bar Exam question #15 that asks whether eyewitness testimony can be tainted by viewing the suspect in police custody. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: None. Have us on your podcast, radio or TV show, or interview us! Show Notes & Links Check out Marie's podcast, My Book of Mormon, by clicking here. This is the Facebook post from immigration lawyer Lily Axelrod that we discuss during the show. The one section of the US Code that Andrew found that uses the term "illegal alien" is 8 USC § 1365(b), which is very different from the colloquial use of the term. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download

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

In today's episode, we take a look at a rule first proposed by President Obama's Department of Labor in 2016 that would require financial advisers to abide by a "fiduciary" duty with their clients. What does that mean? Listen and find out! We begin with a relevant note about the status of the rule, which is due to be implemented in 60 days. Next, in our main segment, we take a look at the implications of the Fiduciary Rule by consulting an expert; in this case, certified financial planner Ben Offit, CFP® who has a somewhat novel take on this enhanced obligation. He breaks down what the proposed rule means for you and the financial professionals you might hire. After the main segment, we turn to a petition that has been garnering significant attention on the Internet: #ReVote2017. What is it? Is it really pending before the Supreme Court, and what does that mean? Finally, we end with a brand new Thomas Takes the Bar Exam question #14 regarding the tort of the intentional infliction of emotional distress. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Show Notes & Links To find out more about Ben Offit, CFP® and his services, you can visit his firm, Clear Path Advisory, or email Ben at [email protected]. This is the announcement that the Fiduciary Rule has been postponed for 60 days. You can also check out the text of the Fiduciary Rule itself. This is the hilarious petition for writ of mandamus filed by the #ReVote 2017 petitioners. And this is the docket entry for their petition, which is currently pending before the Court and will be denied on March 17, 2017, one week from today. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected] Direct Download

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

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

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

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

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

In today's episode, we take a look at arbitration, an increasingly popular device being used to take disputes out of the courtroom. What might arbitration mean for you? Listen and find out! We begin, however, with a question from patron Faye Reppas, who asks about HR 2802, the so-called "First Amendment Defense Act." Next, in our main segment, we take a look at the implications of arbitration -- particularly in the employment context, where your employer may have inserted a mandatory arbitration clause in your employment agreement. What does arbitration do? Can you be compelled to do it? We break it all down for you. After our main segment, we tackle another listener question; this one from Eric Walls about corporate personhood. Finally, we end with a brand new Thomas Takes the Bar Exam question #11 regarding the testimony of a plaintiff who's had surgical sponges accidentally left inside of her (a surprisingly common occurrence). Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Show Notes & Links This is the text of the proposed HR 2802, the First Amendment Defense Act. Andrew wrote two articles on arbitration for his firm blog: you can read Part 1 and Part 2 for more in-depth analysis. Here's a link to the Federal Arbitration Act, 9 U.S.C. § 1 et seq. Here is a link to Andrew's appearance on the David Pakman show. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

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

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

In today's episode, we examine one of the favorite policy recommendations of President Trump's Secretary of Education, Betsy DeVos: the school voucher. What is it? Is it constitutional? Listen and find out! We begin, however, with a Breakin' Down the Law segment where Andrew looks at a popular Twitter account's explanation of the odd fact that Donald Trump filed his re-election papers four years early. Is there some nefarious purpose to him having done so, or is this innocuous? We break down the law so you'll be armed with the information you need to navigate these kinds of claims. In the main segment, Andrew walks us through Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the most recent Supreme Court case to consider school vouchers, with a focus on whether providing federal tax dollars to private religious institutions violates the First Amendment's Establishment Clause. After our main segment, we turn to a question from ex-Mormon about the infamous "Mormon Extermination Order," an executive order (No. 44) signed by Missouri Gov. Lilburn Boggs in 1838. This dovetails with a two-hour discussion of the Order between Andrew and host Bryce Blankenagel during episode 47 of the "Naked Mormonism" podcast, which you should definitely check out by clicking here. Finally, we end with the answer to Thomas Takes the Bar Exam question #9 about joint tenancy. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show. Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Show Notes & Links The "Resisterhood" tweets are here. Zelman v. Simmons-Harris, 536 U.S. 639 (2002). This is the original, hand-written text of Missouri Executive Order 44 (the "Mormon Extermination Order"). The main page for the "Naked Mormonism" podcast is here; and Andrew was on Epsiode 47, which you can download here. Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at [email protected]

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

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

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

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

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

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