OA36: The Emoluments Clause (w/Seth Barrett Tillman) Part 2

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

  1. 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.
  2. Prof. Tillman can be found on Twitter at @SethBTillman, and here is his professional page.
  3. In November of 2016, Prof. Tillman wrote a brief piece for the New York Times summarizing his thesis about the Emoluments Clause.
  4. This 2009 Memorandum from the President’s Office of Legal Counsel assumes — without argument or citation — that the Emoluments Clause applies to the President.
  5. 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.
  6. 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.
  7. Tillman’s Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle is here.
  8. Teachout’s specific response to Tillman on the Emoluments Clause is here.
  9. Tillman’s reply to Teachout can be found here.
  10. Teachout’s final reply to Tillman can be found here.

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OA35: The Emoluments Clause (w/Seth Barrett Tillman) Part 1

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

  1. Here’s the Raw Story report on disqualified Trump electors, and the full text of the report can be downloaded from Alternet.
  2. Prof. Tillman can be found on Twitter at @SethBTillman, and here is his professional page.
  3. In November of 2016, Prof. Tillman wrote a brief piece for the New York Times summarizing his thesis about the Emoluments Clause.
  4. This 2009 Memorandum from the President’s Office of Legal Counsel assumes — without argument or citation — that the Emoluments Clause applies to the President.
  5. 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.
  6. 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.
  7. Tillman’s Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle is here.
  8. Teachout’s specific response to Tillman on the Emoluments Clause is here.
  9. Tillman’s reply to Teachout can be found here.
  10. Teachout’s final reply to Tillman can be found here.

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OA34: The “Fallout” Over Copyright

Today’s episode is a mini-masterclass on Copyright.  We begin by answering a question from listener Sue Barnum who asks if a simple list can be copyrighted.

After that, we move to the main discussion over the Copyright Act and the “fair use” defense, using as an illustration the recent story where CNN appropriated the graphic from the hit videogame Fallout 4 to illustrate a story about Russian hacking.  Did this violate copyright law?  Or was CNN’s activity “fair use” of the game screen?

Next, we answer a fun listener question from Damian Kumor about the portrayal of law in media.  What’s Andrew’s favorite obscure legal TV show?  Listen and find out!

Finally, we end with Thomas Takes the Bar Exam question #6 about prenuptial agreements.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s)!

Show Notes & Links

  1. Here’s the text of Feist Publications v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991).
  2. This article from cnet explained CNN’s use of the Fallout 4 graphic.
  3. The Copyright Act of 1976 is codified at 17 U.S.C. § 101 et seq.
  4. Learn about the incredibly low-rated cancelled TV show “Justice” at its IMDB page.

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OA33: Interview With The Slants

Today’s episode begins with Breakin’ Down the Law in which we discuss the recently-enacted “Frank R. Wolf International Religious Freedom Act,” and whether the Act constitutes a significant legal protection for atheists.

During our main segment, we are excited to have on Simon Tam, founder of the band “The Slants,” for an extended interview that follows up on our discussion of Lee v. Tam from Episode 30.  Simon tells us about the history of the band, answers some tough legal questions, and also describes how he combines his music with social justice activism.

After the interview, we turn to a listener comment from friend of the show Dr. Dave Hawkes, who helps answer a plausibility question we had from Law’d Awful Movies.

Finally, we end with the answer to Thomas Takes the Bar Exam question #5 about the garnishment of wages.  For every episode going forward, TTTBE will give you a new question on Friday, followed by the answer on Tuesday.  And remember that you can play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s)!

Show Notes & Links

  1. Learn all about The Slants and download authorized samples of their songs at www.theslants.com.
  2. This is the press release issued by the American Humanist Association that also contains the full text of the Frank R. Wolf Act.
  3. If you missed our initial coverage of The Slants on OA30, you should go back and listen to that episode!
  4. And if you still haven’t listened to our free episode of Law’d Awful Movies #1, you can download that here.
  5. Finally, this is a copy of the Slants’ Supreme Court brief, which is reasonably entertaining for a legal brief.

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OA32: Phil Ivey’s Gambling Winnings (with guest Chris Kristofco)

Today’s episode begins with a question from Adrien Thuren about the minimum wage.  How come restaurants can seemingly pay wait staff less than minimum wage?  And if that’s legal, why don’t other industries don’t start paying their employees less than minimum wage too?  Andrew tells us why or why not.

For our main segment, we bring back guest Chris Kristofco from OA6.  In addition to being an ex-lawyer and current-day blogger about the Green Bay Packers, Chris is also a casino employee and former dealer.  He joins us to help break down the recent verdict in federal court in New Jersey requiring Phil Ivey to pay back $10.1 million to the Atlantic City Borgata casino.

Next, “Breakin’ Down the Law” returns with a segment that explains the difference between a “lawyer” and an “attorney.”  Be honest — you didn’t know the answer, either, did you??

Finally, we end with Thomas Takes the Bar Exam, where Thomas tackles question #5 about garnishment of wages.  For every episode going forward, TTTBE will give you a new question on Friday, followed by the answer on Tuesday.  And remember that you can play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s)!

Show Notes & Links

  1. If you like football, and you love (or hate!) the Packers, you should listen to Chris Kristofco’s excellent podcast, Titletown Sound Off.
  2. If you missed Chris’s first appearance way back on OA6, you should go back and listen to his predictions about the “pending NFL apocalypse,” and you’ll understand why we hold his feet to the fire on this return visit.
  3. This is the Washington Post article explaining the Ivey verdict, based on the recent damage ruling.
  4. And this is the full text of the October decision by the federal court on liability, which mostly went unnoticed even though it decided the key issue in the Borgata’s favor.
  5. Finally, this link contains a graphic representation of the purple Gemaco cards that were the subject of the suit as well as the “flaw” exploited by Ivey.

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OA31: More on the McDonald’s “Hot Coffee” Lawsuit

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Welcome to the first Opening Arguments of 2017, and the first episode on our new two-episode-per-week schedule.  Just a reminder:  we will be releasing these episodes on Tuesdays and Fridays every week.  More on scheduling below.

Today’s episode begins with a far-fetched (but interesting!) hypothetical about what would happen if Donald Trump refused to take the Presidential Oath of Office.  We dig into the Constitution, the 20th Amendment, and the 25th Amendment and go down some fun rabbit trails.

For our main segment, we return to the McDonald’s “Hot Coffee” lawsuit we discussed in OA 29, and tackle some common questions about negligence raised by listeners.

Next, “Breakin’ Down the Law” returns with a segment that explains the difference between “legalizing” and “decriminalizing” … stuff.  Yeah, “stuff.”

Finally, we end with Thomas Takes the Bar Exam, where we find out how our intrepid co-host did in answering real-life bar exam prep question #4 about trespass.  Going forward, TTTBE will always be an answer on Tuesday followed by a new question on Friday.

Remember that you can play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s).

Show Notes & Links

  1. If you missed OA29, you might want to go back and listen to find out all that’s right and wrong about the McDonald’s “Hot Coffee” lawsuit.
  2. Also, we gave you a little holiday present by releasing LAM #1: The Firm to all of our listeners.  If you haven’t listened already, we think you’ll enjoy it.

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OA30: Little Baby Jesus in a Manger

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Well, it’s finally here:  the last Opening Arguments of 2016.  We’re looking forward to 2017 (and our amazing two-episode-per-week schedule).

We begin with some announcements about Law’d Awful Movies, and then turn to Thomas Takes the Bar Exam, where we find out how our intrepid co-host did in answering real-life bar exam prep questions.

Then, we answer a listener question from Jim Sabatowski about the foreseeability of one’s negligence by taking a trip back to law school and talking about the crazy, fireworks-on-a-train-exploding-scale madness that is Palsgraf v. Long Island R.R.248 N.Y. 339, 162 N.E. 99 (1928).

In our main segment, we tackle the confusion world of religious-themed holiday displays.  When is it okay to put a little baby Jesus on the courthouse steps?  We’ll tell you insofar as the Supreme Court has told us, which… isn’t always perfectly clear.

In our “C” segment, we tackle yet another listener question; this one from Skeptic Sarah regarding the controversy over trademark registration for the all Asian-American band “The Slants” and their unique crowdfunding of their Supreme Court legal costs.

Finally, we conclude with TTTBE #4.  Remember that you can play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s).

We’ll see you in 2017… twice as often!

Show Notes & Links

  1. Here’s a link to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which will help you answer TTTBE #3.
  2. While we’re at it, this is the full-text link to Palsgraf v. Long Island R.R.248 N.Y. 339, 162 N.E. 99 (1928), the case every law student knows.
  3. Lemon v. Kurtzman, 403 U.S. 602 (1971), set forth the “Lemon test” that we talk about in the main segment.
  4. Lynch v. Donnelly, 465 U.S. 668 (1984), was the 1984 case that said it was perfectly legitimate for a courthouse to display little baby Jesus in a manger.
  5. But weirdly, Allegheny County v. ACLU, 492 U.S. 573 (1989), was the case from just five years later where the Supreme Court said no, courts couldn’t just display little baby Jesus in a manger, but they could display a menorah, a Christmas tree, and a liberty plaque all together.
  6. We defy you to explain the difference between Van Orden v. Perry, 545 U.S. 677 (2005), which upheld a Ten Commandments monument in Texas, and a decision handed down the exact same day, McCreary County v. ACLU, 545 U.S. 844 (2005), which struck down Ten Commandments posted on the walls out two courthouses in Kentucky.
  7. Finally, this is a copy of the Slants’ Supreme Court brief, which is reasonably entertaining for a legal brief.

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Law’d Awful Movies #1: The Firm

SPECIAL CHRISTMAS GIFT!

This is normally for Patrons only, but we wanted to gift our non-patronizing listeners a gift and a sample of what they might be missing over at patreon.com/law!!

Behold the majesty of what you are about to receive.  This is, hands down,  the worst legal movie ever made.  From the opening credits to the cheesy ending voice-over, literally everything this movie has to say about the law is completely and utterly wrong.

Yes, for our first Patreon movie reward, we suffered through all 2 hours and 34 minutes of The Firm (1993), which chronicles the amazing journey of Mitch McDeere (Tom Cruise), an I’m-no-idealist Harvard Law grad who refuses to break some imaginary law he thinks exists regarding attorney-client privilege, but has no problems with extortion, illegal wiretapping, fraud, and kicking a 92-year-old man to death.

Come for the crazy legal subplot that can be solved in two seconds!  Stay for the crazy second legal subplot that gets introduced for the first time right after most movies are rolling the credits!  Stay even longer to watch the epic Tom Cruise-Wilford Brimley fight to the death!

 

Special guest:  Sam from Comedy Shoeshine.

———

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OA29: Cognitive Dissonance

It’s a two-episode week!  In this week’s Wednesday episode, we are joined by Tom & Cecil of the Cognitive Dissonance podcast for a discussion about freedom of speech and whether online platforms such as Facebook and Twitter ought to be considered “public spaces.”

We begin with some announcements about the schedule, including Thomas Takes the Bar Exam, which will remain a weekly feature once we move to our twice-per-week format in January.  So no new question today, but you will have a few extra days to answer TTTBE #3.

Then we take a look at the new Texas law requiring funereal services for aborted embryos and miscarriages, and Thomas takes a shot at analyzing the issue.  Is all his hard work studying for the Bar Exam paying off?  Listen and find out!

Finally, the show concludes with a discussion of the 1994 McDonalds “Hot Coffee” lawsuit, Liebeck v. McDonald’s Restaurants, as an example of legal myths gone awry.  What exactly happened in that case, and what does it say about whether we should have caps on punitive damages or other forms of “tort reform” in the U.S.?

Show Notes & Links

  1. Check out the Cognitive Dissonance podcast!
  2. Here are the actual fetal tissue rules promulgated by the Texas Health Services that require “interment” of “the products of spontaneous or induced human abortion.”
  3. A federal judge in the Western District of Texas recently issued a temporary restraining order blocking the implementation of the rules pending a preliminary injunction hearing to be held on January 3.
  4. Whole Women’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016), provides some guidance as to how the Supreme Court might treat the Texas abortion rules.
  5. Here’s the CollegeHumor video on the McDonald’s “Hot Coffee” lawsuit.

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OA28: Abortion and Planned Parenthood v. Casey, Part 2

In this week’s episode, we conclude our discussion of Planned Parenthood v. Casey, 505 U.S. 833 (1992), and how the “undue burden” test the Supreme Court developed in that case continues to govern laws protecting (and restricting) abortion today.

However, we begin with the moment you’ve all been waiting for:  the answer to Thomas Takes the Bar Exam!, Question #2.   Right now, Thomas is 1-for-1 in bar exam questions — did he get it right again?  Is he on his way to an honorary law degree, or will he become the first associate in the history of the Firm to fail the bar exam?

After that, we look at the abortion-related question of the lawsuit ostensibly brought by Sofia Vergara’s frozen embryos.  Is this a meritorious lawsuit or a publicity stunt orchestrated by a goofball anti-abortion columnist?

The long-awaited “Are You A Cop?” returns with a comment by Hall of Fame patron Sakashite Fukasumi, who has a snarky comment about lineups.  But what exactly are police lineups used for, anyway? Don’t you need one to convict?  “Are You A Cop?” dispels that myth once and for all….

And all of this goodness comes to a close with an all-new Thomas Takes the Bar Exam! Question #3.  Remember that you too can play along on Twitter!

Show Notes & Links

  1. Planned Parenthood v. Casey, 505 U.S. 833 (1992).
  2. Here’s the story of the Sofia Vergara lawsuit, which includes a copy of the complaint ostensibly filed on behalf of her frozen embryos.
  3. An example of how the Casey “undue burden” test is still in operation today is the recent Supreme Court decision striking down Texas statutes imposing strict requirements on abortion providers in the state.

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