OA81: 😒😜🐿️😎 Emoji Law with Denise Howell (also: Voting Rights, Draft Kings, and FanDuel)

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

  1. This is the Supreme Court’s denial of certiorari, which is worth reading.
  2. The underlying case is NC State Conference of NAACP v. McCrory, 831 F. 3d 204 (4th Cir. 2016).
  3. The Supreme Court’s 2-line denial of the application to stay McCrory, 137 S.Ct. 27 (2016) is here.
  4. This is a link to the “American News X” (wrong) “hot take.”
  5. You can read Prof. Eric Goldman’s delightful law review article on emojis here.
  6. And Denise recommends falling down the Wikipedia rabbit hole by reading the history of emojis.
  7. This is the FTC complaint against Draft Kings and FanDuel.
  8. And here are a few links to articles by and about new FTC Acting Director of Bureau of Competition Tad Lipsky.

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OA80: Flashback Friday (featuring Health Care, The Slants, and Gerrymandering!)

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

  1. 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.
  2. This is the text of the Senate’s version of the AHCA.
  3. MACPAC’s analysis of the ACA referenced on the show is here.
  4. This table shows the DSH allotment by state for 2016.
  5. Here is the full text of the Supreme Court’s opinion in Matal v. Tam (formerly Lee v. Tam).
  6. Finally, here’s the text of the Cooper v. Harris decision we discussed on Episode 72 that gives Andrew some cause for concern.

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OA79: The Thomas Was Right Show! (Featuring Climate Change and the Paris Accords)

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

  1. You can read the Ninth Circuit’s recent opinion here.
  2. This is the text of Executive Order 13780.
  3. 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.
  4. This is a link to NASA’s data regarding climate change.
  5. And this is the text of the U.N. Framework Convention on Climate Change, to which the U.S. was a signatory in 1992.

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OA78: Jeff Sessions, “Preemptive Executive Privilege,” & More on Emoluments

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

  1. We first discussed obstruction of justice in Episode #70, and analyzed the status of Executive Order 13780 in Episode #51.
  2. You can read the text of U.S. v. Nixon, 418 U.S. 683 (1974) here.
  3. Here is a link to the Maryland/DC complaint against Trump.
  4. And here is a link to Trump’s motion to dismiss the CREW lawsuit.
  5. This is the Washington Post story breaking news of the investigation by the FBI into Trump.
  6. Here are the ostensible (and terrible) GOP “talking points” about the investigation.
  7. And this is the text of the Rosenstein order appointing Mueller as special counsel.

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OA77: Oh No Ross and Carrie (and Matthew!)

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 — 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

  1. Check out the Oh No Ross and Carrie podcast!
  2. 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.
  3. Here is the text of the Knight First Amendment Institute’s letter to Donald Trump regarding Twitter.
  4. …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.

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OA76: “I Hope” James Comey’s Senate Testimony Shows Obstruction of Justice

If it’s Friday, it’s a current events episode, and if it’s current events, we’re probably talking about Donald Trump.

We begin, however, with the second installment of a hopefully infrequent segment about stuff Andrew gets wrong.  In this case, it’s actually two things.  First, Andrew clarifies the terminology related to immunity, and second, Andrew admits to falling for a hoax (!)

In our main segment, we look at James Comey’s testimony before the Senate regarding his firing.  How far up Yodel Mountain does this take us?  Listen and find out!

After that, fan favorite Breakin’ Down the Law returns with an analysis of what’s going on with the Trump Administration’s appeal of Executive Order 13780, the so-called “Muslim Ban,” which we last discussed in Episode #51.

Finally, we end with a brand new (and tricky) Thomas Takes the Bar Exam question #27 about the admissibility of a question on cross-examination regarding the availability of insurance proceeds.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Andrew was a recent guest on Episode #84 of the Cellar Door Skeptics podcast; give it a listen.

Show Notes & Links

  1. We first discussed obstruction of justice in Episode #70, and analyzed the status of Executive Order 13780 in Episode #51.
  2. Snopes debunked the Berkeley Breathed letter here.
  3. The relevant obstruction statutes are 18 U.S.C § 1501 et seq.
  4. 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).
  5. This is the text of Executive Order 13780.

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OA75: Opening Arguments Über Alles (Understanding Non-Compete Clauses)

In this freewheeling episode, Andrew walks through a recent decision in California regarding a key employee who worked on self-driving cars and was recruited by a competitor.

First, however, the guys talk about Episode #73’s discussion with Travis Wester and what lessons hopefully we all can take away from it, including answering a listener question from Lyman Smith on how to go about finding primary sources.

Next, the guys discuss “Mr. Met” and the doctrines of factual and legal impossibility.  Can a four-fingered mascot really give anyone the “middle” finger??

In the main segment, Andrew breaks down the recent federal court opinion in California enjoining a former Waymo employee from working on Uber’s self-driving car program, and along the way highlights the differences between non-compete clauses, non-solicitation clauses, and trade secrets.

After that, Andrew tells a fun story in answering a listener question from Michael Grace regarding the craziest legal argument Andrew’s ever heard.

Finally, we end with the answer to Thomas Takes the Bar Exam question #26 about composite sketches inspired by dead witnesses.  We’ll release a new #TTTBE question this Friday, and, as always, answer that question the following Tuesday.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s), and don’t forget that patrons who support us at any level get early access to the answers (and usually a fun post analyzing the question in more detail).

Recent Appearances:

None!  Have us on your show!

Show Notes & Links

  1. Here’s the Tweet from Darren Rovell that inspired our “A” segment.
  2. ..and here’s the link to the Wikipedia entry on the Impossibility defense, as a good exercise in finding primary sources.
  3. This is the New York Times article about the Waymo lawsuit; and the actual lawsuit can be found here.
  4. Finally, you can revisit our lengthy discussion with Travis Wester in Episode #73 by clicking here.

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OA74: Sippin’ #Covfefe With Trump’s Severed Head

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

  1. Andrew first made the erroneous claim regarding voting results in Episode #54 on Gerrymandering, and repeated it in Episode #72.  Oops.
  2. The Presidential Records Act can be found at 44 U.S.C. § 2201 et seq.
  3. 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).
  4. Finally, the landmark case establishing the applicable standard of “imminent incitement to lawless action” is Brandenburg v. Ohio, 395 U.S. 444 (1969).

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OA73: Berkeley, Ann Coulter, and Free Speech (w/guest Travis Wester)

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:

  1. This is the link to the BCR/YAF (Ann Coulter) Complaint.
  2. 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.
  3. Ward v. Rock Against Racism, 491 U.S. 781 (1989), is the landmark Supreme Court case on time, place, and manner restrictions.
  4. 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.
  5. The authorizing regulation is 5 CCR § 100004.
  6. 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).
  7. 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.

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OA72: Body Slamming Journalists PLUS Political vs. Racial Gerrymandering

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

  1. Don’t forget to check out our prior Episode #54 on Gerrymandering.
  2. 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).
  3. You can also check out the Cooper v. Harris decision here.
  4. Finally, the case discussed in the C segment is Hale v. Henkel, 204 U.S. 43 (1906).

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