All posts by lawpod

OA 113: Our Cruel & Unusual Podcast Heads to International Waters

Today’s episode is entirely Trump-free, and features a deep dive into the Cruel and Unusual Punishment Clause of the 8th Amendment.

We begin, however, with a great listener question from Captain Patrick Dobbins, who wants to know the ins and outs of “international waters.”  Ask, and ye shall receive!

After that, the guys break down the history of the 8th Amendment’s prohibition on “cruel and unusual punishment” — what does it mean, what kinds of punishments are prohibited, and when did it begin to apply to state prisons?  You WILL be surprised.

Then, we tackle with another listener question from Patron Cody Bond, who wants to know more about price discrimination, cake baking, and “Ladies’ Night.”

Finally, we end with the answer to Thomas (& Andrew) Take the Bar Exam Question #45 regarding licenses for massage parlors.  Don’t forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

None!  Have us on your show!

Show Notes & Links

  1. We first discussed the thorny nature of what constitutes property way back in Episode 22, “Libertarianism is Bad and You Should Feel Bad.”
  2. If you’d like to read the U.N. “Law of the Sea” Treaty, get ready to settle in for a lengthy read!
  3. The two death penalty cases wediscuss are Furman v. Georgia, 408 U.S. 238 (1972) and Gregg v. Georgia, 428 U.S. 153 (1976).
  4. The Huffington Post records Antonin Scalia’s 2008 interview with Nina Totenberg approving of putting people in the stocks.
  5. The case we discuss in the “C” segment outlawing “Ladies’ Night” in California is Koire v. Metro Car Wash, 707 P.2d 195 (Cal. 1985).

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OA112: Who’s Afraid of the FCC?

Today’s rapid-response episode begins with a discussion of a recent petition to the Supreme Court for certiorari filed in Evans v. Georgia Regional Hospital, and in particular, an amicus curiae brief submitted by 76 employers.  How does this brief affect the future of gay rights in this country?  Listen and find out!

Next, our main segment looks at Donald Trump’s recent threat to have the FCC “revoke NBC’s license,” and rewards you with a deep dive into what the FCC is and what it can and cannot do.  (Hint:  it cannot revoke NBC’s “license.”)  Remember that we first discussed the FCC’s “Common Carrier” regulatory authority back in Episode 64 and Episode 65 in evaluating the history of the net neutrality movement.

After that, we answer two related listener questions from patrons John Funk and Secular Ewok about the attorney-client relationship and some crazy situations.

Finally, we end with a new Thomas Takes the Bar Exam Question #45 about the Fifth and Fourteenth Amendment in the context of a business license.  Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

None!  Have us on your show!

Show Notes & Links

  1. As background to this issue:  we first discussed Hively v. Ivy Tech back in Episode 60, and then followed up with our discussion of Zarda v. Altitude Express in Episode 91.
  2. This is the cert petition filed by Evans.
  3. And this is the amicus brief filed by the 76 employers that you should definitely read.
  4. Here’s the New York Times story about Trump threatening NBC.
  5. And, of course, you can read the FCC’s description of its own regulations.
  6. The FCC derives its authority to regulate broadcast media from 47 CFR Chapter I, Subchapter C.
  7. Finally, you can click here to read Rule 1.2 of the Model Rules of Professional Conduct for lawyers.

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OA111: Andrew Seidel Returns!

Today’s episode marks the triumphant return of attorney Andrew Seidel of the Freedom From Religion Foundation to the show!

We begin with an “Andrew Was Wrong” segment in which patron Kristen Hansen discusses how better to evaluate charities than the simple overhead metric the guys used in Episode 102.

After that, Andrew Seidel joins us for two segments.  First, the two Andrews discuss separation of church and state, including their recent disagreement as to whether FEMA funds will be spent rebuilding churches damaged by the recent hurricanes, as well as a return foray into gay wedding cakes discussed in Episode 105.

Then, Andrew Seidel updates us regarding two recent victories by the FFRF.

Finally, we end with the answer to Thomas (& Andrew) Take the Bar Exam Question #44 regarding witness testimony.  Don’t forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

None!  Have us on your show!

Show Notes & Links

  1. If you like their work, please consider supporting the Freedom From Religion Foundation.
  2. We originally discussed the Masterpiece Cakeshop case in Episode 105.
  3. Here is the link to the major victory Andrew Seidel discussed in the “C” segment of the show.

Support us on Patreon at:  patreon.com/law

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OA110: Gun Control After Las Vegas & Two Trips To Yodel Mountain

Today’s rapid-response episode begins with a discussion of the tragedy in Las Vegas and whether we can do anything about it.  Before you dig in, you might want to take a refresher on our two-part masterclass on the Second Amendment in Episode 21 (Part 1) and Episode 26 (Part 2).

Then, we take our first of two separate trips to Yodel Mountain with the recent revelation that the Trump DOJ disregarded decades of advice before issuing an opinion memo that authorized the (blatantly illegal) hiring of Jared Kushner.  Is this really a Hillary Clinton story?  Listen and find out!

After that, we trek back up Yodel Mountain with the breaking news that the New York Attorney General’s office was about to indict Donald Trump, Jr. and Ivanka Trump in 2012… until the AG received a visit (and a bag of money!) from Donald Trump’s lawyer, Marc Kasowitz.

Finally, we end with a new Thomas Takes the Bar Exam Question #44 about hearsay… and Thomas is joined by next week’s guest, Andrew Seidel of the Freedom From Religion Foundation.  Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

None!  Have us on your show!

Show Notes & Links

  1. Our two-part masterclass on the Second Amendment begins with Episode 21 (Part 1) and continues in Episode 26 (Part 2).
  2. After that, we discussed Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017), which we also covered in depth in Episode 47.
  3. You can read the Trump Administration’s talking points on Las Vegas here.
  4. This is the breaking story by Politico about the DOJ ignoring precedent.
  5. The case Andrew discusses at length is AAPS v. Clinton, 997 F.2d 898 (D.C. Cir. 1993).  It is being grossly misreported in the media; see, for example, this NPR story.
  6. This is 5 U.S.C. App. § 1, the Federal Advisory Committee Act.
  7. You can read the ProPublica story here that suggests that Donald Trump Jr. and Ivanka Trump were about to be indicted in 2012.
  8. The federal bribery law is 18 U.S.C. § 201; the relevant case is McDonnell v. U.S., 579 U.S. ____, 136 S.Ct. 2355 (2016); and you can check out our friend Randall Eliason’s great analysis of the bribery statute here.

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OA108: State-Sponsored Patriotism In the NFL & So Much More!

Today’s episode hits on some timely news stories, including Trump’s latest kerfuffle with the NFL.

In the pre-show, we talk a little bit about the Graham-Cassidy Bill, which is hopefully defunct by the time you hear this.  But can Trump save it via Executive Order?  (No.)

Then, we return for a lengthy “Andrews Were Wrong!” segment in which we issue a correction from Episode 107, explain the difference between Ronnie Lott and Leon Lett, and also tackle friend of the show Andrew Seidel’s recent article regarding whether churches will likely receive FEMA relief in the wake of the Trinity Lutheran decision.

In the main segment, Andrew looks at the Supreme Court’s recent order in Tharpe v. Warden and explains the significance in light of our prior discussion of jury deliberations.

Before you listen to “Yodel Mountain,” you’ll want to go back and listen to Episode 57 and Episode 58, in which we go into detail on Donald Trump’s rocky relationship with the NFL.  Then, we answer whether Donald Trump violated federal law by threatening NFL players who refuse to stand for the national anthem & some other questions.    You’ll find out which senators oppose “State-Sponsored Patriotism” and the answer WILL surprise you!

Finally, we end with a new Thomas Takes the Bar Exam Question #43 about whether a “Letter of Intent” is binding in a business sale.  (Oooh, right in Andrew’s professional wheelhouse!)  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

After being bombarded by 10,000 Twitter trolls, the guys are going to lay low for a little bit.

Show Notes & Links

  1. We discussed the first GOP effort to repeal the AHCA back in Episode 80, and you can read about the changes to that bill (largely, to the slush fund) in this Bloomberg article.
  2. This CNN report suggested that Trump would “do an Executive Order” when Graham-Cassidy fails.
  3. If you want to read the trial court’s ruling on ineffective assistance of counsel in the Syed case, you can do so.
  4. We first discussed whether churches will receive FEMA funds for disaster relief in Episode 102; Andrew Seidel respectfully disagreed with that conclusion in a recent article; we continue to think he’s too optimistic in light of the Trinity Lutheran decision.
  5. We discussed Pena-Rodriguez v. Colorado as a “landmark case” way back in Episode 56.
  6. You can read the Supreme Court’s order staying execution in Tharpe v. Warden, as well as the District Court’s opinion denying reopening of Tharpe’s habeas petition.
  7. We’re really proud of the episodes we did on the USFL v. NFL lawsuit back in Episode 57 and Episode 58, in which we go into detail as to exactly why Trump hates the NFL (and so much more)!
  8. The relevant statute at issue with Trump threatening the NFL is 18 U.S.C. § 227.
  9. That “LawNewz” article we referenced is here; read at your own risk!
  10. Finally, we definitely recommend reading the McCain-Flake report on “paid patriotism.”

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OA107: Adnan Syed Obviously Did It (Also: You Can Learn About Patents!)

Today’s super-sized show — at long last! —  discusses season 1 of the Serial podcast.  Even if you haven’t heard Serial, we think you’ll enjoy this application of the principles of reasonable doubt.

We begin with a discussion of the recent settlement between Evergreen College and Bret Weinstein.  Why does Andrew say this means the college valued Weinstein’s alleged $3.8 million lawsuit at zero?

In the main segment, Andrew goes through some of the issues behind the Serial and Undisclosed podcasts related to the Adnan Syed case.

Next, Andrew does a mini-deep dive on patent law by looking at a strange recent deal between Allergan and the Saint Regis Mohawk Tribe.  What in the world do these two entities have in common? Listen and find out!

Finally, we end with the answer to Thomas Take the Bar Exam Question #42 regarding authentication of evidence.  Don’t forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Andrew was a guest on Episode 11 of the Reasonable Risk podcast; go check it out!

Show Notes & Links

  1. Andrew quoted extensively from State v. Earp, 319 Md. 156, 170-172 (1990) on witness coaching.
  2. This is Allergan’s press release regarding their deal to sell the patents to the St. Regis Mohawk Tribe.
  3. The two relevant sections from the U.S. Code relating to inter partes review are 35 USC § 102 (“no prior art”) and 35 USC § 103 (“non-obvious”).
  4. This IP website has a brief discussion of the Oil States v. Greene’s Energy Group case in which the Supreme Court will consider whether the inter partes review process is constitutional.
  5. The two recent patent cases discussed in the “C” segment are Covidien, LP v. University of Florida Research Foundation, Inc. (Jan. 25, 2017) and NeoChord v. University of Maryland, Baltimore (May 23, 2017).
  6. For a refresher on sovereign immunity, you might want to check out Opening Arguments Episode #90.
  7. Finally, don’t forget to check out and join the Opening Arguments Facebook Community!

Support us on Patreon at:  patreon.com/law

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Facebook:  https://www.facebook.com/openargs/

And email us at openarguments@gmail.com

 

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OA 106: Elections Have Consequences! Donald Trump, Bernie Sanders & the DNC Lawsuit

In this episode, we discuss a number of political stories making the rounds.

First, “Yodel Mountain” returns with a look at the recent CNN story showing that the FBI obtained a FISA court warrant for Paul Manafort.  Does this mean Trump’s complaints about Obama “wiretapping” his campaign are true?  Listen and find out!

In the main segment, Andrew walks us through the recent ruling dismissing out the class action claims against the Democratic National Committee ostensibly by Bernie Sanders supporters.  Find out what’s really going on!

Next, we answer a listener question from Patrick Hager about whether Congress can really overrule the Supreme Court.  Learn civics with us!

Finally, we end with a new Thomas Takes the Bar Exam Question #42 about whether an expert witness can authenticate crucial pieces of evidence.  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

Andrew was a guest on Episode 11 of the Reasonable Risk podcast; go check it out!

Show Notes & Links

  1. This is 50 U.S.C. § 1805, which governs FISA court warrants.
  2. You can read the Wall Street Journal article on how FISA warrants are “rubber-stamped” by clicking here.
  3. And this is the CNN report indicating that Manafort’s investigation had been reopened by the FBI.
  4. DON’T CLICK ON THIS Observer link!
  5. Here is a link to the original lawsuit filed against the DNC.
  6. This is the DNC’s Charter and Bylaws, which contain Article 5, Section 4.
  7. Here is the transcript of oral argument on April 25, 2017.
  8. This is the Wymbs v. Republican State Executive Committee of Florida decision discussed on the show.
  9. Here is the link to Jared Beck’s appearance on InfoWars.
  10. And this is Elizabeth Lee Beck’s interview with WorldNet Daily.
  11. Finally, this is the link to the court’s ruling.

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OA105: More Gay Wedding Cakes

Today’s show discusses everyone’s favorite non-issue:  whether bigots who bake cakes for a living can discriminate against gays.

We begin with a lightning round of questions taken from the Opening Arguments Facebook Community, which you should definitely join!

In the main segment, we break down Masterpiece Cakeshop v. Colorado Civil Rights Commission, which is currently pending before the U.S. Supreme Court.

Next, we explain the recent pronouncement by Donald Trump regarding enforcement of the Magnitsky Act.  Are we scaling Yodel Mountain?  Listen and find out!

Finally, we end with the answer to Thomas Take the Bar Exam Question #41 regarding direct and circumstantial evidence in the context of a murder investigation and a shoeprint left at the scene.  Don’t forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

None.  Have us on your show!

Show Notes & Links

  1. Here is where you can find the recently-created Opening Arguments Facebook Community, which you should definitely join!
  2. We answer a question about the Congressional Review Act, 5 U.S.C. § 801 et seq.; we first discussed the CRA back in Episode 61.
  3. Our next lightning round question is about revenge porn, which we first discussed in Episode 87, and the relevant statute is Cal. PEN § 647(j)(4).
  4. We end the lightning round with a question about the Apple X phone drawn from this article in Slate.
  5. You can click here to read the Appellees’ brief in opposition to certiorari in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case.
  6. This is the text of the Magnitsky Act; and this is the memorandum issued by the Trump White House.

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OA104: Equifax, Class Actions, Sham Marriages & Redistricting!

Our jam-packed “breaking news” episode covers some of the biggest stories trending at the moment, including the Equifax breach.

First, Closed Arguments returns by tackling a proposal from friend of the show Eli Bosnick, who asks — in light of Trump’s repeal of DACA — whether we can’t just marry off the 800,000 program participants.  We can’t; listen and find out why.

In the main segment, Andrew walks us through the Equifax data breach, the pending class-action lawsuits, and all of the key legal issues.  He even weighs in on the “chat bot” that some are saying will file your suit for  you!

Next, Breakin’ Down the Law continues with everything you wanted to know about the Supreme Court’s recent gerrymandering decision.

Finally, we end with a new (and possibly too-easy!) Thomas Takes the Bar Exam Question #41 about the admissibility of footprint and shoe evidence.  Remember that you can play along with #TTTBE by retweeting our episode Tweet along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

None.  Have us on your show!

Show Notes & Links

  1. “Adjustment of status” is governed by 8 U.S.C. § 1255, and sham marriages are prohibited by 8 U.S.C. § 1325(c).
  2. This is the Oregon lawsuit filed against Equifax.
  3. Class actions are governed by Rule 23 of the Federal Rules of Civil Procedure.
  4. Here is a link to Equifax’s statement regarding the website TOC issued in response to NY Attorney General Eric Schneiderman’s inquiry.
  5. We previously discussed political gerrymandering (including the “Wisconsin case”) in episode 54, and racial gerrymandering and Cooper v. Harris in episode 72.
  6. This is a link to the Supreme Court’s one-sentence 5-4 order in Abbott v. Perez staying the lower court’s decision, and this is a link to that case, Perez v. Abbott, SA-11-CV-360 (Aug. 15, 2017).
  7. Please remember to sign up for the Opening Arguments Facebook Community!  We’d love to see you there!

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

Facebook:  https://www.facebook.com/openargs/

And email us at openarguments@gmail.com

 

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