All posts by lawpod

OA62: The Supreme Court’s Hall of Shame

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:

  1. Dred Scott v. Sanford, 60 U.S. 393 (1857)
  2. Plessy v. Ferguson, 163 U.S. 537 (1896) (not discussed in this episode)
  3. Lochner v. New York, 198 U.S. 45 (1905)
  4. Buck v. Bell, 274 U.S. 200 (1927)
  5. Korematsu v. US, 323 US 214 (1944)
  6. Bowers v. Hardwick, 478 U.S. 186 (1986); and, of course,
  7. District of Columbia v. Heller, 554 U.S. 570 (2008) (not discussed in this episode)

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OA61: Flyin’ the Friendly Skies & Newt Gingrich Still Has a Contract on America

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

  1. The Congressional Review Act is 5 U.S.C. § 802.
  2. …and the Brookings Institute study can be found here.
  3. Finally, you can read Todd Gaziano’s efforts to beef up the CRA here.

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OA60: Sex and Sexual Orientation

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

  1. FRCP 45 governs subpoenas.
  2. This is the Supreme Court’s Opinion in Hively v. Ivy Tech Community College of Indiana.
  3. And here is the link to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
  4. 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.

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OA59: Make America Great Again! OA Defends Trump

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

  1. The War Powers Act of 1973 is 50 U.S.C. § 1541 et seq.
  2. …and the 60-day provision is found in section 1544.
  3. This is the document prepared by President Clinton’s lawyers defending the 1994 invasion of Haiti.
  4. Here is the 2001 Authorization for the Use of Military Force post-9/11.

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OA58: What Football Can Teach Us About Jury Nullification, Antitrust, and Donald Trump – Part 2

 

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

  1. This is the AmLaw article Andrew mentions in which lawyers second-guessed Donald Trump’s choice of litigation tactics way back in 2009.

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OA57: What Football Can Teach Us About Jury Nullification, Antitrust, and Donald Trump – Part 1

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

  1. This is the AmLaw article Andrew mentions in which lawyers second-guessed Donald Trump’s choice of litigation tactics way back in 2009.
  2. 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.

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OA56: Jury Secrecy and Pena-Rodriguez v. Colorado

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

  1. Here’s the story on Devin Nunes’s disclosures of confidential intelligence briefings to the press and to White House flacks.
  2. 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?
  3. And finally, this is the Supreme Court’s decision in Pena-Rodriguez v. Colorado.

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OA55: More on Gorsuch – Was He Just Unanimously Reversed By the Supreme Court?

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

  1. This Politifact Article debunks the claim that the 9th Circuit is the “most reversed” appellate court.
  2. This is the text of the Endrew F v. Douglas County School Dist. opinion just issued by the Supreme Court.
  3. And here is the Endrew F opinion from the 10th Circuit (not authored by Gorsuch) that was reversed.
  4. Finally, this is the Luke P decision that was by Gorsuch discussed in the episode.
  5. 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.
  6. You can read Ed Brayton’s excellent blog, Dispatches From The Culture Wars, by clicking here.

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OA54: Gerrymandering

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

  1. The first Supreme Court case to recognize a constitutional right to a non-gerrymandered district was Davis v. Bandemer, 478 U.S. 109 (1986).
  2. 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.
  3. 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.
  4. 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.
  5. 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.”
  6. This is the full text link to the Perez v. Abbott (W.D. Texas) decision on Texas’s gerrymandered congressional districts.
  7. Andrew recommends Princeton professor Sam Wang’s work on gerrymandering.  The full text of his Stanford Law Review article is here.

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OA53: Did Jeff Sessions Perjure Himself & Other Trump-Related Stories

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

  1. This is the full text of the Hawaii decision enjoining the Revised Executive Order.
  2. 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.
  3. This is the full text of President Trump’s revised Executive Order (“Muslim Ban”).
  4. 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.
  5. Here is the full text of 18 U.S.C. § 1001, the federal perjury statute.
  6. This is a timeline maintained by the Washington Post of Sessions’s relevant conduct.
  7. This is the tweet from John Harwood confirming that Russian officials did discuss the election with Jeff Sessions.
  8. And here is an article in the National Review arguing to the contrary (largely on the grounds of ‘intent’).

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