All posts by lawpod

OA40: Who is Neil Gorsuch, and How Scared Should You Be?

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

  1. This is a link to the Washington Post article referenced by David.
  2.  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.
  3. 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?
  4. This is the anti-nepotism law, 5 U.S.C. §3110.

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OA39: Trump’s Muslim Ban

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

  1. The CREW lawsuit is here.
  2. 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).
  3. We initially discussed the Muslim Ban way back in OA Episode #16, which is worth another listen!
  4. The authorizing statute (the “1952 Law”) is 8 USC §1182(f).
  5. The “1965  Law” is 8 USC §1152(a).
  6. In light of those two provisions, we think you can spot the errors in David Bier’s op-ed in the New York Times.
  7. 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.

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OA38: FLSA and Exempt Employees, Part 2

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

  1. The relevant provisions of the FLSA for this episode are 29 USC § 207 (maximum hours) and 29 USC § 213 (exempt employees).
  2. Title VII of the Civil Rights Act of 1964 begins at 42 USC § 2000e and can be found here.
  3. This is the original rule promulgated by Obama’s Department of Labor.
  4. Here is the judicial injunction blocking the implementation of the rule.
  5. And here is the judge’s decision not to overturn his own injunction after a motion for reconsideration.
  6. 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.)
  7. 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.)

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OA37: FLSA and Exempt Employees, Part 1

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

  1. The relevant provisions of the FLSA for this episode are 29 USC § 207 (maximum hours) and 29 USC § 213 (exempt employees).
  2. The DOL Fact Sheet #15 referred to listener Victoria McNair is here.
  3. This is the original rule promulgated by Obama’s Department of Labor.
  4. Here is the judicial injunction blocking the implementation of the rule.
  5. And here is the judge’s decision not to overturn his own injunction after a motion for reconsideration.
  6. Finally, here’s the New York Times story about President Obama commuting Chelsea Manning’s sentence.

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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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