All posts by lawpod

OA26: Second Amendment Masterclass, Part 2

This week’s super-sized episode is literally jam-packed with five all-new segments for our listeners; six if you haven’t heard both parts of the Second Amendment Masterclass already.  And make sure you stay tuned all the way to the end for our exciting new segment!

First, you get an all-new introduction with new quotes, many of which were suggested by you, our listeners!

Second, we have some fun news about patron rewards and upcoming goodies.

Third, our opening segment sees the return of “Breakin’ Down the Law,” with a discussion of stare decisis and what really makes for an activist judge.  The right’s favorite charge whenever a court decision doesn’t go their way is that the judge was a “left-wing activist” — what exactly does that mean, and what is judicial activism?  Stay tuned.

Fourth, our main segment concludes the masterclass on the Second Amendment begun in OA21; even if you’ve heard it before, we think it’s worth another listen to try and figure out exactly what the Second Amendment means and where the future lies for this thorny political and constitutional issue.

Fifth, we follow that with a weekly listener question, this one from Brian Osborne who asks for some clarity about what exactly recounts are and how they proceed.

And sixth — and we’re really excited about this one! — we introduce an all new segment, “Thomas Takes The Bar,” in which our intrepid co-host answers real-life bar exam questions and you, the listener, get to play along!

Show Notes & Links

  1. District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
  2. United States v. Miller, 307 U.S. 174 (1939).
  3. Here’s a Slate article about the Green Party’s refusal to post the $1 million appeal bond in Pennsylvania.

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OA25: Could Jill Stein Decide the Presidency? (No.)

In this week’s episode, we discuss the recent efforts by Jill Stein and the Green Party to raise funds for Presidential recounts in Wisconsin, Pennsylvania, and Michigan.  Should you rush out and open your wallets to help raise funds for the Green Party?

“Breakin’ Down the Law” returns with a discussion on court structure.  If you’re a little bit lost at all of Andrew’s talk of the “Second Circuit of This” and the “Federal District Court of That,” our segment should help clear all that up for you!

Finally, our listener question looks at a standard courtroom trope in TV and movies:  is “circumstantial” evidence really just bad evidence?  What does it mean, anyway?  Listen to this episode, and you too can be pedantic the next time you’re watching Law & Order reruns.

And speaking of movies, remember that patrons will get special access to our 3-hour movie review of The Firm — the movie Andrew considers to be the worst legal movie of all time!  So if you’d like to hear Andrew have an aneurysm trying to explain what attorney-client privilege is, or you want some of our other cool rewards, or you just want to support the show, please consider becoming a patron at the link below.  Thank you!

Show Notes & Links

  1. This is a handy map of the U.S. Circuit Courts of Appeal so you can find your circuit.
  2. Here is a link to the current Jill Stein disclaimer regarding recounts, which may or may not be the same as the one we read on the air.
  3. Here is a screenshot of the original disclaimer, which has since been edited.
  4. This is a link to MCL 168.862, which provides that a petitioner must be “aggrieved” by election official(s) to have standing to bring a recount.
  5. Holland v. U.S., 348 U.S. 121 (1954) is the Supreme Court decision that analyzes circumstantial evidence, holding that it is intrisinically no different than testimonial evidence.

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OA24: Trump Presidency Legal Q and A, Part 2

In part two of this two-part episode, we continue to address every unique listener question posted to the Opening Arguments Facebook page relating to the impending Trump presidency.

So if you’re wondering whether Trump will be impeached, if Obama can recess appoint Merrick Garland to the Supreme Court, about the future of the ACA, or what Trump’s Supreme Court might look like — well, this is (the continuation of) the show for you.

Remember that patrons got early access to this show and will continue to get all sorts of fun bonus benefits!  Please consider supporting the show.

Show Notes & Links

  1. Trump’s terrifying list of his 21 potential Supreme Court nominees is here.

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OA23: Trump Presidency Legal Q and A, Part 1

In part one of this two-part episode, we tackle every unique listener question posted to the Opening Arguments Facebook page relating to the impending Trump presidency.

So if you’re wondering whether Trump will be impeached, if Obama can recess appoint Merrick Garland to the Supreme Court, about the future of the ACA, or what Trump’s Supreme Court might look like — well, this is the show for you.

Part two airs at the regular time next week but patrons will gain access to it early!

Show Notes & Links

  1. Trump’s terrifying list of his 21 potential Supreme Court nominees is here.

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OA22: Libertarianism is Bad and You Should Feel Bad

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In this week’s episode, we tackle the legal and philosophical issues underlying libertarianism.  We take on such issues as :  what is “property,” why is it a right, and is it cognizable as a side-constraint against government action?   At the end of the day, Andrew and Thomas render a definitive opinion on libertarianism as a political philosophy.

In our opening segment, we answer an anonymous listener question:  what exactly is this ‘jurisprudence’ word that Andrew keeps throwing around?

And in our closing segment, “Breakin’ Down the Law” returns as we delve a little deeper into something we discussed in OA19 — what exactly is a pardon, anyway?

Show Notes & Links

  1. You can buy Nozick’s Anarchy, State and Utopia on Amazon…
  2. …but to be honest, his best work is the sadly out-of-print Socratic Puzzles (which contains the retraction referenced on the show).

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OA21: Second Amendment Masterclass, Part 1

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By listener request, we are bringing you this special “deep dive” episode into the history and jurisprudence underlying the Second Amendment.  This episode was originally broadcast on Atheistically Speaking earlier in 2016.

Just in time for the election, we tackle a thorny political issue:  exactly what does the Second Amendment mean and why?  What kind of gun control laws are permissible that remain consistent with the Constitution and the Bill of Rights?  In this special episode, you’ll not only learn the answer to those questions, but also you’ll discovery exactly how many Second Amendment cases the Supreme Court tackled from our nation’s inception until the year 2008.  You’ll also get to hear Andrew’s definition of what really constitutes “judicial activism.”  We think you’ll enjoy it (even if you’ve heard it before).

As always, we’d love your feedback on this episode.  And stay tuned for Part 2, where we look at the potential future for the Supreme Court on this hot-button issue.

Show Notes & Links

  1. District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
  2. United States v. Miller, 307 U.S. 174 (1939).

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OA20: What Happened With Ammon Bundy? SPECIAL EDITION

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In this special episode, we look at breaking news:  the jury verdict in United States v. Ammon Bundy et al., a federal case brought in the United States District Court for the District of Oregon as a result of the armed takeover of the Malheur National Wildlife Refuge in Harney County, Oregon in January of this year.

What happened??  Was there jury nullification?  Bias?  Racism?  We say this a lot, but we really mean it:  our answer may surprise you!

In our opening segment, we tackle the equally breaking news regarding the latest developments in the FBI’s investigation into Hillary Clinton’s emails, while giving the phrase “Weiner probe” all the decorum it deserves.

Finally, in our closing segment, “Closed Arguments” returns with a look at some liberal outrage over the state of Kansas’s citation of the much-reviled Dred Scott v. Sanford decision.  Do we pile on, or do we take the left to task for making much ado about nothing?  You’ll have to listen to find out!

Show Notes & Links

  1. The grand jury indictment against Bundy et al.
  2. The Wikipedia entry for the Malheur National Wildlife Refuge.  (Please edit!)
  3. Lane Crowder’s article alleging jury nullification.
  4. 18 U.S.C. 372, the statute under which Count I was brought.
  5. United States v. Gerhard, 615 F.3d 7 (1st Cir. 2010).

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OA19: Should Edward Snowden Be Pardoned?

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In this week’s episode, we look at some of the interesting details surrounding the intentional release of classified materials by Edward Snowden.  In particular, we looked at the legacy of Snowden’s leaks,  how they played out in the Second Circuit’s decision in ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015), and how they changed U.S. law.  In true Opening Arguments fashion, we don’t tell you what to think about Snowden… but we do tell you his impact on our government and the legal ramifications of what Snowden did.

We also tackle two fun listener questions.  One wants to know exactly how Andrew would go about defending the podcasts that made the phrase “puzzle in a thunderstorm” a household word while still maintaining decorum in court.   (If you’re one of those listeners who just loves hearing Andrew say massively inappropriate words and phrases, you’ll love this episode.)

Our second question takes a serious look at the crucial phrase “beyond a reasonable doubt.”  What exactly does that mean?  We tackle burdens of proof and the most important four words in criminal law.

Show Notes & Links

  1. ACLU v. Clapper, 785 F.3d 787 (2d Cir. 2015).
  2. June 6, 2013 Guardian article showing FISA Court order of Verizon.
  3. The Guardian “Explainer” on Snowden.
  4. The criminal indictment of Edward Snowden.
  5. Count I:  18 U.S.C. 641
  6. Count II:  18 U.S.C. 793(d) (the Espionage Act)
  7. Count III: 18 U.S.C. 798
  8. Victor v. Nebraska, 511 U.S. 1 (1994).

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OA18: You Be The Supreme Court, Part 3

In this week’s super-sized episode, we conclude our three-part role-playing experiment “You Be The Supreme Court,” using an actual case that is currently pending before the Court:  Trinity Lutheran Church of Columbia, Inc. v. Pauley.

Last time, we went through the State of Missouri Department of Natural Resources’s response brief.  This week, we look at the Petitioner Trinity Lutheran Church’s reply brief, which is the final exchange before the Court hears oral argument and renders an opinion.

In our opening segment, we tackle a pair of viral election what-ifs, examining whether Bernie Sanders (or Evan McMullin) could really win the Presidency if they manage to win one state.  (Hint: there’s a reason we tackled this in “Closed Arguments”!)  In our closing segment, Andrew predicts how the Supreme Court will actually rule in the case.

Be sure to turn in next week when we tackle another famous Espionage Act case — Edward Snowden!

Show Notes & Links

  1. How Bernie Sanders Could Become President With Only 130,000 Votes
  2. 538’s slightly-less-ridiculous-but-still-clickbaity “How Evan McMullin Could Win Utah and the Presidency.”
  3. All of the briefs filed in Trinity Lutheran Church of Columbia, Inc. v. Pauley are online.
  4. Petitioner’s reply brief can be found here.
  5. McDaniel v. Paty, 435 U.S. 618 (1978)
  6. Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988)
  7. Rosenberger v. Rector and Visitors of the University of Virginia, 515 US 819 (1995)

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OA17: You Be The Supreme Court, Part 2

In this week’s episode, we return to our little role-playing experiment “You Be The Supreme Court,” using an actual case that is currently pending before the Court:  Trinity Lutheran Church of Columbia, Inc. v. Pauley.

Last time, we went through the Petitioner’s brief seeking to overturn the lower court’s decision to deny Trinity Lutheran Church the opportunity to participate in a Missouri program that recycles tires into playground surfaces.  This week, we look at Missouri’s response and find out if the Petitioner’s case holds water.

In our weekly listener question segment, we answer a question from David in Kentucky, who wants to know why defendants don’t simply counterclaim against plaintiffs for attorneys’ fees.  Andrew actually answers this question, and along the way provides some helpful distinctions between the American model and the so-called European model of civil lawsuits.

Finally, in our closing segment, “Closed Arguments” returns with a First Amendment lawsuit brought by (legal) teenage strippers who are ready to fight for their First Amendment rights.  (Don’t worry, this episode is still safe for work.)

Be sure to turn in next week for Part 3 of “You Be The Supreme Court!” when Trinity gets another crack in their reply brief, and we’ll evaluate where things stand as this case goes before the Supreme Court this Fall Term!

Show Notes & Links

  1. All of the briefs filed in Trinity Lutheran Church of Columbia, Inc. v. Pauley are online.
  2. Respondent’s brief can be found here.
  3.  This (totally safe for work, picture-free) article from Consumerist explains the stripper lawsuit.

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