OA50: Obama’s Fiduciary Rule (With Guest Ben Offit)

In today’s episode, we take a look at a rule first proposed by President Obama’s Department of Labor in 2016 that would require financial advisers to abide by a “fiduciary” duty with their clients.  What does that mean?  Listen and find out!

We begin with a relevant note about the status of the rule, which is due to be implemented in 60 days.

Next, in our main segment, we take a look at the implications of the Fiduciary Rule by consulting an expert; in this case, certified financial planner Ben Offit, CFP® who has a somewhat novel take on this enhanced obligation.  He breaks down what the proposed rule means for you and the financial professionals you might hire.

After the main segment, we turn to a petition that has been garnering significant attention on the Internet:  #ReVote2017.  What is it?  Is it really pending before the Supreme Court, and what does that mean?

Finally, we end with a brand new Thomas Takes the Bar Exam question #14 regarding the tort of the intentional infliction of emotional distress.  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. To find out more about Ben Offit, CFP® and his services, you can visit his firm, Clear Path Advisory, or email Ben at ben@clearpathadvisory.com.
  2. This is the announcement that the Fiduciary Rule has been postponed for 60 days.
  3. You can also check out the text of the Fiduciary Rule itself.
  4. This is the hilarious petition for writ of mandamus filed by the #ReVote 2017 petitioners.
  5. And this is the docket entry for their petition, which is currently pending before the Court and will be denied on March 17, 2017, one week from today.

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OA49: Why Originalists Don’t Belong on the Supreme Court

In today’s episode, we take a long look at the judicial philosophy of “originalism” made popular by former Supreme Court Justice Antonin Scalia and advocated by his would-be replacement.

First, we begin with a question from Jodi, who asks Andrew for his opinion of LegalZoom and other law-in-a-box services.  Andrew gets a little emotional in his response….

Next, we break down originalism as a form of jurisprudence and examine why it is (1) internally incoherent and contradictory; (2) dangerous and unconstrained; and (3) contrary to the fundamental purpose of the judiciary.  Andrew’s argument is that originalists do not belong on the Supreme Court.  Period.

Finally, we end with the answer to Thomas Takes the Bar Exam question #13 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)!

Recent Appearances:

Andrew was a panel guest on The Thinking Atheist episode “Donald Trump’s America,” which you can listen to by clicking right here.

Show Notes & Links

  1. Here are Andrew’s two blog posts — one about Legal Zoom and one about downloading contracts off the internet.  His law firm site is here.
  2. This Huffington Post piece quotes Scalia’s 2008 interview with Nina Totenberg about the Eighth Amendment not prohibiting 18th-century forms of torture.
  3. Here’s a link to the full text of the Federalist Papers.
  4. Marbury v. Madison, 5 U.S. 137 (1803).
  5. United States v. Carolene Products, 304 U.S. 144 (1938).
  6. Scalia’s dissent in Atkins v. Virginia, 536 U.S. 304, 347-48 (2002) and opinion in Printz v. United States, 521 U.S. 898 (1997) are where he makes fun of citations to international law.
  7. Harmelin v. Michigan, 501 U.S. 957 (1991) is the infamous decision in which Scalia declared that the Eighth Amendment only bars punishments that are both “cruel” and “unusual in the Constitutional sense.”

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OA48: Three Cases You Care About – Planned Parenthood, Gay Florists, and Litigious Quacks

Today’s episode is a little bit different than our usual format; today, we take a look at three cases that our listeners have asked about on Twitter and Facebook.

First up is an order entered by the U.S. District Court for the Western District of Texas enjoining the state of Texas (and nitwit Attorney General Ken Paxton) from disqualifying Planned Parenthood as an authorized Medicaid service provider on the basis of fake videos.

Next, we tackle a recent ruling by the Washington Supreme Court applying that state’s anti-discrimination law to a florist that decided she couldn’t sell wedding flowers if the participants were gay.  Is this really the worst violation of individual freedom in the history of Western Civilization?

Third, we look at the recent victory in the 11th Circuit by our colleague Dr. Steven Novella of the Skeptic’s Guide to the Universe Podcast, and discuss what the ruling means for (say) podcasters who get sued for libel.

Finally, we end with a brand new Thomas Takes the Bar Exam question #13 regarding 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)!

Recent Appearances:

Thomas was interviewed by Conatus News about the development of the atheist community on the internet, including the role played by his other podcast, Serious Inquiries Only.

Andrew was a guest panelist on an episode of The Thinking Atheist show, “Donald Trump’s America.”

Show Notes & Links

  1. This is the W.D. Texas order restraining the state from blocking Medicaid funding to Planned Parenthood.
  2. Here is a link to Washington’s anti-discrimination law.
  3. Click here to read David French’s hilariously over-the-top description of this case in the right-wing garbage mag, the National Review.
  4. This is the 11th Circuit’s ruling in Tobinick v. Novella.
  5. Click here to check out Dr. Novella’s podcast, the Skeptic’s Guide to the Universe.

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OA47: Is This The Gun Control Case That Could Overrule DC v. Heller?

In today’s episode, we take a look at the just-decided case of Kolbe v. Hogan out of the United States Court of Appeals for the Fourth Circuit.  Is this case as big a deal as people are saying it is?

We begin, however, with a preliminary question from patron Alice Ashton, who asks about the controversial flavor-of-the-week, recently deplatformed Milo Yiannopolous.  Does knowing about a crime and not reporting it make you an accessory after the fact?  Find out!

Next, we break down Kolbe v. Hogan and explain whether this recent decision lives up to the hype (and why)!

After our main segment, we answer another patron question, this one from Derek Timp, who has some questions about the separation of church and state.

Finally, we end with the answer to Thomas Takes the Bar Exam question #12 about that criminal squirrel-feeder.  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 panel guest on The Thinking Atheist episode “Donald Trump’s America,” which you can listen to by clicking right here.

Also, Seth Andrews, host of the Thinking Atheist, has just released his “Secular State of the Union” address which you can listen to right here.

Show Notes & Links

  1. Thomas did a fabulous, full-length episode of Serious Inquiries Only about Milo; you should give that a listen.
  2. Alice’s question referenced a post and attached video on the Joe.My.God. website which you can see here.
  3. This is the text of the Kolbe v. Hogan decision.
  4. And here is DC v. Heller, 554 U.S. 570 (2008).
  5. Here’s a brief rundown of clergy serving in Congress.

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OA46: What Could Donald Trump’s Tax Returns Tell Us? (With Guest Tony Di Fatta) – Part 2

Today’s episode concludes our two-part look at one of your most requested questions:  what might be in Donald Trump’s taxes!

We begin, however, with a listener criticism from Peter Crinklaw, who thinks Andrew gave short shrift to the policy argument for educational vouchers.

Next, we conclude our two-part interview Tony Di Fatta, a practicing CPA, to take a deep-dive into all the things we might — and might not — find in the event that Donald Trump’s taxes are ever disclosed.  All of this is meant to shed some light on the question:  should Democrats be focused on finding out what’s in Trump’s taxes?

After our main segment, we tackle another listener question; this one from our top patron Zabby, who wants to know about the recently-passed Jacksonville, Florida Human Rights Ordinance.

Finally, we end with a brand new Thomas Takes the Bar Exam question #12 regarding witness credibility.  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:

Thomas was interviewed by Conatus News about the development of the atheist community on the internet, including the role played by his other podcast, Serious Inquiries Only.

Andrew was a guest on the David Pakman show; you can watch the 14-minute video interview here.

Andrew was also a guest on the Biskeptical Podcast, episode #19, with Trav Mamone and Morgan Stringer, discussing free speech and Milo Yiannopolous.

Hall of Fame Patron Charone Frankel started her own legal comedy podcast, Habeas Humor.  Go check it out.

Show Notes & Links

  1. This is the economist survey regarding vouchers mentioned by Peter.
  2. To find out more about Tony, click here for his website, or give him a call at (443) 791-5726.
  3. This is a link to Donald Trump’s 2016 financial disclosures.
  4. Here’s the hilarious Onion article, “You People Made Me Give Up My Peanut Farm!
  5. This is the text of the Jacksonville HRO.

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OA45: What Could Donald Trump’s Tax Returns Tell Us? (With Guest Tony Di Fatta) – Part 1

In today’s episode, we take a look at one of your most requested questions:  what might be in Donald Trump’s taxes!

We begin, however, with a preliminary question from Jim Sabatowski, who asks us what’s the big deal with Trump’s tax returns, anyway?  Is there a good reason to think we can get information that’s necessary to evaluate a candidate?

Next, we give you part one of our two-part interview Tony Di Fatta, a practicing CPA, to take a deep-dive into all the things we might — and might not — find in the event that Donald Trump’s taxes are ever disclosed.  All of this is meant to shed some light on the question:  should Democrats be focused on finding out what’s in Trump’s taxes?

After our main segment, we inaugurate a new segment about how close President Trump is to impeachment with a question about 18 USC § 1001 and the prohibition against making false statements. With a bonus reference to The Price Is Right!

Finally, we end with the answer to Thomas Takes the Bar Exam question #11 about the best evidence rule.  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:

Thomas was interviewed by Conatus News about the development of the atheist community on the internet, including the role played by his other podcast, Serious Inquiries Only.

Andrew was a guest on the David Pakman show; you can watch the 14-minute video interview here.

Andrew was also a guest on the Biskeptical Podcast, episode #19, with Trav Mamone and Morgan Stringer, discussing free speech and Milo Yiannopolous.

Show Notes & Links

  1. To find out more about Tony, click here for his website, or give him a call at (443) 791-5726.
  2. This is a link to Donald Trump’s 2016 financial disclosures.
  3. Here’s the hilarious Onion article, “You People Made Me Give Up My Peanut Farm!
  4. This is the text of 18 USC § 1001.

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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OA44: All About Arbitration

In today’s episode, we take a look at arbitration, an increasingly popular device being used to take disputes out of the courtroom.  What might arbitration mean for you?  Listen and find out!

We begin, however, with a question from patron Faye Reppas, who asks about HR 2802, the so-called “First Amendment Defense Act.”

Next, in our main segment, we take a look at the implications of arbitration — particularly in the employment context, where your employer may have inserted a mandatory arbitration clause in your employment agreement.  What does arbitration do?  Can you be compelled to do it?  We break it all down for you.

After our main segment, we tackle another listener question; this one from Eric Walls about corporate personhood.

Finally, we end with a brand new Thomas Takes the Bar Exam question #11 regarding the testimony of a plaintiff who’s had surgical sponges accidentally left inside of her (a surprisingly common occurrence).  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 the proposed HR 2802, the First Amendment Defense Act.
  2. Andrew wrote two articles on arbitration for his firm blog:  you can read Part 1 and Part 2 for more in-depth analysis.
  3. Here’s a link to the Federal Arbitration Act, 9 U.S.C. § 1 et seq.
  4. Here is a link to Andrew’s appearance on the David Pakman show.

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OA43: Explaining the 9th Circuit’s Ruling on Trump’s Muslim Ban

In today’s episode, we take a look at the ongoing status of Executive Order 13769 (often referred to as the “Muslim Ban”).  What exactly did the 9th Circuit decide, and how does it affect the status of efforts to restrict emigration going forward?

We begin, however, with a Breakin’ Down the Law segment where we examine the so-called “Johnson Amendment.”  What is it?  Would it be a bad thing if the Trump administration repeals it?  Does it really make a difference?  We break down the law so you’ll be armed with the information you need to answer these questions.

Next, we take a deep-dive into the 9th Circuit’s recent ruling denying the Government’s emergency motion for a stay.  What does that mean?  Where is this lawsuit headed next?  You won’t know if you only read The New York Times, but you will know if you listen to this show!

After our main segment, we turn to a question from listener Schofield Miller about why courts hand down multiple-life sentences that run to hundreds of years.  Figure out what it means to be sentenced to “ten consecutive life sentences.”

Finally, we end with the answer to Thomas Takes the Bar Exam question #10 about witness testimony.  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)!

Also:  Andrew was recently on Episode #103 of the Gaytheist Manifesto podcast talking about executive orders more generally; give it a listen!

Show Notes & Links

  1. Andrew also discussed the Johnson Amendment when he was a guest on The Scathing Atheist podcast episode #208.
  2. Andrew also did a guest spot on episode #103 of the Gaytheist Manifesto talking about executive orders.
  3. Judge Robart of the U.S. District Court for the Western District of Washington’s Order issuing a temporary restraining order (TRO) blocking the Executive Order is here.
  4. And the 9th Circuit’s opinion refusing to issue a stay is here.

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OA42: Denny Hastert and the Limits of Contract Law

Today’s episode is brought  to you by Audible! Go to audible.com/lawpod for your free 30 day trial!!

In today’s episode, we take a look at the law of contracts, and particularly in the context of the recent lawsuit involving former Speaker of the House Denny Hastert.

We begin, however, with a related question from patron Michael, who asks whether the Scientologists can really enforce that billion-year contract to join to Sea Org.  (This answer will not surprise you.)

That leads into our main segment, where we look at the strange and tragic lawsuit being brought against Hastert by a victim of his past sexual assault.  Hastert agreed to pay the victim $3.5 million for his silence, and then stopped paying after he came under federal investigation.  Recently, Hastert counter-sued to recover the hush money previously paid, and we break down all the intricacies of contract law to try and figure out who’s likely to get what.

After our main segment, we tackle another listener question; this time, about whether employers can fire you for smoking marijuana in the privacy of your own home if you live in a state like Colorado that’s legalized marijuana use.

Finally, we end with a brand new Thomas Takes the Bar Exam question #10 which is another very, very hard question.  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 Chicago Tribune article sets forth the facts of the Hastert case.
  2. And this Tribune article contains the actual text of Haster’s counterclaim that we discuss during the show.
  3. On Thursday, Andrew was a guest on The Scathing Atheist podcast episode #208.
  4. That same day (he’s a busy guy!), Andrew also did a guest spot on episode #103 of the Gaytheist Manifesto podcast.

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OA41: Betsy DeVos and School Vouchers

In today’s episode, we examine one of the favorite policy recommendations of President Trump’s Secretary of Education, Betsy DeVos:  the school voucher.  What is it?  Is it constitutional?  Listen and find out!

We begin, however, with a Breakin’ Down the Law segment where Andrew looks at a popular Twitter account’s explanation of the odd fact that Donald Trump filed his re-election papers four years early.  Is there some nefarious purpose to him having done so, or is this innocuous?  We break down the law so you’ll be armed with the information you need to navigate these kinds of claims.

In the main segment, Andrew walks us through Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the most recent Supreme Court case to consider school vouchers, with a focus on whether providing federal tax dollars to private religious institutions violates the First Amendment’s Establishment Clause.

After our main segment, we turn to a question from ex-Mormon about the infamous “Mormon Extermination Order,” an executive order (No. 44) signed by Missouri Gov. Lilburn Boggs in 1838.  This dovetails with a two-hour discussion of the Order between Andrew and host Bryce Blankenagel during episode 47 of the “Naked Mormonism” podcast, which you should definitely check out by clicking here.

Finally, we end with the answer to Thomas Takes the Bar Exam question #9 about joint tenancy.  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 “Resisterhood” tweets are here.
  2. Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
  3. This is the original, hand-written text of Missouri Executive Order 44 (the “Mormon Extermination Order”).
  4. The main page for the “Naked Mormonism” podcast is here; and Andrew was on Epsiode 47, which you can download here.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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