OA254: Mueller, She Wrote!

Today’s episode features a long interview with AG, the spectacular co-host of the Mueller, She Wrote podcast.  She helps break down everything in the news that’s Yodel Mountain-worthy… and along the way, you’ll learn what might be next, what we might be overplaying, and much, much more!

After the interview, it’s time for the answer to Thomas (& AG) Take The Bar Exam #114, in which you always bet on bank!.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Somewhat coincidentally, Andrew was just a guest on S3E6 of the Mueller, She Wrote podcast; go check it out! Andrew was also a guest on Episode 87 of So Here’s My Story.  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com



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OA253: Religious Freedom and Domineque Ray

Today’s episode tackles the recent Dunn v. Ray decision in which the Supreme Court used a procedural mechanism to allow the State of Alabama to execute a devout Muslim without affording him the same sorts of religious freedom they do to Christian inmates.  Is it as bad as it looks? (Yes.)

We begin, however, with an unfortunate Andrew Was Wrong (and a promise to get better)!

Then, it’s time for a depressing deep dive into Dunn v. Ray and what ‘religious freedom’ actually means to this Supreme Court.

After that, it’s time for a trip to Yodel Mountain where we review the latest ruling from Judge Amy Berman Jackson about exactly how big a liar Paul Manafort is.  (Hint:  yuge.)  What does this mean for a potential Manafort pardon, and does the federal system have parole?  Listen and find out!

We end, as always, with a brand new Thomas (& AG!) Take the Bar Exam Question #114 about whether banks own everything.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Andrew was just a guest on S3E6 of the fabulous Mueller, She Wrote podcast; go check it out! If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links
1. Supreme Court – Dunn v. Ray order
2. 11th Circuit ruling in Dunn v. Ray
3. We discussed Manafort’s plea on Episode OA: 211
4. Text of Manafort plea deal
5. Judge Jackson’s determination
6. 18 U.S.C. § 3624 Release of a prisoner (b) Credit Toward Service of Sentence for Satisfactory Behavior

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com



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OA252: Constitutional Conventions & the “Proud Boys”

Today’s episode features a deep dive into a listener question about Article V Constitutional Conventions.  Are they dangerous?  (Yes.)  Are they a good idea?  (No.)  We also discuss the latest ridiculous defamation lawsuit.. and discover why this one is a little different.  How?  You’ll have to listen and find out.

We begin with a little bit of news you might have missed regarding Attorney General nominee Bill Barr.

After that, it’s time to answer a listener question about liberal and conservative groups that are angling for an “Article V” Constitutional Convention to overturn Citizens United (or do other things).  We delve deeply into this provision of the Constitution and discuss the plusses and (mainly) minuses of this procedure.

Then, it’s time to dissect the recent lawsuit brought by Gavin McInnes, founder of the “Proud Boys,” which Wikipedia calls “a far-right neo-fascist organization that admits only men as members and promotes political violence.”  Find out why at least one formerly respectable lawyer thinks it’s just crazy (and actionable!) that the Southern Poverty Law Center called this a “hate group.”  And find out why the real question in this lawsuit involves something called “tortious interference” and not defamation.

After all that, it’s time for the answer to Thomas Takes The Bar Exam #113, which involved the constitutionality of abortion regulations.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Andrew was just a guest on S3E6 of the fabulous Mueller, She Wrote podcast; go check it out!  And, as always, if you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. This is the lawsuit filed by the “Proud Boys” against the SPLC.
  2. This is the Wikipedia entry on the “Proud Boys.
  3. Here’s the full text of Article V of the Constitution.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com



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OA251.5 Abortion Special – More on June Medical Services v. Gee

This rapid-response bonus episode tackles the Supreme Court’s late-breaking stay of the 5th Circuit’s opinion in June Medical Services v. Gee, with a particular emphasis on dissecting Justice Brett Kavanaugh’s dissent.  What does it all mean?  Listen and find out!

We have also continued the episode with a deep dive into res judicata and the truly ominous implications of Kavanaugh’s dissent at our Patreon page for supporters of the show at any level.

Show Notes & Links

  1. Check out Episodes OA: 249 “Overturning Roe v. Wade Starts Today” and OA 251 for reference to our past discussion on this cases.
  2. Click here to read the Court’s granting of the stay (which includes Kavanaugh’s dissent), and here for the Supreme Court’s docket in June Medical Services v. Gee.
  3. This is the reply brief filed by the petitioners.
  4. Here is the prior 2016 Supreme Court decision in Whole Woman’s Health v. Hellerstedt.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com



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OA251: Gerrymandering in Maryland Heads Back to SCOTUS

Today’s episode returns to one of the most critical political issues of our time:  gerrymandering of congressional districts, and in particular, the state of MD-6, which pits the Democrats as villains and Republican voters as the plaintiffs alleging disenfranchisement.  Will that role reversal be enough to win approval from SCOTUS?  Listen and find out!

We begin, however, with an update on the June Medical Services v. Gee lawsuit we first discussed in Episode 249.

After that, it’s time for the deep dive into gerrymandering, which takes a look at the U.S. District Court for the District of Maryland’s 3-judge panel decision invalidating Maryland’s 6th district; the motion to stay before the Supreme Court filed by the Plaintiffs; the opposition by the State of Maryland; and an amicus brief filed on behalf of the incumbent, Democrat David Trone.

Then, we quickly clear up the status of Stormy Daniels’ lawsuits.  Did the recent dismissal with prejudice have anything to do with Donald Trump?  (No.)

We end, as always, with a brand new Thomas Takes the Bar Exam Question #113 that’s coincidentally about the constitutionality of abortion restrictions.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

1. Episode OA: 249 “Overturning Roe v. Wade Starts Today” for reference to our past discussion on the abortion cases. 
2. Supreme Court’s docket in June Medical Services v. Gee
3. If you’re curious, this is what MD-6 looks like today, and this is what it looked like before the 2011 redistricting.
4. We last discussed gerrymandering in Episode OA: 185
5. We also did a deep dive into the Wisconsin case in Episode OA: 80
6. Here is the Maryland district court’s ruling court’s ruling
7. You can read the Plaintiffs’ brief
8. The state’s opposition, filed by Brian Frosh
9. And the Trone amicus brief filed by Andrew’s friends at Zuckerman

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com



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OA250: One Quarter of a Thousand Episodes!

Today’s very special episode is our 250th!  To celebrate, we’ve assembled a compilation of some of our favorite moments over the past two and  half years.  If you’ve ever wanted to share the show to friends and family, this is the episode to do it.   In this episode, we explain:

  1. What the show’s all about
  2. How liberal we are (or aren’t)
  3. Whether we talk about non-political stuff
  4. How Trump changed the show, what “Yodel Mountain” is, what #ClearAsKushner is
  5. How seriously we take ourselves

And much more!

Then, as always, it’s time for the answer to Thomas Takes The Bar Exam #112, which involved an angry drunken… murder (?)  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links
1. What’s the show about? It’s long-form investigative journalism into topics in the news that have a legal component to them from a left-leaning perspective. Shorter: If you like Rachel Maddow, you’ll like this show.

2. Things I’m most proud of:
Stormy Daniels OA: 154
Hillary Clinton’s Damned Emails OA: 13 (36:35-38:16)
Deep dives on abortion, on the Second Amendment,
Abortion – OA: 27 and OA: 28
The Second Amendment  – OA: 21 and OA: 26
The 2000 Election and Bush v. Gore Eps. 2-5 OA: 02 –

3. How lefty are you guys?
I mean, we definitely call out our own, like Jill Stein’s recounts.
OA: 25 (24:38-29:50)
Or Robert Reich OA: 59 (43:40-45:00)
Or Occupy Democrats…

4 . So is it all politics?
A.) Practical stuff like defining terms like spousal privilege
OA: 99 (2:30-8:50) or … not advice on how to choose a lawyer OA: 12 (9:19-10:40) …every Tuesday we do deep dives into legal topics, often apolitical.
PG&E in Episode OA: 241
B.) and the wacky and bizarre
OA: 12: Sovereign Citizens (19:52-24:12)
OA: 132: Earth Court (38:09-55:00)

5. So what changed?
We elected a criminally insane game show host who’s looting the public treasury?
Yodel Mountain OA: 45: (38:20-41:03)
Clear as Kushner OA: 53 (57:00-57:33)

6. How seriously do you take yourself?
Pretty clownhornin’ seriously!
OA: 166 (32:10-40:47)and (1:30:55 to end – intro)

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com



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OA249: Overturning Roe v. Wade Starts Today

Today’s episode sounds the alarm as to whether our activist right-wing Supreme Court is ready to effectively overturn Roe v. Wade and essentially permit the entire state of Louisiana to all but ban the right to an abortion in that state.  We’re NOT an alarmist podcast, but this is something you need to be watching.  We also follow up on the Trump Shutdown, answer a listener question regarding our discussion of the Hilton lawsuit from last episode, and (of course) take our weekly visit to Yodel Mountain, this time on the back of one Roger Stone.  Are these all just “process crimes?”  And what the hell does that mean, anyway?  Strap in and find out!

We begin, however, with a brief look at the end of the Trump Shutdown and what’s likely to come next.

After that, we tackle some questions and misperceptions regarding our story of the lawsuit against Hilton hotels from Episode 248.

Then, it’s time for the main segment, which takes a look at a pending Supreme Court motion and discusses what this means for the future of Roe v. Wade and the right to a legal abortion in this country.  Yes, it really is that significant.

Then, it’s time for a trip to Yodel Mountain to discuss “process crimes” rapid-fire round of questions about Trump’s shutdown.  Why is Congress still getting paid?  Who can sue, and why haven’t they?  Find out the answers to these questions and more!

We end, as always, with a brand new Thomas Takes the Bar Exam Question #112 about murder most foul!  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

1. Ann Coulter was responsible for the shutdown and Trump’s approval ratings take a hit. (Thomas Was Right)
2. A series of bipartisan proposals show support for ending shutdowns.
3. Title VII of the Civil Rights Act of 1964 42 U.S.C. § 2000e et seq.
4. Several years ago, Andrew wrote on reasonable religious accommodations at Disney when he was still working for The Man.
5. We discussed Planned Parenthood v. Casey in OA: Episode 27 and OA Episode: 28.
6. Whole Woman’s Health v. Hellerstedt 136 S.Ct. 2292 (2016)
7. June Medical Services v. Gee, 905 F.3d 787 (5th Cir. 2018)
8. MOTION TO STAY filed by June.
9. Dershowitz – what the defenders are saying and why it’s Wrong . Followed by Seth Abramson’s Smackdown thread.
10. Stone Indictment
11. More on Randy Credico from his wiki entry and twitter.
12. Roger Stone will work the media
13. Concord Management & Consulting media discovery.
14. The joint motion in Roger Stone’s case and the “voluminous and complex” evidence against him.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com



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OA248: The Cert(iorari) Show!

Today’s episode features a deep dive into a bunch of different issues around granting the writ of certiorari — “cert” — and some of the intricacies of how the Trump administration is trying to take advantage of the activist Supreme Court.  Oh, and we also tackle a lawsuit that’s being grossly misrepresented by the media.

We begin with a discussion of the unique procedure of “cert before judgment.”  What is it, how rare is it, and… why is the Trump administration trying to deploy it with alarming frequency?  Listen and find out!

Then, we revisit litigation regarding the census that we first discussed back in Episode 232, and the administration’s effort to… get cert before judgment (of course).

Our main segment looks at something Andrew has never seen before:  essentially, a four-justice dissent from a denial of certiorari.  Why is this weird?  Listen and find out as we dissect that very opinion in Kennedy v. Bremerton School Dist.

Next, we tackle a recent clickbaity headline involving a dishwasher allegedly showered with money for “skipping work to go to church.”  Find out why the reporting on this case has been totally irresponsible and what really happened.

After all that, it’s time for the answer to Thomas Takes The Bar Exam #111, which involved a contract for defective water bottles.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. “Cert before judgment” is governed by Supreme Court Rule 11.
  2. We first discussed the census litigation back in Episode 232.  You can read the motion to dismiss the writ of certiorari as improvidently granted, as well as the U.S. reply.
  3. Click here to read the “statement” regarding the denial of cert in Kennedy v. Bremerton School Dist.
  4. Click here to read the CBS news report on the Hilton lawsuit, and here to read the (even worse) reporting by the Friendly Atheist blog.
  5. By contrast, you can read the actual Jean Pierre Hilton overtime lawsuit and the jury’s verdict.  Oh, and here’s the EEOC’s statement limiting punitive damages in retaliation cases to just $300,000 (not $21 million).

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com



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OA247: Status of the Trans Ban

Today’s episode tackles the recent Supreme Court orders in the Trump ban on transgender service members.  How did we get here and what’s next?  Listen and find out.

We begin, however, with a brief Andrew Was Wrong segment regarding the history and modern politics of the State of the Union.

After that, it’s time for the main segment, which dives deeply into the history of trans service in the U.S. military, including a discussion of what it means to bring a case pursuant to the equal protection clause and what the future likely holds.

Then, it’s time for a rapid-fire round of questions about Trump’s shutdown.  Why is Congress still getting paid?  Who can sue, and why haven’t they?  Find out the answers to these questions and more!

We end, as always, with a brand new Thomas Takes the Bar Exam Question #111 regarding the delivery of water bottles.  As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Thomas was just the guest host on Episode 179 of God Awful Movies.  Give it a listen!  And if you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

1. The must read Advocate Article interviewing long-standing friend of the show Alice Ashton.
2. 2016 Open Service Directive: Directive-type Memorandum (DTM) 16-005, “Military Service of Transgender Service Members”
3. 2017 Trump Memorandum rescinding the Open Service Directive
4. 2018 Mattis Policy: Military Service by Transgender Individuals
5. Mattis “Study”: Dept of Defense Report and Recommendations on  Military Service by Transgender Persons
6. We last discussed Hively v. Ivy Tech (7th Cir.) and Zarda v. Altitude Express (2nd Cir.) in Episode 152
7. Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011)
8. FLSA lawsuit regarding the Shutdown
9. Federal Judiciary extended to February 1st
10. 13 U.S.C. § 1350 – Criminal penalty

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed!  @oawiki

And email us at openarguments@gmail.com



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OA246: Alex Jones & Sandy Hook

Today’s episode features a deep dive into the latest developments in the lawsuit brought by parents of the victims in the Sandy Hook Massacre against Alex Jones and Infowars for repeatedly portraying the school shooting as a hoax.

We begin, however, with a question regarding our views of the 2016 Presidential Election from a Trump supporter who’s hate-funding us.  Hey, we’re good to our word!

After that, it’s time to dig in to the defamation lawsuit against Alex Jones.  We tackle the minutiae — standing, jurisdiction, statute of limitations — and the big issues as well.  If you want to know where defamation law is headed in this era of “fake news,” well, this is the show for you!

Then, it’s time for a quick visit to Yodel Mountain to check in on Rudy Giuliani and Michael Cohen.  Because of course it is.

Finally, it’s time for the answer to Thomas Takes The Bar Exam #110, which involved a dentist being sued for malpractice and product liability. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Andrew was just a guest on Episode 138 of the Naked Mormonism podcast.  Give it a listen!  And if you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

1. NYT articles on using third-party votes to hack elections.
The Secret Social Media Experiment in Alabama Senate Race Imitated Russian Tactics and how the Democrats Faked Online Push to Outlaw Alcohol in Alabama Race.
2. Politico story on the Justice Democrats plans to mount primaries against incumbent Democrats it deems too moderate with the apparent backing of Alexandria Ocasio-Cortez.
3: NYT on Alex Jones and Sandy Hook
4. Media Matters 7 minute, 13 second compilation on Alex Jones about Sandy Hook.
5. Media Matters timeline of Jones promoting conspiracy theories about Sandy Hook.
6. Yodel Mountain: Rudy Giuliani is not helping!
7. WSJ on Cohen and poll-rigging and Cohen’s response on the story: “As for the @WSJ article on poll rigging, what I did was at the direction of and for the sole benefit of @realDonaldTrump @POTUS. I truly regret my blind loyalty to a man who doesn’t deserve it.”
8. The GLORIOUS “Women for Cohen” Twitter account: Because some things on twitter make you ask, “Why?”.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com



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