OA166: The Taint Team (& Also, Alex Jones)

In this rapid-response episode, Thomas and Andrew take a look at the attorney-client privilege issues relating to the FBI’s search of the offices of Michael Cohen, alleged lawyer to Donald Trump and… Sean Hannity?!?

First, we begin with a finishing move from one of our pro wrestler listeners, updating our story that we first covered in Episode 163.  (Is it the Million Dollar Dream?  Listen and find out!)

In the main segment, we break down all that happened (and all that’s yet to come!) in the ongoing legal case against Michael Cohen we first discussed in Episode 164.  How strong is Cohen’s argument that he’s entitled to protect the privilege of his legal clients?

After that, we take a  look at three lawsuits against Alex Jones and InfoWars and start the discussion about what to do about blatantly false, politically-motivated conspiracy theories.  Are defamation lawsuits the answer?

Finally, we end with an all-new TTTBE #72 about real property law.  If you’ve ever thought about playing along, just retweet our episode on Twitter or share it on Facebook along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent 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. We first discussed the search of Cohen’s offices in Episode 164.  You can read Michael Cohen’s Motion for TRO, which was denied on Monday April 15, as well as his revised request for a special master, which remains pending.
  2. This is the Gilmore Complaint filed and Alex Jones, and here is a New York Times story on the other two defamation complaints filed by parents of victims of the Sandy Hook shooting.

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OA165: You Heard It Here First! (Abortion Rights, Gun Control, and Offensive Trademarks)

Note:  The “C” segment of this episode (and the show notes) contain hilarious explicit language in order to discuss a recent development in trademark law.  You’ve been warned!

In the preshow, we tamp down on some unwarranted liberal freakout regarding a recent White House Executive Order regarding the last few fraying strands of our social safety net.

After that, we revisit three cases we told you we’d be keeping an eye on.  First, we look at the aftermath of Jane Doe v. Wright, which we first discussed in Episodes 117 and 133.  Back then, we told you about the fate of a single young woman in state custody who was denied her right to an abortion; today, we tell you about the nationwide class action that was just certified in Garza v. Hargan.

Next, we revisit Kolbe v. Hogan, which we called a “landmark” case way back in Episode 47.  Find out how a federal district court judge in Massachusetts just applied Kolbe in upholding the Massachusetts ban on assault weapons and large capacity magazines.

For our third revisit, we take a look at another trademark case in light of the Slants case (Matal v. Tam) that we first discussed with Simon Tam way back in Episode 33 and reported on Tam’s victory before the Supreme Court in Episode 80.  The Slants’s victory paved the way for disparaging and offensive trademarks, but what about garden-variety “immoral or scandalous” ones, like FUCT clothing or “Big Dick Nick” towels?  Listen and find out!

Finally, we end with the answer to the fiendishly hard Thomas Takes the Bar Exam Question #71 about whether a state can discriminate against out-of-state competitors.  Don’t forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent 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. This is Alphr’s list of the “15 Best Podcasts of 2018” — and wow, we’re in some good company!
  2. You can click here to read the White House Executive Order on “Reducing Poverty in America;” we quoted from Section 5 at the end.
  3. We first discussed Jane Doe v. Wright in Episodes 117 and 133.
  4. We first told you about Kolbe v. Hogan in Episode 47; now, you can read the Massachusetts decision in Worman v. Healey.  Also, if you like briefs, you can read the petition for certiorari, the State of Maryland’s opposition, and the petitioners’ reply.
  5. We told you about the Slants’s case back in our Episode 33 interview with Simon Tam and reported on Tam’s Supreme Court win in Episode 80; today, we discuss In re Brunetti, which applies the Matal v. Tam holding to the rest of 15 U.S.C. § 1052(a).
  6. Finally, the link you’ve been waiting for: the Deadspin article about “Big Dick Nick.”

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OA164: As American As Baseball, Hush Money, and… Segregated Schools?

In this rapid-response episode, Thomas and Andrew take a look at the FBI’s search of the offices of Michael Cohen, Donald Trump’s personal lawyer and alleged “fixer.”

First, we begin with a discussion of a curious legal move by the Miami Marlins, alleging that they are, in fact, a … citizen of the British Virgin Islands??

In the main segment, we find out that Andrew Was Right when he declared Stormy Daniels “A Legal Genius.”  How right?  Listen and find out!

Next, we take a return trip to Yodel Mountain, where we discuss Paul Ryan’s impending retirement, Wendy Vitter’s comically bad confirmation hearing, and more!

Finally, we end with an all-new TTTBE #71 about constitutional law that is the toughest question we’ve asked to date.  If you’ve ever thought about playing along, now’s the time; just retweet our episode on Twitter or share it on Facebook along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent 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. This is Alphr’s list of the “15 Best Podcasts of 2018” — and wow, we’re in some good company!
  2. If you love procedural questions (and you hate Derek Jeter), you’ll want to read the Marlins Notice of Removal as well as Miami’s Opposition.  Oh, and this is the relevant legal provision, 9 U.S.C. § 202.
  3. This is the U.S. Attorneys’ Manual; § 9-13.420 governs searching law firm offices.
  4. Here’s the report on Paul Ryan’s fundraising from Politico, announced two days before he decided to retire.
  5. Finally, here’s a link to the video of Wendy Vitter refusing to answer whether she supports Brown v. Board of Education.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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Don’t forget the OA Facebook Community!

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OA163: Whatcha Gonna Do, Brother? OA vs. Sinclair Broadcasting, the CLOUD Act & the WWE

Today’s episode runs wild with an in-depth look a the CLOUD Act slipped in to the latest omnibus spending bill.

First, however, we break down the recent viral video from Deadspin showing dozens of Sinclair-owned TV stations reading pro-Trump talking points on the air.  How did this happen?  What leverage does Sinclair have over your local newscaster?  Listen and find out.

During the main segment, the guys break down the CLOUD Act and what it means for international data privacy.

After that, we answer a listener question about the WWE and independent contractors.

Finally, we end with the answer to Thomas Takes the Bar Exam Question #70 about contracts.  Don’t forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent 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. Click here to watch the viral video from Deadspin; you can see excerpted bits from the Sinclair contract sent out via Twitter here and here.
  2. This is the text of the CLOUD Act, and you can click here to read the EFF’s warnings about it.
  3. Finally, for guidance about independent contractors vs. employees, you can check out the Department of Labor’s Fact Sheet 13 as well as the guidelines promulgated by the IRS.

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!

And email us at openarguments@gmail.com



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OA162: Tariffs and Trade

In this rapid-response episode, Thomas and Andrew take a look at the Trump administration’s recently-announced tariffs on China, China’s response, and the future of free trade.

In the pre-show segment, it’s time for a lengthy Andrew Was Wrong segment.  From .22s to time zones, Andrew cops to the things he got wrong last week, ending with a discussion of the emoluments lawsuit discussed in Episode 160.

In the main segment, Andrew discusses the Trade Act of 1974 and whether it allows Trump to wage a trade war with China.

After that, it’s time for our weekly trip to Yodel Mountain, this time with a breakdown of the Alex van der Zwaan sentencing as well as Paul Manfort’s motion to dismiss and the government’s response.

Finally, we end with an all-new TTTBE #70 about breach of contract.  Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent 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. Andrew was wrong links:  15 U.S.C. § 260a (time zones), Florida HB 1013, and, if you want to re-listen to our discussion of the emoluments lawsuit, check out Episode 160.
  2. In the main segment, the guys discuss the Trade Act of 1974.  This is the CNN list of the 106 products on which China is raising tariffs, and this is a link to the New York Times article suggesting that the Trump administration is considering re-joining the TPP.
  3.  This is the Alex van der Zwaan sentencing memorandum; he pled guilty to 18 U.S.C. § 1001.   If you’d like to plot that out on the Sentencing Guidelines table, you can do so by clicking here.
  4. You can click here to read the Christopher Miller story suggesting that “Person A” is Konstantin Kilimnik; that was just validated by this report from Business Insider.
  5. Finally, you can click here to read the DOJ’s response to Manafort’s motion to dismiss.  For reference, This is Rod Rosenstein’s Order appointing Mueller, No. 3915-2017, and this is 28 U.S.C. § 515, which plainly authorizes it.  We discussed this in full detail back in Episode 136.

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OA161: Gun Control & the Constitution

Today’s episode takes an in-depth look at gun control.  First, we answer two listener questions about originalism and the Second Amendment, including a provocative one about whether DC v. Heller deserves stare decisis respect under Andrew’s model of jurisprudence.  The answer may surprise you!

In the main segment, we examine HR 5087, the most recent gun control bill to be introduced in Congress.  What’s in it?  What kinds of laws are Democrats looking to pass in light of the Parkland massacre?

After that, we check in on the state of Pennsylvania’s efforts to combat gerrymandering.  Could there actually be good news in this episode?  Listen and find out.

Finally, we end with the answer to Thomas Takes the Bar Exam Question #69 about the firefighter’s rule.  Don’t forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Andrew was recently a guest on Episode 255 of the Phil Ferguson Show and Episode 96 of the Naked Mormonism Podcast.  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 episode builds on our two-part masterclass in the Second Amendment:  Episode 21 (Part 1) and Episode 2 (Part 2).
  2. The two primary cases discussed are DC v. Heller and McDonald v. City of Chicago.
  3. This is the text of HR 5087, the proposed gun control legislation, which amends 18 U.S.C. § 921 and 922.
  4. We discussed the Parkland massacre in Episode 148.  You can read Chief Justice Thomas Saylor’s statement here.

Support us on Patreon at:  patreon.com/law

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

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OA160: Schrodinger’s Andrew

In this rapid-response episode, Thomas and Andrew take a look at the things Andrew Was Right about over the past few weeks (yay!) as well as the things Andrew Was Wrong about (boo!).  It’s Schrödinger’s Andrew Day!

In the pre-show segment, the guys go through the scenario for all of our Opening Arguments Community March Madness potential winners.  After that, it’s time for Andrew Was Right! (TM).  We cover the Alex van der Zwaan sentencing memorandum and what it means for Yodel Mountain, as well as both the Amended Complaint and the Motion for Expedited Trial filed by our next Attorney General, Stormy Daniels.  You won’t want to miss it!

After that, it’s time for Andrew Was Wrong (TM), in Andrew owns up to a few corrections about Watergate and revisits the emoluments lawsuit discussed way back in Episode 78.  Andrew was skeptical then; has he changed his mind?

Finally, we end with an all-new TTTBE #69 that questions your knowledge of the “firefighter’s rule” and whether it protects cops who get sideswiped.  Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

Andrew was recently a guest on Episode 255 of the Phil Ferguson Show and Episode 96 of the Naked Mormonism Podcast.  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 Alex van der Zwaan sentencing memorandum; he pled guilty to 18 U.S.C. § 1001.  You can click here to read the Christopher Miller story suggesting that “Person A” is Konstantin Kilimnik.
  2. This is the Amended Complaint filed by Stormy Daniels; you can also read the Notice of Removal filed by EC and the Motion for Expedited Trial filed by Daniels.
  3. Stormy’s expedited trial motion is pursuant to 9 U.S.C. § 4.
  4. This is the Washington Post article on Alexander Butterfield, which is definitely worth a read.
  5. Here’s the District Court’s opinion in the emoluments litigation, which we first discussed back in Episode 78.
  6. If you want to dive more into emoluments, you can read Mississippi v. Johnson, 71 U.S. 475 (1867), or listen to our two-parter with originalist Seth Barrett Tillman:  Episode 35 (Part 1) and Episode 36 (Part 2).

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OA159: What Was So Bad About Watergate? Part 1: The Saturday Night Massacre

Today’s episode takes our time machine back to 1972, as Richard Nixon’s Committee to Re-Elect the President (“CREEP”) planned the break-in to the Watergate Hotel Complex that set in motion the criminal conduct that led to the only time in our nation’s history when a President has resigned in disgrace.  Exactly what happened?  In this episode, we talk about the “Saturday Night Massacre,” and what it means today.

First, though, we examine the unintended consequences of the Republican tax bill crammed through the Senate in the waning moments of 2017.  Might the bill actually prevent the major sports franchises, such as Major League Baseball, from trading players??  Listen and find out!

After the main segment, Andrew tackles a listener question regarding the “Guarantee Clause” of the Constitution.  What is it, and why should you care?  Listen and find out!

Finally, we end with the answer to Thomas Takes the Bar Exam Question #67 about breach of contract.  Don’t forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

None!  Have us on your show!

Show Notes & Links

  1. The provision of the tax code discussed in the “A” segment is 26 U.S.C. § 1031, and you can click here to read about the previous IRS opinions regarding major sports franchises and like-kind exchanges.  You can also check out the New York Times article that first revealed this uncertainty.
  2. The primary cases we discussed regarding Watergate were Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973) and United States v. Nixon, 418 U.S. 683 (1974).
  3. The two cases analyzed in the “C” segment were Luther v. Borden, 48 U.S. 1 (1849) and dicta from New York v. United States, 505 U.S. 144 (1992).

Support us on Patreon at:  patreon.com/law

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OA158: Cambridge Analytica

In this rapid-response episode, Thomas and Andrew discuss the scandal regarding Cambridge Analytica.  Is there a legal angle?  Have crimes been committed?  Listen and find out!

In the pre-show segment, Andrew helps out our reporters by giving theme the question they need to be asking regarding Stormy Daniels, which is:  “Now that you’ve acknowledged that you’re DD, and you’ve sued Stormy Daniels for $20 million, can you tell us what claims you had against Ms. Daniels that you believe you settled in that agreement?  What could you have sued her for?”  You’re welcome.

That segues into the “A” segment, where the guys discuss the differences (and one strange overlap) between the recent lawsuit filed by Karen McDougal and the top-of-Yodel-Mountain Stormy Daniels lawsuit.

After the main segment, we tackle a listener question regarding the difference between textualism and originalism, inspired by our most recent episode, Episode 157.

Finally, we end with an all-new TTTBE #68 that requires some math to figure out the appropriate measure of damages for breach of contract.  Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

None!  Have us on your show!

Show Notes & Links

  1. This is the National Review article that actually gets Stormy’s story right.
  2. Here’s Mike Murphy’s article expressing skepticism of CA’s claims.
  3. This is the Price v. Facebook class action civil lawsuit, arising out of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.  And here’s the statement from NY Attorney General Eric Schneiderman.
  4. If you wanted to set up a SuperPAC, Andrew’s old pals at Covington & Burling have drafted a simple how-to guide for you.
  5. Finally, here’s a hilarious Tweet from Peter Drice Wright that highlights a key problem with textualism.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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OA157: Are Originalist Judges Qualified? (w/guest David Michael)

Way back in Episode 49, Andrew argued that lawyers who claim to follow in the footsteps of Antonin Scalia-style originalism should be disqualified from serving on the U.S. Supreme Court, and that Democrats on the Senate Judiciary Committee need to be challenging Scalia’s acolytes (like Neil Gorsuch) on their underlying philosophy and not just their compassion (or lack thereof).

In this episode, friend of the show David Michael challenges some of the points made by Andrew in the original episode , as well as raises new ones.  Along with Thomas, we have a great three-way discussion about U.S. history, the Federalist papers, key cases, the underlying work of Robert Bork, and more.  Does Andrew change his mind?   Does Thomas?  Listen and find out!

After the lengthy interview, we end with the answer to an all-new TTTBE #67 about a gang party where the boss just wanted to “send a message.”  Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

None!  Have us on your show!

Show Notes & Links

  1. You can listen to our (ahem) original episode on originalism, Episode 49.
  2. Please also check out David Michael’s new podcast, The Quorum!
  3. Here’s a link to the full text of the Federalist Papers.
  4. United States v. Carolene Products, 304 U.S. 144 (1938).
  5. 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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The legal podcast that helps you make sense of the news.