OA301: The Good News Show!

Today’s episode focuses on a number of actual good developments in the news! From the second half of the Mueller testimony before the House Intelligence Committee, to a court’s issuance of an injunction blocking Trump’s illegal efforts to change the rules on asylum, it’s a (rare) week of good news! Oh — and there’s a brand new intro for your enjoyment as well!

We begin with an update on Mueller’s second round of testimony before the House Intelligence Committee, and answer some questions about whether Rep. Nadler can launch “an impeachment inquiry” without Nancy Pelosi’s approval.

Then, it’s time for some good news out of the courts, including a sweeping injunction handed down in Arkansas with respect to three laws that restrict and/or prohibit abortion, including Act 493, which purported to ban all abortions after 18 weeks. This is exactly what we predicted would happen at the district court level — and you can learn why this particular (159-page!) decision is particularly useful going forward.

But the good news doesn’t stop there! We also break down the Northern District of California’s injunction with respect to the joint DOJ/DHS rule regarding asylum that was rammed through without the appropriate notice-and-comment period last week.

Then, it’s time for a fun segment regarding disciplinary proceedings against everyone’s favorite crazy person, Larry Klayman!

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. Don’t forget that there are just 10 tickets remaining for Opening Arguments Live in New York on August 10, 2019! Click here to get your tickets before they’re gone!
  2. Click here for Nadler’s 2017 impeachment inquiry.
  3. This is the must-read Dana Leigh Marks article in the Washington Post that we discuss on this show.
  4. Finally, click here to read the DC panel’s recommendations against crazy person Larry Klayman.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and 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 finally, remember that you can email us at openarguments@gmail.com!




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OA300: Mueller Testifies!

It’s Mueller Time! Today’s episode drops early to give you our instant reaction to Special Counsel Robert Mueller’s testimony before the House Judiciary Committee. (This only covers the testimony before the House Judiciary Committee, not the subsequent testimony before the House Intelligence Committee.)

There are just 10 tickets remaining for Opening Arguments Live in New York on August 10, 2019! Click here to get your tickets before they’re gone!

We break down everything that transpired — the high points, the low points, and whether anything Moved The Noodle(TM). Specifically, we point out the factual and legal background underlying Mueller’s testimony, the 24 OLC memorandum that is the subject of Mueller’s declination decision, and the standards for indicting a person under 18 U.S.C. § 1512(c).

Plus, you’ll learn the totally misleading takes that right-wing sources are sure to run with, and we’ll equip you with everything you need to rebut those.

After a lengthy breakdown of the day’s events, we head to #T3BE, which involves a breach-of-contract claim against a bar exam tutor and a rather disappointed new lawyer.

Appearances

Andrew was a guest on the latest episode of the Registry Matters podcast discussing the Supreme Court, as well as the most recent episode of Mueller, She Wrote from the live show in Philadelphia talking.. well, pretty much everything!

Show Notes & Links

  1. Don’t forget that there are just 10 tickets remaining for Opening Arguments Live in New York on August 10, 2019! Click here to get your tickets before they’re gone!
  2. Click here to read the Mueller Report.
  3. Click here to read the OLC opinion.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and 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 finally, remember that you can email us at openarguments@gmail.com!




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OA299: Executive v. Judiciary (Worcester v. Georgia)

Today’s episode takes a deep dive into an 1832 decision, Worcester v. Georgia, to try and answer the question of what happens when the executive and judicial branches come into conflict. Yes, there’s a lesson to be drawn to today’s Supreme Court-vs.-Donald Trump showdown over the citizenship question on the census.

We begin, however, with a pair of updates to previous shows, including “Joey Salads” and his nonsense “complaint” against AOC, and a listener email and update from our friend Seth Barrett Tillman regarding the status of the emoluments clauses litigation in both Maryland and DC. In fact, a late-breaking decision in the DC case led to a Patreon-only bonus extra on the topic!

Then, it’s time for the main event: breaking down the case that led to the famous aphorism, “Justice Marshall has made his decision, now let him enforce it.” As is usually the case with these deep dives, there isn’t an easy answer as to what the outcome will be when the executive and judiciary stare each other down, but we can always learn from history.

In the “C” segment, we check out an update from friend of the show Randall Eliason, who taunts us with an Andrew Was Wrong about the future of Bridgegate (from Episode 232). Learn what issue is in fact going before the Supreme Court and why Prof. Eliason thinks the Bridgegate conspirators are going to get off scot-free.

After all that, it’s time for #T3BE #135, in which Thomas once again manages to analyze a question absolutely perfectly… only to pick the wrong answer yet again. You won’t want to miss the full discussion.

Appearances

Andrew was a guest on the latest episode of the Registry Matters podcast discussing the Supreme Court, as well as the most recent episode of Mueller, She Wrote from the live show in Philadelphia talking.. well, pretty much everything!

Show Notes & Links

  1. We last discussed the Emoluments Clauses litigation in Episode 297. and for more, check out our Patreon-only bonus extra on the topic!
  2. Here’s the full text of the 1832 Supreme Court decision in Worcester v. Georgia.
  3. We last discussed Bridgegate in Episode 232, and you can click here to read Prof. Eliason’s latest blog on the topic.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and 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 finally, remember that you can email us at openarguments@gmail.com!




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OA298: Hope Hicks & Weaponized Ticks

Today’s episode tackles the recently-released trove of unredacted documents in the Southern District of New York in Michael Cohen’s case and explains why Hope Hicks might have been ensnared by America’s greatest legal mind, Stormy Daniels. Oh, and have you heard that the Congress ordered the DOJ to investigate… whether the military weaponized ticks and if so, whether those ticks were released against Americans? It’s a weird story that can’t possibly be true… can it?

We begin, however, with the resolution to last episode’s #T3BE (formerly #TTTBE) controversy regarding the definition and conditions required for assault. Learn the results of whether “hissing” constitutes a physical threat… and whether that even matters!

Then, it’s time for long trip up Yodel Mountain. We begin by discussing the… conclusion? of the citizenship question and Andrew lets you know what’s still to come in those cases. After that, it’s time to discuss the House’s resolution of criminal contempt against Bill Barr and Wilbur Ross, and what that likely means going forward. And while we’re still on Yodel Mountain… hey, how about those Michael Cohen docs? Now that the other cases have been concluded, the judge ordered the Cohen search warrants to be released in (mostly) unredacted form, and you won’t believe what they show.

After all that, it’s time for the segment you’ve all been waiting for: WEAPONIZED TICKS. This is a segment so powerful, you won’t believe it (and we won’t spoil it here in the show notes)!

And then it’s time for a new #T3BE involving the rules of evidence and an oral contract. Think you have what it takes to hang with Thomas? Play along online by sharing out this episode, using our new hashtag, #T3BE, and we will reward one winner with Never Ending Fame & Fortune (TM).

Appearances

Andrew was a guest on the latest episode of the Left at the Valley podcast discussing abortion, as well as the most recent episode of Mueller, She Wrote talking.. well, pretty much everything!

Show Notes & Links

  1. It’s not too late! Click here to get tickets for the Opening Arguments LIVE SHOW, live in New York City on August 10th.
  2. If you want to read the Cohen docs yourself, they’re linked here.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and 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 finally, remember that you can email us at openarguments@gmail.com!




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OA297: Twitter, Emoluments & Labor Unions

Today’s episode features a grab-bag of stories that have been making the rounds, including the recent ruling out of the Second Circuit regarding Donald Trump’s use of Twitter, a setback for our buddy Brian Frosh’s efforts to enforce the Emoluments Clauses of the Constitution, and an update on the real-word consequences of the Janus v. AFSCME decision we decry so much around here.

We begin with the Second Circuit’s ruling in Knight First Amendment Inst. v. Trump, which established that a government official may convert a social media platform such as Twitter into a “limited use public forum,” from which he may not block users on the basis of the political content of their speech — i.e., viewpoint discrimination. Almost no one understands this decision; we’ll make sure you’re one of the lucky ones who do!

Then, it’s time for a breakdown of the 4th Circuit’s ruling in In re Trump, which directs the lower court to dismiss the lawsuit (and pending discovery) against Trump in the lawsuit brought by Maryland and D.C. alleging violations of the Foreign and Domestic Emoluments Clauses. Find out what this case is all about, whether the outcome is reasonable, and what’s next.

After that, it’s time for a quick look at the real-world implications of the Janus v. AFSCME decision allowing public-sector union employees to withhold a portion of their dues otherwise allocated for administrative duties under… some crazy right-wing theory that something something something, because Sam Alito knows diminishing the power of unions will hurt Democrats. But what else did that decision do? Listen and find out!

After all that, it’s time for the most controversial #TTTBE yet, in which we discover the answer to Thomas Takes The Bar Exam (regarding larceny and robbery) … or do we? You won’t want to miss this one!

Appearances

Andrew was a guest on the latest episode of the Left at the Valley podcast discussing abortion, as well as the most recent episode of Mueller, She Wrote talking.. well, pretty much everything!

Show Notes & Links

  1. Click here to read the Second Circuit’s ruling in Knight First Amendment Inst. v. Trump (the Twitter case), and here to check out the Fourth Circuit’s ruling in In Re Trump (the Emoluments case).
  2. We first covered the emoluments case way back in Episode 78, and we interviewed Seth Barrett Tillman for his unique take in Episode 35 and Episode 36.
  3. We learned that bad stuff was coming in the emoluments litigation in Episode 239 when the 4th Circuit issued a stay of all discovery; you can read that stay order here.
  4. Finally, click here to read the LA Progressive article on Mark Janus and his conservative activism.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and 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 finally, remember that you can email us at openarguments@gmail.com!




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OA296: Understanding the Jeffrey Epstein Indictment

Today’s episode gives you the legal background you need to understand all of the different legal fronts in the various pending proceedings involving Jeffrey Epstein and the allegations of underage sex trafficking, including the recent criminal indictment in the Southern District of New York, currently pending civil defamation lawsuits against Epstein associates (including Alan Dershowitz), and the effort to reverse the non-prosecution agreement in Florida.

We begin, however, with a preview of some HUGE NEWS — our upcoming live show in New York City the weekend of August 9, 2019! Clear your calendars now and get ready to come see us live and in person!

Then, it’s time to unpack all of the various legal proceedings surrounding Jeffrey Epstein. (For more of a factual analysis of the Florida non-prosecution agreement, check out Episode 259.) You’ll learn about the various defamation lawsuits, their status, and what’s next. And then you’ll also learn where we stand with respect an effort that’s now 11 years old by Epstein’s victims to revoke the non-prosecution agreement. And after all that, we also break down exactly how to parse the deluge of news that’s soon to come out in all of these cases.

After that, it’s time to check back in on the Trump administration’s efforts to defy the Supreme Court and still insert a citizenship question on the census. Learn what Andrew predicts will happen at Trump’s press conference, why the New York court denied certain DOJ lawyers leave to withdraw, what’s next in both the Maryland and New York cases and more!

Of course, no episode would be complete without #TTTBE! This week’s Thomas Takes The Bar Exam is question #134 about criminal law. When a jewelry thief poses as the mayor’s rich and powerful son, what kinds of crimes could he be charged with? You’ll just have to listen and find out!

Appearances

Andrew was just a guest host on Episode 100 of the Skepticrat; check it out! And if you’d like to have either of us as a guest on your show (or at your live show!), drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. Don’t forget to vote for us in the Podcast Awards by clicking on that link (or heading to www.podcastawards.com), clicking the blue “>> Nominations Now Open <<” box, registering with your email, and then selecting us in the drop-down boxes for “People’s Choice” and “News and Politics.” Thank you!!
  2. We last discussed the Epstein case in Episode 259.
  3. Various court documents: here’s the (a) Second Circuit’s ruling to unseal documents in Giuffre v. Maxwell; (b) the Complaint in Giuffre v. Dershowitz and (c) the 2007 Epstein non-prosecution agreement in Florida.
  4. This is the text of the Crime Victims’ Rights Act of 2004, 18 U.S.C. § 3771. Judge Marra ordered that it did violate the CVRA, but that didn’t necessarily mean that the plea deal would be torn up. Judge Marra (SDFla.)’s ruling can be found here.
  5. Here’s the Snopes article about face-swapping Clinton’s face over Trump’s.
  6. Finally, here are the Maryland local rules.


-Support us on Patreon at: patreon.com/law

-Follow us on Twitter: @Openargs

-Facebook: https://www.facebook.com/openargs/, and 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 finally, remember that you can email us at openarguments@gmail.com!




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OA295: A Bladensburg Post-Mortem With Monica Miller

Today’s episode welcomes Monica Miller, counsel for the American Humanist Association, back to the show! Miller, as you know, was the lead counsel and presented the AHA’s argument before the Supreme Court in the American Legion v. American Humanist Ass’n case involving the 40-foot Latin cross on public property in Bladensburg, Maryland.

Andrew and Monica spend the entire show doing a deep dive into the decision, trying to figure out issues like (1) is the Lemon v. Kurtzman test really dead?; (2) how can we make sense of the court’s admonition to “respect the beliefs” of those who oppose taking down the cross?; (3) how can local activists proceed in light of this decision, and much, much more!

After a wide-ranging interview, it’s time for the answer to what Andrew has dubbed the Worst, Stupidest Bar Exam question — this one involving the “equitable conversion” doctrine in the sale of land. Did Thomas somehow manage to get a crazy, stupid, awful real property question correct? Listen and find out!

Appearances

Andrew was just a guest host on Episode 100 of the Skepticrat; check it out! And if you’d like to have either of us as a guest on your show (or at your live show!), drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. Don’t forget to vote for us in the Podcast Awards by clicking on that link (or heading to www.podcastawards.com), clicking the blue “>> Nominations Now Open <<” box, registering with your email, and then selecting us in the drop-down boxes for “People’s Choice” and “News and Politics.” Thank you!!
  2. We broke down the Bladensburg cross case in Episode 256, and interviewed Monica Miller after oral arguments in Episode 274; go check them both out!
  3. Finally, we broke down the details of the American Legion v. American Humanist Ass’n decision in Episode 290.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and 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 finally, remember that you can email us at openarguments@gmail.com!




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OA294: How To Fix The Supreme Court!

Today’s episode reveals Andrew’s plan for how to fix the Supreme Court! Oh, and while you’re here, we’d love it if you would vote for us in the Podcast Awards by clicking on that link (or heading to www.podcastawards.com), clicking the blue “>> Nominations Now Open <<” box, registering with your email, and then selecting us in the drop-down boxes for “People’s Choice” and “News and Politics.” Thank you so much!

We begin with a detailed breakdown of the developments in the multiple census cases in light of the Supreme Court’s ruling last week in Department of Commerce v. New York, which we last discussed in Episode 292. Find out how a parallel case in Maryland may be the key to finally keeping the citizenship question off of the 2020 census!

Then, it’s time for a deep dive. We begin with Bernie Sanders’s answer at the first Democratic Debate, pivot to a discussion of Daniel Epps’s “Supreme Court Lottery” plan, and finally end with the option Andrew prefers. How to fix the Supreme Court? Is it Constitutional Hardball? Listen and find out!

After all that, it’s time for a quick Yodel Mountain update on the status of the Democratic effort to get Trump’s tax returns. Good news, everyone!

And then, as if that wasn’t enough, it’s time for the most pointless Thomas Takes The Bar Exam Question… ever! It’s #133, it’s Real Property, and it’s terrible. And if you would like to participate in this self-inflicted torture, just share out this episode on social media, include your answer and the hashtag #TTTBE, and we will shower one lucky winner with never-ending fame and fortune(*)! (*) – subject to the terms and conditions as set forth orally during this show.

Appearances

Andrew will be a guest at the Mueller She Wrote live show in Philadelphia, PA on July 17, 2019; click that link to buy tickets, and come up and say hi! And remember: if you’d like to have either of us as a guest on your show (or at your live show!), drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. Don’t forget to vote for us in the Podcast Awards by clicking on that link (or heading to www.podcastawards.com), clicking the blue “>> Nominations Now Open <<” box, registering with your email, and then selecting us in the drop-down boxes for “People’s Choice” and “News and Politics.” Thank you!!
  2. We last discussed the census question and the Supreme Court’s opinion in Dep’t of Commerce v. New York in Episode 292.
  3. You’ll want to read the brief transcript of the telephonic hearing held in front of Judge Hazel in the Maryland case. And you can click here if you want to monitor the Supreme Court’s docket to look for the Government’s potential motion.
  4. This is the text of Rule 62.1, which was certainly new to Andrew.
  5. This is a transcript of the second night of the Democratic debate, which contained Bernie Sanders’s Supreme Court answer.
  6. You can click here to read Epps & Sitamaran’s law review article, “The Supreme Court Lottery,” for yourself, and you can fact-check Andrew’s points about the composition of the federal bench here.
  7. Finally, don’t forget to check out jurisdiction-stripping in Ex Parte McCardle, 74 U.S. 506 (1868) and the original law review article written by Charles E. Rice (“Congress and the Supreme Court’s Jurisdiction”).

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and 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 finally, remember that you can email us at openarguments@gmail.com!




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OA293: My Deference & Auer Deference (Kisor v. Wilkie)

Today’s episode revisits a narrow area of administrative law we last discussed in Episode 266, namely, Auer deference. Andrew made a bold prediction in that episode, and find out where he was wrong — and where he was right now that the Supreme Court has ruled in Kisor v. Wilkie. We also discuss the recent unsealing of court records thanks to a CNN reporter and we witness the return of listener favorite segment “Are You A Cop?” with a fabulous question about drinking and driving. Buckle up!

We begin, however, with a look at a recent request made by CNN’s Katelyn Polantz regarding certain court proceedings and records relating to the Mueller Investigation. Does this mean that “BILL BARR KILLED 7 OPEN INVESTIGATIONS?” (No.) But it is significant, and you won’t want to miss why.

Then, it’s time for a deep-dive explainer that starts with a reminder on the principles of agency deference. Don’t remember the exact difference between Chevron deference and Auer deference? We’ve got you covered — including, in particular, how the latter came under attack in Kisor v. Wilkie, a case involving a retired servicemember challenging the internal agency regulations governing disability pay. Should the courts defer to an agency’s interpretation of its own rules, or should it be wildly activist and defer to Neil Gorsuch’s interpretation of those rules? Kisor gives us a slightly different answer than you might expect, all while angling us towards the day soon to come in which the Supreme Court greatly expands the power of the judicial branch.

After that, it’s time for Are You A Cop? featuring some truly terrible advice for how to beat a DUI arrest. (Please do not do this.) We talk about standards of evidence while debunking the notion that you should… drink more when you’re pulled over? (It’s a weird question.)

As if that wasn’t enough, we end with the answer to Thomas Takes The Bar Exam #132 about an escaped, de-fanged, venomous snake. Who’s responsible? Listen and find out!

Appearances

Andrew will be a guest at the Mueller She Wrote live show in Philadelphia, PA on July 17, 2019; click that link to buy tickets, and come up and say hi! And remember: if you’d like to have either of us as a guest on your show (or at your live show!), drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. This is the Raw Story article we criticize during the “A” segment, and to verify what we’ve said is correct, you can read (a) Polantz’s request; (b) the Court’s order; (c) Exhibit A (Search Warrants); (d) Exhibit B (Wiretapping); and (e) Exhibit C (Pen Register/Trap & Trace). Phew!
  2. We previewed Kisor v. Wilkie (read decision) in Episode 266. And, in breaking down Justice Roberts’s holding in Kisor, we also expose shoddy journalism like this Daily Beast article.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and 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 finally, remember that you can email us at openarguments@gmail.com!




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OA292: The End of Democracy

Today’s rapid response episode breaks down the latest decisions from the Roberts court, including the ostensible “win” in Dep’t of Commerce v. Ross (the citizenship question case), and the crushing loss in Rucho v. Common Cause (the gerrymandering cases). Oh, and along the way we’ll also discuss the opioid crisis and the news that Robert Mueller will testify before the House Judiciary Committee. It’s going to be a long and wild ride, so strap in!

We begin by taking a quick trip to Yodel Mountain to discuss the significance and substance of the Congressional subpoena issued to Robert Mueller. What does it all mean? Listen and find out!

Then, it’s time to break down the theory and developments in State of Oklahoma v. Purdue Pharma, et al., CJ-2017-816, the case that’s at the forefront of the efforts to hold pharmaceutical companies responsible for their role in causing the opioid crisis in this country. Find out what a “public nuisance” is, whether manufacturing and selling opioids is one, why this case is important, and much, much more!

After all that, it’s time for the main event: breaking down the Supreme Court’s decisions in Ross and Rucho. Find out why Andrew thinks that John Roberts wrote the Ross opinion going the other way until the evidence broke regarding Thomas Hofeller, and how that means the entirety of the new game is: Shame Justice Roberts. (Oh, and also you’ll learn along the way that our democracy is screwed.)

After all that, it’s time for an all-new, all-awesome Thomas Takes The Bar Exam about strict liability and de-fanged venomous snakes. What madness transpires? Listen and find out, and then play along with #TTTBE on social media!

Appearances

Andrew will be a guest at the Mueller She Wrote live show in Philadelphia, PA on July 17, 2019; click that link to buy tickets, and come up and say hi! And remember: if you’d like to have either of us as a guest on your show (or at your live show!), drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. You can read the Court’s opinion in Dep’t of Commerce v. Ross (the citizenship question case) as well as Rucho v. Common Cause (the gerrymandering case).
  2. Click here to read the Complaint in State of Oklahoma v. Purdue Pharma, et al., CJ-2017-816.
  3. Finally, you can check out the Los Angeles Times article on Purdue Pharma we referenced on the show as well as click here for more information on the MDL litigation pending before U.S. District Judge Dan Polster.

-Support us on Patreon at: patreon.com/law

-Follow us on Twitter:  @Openargs

-Facebook:  https://www.facebook.com/openargs/, and 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 finally, remember that you can email us at openarguments@gmail.com!




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