lawpod

January 11, 2019January 11, 2019

OA243: Build That Wall!!

Today’s episode tackles the mechanics of the shutdown and whether (and how) Donald Trump can build that wall despite widespread opposition.

We begin with an Andrew Was Wrong about the identity of Corey Robin and the incorporation doctrine. Enjoy a fun segue to Gitlow v. New York and why you should never repeat the trope that free speech doesn’t include the right to shout ‘fire’ in a crowded theater.

After that, it’s a deep dive into… what exactly is a “government shutdown,” anyway? What laws govern this? Why do some federal employees have to keep showing up? Isn’t that “involuntary servitude?” And can Trump declare a state of emergency or use “military eminent domain” to just build the wall anyway?

Then, it’s time for our weekly trip back to Yodel Mountain. In Rod We Trust… so why is he stepping down? And what’s the deal with that secret foreign-owned corporation that shut down an entire floor right before the holidays? Listen and find out!

Finally, it’s time for Thomas Takes The Bar Exam #109, another dreaded real property question! 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

Support us on Patreon at: patreon.com/law

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

Download Link

January 7, 2019January 8, 2019

OA242: Larry Klayman is Still Crazy After All These Years

Today’s episode features a deep dive into the Bivens action, with a little help from everyone’s favorite nutso conspiracy theorist lawyer, Larry Klayman — and his newest client, Roger Stone sidekick Jerome Corsi. Find out what sorts of wacky shenanigans these guys have been up to, and why they think they’ve hit a $350 million jackpot. (Hint: they haven’t.)

First, though, we begin with an insightful question from a listener regarding Clarence Thomas’s jurisprudence and whether the frequent criticism of Justice Thomas as lazy is tinged with racism.

During the main segment, it’s time for the breakdown of the latest Corsi lawsuit. It’s a doozy — it’s everything you’d expect from someone who hired Larry Klayman (on purpose!) to be his lawyer.

Then, we answer a fun listener question about court filings, time zones, and the international date line. It’s Around Opening Arguments In 80 Days!

After all that, it’s time for the answer to Thomas Takes The Bar Exam #108 regarding civil procedure. 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

This Vice article collects some of the strangest facts about Clarence Thomas, and this is the Jeff Jacoby op-ed that (factually) reports regarding Thurgood Marshall’s declining years and — in Andrew’s opinion — was misrepresented by Corey Robin.
Click here to read Corsi’s lawsuit against Robert Mueller, and here to read Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the recent Supreme Court case limiting Bivens actions.

Support us on Patreon at: patreon.com/law

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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January 3, 2019January 4, 2019

OA241: Is This The C-Hook That Could Send PG&E To Prison??

Today’s episode takes a deep dive into the potential criminal liability for Pacific Gas & Electric (PG&E) in connection with the 2018 California Wildfires and the c-hook that just might be the linchpin to the whole thing. Are people going to prison? Listen and find out!

We begin by celebrating a brand-new holiday: Oversight Day, with the inauguration of Nancy Pelosi as Speaker of the House. We talk about funding, job postings, and how they all relate to Yodel Mountain.

After that it’s time to get deep — and we mean deep — into PG&E’s latest court filing, what it has to do with a 2010 explosion and a 2016 order, and what really caused the California Camp Fire. Along the way you’ll learn about obstruction of justice (again!), the Natural Gas Pipeline Safety Act (really!), and how a corporation can have an “abandoned and malignant heart.”

Then we end with an all new Thomas Takes The Bar Exam #108 about interstate car collectors-slash-thieves. As always, if you’d like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

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

Your Oversight Day goodies include (a) this fabulous Savannah Guthrie interview with Speaker Pelosi; (b) this equally fabulous Twitter chain from Paul Krugman; (c) the House operations budget for 2019; (d) the Axios story on Republicans seeking to hire investigative counsel; and (e) the screenshot of the jobs posting.
PG&E filings include (a) the PGE Superseding indictment; (b) the jury verdict; (c) the Sentencing and probationary conditions entered by the court; (d) the Court’s Nov. 27, 2018 written questions about the wildfires; (e) the Court’s supplemental order seeking an amicus from the California Attorney General’s office; (f) the answers filed by PGE – PGE Answers, the US Attorneys’ Office, and the California AG; and finally, the PGE written Report – Exhibit A that contains the information discussed on the show.

Support us on Patreon at: patreon.com/law

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

Download Link

December 31, 2018January 1, 2019

OA240: Libertarianism is Still Bad & You Should Still Feel Bad

Today’s special, hangover-free New Years’ episode follows up on some of the things we discussed during our Episode 238 interview with Matt Donnelly of the Ice Cream Social podcast, including the never-controversial subject of libertarianism. Strap in; it’s been an interesting year!

We begin with a listener question from Ricardo, who asks some follow-up questions to our original hot take on libertarianism waaaaaay back in Episode 22. Is there a robust theory of property rights that serves as a side-constraint on government action? You’ll have to listen and find out! (Hint: no.)

After that, Andrew further explains the “Are You A Cop?”-style segment from Episode 238 regarding whether Brett Kavanaugh “voted with the liberals” in an abortion case. (Hint: no.) You’ll figure out all you need to know about the Supreme Court’s denial of certiorari in Gee v. Planned Parenthood and Andersen v. Planned Parenthood… as well as getting a deep dive into Clarence Thomas’s dissent and an explainer on the Medicaid Act, 42 U.S.C. § 1396a!

After all that, it’s time for the answer to Thomas (and Matt) Take The Bar Exam #107 regarding defamation. 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

Check out Matt & Mattingly’s Ice Cream Social podcast!
We first discussed libertarianism back in Episode 22.
You can click here to read Clarence Thomas’s blistering (and inaccurate) dissent from the Court’s denial of cert in the Planned Parenthood cases; click here to check out 42 USC § 1396a(a)(23), the statute at issue; and click here to read the Washington Examiner article discussed on the show.

Support us on Patreon at: patreon.com/law

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

Download Link

December 27, 2018December 28, 2018

OA239: The Fourth Circuit’s Puzzling Emoluments Ruling

Today’s episode takes a deep dive into the just-released one-page order by the Fourth Circuit staying all discovery in the Emoluments litigation brought by Maryland Attorney General Brian Frosh. How do we fill more than an hour’s worth of time on one page? Why is this ruling really, really bad for everyone?? Listen and find out!

We begin, however, with a brief foray up Yodel Mountain to discuss (1) the reports circulating that Michael Cohen’s phone was in Prague in the summer of 2016, and (2) the ethics review of “Acting” Attorney General Matthew Whitaker concerning the Mueller probe.

After that, it’s time for a deep dive into the Emoluments litigation, the strange procedural posture of Trump’s response, and what this means for civil litigation generally (and this case in particular). You won’t want to miss it!

Then we end with an all new Thomas Takes The Bar Exam #107 on defamation. As always, if you’d like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

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

Click here to read the Whitaker ethics review letter, and here to read the Steele dossier.
We last discussed the Emoluments litigation in Episode 226.
You can check out all of these documents: the Fourth Circuit’s order, the motion to stay, and the opposition filed by Frosh.
Trump’s argument is based on 28 USC § 1292(b) and relies on Fernandez-Roque v. Smith, 671 F.2d 426 (11^th Cir. 1982).

Support us on Patreon at: patreon.com/law

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

Download Link

December 20, 2018December 23, 2018

OA237: Lowering the… Barr (Memo)

Today’s Rapid Response episode takes a look at the just-released Law’d Awful Memo written by Attorney General nominee Bill Barr and sent to Deputy AG Rod Rosenstein concerning the Mueller investigation. Are the argument(s) raised in the memo any good? What does this mean for the future of the Mueller investigation? Listen and find out!

We begin, however, with a brief foray into everyone’s favorite show topic: BASEBALL LAW! Find out about the agreement reached between MLB and Cuba, and how (of course) Donald Trump can screw it up.

After that, it’s time for an Andrew Was Wrong (and Maybe Not Wrong) on David Pecker and AMI. Along the way, we’ll learn about the corruption case against Sun-Diamond Growers in connection with former Agriculture Secretary (and nearly-Senator) Mike Espy.

Then, we delve deeply into the Barr memo, taking apart the legal “arguments” and featuring a guest appearance from one Antonin Scalia!

Then, it’s time to tackle the rather surprising decision by Judge Sullivan in the Michael Flynn sentencing phase. What happened? Did he go off the rails?

After all that, we end with an all new Thomas (and Matt!) Takes The Bar Exam #106 on how to best transport heroin from Kansas City to Chicago and what the judge can instruct the jury… it’s complicated, but you won’t want to miss it! And, as always, if you’d like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

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

Check out Matt & Mattingly’s Ice Cream Social podcast!
Baseball law: Here’s the press release from MLB.
We discussed U.S. v. Sun-Diamond Growers of Calfornia, 138 F.3d 961 (D.C. Cir. 1998), aff’d, 526 U.S. 398 (1999).
Don’t forget to read the Barr memo for yourself, and you can also check out the Wall Street Journal article that leaked it.
…And here’s our good buddy Antonin Scalia smacking down the logic used therein.
You can check out the government’s sentencing memorandum in Michael Flynn’s case as well as the memo filed by Covington & Burling on Flynn’s behalf.
Here is the 18-3071 sealed case order.

Support us on Patreon at: patreon.com/law

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

Download Link

December 17, 2018December 18, 2018

OA236: Stairway to… the Supreme Court??

Today’s deep-dive Tuesday tackles a long-running lawsuit by the estate of Randy California — the founder, lead singer, and guitarist for the band Spirit — alleging that Led Zeppelin stole the iconic riff for “Stairway to Heaven” from Spirit’s 1968 song “Taurus.” With assistance from Thomas on guitar, we tackle all of the fun issues that are currently pending before the 9th Circuit… and possibly headed to the Supreme Court!

We begin, however, with two follow-up questions that got cut from Friday’s blockbuster show regarding the American Media, Inc. plea agreement: (1) Could David Pecker still be indicted? and the big one: (2) Can Donald Trump pardon a corporation? The answer… may surprise you!

After that, it’s time for a deep dive into the law regarding musical copyright and an exploration of the similarities and differences between “Taurus” and “Stairway to Heaven.” Where do Andrew and Thomas come out? You’ll have to listen to find out!

After that, it’s time for the answer to Thomas Takes The Bar Exam #105 regarding a bank and a car dealership attempting to modify a contract. 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

We discussed the AMI deal in Episode 235.
You can check out Spirit’s “Taurus” by clicking here.
Click here to read the original (and awesome!) Randy California v. Led Zeppelin complaint; you can also read (1) the jury verdict by the trial court; (2) the brief filed by Taurus in the 9th Circuit; (3) the opposition brief filed by Led Zeppelin; (4) the 9th Circuit’s ruling; (5) the petition for rehearing en banc filed by Led Zeppelin; (6) the opposition to that motion for rehearing en banc; and (7) the just-filed reply brief by Led Zeppelin (filed 12-10-08). Phew!
Finally, click here for a mashup of “My Sweet Lord” (George Harrison) and “He’s So Fine” (The Chiffons).

Support us on Patreon at: patreon.com/law

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

Download Link

December 13, 2018December 14, 2018

OA235: Corporations Are People, My Friend… Criminal People

Today’s Rapid Response episode takes a look at three breaking stories related to the White House: (1) the recent ruling requiring Stormy Daniels to pay Trump’s attorneys’ fees; (2) the sentencing of Trump’s former lawyer, Michael Cohen; and (3) most importantly, the plea deal signed by American Media, Inc. — parent company to the National Enquirer — to cooperate with the Special Counsel’s Office.

We begin by revisiting the question of whether, in fact, Stormy Daniels is still a legal genius. (Hint: she is.) But what does it mean that a court just ordered her to pay Trump nearly $300,000 — and why could it have been much, much worse? Listen and find out.

After that, we check out Trump’s ex-“fixer” and the former Taxi King of New York, Michael Cohen, who was just sentenced to three years in prison.

Then it’s time for a fascinating look into a non-prosecution agreement reached between the Special Counsel’s Office and American Media, Inc. that tell us an awful lot about where Yodel Mountain is headed.

Finally, we end with an all new Thomas Takes The Bar Exam #105 on modifications to a contract. As always, if you’d like to play along with us, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

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

Here’s the merits ruling defamation we referenced during the show; you can also check out Trump’s motion for attorneys’ fees, Avenatti’s (rather weak) opposition brief, and the court’s ruling directing Stormy to pay almost $300,000.
And because it never ends, check out the mediation questionnaire filled out by Avenatti for their appeal to the 9th Circuit.
You know you want to read the press release regarding Michael Cohen’s sentence; after that, you can check out the sentencing memoranda filed by the SCO’s office (“good cop”) as well as the brief filed by the SDNY (“bad cop”).
Finally, this is the AMI agreeement as well as the DOJ guidelines on prosecuting corporations.
Oh, and just for fun, here’s Jose Canseco’s audition to be Trump’s Chief of Staff. #YesWeCanseco

Support us on Patreon at: patreon.com/law

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

Download Link

December 10, 2018December 11, 2018

OA234: Civil Forfeiture, Berkeley & More!

Today’s deep-dive Tuesday tackles a viral oral argument before the Supreme Court in Timbs v. Indiana regarding civil forfeiture — and a delightful question (that inspired the graphic for the show notes) about whether the state can seize your Bugatti for speeding. Oh, and we check back in on the Ann Coulter v. Berkeley lawsuit that was recently settled. What happened? Listen and find out!

We begin with the Berkeley settlement, and break down exactly what the University did (and didn’t) promise to do going forward. Is this a “big win” for the right wing? (Hint: no.)

Then, it’s time to delve deeply into Timbs v. Indiana and discuss the law of civil asset forfeiture, the doctrine of proportionality, and even the concept of incorporation. Yes, it’s a crazy Civ Pro kinda day.. you won’t want to miss it!

Then, it’s time for a BRAND NEW SEGMENT — “Yodel Mountain Remembers!” We think you’re gonna love it!

Oh, and we also tackle a terrific listener question about the “apology doctrine” and the nation that made apologies famous — Canada (of course).

After all that, it’s time for the answer to Thomas Takes The Bar Exam #104 regarding government action and the warrant requirement of the Fifth Amendment. 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