lawpod

July 19, 2018July 20, 2018

OA193: This Is Worse Than Watergate – PLUS Mandalay Bay Suing Victims?

Today’s Rapid Response Friday breaks down the recent lawsuit filed by the Mandalay Bay casino regarding the 2017 Las Vegas shooting. Is it true that the casino is suing the victims? What’s that all about?? Listen and find out! Also, we check in with Yodel Mountain and figure out, once and for all, if this is really worse than Watergate. (Hint: yes.)

We begin, however, with everybody’s favorite segment, Andrew Was Wrong, in which we revisit the Supreme Court with a few corrections.

The main segment tackles the Mandalay Bay lawsuit and explains the concept of a declaratory judgent as well as the 2002 SAFETY Act upon which Mandalay Bay is attempting to rely.

Next, we return to Yodel Mountain to discuss the recent Mueller indictments, Donald Trump’s Treason Summit with Russia, and ingenue Mariia Butina. It’s as salacious as OA ever gets!

Finally, we end with an all new Thomas Takes The Bar Exam #85 involving (ugh) real property. If you’d like to play along, 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!

Recent Appearances

If you didn’t see Andrew’s live appearance on Left-Right Radio with Chuck Morse, you can check out the YouTube archive of it. 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

This is the link to the 2011 Ethics Report authored by Chief Justice John Roberts.
Here’s the Above The Law article we mentioned at the start of the main segment.
We’ve uploaded a copy of the MGM/Mandalay Bay lawsuit so you can read it for yourself.
The SAFETY Act can be found at 6 U.S.C. § 441 et seq., and the implementing regulations are at 6 CFR § 25.7.
We discussed the Senate Intelligence Committee’s report in Episode 190.
Here’s the link to the Mother Jones article about Butina documenting the claims made in the C segment.

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

Direct Download

July 16, 2018July 16, 2018

OA192: Capital Punishment, the Eighth Amendment &… Obergefell?

Today’s episode takes an in-depth historical look at the Eighth Amendment’s prohibition on “cruel and unusual punishment” and what that might mean for the future of Obergefell v. Hodges in the next Supreme Court. What does capital punishment have to do with gay marriage? Listen and find out!

We begin, however, with a discussion of the District Court’s refusal to modify the Flores settlement we discussed in Episode 184. Find out what the court thinks of Trump’s Executive Order to “keep families together” at the border… by indefinitely detaining minors in violation of the law.

After that, it’s time for a double-length dive into the history of Eighth Amendment jurisprudence, and in particular, the Supreme Court’s decision outlawing capital punishment in 1972 (Furman v. Georgia) and then reversing itself just four years later (Gregg v. Georgia). Is this a blueprint for what the next SCOTUS will do? Listen and find out!

Finally, we end the answer to Thomas Takes The Bar Exam #84 regarding spousal privilege. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

By the time you download this, Andrew will have been a guest discussing Judge Kavanaugh with conservative talk show host Chuck Morse. 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 first discussed the President’s Executive Order regarding family separation in Episode 184; and you can click hear to read the District Court’s Order refusing to modify the Flores settlement.
The first case we discussed was Pavan v. Smith, 137 S.Ct. 2075 (2017), in which Roberts refused to sign on with the hard-right dissent.
Our two main cases we broke down were Furman v. Georgia, 408 U.S. 238 (1972) and Gregg v. Georgia, 482 U.S. 153 (1976).
Finally, we strongly recommend reading Justice Brennan’s 1986 Oliver Wendell Holmes lecture in which he explains his view of the Eighth Amendment.

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

Direct Download

July 12, 2018July 13, 2018

OA191: Fact and Fiction About Brett Kavanaugh

Today’s Rapid Response Friday does not take a victory lap about our successful prediction that Brett Kavanaugh would be Donald Trump’s next nominee to the Supreme Court (but seriously, we called that right, y’all.) Instead, Andrew and Thomas break down some of the current stories surrounding Kavanaugh to separate fact from fiction and try and articulate the best mainstream case against confirming Kavanaugh to the Supreme Court.

In the pre-show, we give a shout-out to everyone who made the Opening Arguments Wiki possible — go check it out! It’s amazing!

After that, Andrew Was Wrong returns with a clarification from Episode 187 where Andrew misspoke. And also, the guys have a slight laugh at Andrew’s inability to pronounce locations of things.

The main segment tackles a bunch of current stories surrounding Judge Kavanaugh, including: (1) the allegation that Judge Kavanaugh has concluded that sitting Presidents can’t be indicted; (2) the Yale open letter opposing his nomination; (3) a truly stupid article in The Hill arguing for a lawsuit to block Kavanaugh; (4) the potential conflict of interest with Kennedy’s retirement; and (5) the notion of “packing the Court” in 2020. Phew!

Next, Andrew gives us an eight-second sneak peek at a court’s refusal to permit the Trump administration to modify the Flores settlement and why that’s good news.

Finally, we end with an all new Thomas Takes The Bar Exam #83 involving spousal privilege. If you’d like to play along, 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!

Recent Appearances

Andrew was just a guest co-host on Episode 75 of the Skepticrat podcast; go check it out! Also, Andrew will be discussing Judge Kavanaugh with conservative talk show host Chuck Morse. 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

For starters, here is the Tweet from Alexandria Ocasio-Cortez we criticized, along with the pretty funny humor piece from Andy Borowitz.
You should definitely read Kavanaugh’s 2009 Law Review article “Separation of Powers During the Forty-Fourth Presidency and Beyond” in the Minnesota Law Review.
This is the Yale Open letter.
This is the dreadful Ken Levy article in The Hill that Andrew debunks.
These are the actual Senate Rules, and remember that we broke down the “nuclear option” way back in Episode 59.
On Anthony Kennedy’s negotations, check out Rule 3(C)(1) of the Code of Conduct for U.S. Judges, which we previously discussed in Episode 129.
As homework for next week, read the Court’s order denying the Trump Administration’s request to modify the Flores settlement, which we first covered in Episode 184.
Finally, NEVER ENDING FAME AND FORTUNE goes to:Paul Duggan, Zach Aletheia, Eric Brewer, Teresa Gomez, Andrew Hamilton, Robin Hofmann, and Beverly Karpinski-Theunis for creating the OA Wiki!

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

Direct Download

July 9, 2018July 10, 2018

OA190: Good News, Everyone! (On Abortion Rights & More)

Today’s episode — at long last — brings us some good news from two rather unlikely sources: first, from the state of Iowa (regarding abortion rights), and second, from the Republican-controlled Senate Intelligence Committee. You won’t believe your ears!

We begin, however, with a segment that’s good news for everyone except Andrew: yes, it’s the ever-popular Andrew Was Wrong. This time, Andrew owns up to a serious mistake regarding the fingerprinting regulations at the border, and an almost-as-serious mistake regarding the bustling metropolis of Olathe, Kansas.

In the main segment, Andrew breaks down Planned Parenthood v. Reynolds, a recent state supreme court opinion invalidating a 3-day waiting period (with other onerous restrictions on abortion) that provides optimism and a way forward for progressives as we prepare for decades of a right-wing federal judiciary. Find out how states can protect reproductive freedom and abortion rights separate from the U.S. Supreme Court.

After that, it’s time for a return trip to Yodel Mountain, where we check in on the Senate Intelligence Committee’s endorsement of the joint agency report from January 2017 concluding that the Russian government deliberately interfered in the US elections with a strong preference for Donald Trump to Hillary Clinton.

Finally, we end the answer to Thomas Takes The Bar Exam #83 regarding the tort of assault and an unloaded firearm. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Andrew was just a guest co-host on Episode 75 of the Skepticrat podcast; go check it out! 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

Click here to read the Planned Parenthood v. Reynolds opinion.
For future activism, click this link to determine whether your state has elected or appointed state supreme court judges.
The Intelligence Community Assessment is here; you can also read the Senate Intelligence Committee’s report validating that assessment here.

Support us on Patreon at: patreon.com/law

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

Direct Download

July 5, 2018July 5, 2018

OA189: Supreme Court Justice Brett Kavanaugh

Today’s Rapid Response Friday gives you a sneak preview of what to expect from the person we predict will become Donald Trump’s next nominee to the Supreme Court, Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit.

We discuss:

Why it’s likely to be Kavanaugh and not any of the other rumored contenders, especially flavor-of-the-minute Amy Coney Barrett
Kavanaugh’s view of the First Amendment’s establishment clause and the future of Lemon v. Kurtzman
Kavanaugh’s views on abortion
How Kavanaugh differs (and how he doesn’t!) from Neil Gorsuch when it comes to Chevron deference
The weird conservative hit squad out to get Kavanaugh
And much, much more!

After all that, we end with an all new Thomas Takes The Bar Exam #83 involving assault with an unloaded gun. If you’d like to play along, 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!

Recent Appearances

Thomas was just a guest on Episode 421 of the Cognitive Dissonance 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

If you want a head start on Tuesday’s show, check out the just-released Senate Select Committee on Intelligence report.
This is the Notre Dame speech/law review article in which Kavanaugh lays out his judicial philosophy and essentially auditions for the Supreme Court.
We discussed the following cases: Good News Club v. Milford Central School, 533 U.S. 98 (2001), Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), Priests for Life v. Department of Health & Human Services, 808 F.3d 1 (D.C. Cir. 2015) (en banc), Garza v. Hargan, 874 F.3d 735 (D.C. Cir. 2017) (en banc), United States Telecom Ass’n v. FCC (D.C. Cir., 2017) (en banc), PHH v. Consumer Financial Protection Bureau, 881 F.3d 75 (2018) (en banc), Seven-Sky v. Holder, 661 F.3d 1 (D.C. Cir 2011), and Heller v. D.C., 670 F.3d 1244 (D.C. Cir. 2011)!
Right-wing weirdo roundups: Here’s the National Review endorsement of Kavanaugh; this is the truly bizarre Jacobs piece in The Federalist; and here is the Federalist Society’s own rebuttal.
Finally, a preemptive Andrew Was Wrong: Here’s Raymond Kethledge’s University of Michigan address on how bad Chevron deference is.

Support us on Patreon at: patreon.com/law

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

Direct Download

July 2, 2018July 2, 2018

OA188: Three Cases About Voting Rights

Today’s episode takes a look at three recent decisions from this Supreme Court and how each one will affect voting in the midterm elections: Husted v. Randolph Institute, Abbott v. Perez, and (surprisingly) Janus v. AFSCME.

First, though, we begin by addressing a conspiracy theory that’s making the rounds suggesting some nefarious relationship between Anthony Kennedy’s son, Justin, and Donald Trump. Does this story hold water? Listen and find out!

Then, we break down each of the three cases: Husted, involving Ohio’s efforts to purge voters from its rolls; Abbott, involving Texas’s efforts to racially gerrymander Congressional districts; and Janus, which will result in drastically weaker public sector unions. What does this mean for the midterms? (Hint: it’s not good.)

Finally, we end the answer to Thomas Takes The Bar Exam #82 regarding the search and seizure of heroin from plain sight. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Thomas was just a guest on Episode 421 of the Cognitive Dissonance 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

If you missed last year’s Fourth of July Spectacular, that was Episode 83.
You can read the Liptak & Haberman New York Times article about Trump and Kennedy by clicking here.
The Ohio case is Husted v. Randolph Institute, and the Texas cdase is Abbott v. Perez.
Before you read Janus v. AFSCME, you may want to check out our extensive coverage of the case back in Episode 150.
The statute the 5-4 majority blatantly ignores in Abbott is 28 U.S.C. § 1253.
Finally, this is the research Andrew mentioned regarding the correlation between right-to-work states and lower voter turnout and lower Democratic share of the vote.

Support us on Patreon at: patreon.com/law

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

Direct Download

June 30, 2018June 30, 2018

OA187: Lowering the Lukumi Bar?

Today’s Bonus Episode asks if there’s a way to make sense of the Supreme Court’s Lukumi jurisprudence in light of this week’s rulings in Trump v. Hawaii (the Travel Ban), Masterpiece Cakeshop, and the somewhat surprising decision to remand the Arlene’s Flowers case back to the state of Washington.

We begin, however, by checking in with the Southern District of New York’s Order approving the Taint Team’s review of documents seized from Michael Cohen’s offices by the Department of Justice. How many documents did the Team recommend the Court withhold as privileged? The answer may surprise you!

After that, we revisit the thesis advanced by Andrew Seidel in Episode 180 that the Supreme Court’s decision in Masterpiece Cakeshop might result in a more vigorous application of its 1993 decision in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).

Next, we break down the Supreme Court’s 5-4 decision in NIFLA v. Becerra, in which the Court struck down a California law regulating so-called “crisis pregnancy centers.”

After all that, we end with an all new Thomas Takes The Bar Exam #82 involving the legality of a search for heroin. If you’d like to play along, 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!

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

Check out the Southern District of New York’s Order regarding Cohen’s meager haul of privileged documents.
Andrew Seidel set forth his “Lukumi bar” thesis in Episode 180; you can read Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) for yourself and then compare it with both Trump v. Hawaii and Masterpiece Cakeshop.
We discussed Planned Parenthood v. Casey at length in a two-part series: Episode 27 and Episode 28; you might want to compare the statute approved in that case with the one struck down by the Court in NIFLA v. Becerra.

Support us on Patreon at: patreon.com/law

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

Direct Download

June 28, 2018June 28, 2018

OA186: Anthony Kennedy & the Future of the Supreme Court

Today’s Rapid Response Friday comes after a busy week at the Supreme Court, capped off by the (somewhat) surprising announcement that Associate Justice Anthony Kennedy intends to retire as of July 31, 2018.

We break down everything about this news, including:

What the Trump administration is likely to do next
Who President Trump might nominate to fill Kennedy’s spot
How the Democrats should respond
What the next Supreme Court might look like
How all of this plays in with the 2018 midterms and 2020 Presidential election
And much, much more!

We’re also going to bring you a bonus episode to make sure you’re fully informed as to all the other goings-on in the law this week!

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

We broke down the “nuclear option” in Episode 59. Mitch McConnell announced that the Senate would not recess for the summer on June 5.
Here are the (generally reliable) Cook Political Report ratings of the 2018 Senate races.
This is the Mother Jones article on Anthony Kennedy’s 2017-2018 votes.
This is the list of Trump’s 25 potential Supreme Court nominees.
These are the resources discussed in the future segment, including the When Every Vote Counts law review article, the Slate article on 5-4 splits, and the SCOTUSBlog data regarding the 2017-2018 term.
Finally, if you’re feeling nostalgic, you might want to reread Obergefell v. Hodges while it’s still good law. An d if you’re feeling super optimistic, you can even check out the “Above the Law” blog post arguing that it will survive Kennedy’s departure (it won’t).

Support us on Patreon at: patreon.com/law

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

Direct Download

June 25, 2018June 26, 2018

OA185: Gerrymandering & Other Good (?) News

Today’s episode tries to put a positive spin on some recent developments, including the Supreme Court’s gerrymandering decisions, the Department of Justice OIG report on the 2016 election, and the triumphant return of Everyone’s Favorite Segment (TM): “Are You A Cop?”

We begin with the Office of the Inspector General’s 2016 Election Final Report, which we modestly point out validates literally everything we said in one of our favorite Episodes, OA 13, “Hillary Clinton’s Damned Emails.” There’s so much more to learn, so you’ll want to listen up!

After that, we tackle the main segment, looking for some good news out of the Supreme Court’s recent “decisions” on gerrymandering in Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland). These 9-0 decisions are widely viewed as having punted on gerrymandering; is that right, and if so, what does the future hold?

After that, we tackle a trope that “everyone knows” in fan-favorite segment “Are You A Cop?” This week, it’s that “everyone knows” cops can’t have sex with people in their custody, right? RIGHT? Well, thanks to one Democratic legislator in a deep red state, it’s now true in Kansas, at least.

Finally, we end the answer to Thomas Takes The Bar Exam #81 regarding a law designed to target two college professors who crafted campus hate speech codes. Remember 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

We first discussed Hillary Clinton’s emails and the Comey investigation way back in Episode 13, and if you haven’t listened, you should check it out! Then, compare what we said then to the just-released Office of the Inspector General’s 2016 Election Final Report.
Our explainer on Gerrymandering is Episode 54; we then talk about the Wisconsin case in Episode 80 and the Maryland case in Episode 148.
Of course, you can (and should!) read the Supreme Court’s recent decisions on gerrymandering in Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland).
Here is the text of Kansas HB2621, which amends KSA Supp. 21-5512(a), defining “unlawful sexual relations.” A “Severity Level 5 Person felony” is subject to 50-55 months in prison as per the Kansas Sentencing Guidelines.

Support us on Patreon at: patreon.com/law

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

Direct Download

June 21, 2018June 22, 2018

OA184: Families at the Border

Today’s Rapid Response Friday helps separate fact from fiction when it comes to the heartwrenching issue of families being separated at the border. Is the Trump administration to blame? Did the recent Executive Order fix the problem? Listen and find out.

First, though, we bring back (almost) everyone’s favorite segment: Andrew Was Wrong! Specifically, Andrew was wrong when he predicted back in Episode 83 that Maajid Nawaz didn’t have much of a defamation case against the Southern Poverty Law center, and in Episode 84 that he didn’t have much leverage, either. Well, both of those predictions looked foolish now that the SPLC has agreed to pay Nawaz $3,375,000 and issue an unconditional apology.

In the main segment, we break down Trump’s EO regarding separating families at the border and requesting a modification to the Flores v. Reno settlement. It’s bad. And if it weren’t bad enough, we also discuss the administration’s change in asylum policy.

After that, we discuss the Supreme Court’s recent opinion in Pereira v. Sessions. Surely that can’t be bad news, too? (Don’t call us Shirley.)

Finally, we end with an all new Thomas Takes The Bar Exam #81 involving the constitutionality of a state legislature retaliating against two professors for pushing campus speech codes. Have we piqued your interest yet? Listen and find out! And if you’d like to play along , 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!

Recent Appearances

Andrew was recently a guest on the David Pakman Show, with a two-part appearance discussing whether President Trump can be indicted and if so, whether he can pardon himself. You can watch the video on YouTube.

Show Notes & Links