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OA183: Dissenting on the Supreme Court

**Today’s episode is brought to you by Framebridge! To custom frame your favorite things, go to framebridge.com promo code: OA**

Today’s episode takes a deep dive into two recent 8-1 decisions by the Supreme Court:  Collins v. Virginia and Sveen v. Melin.  What makes a decision nearly unanimous, and what causes that lone Justice to dissent?  Listen and find out!

Our first 8-1 case involves two unique aspects of the 4th Amendment:  the “curtilage” exception and the “automobile” exception.  Which one takes precedence, why, and which Supreme Court justice vehemently disagreed?  Find out if you agree with Thomas — and whether the law is “a ass.”  (Seriously!)

Our second 8-1 case is Sveen v. Melin, which involves whether the state of Missouri can legislate certain presumptions regarding “governing instruments.”  It’s the Contracts Clause!  Seem arcane?  It won’t after you listen to our breakdown!

After that, we answer a fun listener question about how a law firm makes someone a partner in light of our assessment of the Eagan Avenatti law firm in Episode 181.

Finally, we end the answer to Thomas Takes The Bar Exam #80 regarding negligence per se and an impromptu ice rink.  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 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.

And if you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. Click here to read the Supreme Court’s opinion in Collins v. Virginia, and here to check out Sveen v. Melin.
  2. The other decision Andrew referred to was the landmark case of Shelley v. Kraemer, 334 U.S. 1 (1948).

Support us on Patreon at:  patreon.com/law

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OA182: Paul Manafort is Going to Prison

**Today’s episode is brought to you by The Great Courses Plus! Go to thegreatcoursesplus.com/OA to start your free month!**

Today’s Rapid Response Friday spends a lot of time on Yodel Mountain, and in particular evaluating whether Paul Manafort is headed to prison for violating the terms of his pre-trial release as per 18 U.S.C. § 3148(b)(1)(A).  You’ll know soon enough, but we’re predicting that Paulie M is headed to prison.

Of course, no trip to Yodel Mountain has just a single stop, so we also discuss the late-breaking New York state lawsuit filed against Donald Trump, his kids, and the Trump Foundation; the status of the media’s efforts to unseal the Mueller documents, and much, much more!

After that lengthy trip to Yodel Mountain, we also update you on the recent court decision upholding the AT&T / Time Warner merger first discussed in Episode 128.

Finally, we end with an all new Thomas Takes The Bar Exam #80 which asks how a court would rule in a convoluted case involving car-washing, sudden deep freezes, and incompetent trial attorneys.  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

  1. Click here to read the just-filed New York state lawsuit against Donald Trump, his kids, and the Trump Foundation.
  2. Here’s the government’s motion to revoke Paul Manafort’s pretrial release pursuant to 18 U.S.C. § 3148(b)(1)(A) ; here’s the superseding indictment; and here’s Manafort’s response to the government’s motion.  Witness tampering is a crime under 18 U.S.C. § 1512.
  3. You can read the primary case relied upon by Manafort’s lawyers, U.S. v. Edlind, 887 F.3d 166 (4th Cir. 2018) for yourself.
  4. A (federal) criminal motion for a “bill of particulars” is governed by Rule 7(f) of the Federal Rules of Criminal Procedure.  You can also check out Judge Jackson’s Order denying Manafort’s Motion for Bill of Particulars,
  5. We first discussed the press’s motion to unseal the Mueller investigation documents in Episode 168; now you can read the Media Coalition Response brief to the government and Manafort’s separate objections to unsealing the documents.
  6. We broke down the AT&T/Time Warner merger in Episode 128, and you can read Judge Leon’s Order Approving the Merger.

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!

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OA181: Michael Avenatti is Never Going To Come On Our Show (#NotAllLawyers)

Today’s episode takes a deep dive into allegations of attorney misconduct.  We begin with following investigative reporting concerning the involuntary bankruptcy of the Eagan Avenatti firm, and discover some potentially disturbing facts about the lawyer who’s currently outfoxing the bad guys at every turn, Michael Avenatti.

After that, we discuss the Supreme Court’s recent unanimous per curiam decision in Azar v. Garza, the tragic case of the young woman denied her constitutional right to an abortion and subjected to harassment and “crisis pregnancy center” anti-abortion counseling until the D.C. Circuit Court of Appeal stepped in.  So… why did the Supreme Court just vacate that opinion?  It (potentially) has to do with attorney misconduct.  Oh, and this story also tells you everything you needed to know about price ceilings on underwear in the 1940s.  (Really!)

Then, we examine the biggest example of attorney misconduct at the moment — Donald Trump’s ever-fluctuating team of lawyers defending the indefensible.  Specifically, we take a look at the recently-leaked Dowd memorandum and its central claim that the President cannot obstruct justice with otherwise-legal behavior.  (That’s false.)

Finally, we end the answer to Thomas Takes The Bar Exam #79 regarding the conveyance of property to a church with conditions attached.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

If you can’t get enough of our analysis of the Masterpiece Cakeshop opinion, you can get even more on Episode 142 of Serious Inquiries Only (with more Andrew Seidel) and Episode 277 of The Scathing Atheist (with way more profanity).

And if you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

  1. This is the investigative piece on the Eagan Avenatti bankruptcy published by the Los Angeles Times.
  2. We last discussed Garza v. Hargan on Episode 165.  You can read the Supreme Court’s opinion (now captioned Azar v. Garza) here.  And if you want to read United States v. Munsingwear, Inc., 304 U.S. 36 (1950), you can do that too!
  3. Finally, if you can stomach it, here’s a link to the Dowd memo.

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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OA180: Masterpiece Cakeshop

Join us for an early Rapid Response Friday, in which we break down the Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  To tackle a topic this big, we needed a little extra help, so we brought back our favorite guest, Andrew Seidel, attorney with the Freedom From Religion Foundation.  But that’s not all!  We recorded so much information that we decided to do a crossover episode with Serious Inquiries Only, so you can have over two hours of Andrew-on-Andrew (and Thomas!) action.

We begin, however, on Yodel Mountain, with two pieces of news arising out of Paul Manafort’s criminal trial.  Is Paulie M going to jail?  Did he engage in illegal witness tampering?  Did he back up his encrypted WhatsApp messages on an unencrypted iCloud?  Listen and find out!  We also delve into Manafort’s response to the press’s motion to unseal the Mueller investigation documents first discussed in Episode 168.  And, as long as we’re yodeling, we might as well catch up on what’s going on in the Summer Zervos lawsuit first discussed in Episode 176.

After that, it’s time to figure out exactly what’s going on in Masterpiece Cakeshop.  Is this a narrow decision?  Is it a win for anti-LGBTQ forces?  Is it a nothing-burger?  Listen and find out!

Finally, we end with an all new Thomas Takes The Bar Exam #79 about the real property conveyance to a church.  Yes, it’s more 13th-Century Saxony law!  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 and Andrew continued to talk Masterpiece Cakeshop on Serious Inquiries Only, and Andrew was a guest talking the same thing on Episode 177 of The Scathing Atheist.

Show Notes & Links

  1. Here’s the government’s motion to revoke Paul Manafort’s pretrial release.  Witness tampering is a crime under 18 U.S.C. § 1512.
  2. We first discussed the press’s motion to unseal the Mueller investigation documents in Episode 168, and the Summer Zervos lawsuit back in Episode 176.
  3. We’ve uploaded Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission so you can read it for yourself.
  4. If you love Andrew Seidel, you might want to go back to his  FIVE previous appearances on the show, Episode 82 (on Trinity Lutheran), Episode 85 (which was originally a Patreon-only exclusive),Episode 111, Episode 131, and most recently, Episode 171.
  5. Finally, please consider supporting the Freedom From Religion Foundation.

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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OA179: Abortion and Plea Bargaining

Today’s episode takes a deep dive into two developments concerning the right to an abortion in the U.S., followed by our continuing discussion on plea bargaining with listener comments from prosecutors, public defenders, the U.S. judiciary, and even international listeners.  You won’t want to miss it!

We begin with an in-depth examination of the so-called “gag rule” just proposed by Trump’s Department of Health and Human Services.  Is it really a gag rule?  (Yes.)

After that, we look into the Supreme Court’s recent decision not to grant certiorari in Planned Parenthood v. Jegley, allowing an 8th Circuit decision to stand that, in turn, denied a preliminary injunction blocking a restrictive Arkansas abortion law, HB1394.  Is this a bad sign?  (Yes.)

After that, we return to the subject of plea bargaining that’s been a hot topic in our inbox for weeks, capped off by the Iowa Supreme Court’s discussion of the issue in  Schmidt v. Iowa.

Finally, we end the answer to Thomas Takes The Bar Exam #78 regarding whether the jury can read a treatise on mill grinding.  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

  1. For context on the Trump HHS gag rule, you can read Title X, 42 USC § 300 et seq.
  2. Planned Parenthood v. Jegley, 864 F.3d 953 (8th Cir. 2017), denied a preliminary injunction, allowing HB1394 to take effect.  You can read the cert petition here.
  3. If you’re feeling good about Schmidt v. Iowa and need to be reminded that “actual innocence” is not a ground for federal habeas corpus relief, check out Herrera v. Collins, 506 U.S. 390 (1993).

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!

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OA178: Trump and the NFL

Join us for yet another Rapid Response Friday, in which we continue to evaluate claims on the left challenging the legality of the NFL’s policy regarding the national anthem, as well as discuss two items that are also of interest to Donald Trump.

We begin with a listener question we didn’t get to during our Q&A regarding the similarities and differences between the John Edwards affair and the Stormy Daniels affair.  Is this the kind of thing that should give Trump comfort?  (Hint:  no.)  Oh, and you might also learn something about an “Allen charge” if you follow us all the way down all our rabbit trails!

After that, we break down the “state action doctrine” while considering some liberal arguments making the rounds ostensibly challenging the legality or constitutionality of the NFL’s new rules.  Andrew still isn’t buying it!

Then, we trek back to Yodel Mountain to discuss the recent developments in Michael Cohen’s case in the Southern District of New York.  Was Andrew… wrong?  Listen and find out!

Finally, we end with an all new Thomas Takes The Bar Exam #78 regarding whether the jury can read a treatise on mill grinding.  It’s more interesting than it sounds, we promise!  If you’d like to play 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. In the pre-show, we (don’t) discuss, among other things, the Trump administration’s breaking decisions on steel tariffs; for analysis, we refer you to our coverage of this issue back in Episode 162.
  2. This is the text of the 6-count John Edwards indictment, and we also quoted from the coverage of the acquittal by ABC News.
  3. We covered the “Paid Patriotism in the NFL” report in Episode 108; you can also read that report directly by clicking here.  Oh, and this is the Mike Florio PFT article, if you want to read more about how the NFL is in Jerry Jones’s pocket.
  4. If you like semi-old-timey Supreme Court decisions, you should definitely read Marsh v. Alabama, 326 U.S. 501 (1946) about First Amendment rights in a company town.  Once you’ve gotten through that, you can tackle Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) on the entanglement doctrine.
  5. This is the Ben Sachs Vox article we discussed.
  6. Your guide to Yodel Mountain includes this awesome NYT flowchart as well as this solid narrative article in Politico.
  7. Finally, this is the full text of Avenatti’s withdrawal of his pro hac vice motion.

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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OA177: Neil Gorsuch’s Epic Decision & the NFL (feat. Chris Kristofco)

Today’s episode takes a deep dive into the recent Supreme Court decision in Epic Systems Corp. v. Lewis, a Gorsuch opinion that is exactly what we told you to expect back when he was nominated to the Court.  Oh, and we also tackle the latest policy issued by the NFL with our four-time guest, Chris Kristofco.

And that’s where we begin:  with a detailed breakdown of the legal implications of the NFL’s just-announced policy prohibiting on-field peaceful protests during the national anthem.  You won’t want to miss it!

During the main segment, we break down the Supreme Court’s 5-4 decision upholding the use of mandatory arbitration clauses that waive the right to class action lawsuits in take-it-or-leave-it contracts of adhesion.  But — because this is a Gorsuch opinion — you won’t be surprised to learn that it’s so very much worse than you thought.

After that, we move into a listener comment on plea bargaining that foreshadows an upcoming episode….

Finally, we end with the answer to Thomas Takes the Bar Exam Question #77 about the constitutional requirements (if any) to a 12-person jury and/or a unanimous one.  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 on the Dumb All Over Podcast, episode 70.  Go check it out!

Show Notes & Links

  1. If you liked Chris and want to hear more, you can check out his excellent sportsball podcast, Titletown Sound Off, or you can check out his  previous appearances on the show:  Episode 6 (on the NFL), Episode 32 (on Phil Ivey’s gambling), and Episode 68 (on Aaron Hernandez).
  2. Also, our guest Chris Kluwe predicted something like this back in Episode 115.
  3. Click here to read the Supreme Court’s opinion in Epic Systems Corp. v. Lewis.  If you want to check out the data cited in Ginsburg’s dissent; that’s here.

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!

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OA 176: It’s Summer (Zervos) Time!

It’s time for another Rapid Response Friday, which means we get to break down whether Donald Trump has to respond to the Summer Zervos defamation lawsuit.  (Hint:  yes)

We begin, however,  with a potential Stormy Setback.  What’s the deal with press reports of a $10 million judgment entered against Stormy Daniels’ attorney, Michael Avenatti?  Could it jeopardize the pending litigation?  Listen and find out!

After that, we break down the recent federal district court opinion in Knight First Amendment Institute v. Trump, which we covered when the case was first filed way back in Episode 77.  Are Donald Trump’s Tweets really a “protected forum” to which the First Amendment applies?  Listen and find out!

Then, we break down exactly how duplicitious Donald Trump’s personal lawyer has been regarding the Summer Zervos lawsuit.  It’s exactly as much as you’d expect!

Finally, we end with an all new Thomas Takes The Bar Exam #77 regarding the constitutional requirement to a trial by jury.  If you’d like to play along with our new Patreon perk, 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

Andrew was just a guest on the Dumb All Over Podcast, episode 70.  Go check it out!

Show Notes & Links

  1. We discussed Michael Avenatti’s pro hac vice motion in Episode 174; you can also read the LA Times article about the bankruptcy judgment, as well as check out both the Avenatti involuntary bankruptcy petition and the Avenatti creditors list.
  2. We analyzed several cases, the most hilarious of which is Kohlmayer v. AMTRAK, 124 F.Supp.2d 877 (D.N.J. 2000).
  3. Trump’s Tweets were first discussed in Episode 77, along with the Davison v. Loudon County decision.
  4. You should read the Knight First Amendment Institute v. Trump decision.
  5. This is the Supreme Court’s decision in Clinton v. Jones, 520 U.S. 681 (1997), and if you want to read Marc Kasowitz’s deliberately misleading statements yourself, you can do so here.

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!

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OA175: Defending a Client In the Shadow of the Death Penalty (& So Much More!)

Today’s episode takes a deep dive into two important Supreme Court opinions decided last week:  McCoy v. Louisiana, which prohibits attorneys from conceding their client’s guilt over that client’s objections in a capital murder trial, and  Murphy v. NCAA, which struck down the Professional and Amateur Sports Protection Act (PASPA), 28 U.S. Code § 3701 et seq.  In both cases, we hope to show that these cases have two legitimate sides.

We begin, of course, with sportsball.  What is PASPA, why did the Court strike it down, does it make sense, and most importantly:  when can you bet against the San Jose Sharks?

In the main segment, we break down the difficult questions surrounding the representation of capital murder defendants.

After that, we head back overseas with a really insightful listener comment that takes us deeper into the law of treaties.

Finally, we end with the answer to Thomas Takes the Bar Exam Question #76 about present recollection refreshed.  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

  1.  The first case we break down is  Murphy v. NCAA, which struck down the Professional and Amateur Sports Protection Act, 28 U.S. Code § 3701 et seq.
  2. After that, we turn to McCoy v. Louisiana, which prohibits attorneys from conceding their client’s guilt over that client’s objections in a capital murder trial, distinguishing the Court’s earlier decision in Florida v. Nixon, 543 U.S. 175 (2004).
  3. We discussed treaty obligations in Episode 173.

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!

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OA174: Is Michael Avenatti Fit To Practice Law In New York?

It’s time for another Rapid Response Friday, which means we get to break down Michael Avenatti’s response to the opposition to his motion to appear pro hac vice in the Southern District of New York — amongst many, many other issues!

We begin, however,  with a brief Andrew Lived Through The 1980s segment (formerly: Andrew Was Wrong), that segues into an update on the Panmunjom Declaration discussed in Episode 173.

After that, it’s time to go yodeling, where we break down Paul Manafort’s other criminal trial, Michael Avenatti’s ethical responsibilities regarding SARs,  Donald Trump’s financial disclosures, and (sadly) much, much more.

Finally, we end with an all new Thomas Takes The Bar Exam #76 regarding the admissibility of witness testimony.  If you’d like to play along with our new Patreon perk, 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. Here is the text of the Panmunjom Declaration we first discussed in Episode 173.
  2. You can read Judge Jackson’s ruling denying Manafort’s Motion to Dismiss, and also Avenatti’s Response to Michael Cohen’s Opposition to his motion to appear pro hac vice.
  3. The primary case relied upon by Avenatti in his response is In re JPMorgan Chase Bank N.A., 799 F.3d 36 (1st Cir. 2015), which is directly on point.
  4. We’ve also uploaded a copy of Trump’s 2018 Financial Disclosures, which admits the Cohen payment.
  5. Finally, we highly recommend Ronan Farrow’s New Yorker reporting regarding the Cohen SARs.

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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