Author: lawpod

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

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

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

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

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

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

Recent Appearances

None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

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

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com


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OA162: Tariffs and Trade

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

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

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

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

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

Recent Appearances

None!  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

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

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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OA161: Gun Control & the Constitution

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

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

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

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

Recent Appearances

Andrew was recently a guest on Episode 255 of the Phil Ferguson Show and Episode 96 of the Naked Mormonism Podcast.  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

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

Support us on Patreon at:  patreon.com/law

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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OA160: Schrodinger’s Andrew

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

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

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

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

Recent Appearances

Andrew was recently a guest on Episode 255 of the Phil Ferguson Show and Episode 96 of the Naked Mormonism Podcast.  If you’d like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com.

Show Notes & Links

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

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

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

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

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

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

Recent Appearances

None!  Have us on your show!

Show Notes & Links

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

Support us on Patreon at:  patreon.com/law

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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OA158: Cambridge Analytica

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

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

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

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

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

Recent Appearances

None!  Have us on your show!

Show Notes & Links

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

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com


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

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

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

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

Recent Appearances

None!  Have us on your show!

Show Notes & Links

  1. You can listen to our (ahem) original episode on originalism, Episode 49.
  2. Please also check out David Michael’s new podcast, The Quorum!
  3. Here’s a link to the full text of the Federalist Papers.
  4. United States v. Carolene Products, 304 U.S. 144 (1938).
  5. Harmelin v. Michigan, 501 U.S. 957 (1991) is the infamous decision in which Scalia declared that the Eighth Amendment only bars punishments that are both “cruel” and “unusual in the Constitutional sense.”

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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OA156: Conor Lamb & Pennsylvania Recounts

In this rapid-response episode, Thomas and Andrew discuss Congressman-elect Conor Lamb’s victory in Tuesday’s PA-18 special election and whether the Republicans will be able to recount the results.

After that, Andrew walks through the history of prior restraint under the First Amendment in light of a recent Nevada decision denying the request of the family of one of the Las Vegas massacre victims to suppress his autopsy report… and what that might mean for friend of the show Stormy Daniels.

That segues into another Q&A segment where we tackle Yet More Of Your Stormy Questions; this time relating to (1) choice of law and (2) whether Stormy can simply buy back the settlement for $130,000.

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

Recent Appearances

None!  Have us on your show!

Show Notes & Links

  1. Thomas discussed the political implications of the Lamb election on Episode 128 of Serious Inquiries Only.
  2. We discussed con artist Jill Stein’s “recounts” way back in Episode 25 of this show, and the Pennsylvania order denying standing is here.  You can also read up on Pennsylvania’s Election law, Title 25, Chapter 14.; we specifically discussed §§ 3154(g) (mandatory recounts); 3261-63 (voluntary recounts); and 3459 (bonding requirement).
  3. The key case for prior restraint is New York Times v. U.S., 403 U.S. 713 (1971); you can also read the Nevada Supreme Court opinion.
  4. Please also check out David Michael’s new podcast, The Quorum!

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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OA155: Corporations Are People, My Friend… (and More Stormy)

Today’s episode tackles a popular article in The Atlantic which implies that, but for the machinations of one dude in the 1880s, corporations might not be “people,” today.  Is it true?  Listen and find out!

First, though, we continue to examine the legal genius of Stormy Daniels by answering some of the most common questions raised in response to our episode.  This begins (sadly) with a brief “Andrew Was Wrong” clarification about the operative campaign disclosure requirements as well as an analysis of the arbitration order that came to light just after we went to press with Episode 154, and more!

In the main segment, Andrew takes a trip through the history of corporate personhood.  After that, we answer a delightful question about hearsay from listener Dr. Jeff Otjen.

Finally, we end with the answer to Thomas (and David) Take the Bar Exam Question #66 about murderous political candidates appearing on an “Iron Chef” knockoff… look, you’ll just have to listen for yourself.  Don’t forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

None!  Have us on your show!

Show Notes & Links

  1. We first discussed the Stormy Daniels lawsuit (and linked her complaint) back in Episode 154.  Since then, Susan Simpson has done some pretty top-notch investigative work as to where the Trump campaign may have hid the payoff to Stormy.
  2. The case referred to in the “A” segment is Amendariz v. Foundation Health, 6 P.3d 669 (Cal. 2000).
  3. Our main segment discusses Adam Winker’s article in The Atlantic, focusing on Santa Clara County v. Southern Pacific R.R. Co., 118 U.S. 394 (1886).
  4. Finally, the answer to Dr. Jeff’s question references two different provisions of the Federal Rules of Evidence:  Rule 801 (defining hearsay) and Rule 803 (listing the exceptions).

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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OA154: Stormy Daniels is a Legal Genius

This emergency episode examines the Complaint filed by Stormy Daniels seeking a legal determination that the Settlement Agreement entered into between her, Donald Trump’s lawyer, and (allegedly) Donald Trump is not legally binding.

We honestly believe that this is a much bigger bombshell than is being portrayed by the press.  Listen and find out why.

We also end with an all-new TTTBE #66 featuring David Michael.  You won’t want to miss it!  Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess.  We’ll release the answer on next Tuesday’s episode along with our favorite entry!

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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