Author: lawpod

Today’s episode is part one of a two-part series in which Thomas and Andrew walk through the short-lived history of the USFL, an alternative football league that ran into the bulldozer that is Donald J. Trump.  Along the way, we learn about jury nullification, antitrust law, and get some insight into Trump’s legal strategies that just might have some relevance today….

First, though, “Breakin’ Down the Law” defines “jury nullification” in order to get you prepared to tackle our main story.  Afterwards, we answer a question from listener Collin Boots, who wants to know why Andrew was so dismissive of term limits back in Episode 54.

Finally, we end with the answer to Thomas Takes the Bar Exam Question #17 about selling a lemon of a used car in “as is” condition. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Andrew just recorded a delightful and moderate discussion of the law of God’s Not Dead 2 with the hosts of the “Is This Reel Life?” podcast.

Show Notes & Links

1. This is the AmLaw article Andrew mentions in which lawyers second-guessed Donald Trump’s choice of litigation tactics way back in 2009.
2. And here is a link to U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995), in which the Court struck down state efforts to limit Congressional and Senate terms.

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In today’s episode, we look at a recent Supreme Court decision that could have wide-ranging effects on future trials.

We begin, however, by “Breakin’ Down the Law” regarding House Intelligence Chairman Devin Nunes.  Did he just violate the law Republicans kept trying to insist applied to Hillary Clinton’s emails?  (Yes.)

In our main segment, we delve into a recent Supreme Court decision, Pena-Rodriguez v. Colorado, in which the Court held that a defendant’s Sixth Amendment right to a fair trial means that jurors must be free to report blatant racial bias in otherwise-private jury deliberations, even if the law says otherwise.  How the Court came down on this issue is also reflective of the split on the Supreme Court between the originalist justices and the mainstream ones.

Next, long-time friend of the show Eric Brewer returns with a question about felon voting rights.

Finally, we end with a brand new Thomas Takes the Bar Exam question #17 that asks about the common law behind “as is” used cars.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Andrew and Thomas were guests on Eiynah’s podcast, Polite Conversations, Panel Discussion #6 talking about liberals vs. conservatives on free speech.  Give it a listen!

Show Notes & Links

1. Here’s the story on Devin Nunes’s disclosures of confidential intelligence briefings to the press and to White House flacks.
2. And this is the text of 18 U.S.C. § 793(f)(1), which is indeed the same statute Republicans sought to use against Hillary Clinton.  This counts as irony, right?
3. And finally, this is the Supreme Court’s decision in Pena-Rodriguez v. Colorado.

Support us on Patreon at:  patreon.com/law

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Today’s episode continues our look at appellate jurisprudence, Supreme Court nominee Neil Gorsuch, and the philosophy of originalism that Andrew continues to insist is so extreme ast o be disqualifying.

First, our much-beloved segment “Are You A Cop?” returns in triumphant fashion with an examination of a claim being raised by many Trump supporters; namely, that the 9th Circuit is “the most reversed appellate court in the country” with a “90% reversal rate.”  Is this claim true?  (No.)

In the main segment, we take a look at the Supreme Court’s just-released opinion in Endrew F. v. Douglas County School District.  Is this a “unanimous reversal” of Gorsuch on appeal while Gorsuch’s nomination remains pending??  As usual, we correct the news sources that got this story wrong and explain its significance to you.

Next, we answer a question/comment from Ed Brayton, author of the “Dispatches From The Culture Wars” blog, who has a different take on originalism.

Finally, we end with the answer to Thomas Takes the Bar Exam question #16 about apparent authority.   Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Andrew and Thomas were guests on Eiynah’s podcast, Polite Conversations, Panel Discussion #6 talking about liberals vs. conservatives on free speech.  Give it a listen!

Show Notes & Links

1. This Politifact Article debunks the claim that the 9th Circuit is the “most reversed” appellate court.
2. This is the text of the Endrew F v. Douglas County School Dist. opinion just issued by the Supreme Court.
3. And here is the Endrew F opinion from the 10th Circuit (not authored by Gorsuch) that was reversed.
4. Finally, this is the Luke P decision that was by Gorsuch discussed in the episode.
5. And by contrast, this is Urban v. Jefferson County School Dist., 89 F.3d 720 (1996), which you can read for yourself and see that Gorsuch deliberately misconstrued.
6. You can read Ed Brayton’s excellent blog, Dispatches From The Culture Wars, by clicking here.

Support us on Patreon at:  patreon.com/law

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In today’s episode, we look at the history and potential future of gerrymandered congressional districts.

We begin, however, with a listener question that’s come to us from multiple sources, including Patrons Greg Boettcher and Adrian Borschow, who want to know if there’s any difference between a “jail” and a “prison.”  We deliver the goods!

In our main segment, we delve into three recent cases regarding the time-honored practice of gerrymandering a state into congressional districts so as to maximize the number of safe seats for any one political party.  How significant is this problem, and can the courts fix it?  Listen and find out!

Next, our much-beloved segment “Closed Arguments” returns with a look at a British tabloid journalist, Katie Hopkins, who was recently forced to pay more than 300,000 pounds (that’s still real money, right?) after mistakenly taunting another journalist on Twitter.

Finally, we end with a brand new Thomas Takes the Bar Exam question #16 that asks whether an administrative assistant has sufficient authority to bind her boss when making contracts. Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

None.  Have us on your podcast, radio or TV show, or interview us!

Show Notes & Links

1. The first Supreme Court case to recognize a constitutional right to a non-gerrymandered district was Davis v. Bandemer, 478 U.S. 109 (1986).
2. Scalia (of course) attempted to overrule Davis v. Bandemer in his 2004 plurality opinion in Vieth v. Jubelirer, 541 US 267 (2004), but could only garner four votes.
3. Since then, the Supreme Court has reaffirmed the basic principle of Davis v. Bandemer in LULAC v. Perry, 548 US 399 (2006), in which only two sitting Supreme Court justices have endorsed the Scalia position.
4. This is a fairly awesome video from former California Gov. Arnold Schwarzenegger making gerrymandering the centerpiece of what is likely to be a run for the Senate in 2018.
5. This is the Whitford et al. v. Gill (Wisc.) decision on gerrymandering that contains a detailed section as to how to detect and remedy “packing” and “cracking.”
6. This is the full text link to the Perez v. Abbott (W.D. Texas) decision on Texas’s gerrymandered congressional districts.
7. Andrew recommends Princeton professor Sam Wang’s work on gerrymandering.  The full text of his Stanford Law Review article is here.

Support us on Patreon at:  patreon.com/law

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In today’s episode, we take a look at a recent claim being made by Sen. Al Franken and others that Attorney General Jeff Sessions perjured himself during his confirmation hearings.

First, we begin with an examination of some legal issues in the news related to the Trump administration.  What does it mean that the ABA rated Supreme Court nominee Neil Gorsuch “well qualified,” and does that mean Andrew is rethinking his opinions to the contrary in Episode 40 and Episode 49?  (No.)  We also delve into a discussion of the recent (non-)story regarding the release of Donald Trump’s 2005 form 1040, as well as the recent decisions by U.S. District Courts in Hawaii and Maryland to issue temporary restraining orders blocking Trump’s Revised Executive Order (“Muslim Ban”).

In the main segment, we break down exactly what Sessions said and whether it meets the technical requirements for perjury.

Next, we answer a question from patron Anthoni Fortier, who asks us what “cert” is and why Andrew keeps saying it.

Finally, we end with the answer to Thomas Takes the Bar Exam question #15 about eyewitness identification.   Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

None.  Have us on your podcast, radio or TV show, or interview us!

Show Notes & Links

1. This is the full text of the Hawaii decision enjoining the Revised Executive Order.
2. If you missed it, you’ll want to check out OA Episode #43, in which we first discussed the 9th Circuit’s Opinion that we revisit in this episode.
3. This is the full text of President Trump’s revised Executive Order (“Muslim Ban”).
4. And this is the decision in Church of Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), which Andrew continues to think is the touchstone for whether Trump’s Revised EO violates the First Amendment.
5. Here is the full text of 18 U.S.C. § 1001, the federal perjury statute.
6. This is a timeline maintained by the Washington Post of Sessions’s relevant conduct.
7. This is the tweet from John Harwood confirming that Russian officials did discuss the election with Jeff Sessions.
8. And here is an article in the National Review arguing to the contrary (largely on the grounds of ‘intent’).

Support us on Patreon at:  patreon.com/law

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In today’s episode, we look at some legal terms that our patrons asked us to define.  In a twist, however, the guys switch chairs and Andrew asks the questions while Thomas tries to offer legal definitions.  How did that work out?   Listen and find out!

We begin, however, with a listener question from Rachel Doty, who — in keeping with this episode’s theme — asks us to define “Alford plea.”

Then, based on a suggestion from patron Marie Kent, we ask Thomas to define as many legal terms as he can in half an hour.  We think this would make an awesome game show, so if any of our listeners are TV producers, please give us a call.

Next, we take a look at a listener who recommended a Facebook post from an immigration attorney, and the guys discuss the concept of “illegal” immigration.

Finally, we end with a brand new Thomas Takes the Bar Exam question #15 that asks whether eyewitness testimony can be tainted by viewing the suspect in police custody.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

None.  Have us on your podcast, radio or TV show, or interview us!

Show Notes & Links

1. Check out Marie’s podcast, My Book of Mormon, by clicking here.
2. This is the Facebook post from immigration lawyer Lily Axelrod that we discuss during the show.
3. The one section of the US Code that Andrew found that uses the term “illegal alien” is 8 USC § 1365(b), which is very different from the colloquial use of the term.

Support us on Patreon at:  patreon.com/law

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In today’s episode, we take a look at the recent Supreme Court decision to rescind its grant of certiorari in the 4th Circuit opinion of Grimm v. Gloucester County School District.  What happened, and what does this mean for transgender rights?

First, we begin with an examination of the Trump administration’s revised Executive Order (sometimes called the “Muslim Ban”) restricting entry from now six Muslim-majority nations. As you may recall, we first addressed this issue back in Opening Arguments episode #43.  Does this revised order comply with the law and solve the problems outlined by the 9th Circuit, or is it still “obviously unconstitutional,” as many news sources claim?  You’ll know better than the New York Times soon enough!

In our main segment, we look at Title IX’s prohibition on “sex” discrimination and discuss whether it applies to discrimination on the basis of sexual orientation and gender identity while walking through the somewhat unique procedural history of the Grimm decision.

Next, we evaluate whether former President Obama would be likely to prevail in a lawsuit for defamation against President Trump for the claim that Obama “wiretapped Trump Towers” prior to the election.  Is this Bat Boy??

Finally, we end with the answer to Thomas Takes the Bar Exam question #14 about IIED.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Andrew was a guest on The Gaytheist Manifesto podcast, discussing the history of Title IX.

Show Notes & Links

1. If you missed it, you’ll want to check out OA Episode #43, in which we first discussed the 9th Circuit’s Opinion that we revisit in this episode.
2. This is the full text of President Trump’s revised Executive Order (“Muslim Ban”).
3. According to this Guardian article, Hawaii has already sued to block the Revised EO.
4. This is the decision in Church of Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), which is the touchstone for whether Trump’s Revised EO violates the First Amendment.
5. Click here to read the (overconfident) New York Times article, “Don’t Be Fooled” that asserts that the Revised EO is blatantly unconstitutional.
6. This is the text of 20 U.S.C. § 1681 (“Title IX”).
7. This is the memorandum issued by the Obama DOJ providing guidance as to how to interpret Title IX.
8. And click here for the 4th Circuit’s now-vacated opinion in Grimm v. Gloucester County School Board that we discuss during the show.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

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In today’s episode, we take a look at a rule first proposed by President Obama’s Department of Labor in 2016 that would require financial advisers to abide by a “fiduciary” duty with their clients.  What does that mean?  Listen and find out!

We begin with a relevant note about the status of the rule, which is due to be implemented in 60 days.

Next, in our main segment, we take a look at the implications of the Fiduciary Rule by consulting an expert; in this case, certified financial planner Ben Offit, CFP® who has a somewhat novel take on this enhanced obligation.  He breaks down what the proposed rule means for you and the financial professionals you might hire.

After the main segment, we turn to a petition that has been garnering significant attention on the Internet:  #ReVote2017.  What is it?  Is it really pending before the Supreme Court, and what does that mean?

Finally, we end with a brand new Thomas Takes the Bar Exam question #14 regarding the tort of the intentional infliction of emotional distress.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Show Notes & Links

1. To find out more about Ben Offit, CFP® and his services, you can visit his firm, Clear Path Advisory, or email Ben at ben@clearpathadvisory.com.
2. This is the announcement that the Fiduciary Rule has been postponed for 60 days.
3. You can also check out the text of the Fiduciary Rule itself.
4. This is the hilarious petition for writ of mandamus filed by the #ReVote 2017 petitioners.
5. And this is the docket entry for their petition, which is currently pending before the Court and will be denied on March 17, 2017, one week from today.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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In today’s episode, we take a long look at the judicial philosophy of “originalism” made popular by former Supreme Court Justice Antonin Scalia and advocated by his would-be replacement.

First, we begin with a question from Jodi, who asks Andrew for his opinion of LegalZoom and other law-in-a-box services.  Andrew gets a little emotional in his response….

Next, we break down originalism as a form of jurisprudence and examine why it is (1) internally incoherent and contradictory; (2) dangerous and unconstrained; and (3) contrary to the fundamental purpose of the judiciary.  Andrew’s argument is that originalists do not belong on the Supreme Court.  Period.

Finally, we end with the answer to Thomas Takes the Bar Exam question #13 about hearsay.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Andrew was a panel guest on The Thinking Atheist episode “Donald Trump’s America,” which you can listen to by clicking right here.

Show Notes & Links

1. Here are Andrew’s two blog posts — one about Legal Zoom and one about downloading contracts off the internet.  His law firm site is here.
2. This Huffington Post piece quotes Scalia’s 2008 interview with Nina Totenberg about the Eighth Amendment not prohibiting 18th-century forms of torture.
3. Here’s a link to the full text of the Federalist Papers.
4. Marbury v. Madison, 5 U.S. 137 (1803).
5. United States v. Carolene Products, 304 U.S. 144 (1938).
6. Scalia’s dissent in Atkins v. Virginia, 536 U.S. 304, 347-48 (2002) and opinion in Printz v. United States, 521 U.S. 898 (1997) are where he makes fun of citations to international law.
7. 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.”

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Today’s episode is a little bit different than our usual format; today, we take a look at three cases that our listeners have asked about on Twitter and Facebook.

First up is an order entered by the U.S. District Court for the Western District of Texas enjoining the state of Texas (and nitwit Attorney General Ken Paxton) from disqualifying Planned Parenthood as an authorized Medicaid service provider on the basis of fake videos.

Next, we tackle a recent ruling by the Washington Supreme Court applying that state’s anti-discrimination law to a florist that decided she couldn’t sell wedding flowers if the participants were gay.  Is this really the worst violation of individual freedom in the history of Western Civilization?

Third, we look at the recent victory in the 11th Circuit by our colleague Dr. Steven Novella of the Skeptic’s Guide to the Universe Podcast, and discuss what the ruling means for (say) podcasters who get sued for libel.

Finally, we end with a brand new Thomas Takes the Bar Exam question #13 regarding hearsay.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday’s show.  Don’t forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)!

Recent Appearances:

Thomas was interviewed by Conatus News about the development of the atheist community on the internet, including the role played by his other podcast, Serious Inquiries Only.

Andrew was a guest panelist on an episode of The Thinking Atheist show, “Donald Trump’s America.”

Show Notes & Links

1. This is the W.D. Texas order restraining the state from blocking Medicaid funding to Planned Parenthood.
2. Here is a link to Washington’s anti-discrimination law.
3. Click here to read David French’s hilariously over-the-top description of this case in the right-wing garbage mag, the National Review.
4. This is the 11th Circuit’s ruling in Tobinick v. Novella.
5. Click here to check out Dr. Novella’s podcast, the Skeptic’s Guide to the Universe.

Support us on Patreon at:  patreon.com/law

Follow us on Twitter:  @Openargs

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

And email us at openarguments@gmail.com

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