Podcast – Page 72 – Opening Arguments

September 6, 2018September 7, 2018

OA207: Brett Kavanaugh’s Confirmation Hearings

Today’s Rapid Response Friday tackles the ongoing Supreme Court Confirmation Hearings for Brett Kavanaugh — including an analysis of documents that broke literally after we recorded the show! Find out if any of this can slow down Kavanaugh’s presumed path the SCOTUS.

We begin, however, with listener feedback on our rather controversial Episode 205 (with Andrew Seidel) as well as follow-up emails regarding 3-D guns and our contributions to SwingLeft.

After that, we break down the critical documents leaked today by Sen. Cory Booker (D-N.J.) that show 1) Kavanaugh’s nakedly partisan approach to the court; 2) Kavanaugh’s nonexistent view of the value of precedent when it comes to Roe v. Wade; and 3) possible perjury. Is this a big deal? YES. Will it move the needle? We’ll see.

After that, we return to Yodel Mountain to discuss Paul Manafort’s impending DC trial and the somewhat-overlooked plea by W. Samuel Patten. Who’s that? Listen and find out!

Finally, we end with an all new Thomas Takes The Bar Exam #92 regarding impeaching the testimony of a gang member at trial. 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!

Recent Appearances

Thomas was recently the guest masochist on this week’s God Awful Movies, reviewing “New World Order.” It’s hilarious — don’t miss 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

Here are the Kavanaugh email and Kavanaugh email 2 documents discussed during the main segment. For more Kavanaugh document fun, check out this comprehensive New York Times article.
This is W. Samuel Patten’s Criminal Information, to which he pled guilty, and here is the Statement of the Offense, which explains the connection to the Trump campaign and White House.
Finally, this is the late-breaking document showing possible perjury.

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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September 3, 2018September 4, 2018

OA206: Will This ONE WEIRD TRICK Unravel the Mueller Investigation?

Today’s episode takes us back to Yodel Mountain, where we take a look at a popular article making the rounds suggesting that (you guessed it) this ONE WEIRD TRICK might unravel the entire Mueller investigation. Should you be worried? (No.)

We begin, however, with the rare (but delightful!) Thomas Was Right segment revisiting 3-D guns and the Arms Export Control Act. What’s going on? Listen and find out!

In the main segment, we take apart this Politico story suggesting that McKeever v. Sessions hold the key to Yodel Mountain.

After that, we tour what’s left of Yodel Mountain to discuss the latest developments with our buddy Paulie M. Did he really try to plead out in advance of his next trial? What’s next on the horizon for everyone’s favorite ostrich-vest-wearing money launderer?

Then, we end with Thomas (and Andrew!) Take the Bar Exam Question #91 regarding the separation of church and state and graduation prayers. 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

Here’s the injunction granted in the 3-D guns case.
This is the Politico story regarding McKeever v. Sessions.

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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August 30, 2018August 31, 2018

OA205: More on Masterpiece, Younger & the Catholic Church (w/guest Andrew Seidel)

Today’s episode tackles two big church/state separation stories currently circulating right now: the recent lawsuit filed by the owner of the Masterpiece Cakeshop, and the Pennsylvania grand jury investigation of the Catholic Church. And, of course, there’s no better guide to these issues than friend of the show and Director of Strategic Response for the Freedom From Religion Foundation, Andrew Seidel.

We begin the Masterpiece, going in depth on the case we first discussed back in Episode 201. Find out what the Andrews think will happen to this case — and along the way, you’ll learn something about Younger abstention!

After that, we turn to the Pennsylvania grand jury investigation regarding the Catholic Church, discuss statutes of limitation, and learn what we can do about it going forward.

Finally, we end with an all new Thomas (and Andrew!) Take The Bar Exam #91 involving — by sheer coincidence! — the First Amendment and prayers at a student graduation. 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

To sign up for the FFRF’s action alerts, text FFRF to 52886.
We first discussed the new Masterpiece proceeding in Episode 201; you can also check out the case we discussed on Younger abstention, Ohio Civil Rights Commission v. Dayton Christian Schools, 477 U.S. 619 (1986).
You can click here to read the full Pennsylvania grand jury report.
Please read Andrew Seidel’s article, “It’s Time To Quit the Catholic Church.”

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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August 27, 2018September 8, 2018

OA204: The Perjury Trap (w/guest Randall Eliason)

Today’s episode welcomes back one of our favorite guest experts, former prosecutor and current law professor Randall Eliason of the Sidebars blog, who will help us break down what exactly a “perjury trap” is — and whether Robert Mueller is laying one for the President.

Of course, when we have a guest this good, we also have to take advantage of his expertise in a couple of other areas. So we begin by checking in on the news of the day: Mueller has already reportedly offered immunity to David Pecker, the CEO of the National Inquirer, whom we discussed at great length on Episode 203 in connection with the Cohen plea.

After that, we delve into Rudy Giuliani’s contention that Mueller is laying a “perjury trap” for the President. Is that a thing? Is that what he’s doing? Listen and find out!

After that, we revisit the issue of reporters and confidential sources, where Professor Eliason has been a consistent voice opposing a federal privilege. Is that a view he still holds? There’s only one way to know for sure!

Finally, it’s time for the answer to Thomas Takes the Bar Exam, where our intrepid hero tries to inch closer to the coveted 60% mark with a question about torts. 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

Prof. Eliason first guested on the show way back in Episode 70.
Here is the link to the NPR interview with Prof. Eliason discussed on the show.
To read more of Prof. Eliason’s work, click here to visit the Sidebars blog.
Here is a transcript of Prof. Eliason’s statement on reporter’s privilege in the age of Trump.

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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August 23, 2018August 23, 2018

OA203: Paul Manafort Convicted, Michael Cohen Pleads

Today’s extra-long, extra-early Rapid Response episode tackles the two biggest stories in the news right now: Paul Manafort’s conviction, and Michael Cohen’s plea deal. We tell you exactly what these two big stories actually mean.

We begin with Paul Manafort. What did the jury decide? Why did they fail to reach a verdict on 10 counts? What were those counts? How long is Paulie M going to stay in prison and what’s next? And, most importantly: what does this mean for Yodel Mountain? How likely is Paulie M to flip on Donald Trump? We answer all of these questions and more!

After that, we turn to everyone’s favorite weasel, Michael “I Would Take A Bullet For Donald Trump” Cohen, who… has not taken a bullet for Donald Trump but has in fact pled guilty to eight separate crimes. What are they, what does it mean, and what comes next? Listen and find out!

And if all that wasn’t enough, we end with an all new Thomas Takes The Bar Exam #90 involving foreseeability, cross-motions for summary judgment, and tortious conduct. 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

You’ll want to start with the Manafort indictment, and you can also read the Manafort verdict. Of the eight guilty counts, Manafort was convicted under 18 U.S.C. § 1344, 26 U.S.C. § 7206(1), and 31 U.S.C. § 5322.
We first discussed the Federal Sentencing Guidelines back in Episode 162; you can check out the full manual (long!) and also the FSG Sentencing table to figure out how long Paulie M is going away.
And don’t forget Manafort still has another trial pending in DC! We gave you a primer on that back in Episode 194, and you can check out the pending indictment in that case.
If Paulie M flips, it will be to take advantage of Rule 35(b) of the Federal Rules of Criminal Procedure.
Of course, we first covered how Stormy Daniels is a Legal Genius back in Episode 154, and then the Karen McDougal story in Episode 158.
Here’s Cohen’s plea deal; here are the conditions of his release; and here’s the article quoting his allocution.
Sneak preview of the bonus episode: here’s the DOJ manual on prosecuting campaign finance violations that proves Alan Dershowitz is lying. Again.

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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August 20, 2018August 21, 2018

OA202: Roundup (With Special Guest the SciBabe!)

Today’s episode takes an in-depth look at the recent $289 million dollar verdict handed down by a California state jury for a man who alleges that the herbicide Roundup (TM) gave him cancer.

First, we break down the facts of the lawsuit. Then, we have on special guest Yvette d’Entremont — a.k.a. the SciBabe — to break down the science behind glyphosate (the active chemical in Roundup).

After that, it’s time for everyone’s favorite Thomas (& Yvette) Take the Bar Exam, where our dynamic duo attempts to get it right when it comes to the proper measure of damages for breach of contract. 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

If you’d like to read some of the original court documents, here’s the Roundup complaint, the Roundup motion to strike; and finally, here’s the Roundup verdict.
In the legal analysis, we discussed Rule 702 of the Federal Rules of Evidence and the standards set forth in Daubert v. Merrell Dow, 509 U.S. 579 (1993).
And, of course, you should check out the SciBabe’s website.

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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August 16, 2018August 17, 2018

OA201: Follow Up Friday!

Today’s Rapid Response Friday is actually a Follow Up Friday! We revisit four stories from recent episodes and go into more depth on each one, particularly in light of recent developments.

We begin with our most recent story regarding reporter’s privilege in Episode 200. What’s the other side of the argument? Find out why friend of the show Randall Eliason thinks that reporter’s ought not to have the right to keep their sources confidential!

After that, we move back one more episode to Episode 199 and tackle some important listener questions about asbestos. Along the way, we discuss the difference between strict liability and negligence and delve into theories of market share liability.

Our main segment covers the unsurprising fact that Masterpiece Cakeshop is back in the news. What does this mean? How has the Supreme Court’s decision changed the landscape for religious exemptions to laws? Listen and find out!

After that, we go back to Yodel Mountain and check in with the conclusion of the Manafort trial. Phew!

And if all that wasn’t enough, we end with an all new Thomas (and Yvette) Take The Bar Exam #89 involving the appropriate damages for breach of contract. 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

We discussed reporter’s privilege in Episode 200; for the other side, check out this 2007 article by Randall Eliason on the BALCO scandal or this law review article in the American University Law Review.
Of course, we discussed asbestos in Episode 199, but we first broke down the law of negligence way back in Episode 29. We cite to the Restatement (Second) of Torts § 520 and Sindell v. Abbott Labs, 607 P.2d 924 (1980).
Click here to read the new Masterpiece Cakeshop complaint.

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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August 13, 2018May 7, 2019

OA200: Reporters and Confidential Sources

Today’s episode takes an in-depth look at the legal protections reporters have (and don’t have) to keep their sources confidential.

We begin, however, with an update on how “Elections Have Consequences,” this time, looking at the state of the House of Representatives in light of last week’s special election in OH-12.

After that, we dive deeply into reporter privilege, beginning with a discussion of the Supreme Court’s decision in Branzburg v. Hayes and continuing through to the recently-proposed Free Flow of Information Act of 2017.

Next, the guys break down the Electronic Frontier Foundation’s take on the 3-D guns. Do Andrew and Thomas change their minds? Listen and find out!

Finally, we end the answer to Thomas Takes The Bar Exam #88 about waiver and/or modification of contract. 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 Thinking Atheist podcast with Seth Andrews. 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

Some political links: click here to read The Hill‘s report on Trump claiming that he was “5-for-5,” and here to check out the Cook Political Report‘s revisions to House races in light of the Balderson-O’Connor race in OH-12,
Click here to read the Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665 (1972), and here to read the recently-proposed Free Flow of Information Act of 2017.
We discussed 3-D guns in Episode 197, and you can read the EFF’s take here. The EFF’s primary case is Herceg v. Hustler Magazine, 814 F.2d 1017 (5^th Cir. 1987).

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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August 9, 2018August 13, 2018

OA199: Asbestos??!? (Or: Why Is This Man Smiling?)

Note: the SaneBox url in this episode is incorrect. Please go to https://www.sanebox.com/opening to take advantage of a great deal on their product!

Today’s Rapid Response Friday breaks down everything you need to know regarding the Trump EPA’s recent rules change regarding asbestos. Is it as ominous as it sounds? (Yes.)

We begin, however, with the oddest OA segment of all time: Devin Nunes was right! What was he right about, and what’s a Michael Kinsley gaffe? You’ll just have to listen and find out!

After that, in a bonus segment, the guys break down the recent indictment of Chris Collins (R-NY-27) for insider trading.

The main segment breaks down the EPA’s Significant New Use Rule (SNUR) regarding asbestos and help you evaluate the competing claims being lobbed back and forth. Did the Trump Administration open up the use of asbestos in household products? Or did they make it harder to use asbestos as the EPA claims? We give you a definitive answer.

After that, Andrew partially answers a listener question in light of Rick Gates’s testimony in the Manafort trial while teasing that the rest will get answered sometime soon.

And if that wasn’t enough, we end with an all new Thomas Takes The Bar Exam #88 involving a contract, waiver and modification, and subsequent assignment to another party. Phew! 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 Thinking Atheist podcast with Seth Andrews. 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 a link to the NBC story on the Devin Nunes tape; and here’s a link to one in the Washington Post; they’re both delightful.
This is the Collins indictment, and this is the text of 17 CFR 240.10b-5.
The TSCA is 15 U.S.C. § 2601 et seq.
Here’s the letter that the ACC wrote to the EPA back in August of 2016 arguing that they should be able to use asbestos.
For an in-depth critique of the Trump EPA’s evaluative process, you can check out the annotated source documents and the summary article in the New York Times.
Here’s the text of the new EPA SNUR, and here’s the (laughable) EPA dissembling as to what it means.
Finally, here’s the report on Rick Gates’s cross-examination over his affairs.

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

August 6, 2018August 7, 2018

OA198: What Is Alan Dershowitz Thinking?

Today’s episode takes an in-depth look at Donald Trump’s favorite “liberal,” Harvard Law professor Alan Dershowitz as seen through the eyes of one of his former students.

We begin, however, with an update from the Paul Manafort trial, taking a look at the prosecution’s strategy, witness list, and some preliminary rulings by Judge Ellis.

After that, we dive very deeply into what looks like a very weird phenomenon: why is Alan Dershowitz carrying water for a President whom he ostensibly opposes? Why is he saying things that are demonstrably and indefensibly untrue about the law?

Andrew has a theory. Mostly, though, he has stories and research… but they lead to a theory (we promise)!

Finally, we end the answer to Thomas Takes The Bar Exam #87 regarding constitutional law and a state vs. the federal Confrontation Clause. 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