OA30: Little Baby Jesus in a Manger



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Well, it’s finally here:  the last Opening Arguments of 2016.  We’re looking forward to 2017 (and our amazing two-episode-per-week schedule).

We begin with some announcements about Law’d Awful Movies, and then turn to Thomas Takes the Bar Exam, where we find out how our intrepid co-host did in answering real-life bar exam prep questions.

Then, we answer a listener question from Jim Sabatowski about the foreseeability of one’s negligence by taking a trip back to law school and talking about the crazy, fireworks-on-a-train-exploding-scale madness that is Palsgraf v. Long Island R.R.248 N.Y. 339, 162 N.E. 99 (1928).

In our main segment, we tackle the confusion world of religious-themed holiday displays.  When is it okay to put a little baby Jesus on the courthouse steps?  We’ll tell you insofar as the Supreme Court has told us, which… isn’t always perfectly clear.

In our “C” segment, we tackle yet another listener question; this one from Skeptic Sarah regarding the controversy over trademark registration for the all Asian-American band “The Slants” and their unique crowdfunding of their Supreme Court legal costs.

Finally, we conclude with TTTBE #4.  Remember that you can play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s).

We’ll see you in 2017… twice as often!

Show Notes & Links

  1. Here’s a link to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which will help you answer TTTBE #3.
  2. While we’re at it, this is the full-text link to Palsgraf v. Long Island R.R.248 N.Y. 339, 162 N.E. 99 (1928), the case every law student knows.
  3. Lemon v. Kurtzman, 403 U.S. 602 (1971), set forth the “Lemon test” that we talk about in the main segment.
  4. Lynch v. Donnelly, 465 U.S. 668 (1984), was the 1984 case that said it was perfectly legitimate for a courthouse to display little baby Jesus in a manger.
  5. But weirdly, Allegheny County v. ACLU, 492 U.S. 573 (1989), was the case from just five years later where the Supreme Court said no, courts couldn’t just display little baby Jesus in a manger, but they could display a menorah, a Christmas tree, and a liberty plaque all together.
  6. We defy you to explain the difference between Van Orden v. Perry, 545 U.S. 677 (2005), which upheld a Ten Commandments monument in Texas, and a decision handed down the exact same day, McCreary County v. ACLU, 545 U.S. 844 (2005), which struck down Ten Commandments posted on the walls out two courthouses in Kentucky.
  7. Finally, this is a copy of the Slants’ Supreme Court brief, which is reasonably entertaining for a legal brief.

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