Opening Arguments

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Welcome to the first Opening Arguments of 2017, and the first episode on our new two-episode-per-week schedule.  Just a reminder:  we will be releasing these episodes on Tuesdays and Fridays every week.  More on scheduling below.

Today’s episode begins with a far-fetched (but interesting!) hypothetical about what would happen if Donald Trump refused to take the Presidential Oath of Office.  We dig into the Constitution, the 20th Amendment, and the 25th Amendment and go down some fun rabbit trails.

For our main segment, we return to the McDonald’s “Hot Coffee” lawsuit we discussed in OA 29, and tackle some common questions about negligence raised by listeners.

Next, “Breakin’ Down the Law” returns with a segment that explains the difference between “legalizing” and “decriminalizing” … stuff.  Yeah, “stuff.”

Finally, we end with Thomas Takes the Bar Exam, where we find out how our intrepid co-host did in answering real-life bar exam prep question #4 about trespass.  Going forward, TTTBE will always be an answer on Tuesday followed by a new question on Friday.

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).

Show Notes & Links

1. If you missed OA29, you might want to go back and listen to find out all that’s right and wrong about the McDonald’s “Hot Coffee” lawsuit.
2. Also, we gave you a little holiday present by releasing LAM #1: The Firm to all of our listeners.  If you haven’t listened already, we think you’ll enjoy it.

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Follow us on Twitter:  @Openargs

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And email us at openarguments@gmail.com

Direct Download
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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And email us at openarguments@gmail.com

SPECIAL CHRISTMAS GIFT!

This is normally for Patrons only, but we wanted to gift our non-patronizing listeners a gift and a sample of what they might be missing over at patreon.com/law!!

Behold the majesty of what you are about to receive.  This is, hands down,  the worst legal movie ever made.  From the opening credits to the cheesy ending voice-over, literally everything this movie has to say about the law is completely and utterly wrong.

Yes, for our first Patreon movie reward, we suffered through all 2 hours and 34 minutes of The Firm (1993), which chronicles the amazing journey of Mitch McDeere (Tom Cruise), an I’m-no-idealist Harvard Law grad who refuses to break some imaginary law he thinks exists regarding attorney-client privilege, but has no problems with extortion, illegal wiretapping, fraud, and kicking a 92-year-old man to death.

Come for the crazy legal subplot that can be solved in two seconds!  Stay for the crazy second legal subplot that gets introduced for the first time right after most movies are rolling the credits!  Stay even longer to watch the epic Tom Cruise-Wilford Brimley fight to the death!

 

Special guest:  Sam from Comedy Shoeshine.

———

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And email us at openarguments@gmail.com

 

It’s a two-episode week!  In this week’s Wednesday episode, we are joined by Tom & Cecil of the Cognitive Dissonance podcast for a discussion about freedom of speech and whether online platforms such as Facebook and Twitter ought to be considered “public spaces.”

We begin with some announcements about the schedule, including Thomas Takes the Bar Exam, which will remain a weekly feature once we move to our twice-per-week format in January.  So no new question today, but you will have a few extra days to answer TTTBE #3.

Then we take a look at the new Texas law requiring funereal services for aborted embryos and miscarriages, and Thomas takes a shot at analyzing the issue.  Is all his hard work studying for the Bar Exam paying off?  Listen and find out!

Finally, the show concludes with a discussion of the 1994 McDonalds “Hot Coffee” lawsuit, Liebeck v. McDonald’s Restaurants, as an example of legal myths gone awry.  What exactly happened in that case, and what does it say about whether we should have caps on punitive damages or other forms of “tort reform” in the U.S.?

Show Notes & Links

1. Check out the Cognitive Dissonance podcast!
2. Here are the actual fetal tissue rules promulgated by the Texas Health Services that require “interment” of “the products of spontaneous or induced human abortion.”
3. A federal judge in the Western District of Texas recently issued a temporary restraining order blocking the implementation of the rules pending a preliminary injunction hearing to be held on January 3.
4. Whole Women’s Health v. Hellerstedt, 136 S.Ct. 2292 (2016), provides some guidance as to how the Supreme Court might treat the Texas abortion rules.
5. Here’s the CollegeHumor video on the McDonald’s “Hot Coffee” lawsuit.

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And email us at openarguments@gmail.com

In this week’s episode, we conclude our discussion of Planned Parenthood v. Casey, 505 U.S. 833 (1992), and how the “undue burden” test the Supreme Court developed in that case continues to govern laws protecting (and restricting) abortion today.

However, we begin with the moment you’ve all been waiting for:  the answer to Thomas Takes the Bar Exam!, Question #2.   Right now, Thomas is 1-for-1 in bar exam questions — did he get it right again?  Is he on his way to an honorary law degree, or will he become the first associate in the history of the Firm to fail the bar exam?

After that, we look at the abortion-related question of the lawsuit ostensibly brought by Sofia Vergara’s frozen embryos.  Is this a meritorious lawsuit or a publicity stunt orchestrated by a goofball anti-abortion columnist?

The long-awaited “Are You A Cop?” returns with a comment by Hall of Fame patron Sakashite Fukasumi, who has a snarky comment about lineups.  But what exactly are police lineups used for, anyway? Don’t you need one to convict?  “Are You A Cop?” dispels that myth once and for all….

And all of this goodness comes to a close with an all-new Thomas Takes the Bar Exam! Question #3.  Remember that you too can play along on Twitter!

Show Notes & Links

1. Planned Parenthood v. Casey, 505 U.S. 833 (1992).
2. Here’s the story of the Sofia Vergara lawsuit, which includes a copy of the complaint ostensibly filed on behalf of her frozen embryos.
3. An example of how the Casey “undue burden” test is still in operation today is the recent Supreme Court decision striking down Texas statutes imposing strict requirements on abortion providers in the state.

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And email us at openarguments@gmail.com

In this week’s episode, we return to the subject of abortion and pick up with a cliffhanger from way back in episode #11, where Thomas was asked how he would have handled what became the Supreme Court case of Planned Parenthood v. Casey, 505 U.S. 833 (1992).  We talk about that landmark decision, how it changed the law fom Roe v. Wade, and what its implications are on today’s efforts to protect (and curtail) abortion rights.

However, we begin with the moment you’ve all been waiting for:  the answer to Thomas Takes the Bar Exam!, Question #1.  Did Thomas get it right?  Is he on his way to an honorary law degree, or will he become the first associate in the history of the Firm to fail the bar exam?

After that, we tackle a listener question from Paul, one of our patrons, who asks about retroactivity and the potential for Trump’s appointee(s) to the Supreme Court to overturn Casey and Roe and make abortion illegal.

Then, “Breakin’ Down the Law!” returns with a discussion of exactly what it means to bring a class action lawsuit.

And all of this goodness comes to a close with an all-new Thomas Takes the Bar Exam! Question #2.  Remember that you too can play along on Twitter!

Show Notes & Links

1. Planned Parenthood v. Casey, 505 U.S. 833 (1992).
2. An example of how the Casey “undue burden” test is still in operation today is the recent Supreme Court decision striking down Texas statutes imposing strict requirements on abortion providers in the state.

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

This week’s super-sized episode is literally jam-packed with five all-new segments for our listeners; six if you haven’t heard both parts of the Second Amendment Masterclass already.  And make sure you stay tuned all the way to the end for our exciting new segment!

First, you get an all-new introduction with new quotes, many of which were suggested by you, our listeners!

Second, we have some fun news about patron rewards and upcoming goodies.

Third, our opening segment sees the return of “Breakin’ Down the Law,” with a discussion of stare decisis and what really makes for an activist judge.  The right’s favorite charge whenever a court decision doesn’t go their way is that the judge was a “left-wing activist” — what exactly does that mean, and what is judicial activism?  Stay tuned.

Fourth, our main segment concludes the masterclass on the Second Amendment begun in OA21; even if you’ve heard it before, we think it’s worth another listen to try and figure out exactly what the Second Amendment means and where the future lies for this thorny political and constitutional issue.

Fifth, we follow that with a weekly listener question, this one from Brian Osborne who asks for some clarity about what exactly recounts are and how they proceed.

And sixth — and we’re really excited about this one! — we introduce an all new segment, “Thomas Takes The Bar,” in which our intrepid co-host answers real-life bar exam questions and you, the listener, get to play along!

Show Notes & Links

1. District of Columbia v. Heller, 128 S. Ct. 2783 (2008).
2. United States v. Miller, 307 U.S. 174 (1939).
3. Here’s a Slate article about the Green Party’s refusal to post the $1 million appeal bond in Pennsylvania.

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In this week’s episode, we discuss the recent efforts by Jill Stein and the Green Party to raise funds for Presidential recounts in Wisconsin, Pennsylvania, and Michigan.  Should you rush out and open your wallets to help raise funds for the Green Party?

“Breakin’ Down the Law” returns with a discussion on court structure.  If you’re a little bit lost at all of Andrew’s talk of the “Second Circuit of This” and the “Federal District Court of That,” our segment should help clear all that up for you!

Finally, our listener question looks at a standard courtroom trope in TV and movies:  is “circumstantial” evidence really just bad evidence?  What does it mean, anyway?  Listen to this episode, and you too can be pedantic the next time you’re watching Law & Order reruns.

And speaking of movies, remember that patrons will get special access to our 3-hour movie review of The Firm — the movie Andrew considers to be the worst legal movie of all time!  So if you’d like to hear Andrew have an aneurysm trying to explain what attorney-client privilege is, or you want some of our other cool rewards, or you just want to support the show, please consider becoming a patron at the link below.  Thank you!

Show Notes & Links

1. This is a handy map of the U.S. Circuit Courts of Appeal so you can find your circuit.
2. Here is a link to the current Jill Stein disclaimer regarding recounts, which may or may not be the same as the one we read on the air.
3. Here is a screenshot of the original disclaimer, which has since been edited.
4. This is a link to MCL 168.862, which provides that a petitioner must be “aggrieved” by election official(s) to have standing to bring a recount.
5. Holland v. U.S., 348 U.S. 121 (1954) is the Supreme Court decision that analyzes circumstantial evidence, holding that it is intrisinically no different than testimonial evidence.

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In part two of this two-part episode, we continue to address every unique listener question posted to the Opening Arguments Facebook page relating to the impending Trump presidency.

So if you’re wondering whether Trump will be impeached, if Obama can recess appoint Merrick Garland to the Supreme Court, about the future of the ACA, or what Trump’s Supreme Court might look like — well, this is (the continuation of) the show for you.

Remember that patrons got early access to this show and will continue to get all sorts of fun bonus benefits!  Please consider supporting the show.

Show Notes & Links

1. Trump’s terrifying list of his 21 potential Supreme Court nominees is here.

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

In part one of this two-part episode, we tackle every unique listener question posted to the Opening Arguments Facebook page relating to the impending Trump presidency.

So if you’re wondering whether Trump will be impeached, if Obama can recess appoint Merrick Garland to the Supreme Court, about the future of the ACA, or what Trump’s Supreme Court might look like — well, this is the show for you.

Part two airs at the regular time next week but patrons will gain access to it early!

Show Notes & Links

1. Trump’s terrifying list of his 21 potential Supreme Court nominees is here.

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