Opening Arguments

In today’s episode, we take a look at arbitration, an increasingly popular device being used to take disputes out of the courtroom.  What might arbitration mean for you?  Listen and find out!

We begin, however, with a question from patron Faye Reppas, who asks about HR 2802, the so-called “First Amendment Defense Act.”

Next, in our main segment, we take a look at the implications of arbitration — particularly in the employment context, where your employer may have inserted a mandatory arbitration clause in your employment agreement.  What does arbitration do?  Can you be compelled to do it?  We break it all down for you.

After our main segment, we tackle another listener question; this one from Eric Walls about corporate personhood.

Finally, we end with a brand new Thomas Takes the Bar Exam question #11 regarding the testimony of a plaintiff who’s had surgical sponges accidentally left inside of her (a surprisingly common occurrence).  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. This is the text of the proposed HR 2802, the First Amendment Defense Act.
2. Andrew wrote two articles on arbitration for his firm blog:  you can read Part 1 and Part 2 for more in-depth analysis.
3. Here’s a link to the Federal Arbitration Act, 9 U.S.C. § 1 et seq.
4. Here is a link to Andrew’s appearance on the David Pakman show.

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In today’s episode, we take a look at the ongoing status of Executive Order 13769 (often referred to as the “Muslim Ban”).  What exactly did the 9th Circuit decide, and how does it affect the status of efforts to restrict emigration going forward?

We begin, however, with a Breakin’ Down the Law segment where we examine the so-called “Johnson Amendment.”  What is it?  Would it be a bad thing if the Trump administration repeals it?  Does it really make a difference?  We break down the law so you’ll be armed with the information you need to answer these questions.

Next, we take a deep-dive into the 9th Circuit’s recent ruling denying the Government’s emergency motion for a stay.  What does that mean?  Where is this lawsuit headed next?  You won’t know if you only read The New York Times, but you will know if you listen to this show!

After our main segment, we turn to a question from listener Schofield Miller about why courts hand down multiple-life sentences that run to hundreds of years.  Figure out what it means to be sentenced to “ten consecutive life sentences.”

Finally, we end with the answer to Thomas Takes the Bar Exam question #10 about witness testimony.  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)!

Also:  Andrew was recently on Episode #103 of the Gaytheist Manifesto podcast talking about executive orders more generally; give it a listen!

Show Notes & Links

1. Andrew also discussed the Johnson Amendment when he was a guest on The Scathing Atheist podcast episode #208.
2. Andrew also did a guest spot on episode #103 of the Gaytheist Manifesto talking about executive orders.
3. Judge Robart of the U.S. District Court for the Western District of Washington’s Order issuing a temporary restraining order (TRO) blocking the Executive Order is here.
4. And the 9th Circuit’s opinion refusing to issue a stay is here.

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Today’s episode is brought  to you by Audible! Go to audible.com/lawpod for your free 30 day trial!!

In today’s episode, we take a look at the law of contracts, and particularly in the context of the recent lawsuit involving former Speaker of the House Denny Hastert.

We begin, however, with a related question from patron Michael, who asks whether the Scientologists can really enforce that billion-year contract to join to Sea Org.  (This answer will not surprise you.)

That leads into our main segment, where we look at the strange and tragic lawsuit being brought against Hastert by a victim of his past sexual assault.  Hastert agreed to pay the victim $3.5 million for his silence, and then stopped paying after he came under federal investigation.  Recently, Hastert counter-sued to recover the hush money previously paid, and we break down all the intricacies of contract law to try and figure out who’s likely to get what.

After our main segment, we tackle another listener question; this time, about whether employers can fire you for smoking marijuana in the privacy of your own home if you live in a state like Colorado that’s legalized marijuana use.

Finally, we end with a brand new Thomas Takes the Bar Exam question #10 which is another very, very hard question.  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. This Chicago Tribune article sets forth the facts of the Hastert case.
2. And this Tribune article contains the actual text of Haster’s counterclaim that we discuss during the show.
3. On Thursday, Andrew was a guest on The Scathing Atheist podcast episode #208.
4. That same day (he’s a busy guy!), Andrew also did a guest spot on episode #103 of the Gaytheist Manifesto podcast.

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In today’s episode, we examine one of the favorite policy recommendations of President Trump’s Secretary of Education, Betsy DeVos:  the school voucher.  What is it?  Is it constitutional?  Listen and find out!

We begin, however, with a Breakin’ Down the Law segment where Andrew looks at a popular Twitter account’s explanation of the odd fact that Donald Trump filed his re-election papers four years early.  Is there some nefarious purpose to him having done so, or is this innocuous?  We break down the law so you’ll be armed with the information you need to navigate these kinds of claims.

In the main segment, Andrew walks us through Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the most recent Supreme Court case to consider school vouchers, with a focus on whether providing federal tax dollars to private religious institutions violates the First Amendment’s Establishment Clause.

After our main segment, we turn to a question from ex-Mormon about the infamous “Mormon Extermination Order,” an executive order (No. 44) signed by Missouri Gov. Lilburn Boggs in 1838.  This dovetails with a two-hour discussion of the Order between Andrew and host Bryce Blankenagel during episode 47 of the “Naked Mormonism” podcast, which you should definitely check out by clicking here.

Finally, we end with the answer to Thomas Takes the Bar Exam question #9 about joint tenancy.  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. The “Resisterhood” tweets are here.
2. Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
3. This is the original, hand-written text of Missouri Executive Order 44 (the “Mormon Extermination Order”).
4. The main page for the “Naked Mormonism” podcast is here; and Andrew was on Epsiode 47, which you can download here.

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In today’s episode, we take a look at President Trump’s Supreme Court nominee, Neil Gorsuch.  The main segment was recorded before the announcement and reflects our guess (correctly!) that he would be the nominee, so you’ll hear some speculative language.

We begin, however, with a question from David Durman who wants to know if a citizen can bring a private civil suit against President Trump while he’s in office.  The answer may surprise you!

During our main segment, we also discuss Gorsuch’s originalism and some of the opinions and dissents he issued while serving on the U.S. Court of Appeals for the 10th Circuit.  Oh, and he also wrote a snottly little editorial for the right-wing mag National Review.

After our main segment, “Closed Arguments” returns with a question about Jared Kushner and the anti-nepotism law.  Is Trump violating the law?  The answer will probably not surprise you.

Finally, we end with a brand new Thomas Takes the Bar Exam question #9 which is the single hardest question so far, in that it involves real property.  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. This is a link to the Washington Post article referenced by David.
2.  If you read only one thing from the show notes, it should be this sarcastic, nasty little article Gorsuch wrote for the National Review before he joined the bench.
3. Then, if you have the stomach for it, check out Gorsuch’s opinion in Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016), in which he openly muses in the text of the opinion about repealing Chevron deference.  Still think he’s not an activist judge?
4. This is the anti-nepotism law, 5 U.S.C. §3110.

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Today’s episode revisits a question we tackled way back in Episode #16, namely, whether President Trump has the authority to enact his Muslim Ban.

We begin with an examination of the recent CREW lawsuit seeking a declaratory judgment that President Trump has violated the Emoluments Clause.  Is that lawsuit likely to prevail?  What could it accomplish?  Listen and find out.

In the main segment, we consider not only the recent Trump Executive Order restricting the entry of aliens from seven majority-Muslim nations (the “Muslim Ban”).  We address questions of legality and constitutionality, as well as break down the recent injunction handed down by the Southern District of New York in response to the ACLU’s lawsuit.

After our main segment, we turn to a question from a conservative listener about abortion and whether Roe v. Wade was an “activist” decision.

Finally, we end with the answer to Thomas Takes the Bar Exam question #8 about a landowner’s duties regarding trespassers who accidentally fall into the landowner’s murder lake.  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. The CREW lawsuit is here.
2. We reference two decisions on the “political question” doctrine:  Baker v. Carr, 369 U.S. 186 (1962) and Nixon v. U.S., 506 U.S. 224 (1993).
3. We initially discussed the Muslim Ban way back in OA Episode #16, which is worth another listen!
4. The authorizing statute (the “1952 Law”) is 8 USC §1182(f).
5. The “1965  Law” is 8 USC §1152(a).
6. In light of those two provisions, we think you can spot the errors in David Bier’s op-ed in the New York Times.
7. I wrote a lot on Facebook about the ACLU lawsuit and the injunction handed down by the court on Saturday, so you can check that out if you want the relevant documents.

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Today’s episode is part two of our two-part series on pending changes to the Fair Labor Standards Act (“FLSA”).  As we’ve previously mentioned, in 2016, the Obama Department of Labor promulgated new rules requiring that employees who are “exempt” from the FLSA’s overtime requirements must earn at least $47,476 per year.  A district court judge issued an injunction blocking those rules from going into effect; that decision is currently pending on expedited review before the 5th Circuit Court of Appeals.  In this episode, Andrew continues his explanation as to why he thinks those rules are going to eventually go into effect and what that means for employers and employees.

We begin, however, with a thoughtful question from friend of the show Noah Lugeons regarding how the FLSA’s tipping rules interact with Title VII of the Civil Rights Act of 1964.  Is it illegal for employers to rely on tips knowing how inequally tips are handed out to men and minorities?  Listen and find out!

After our main segment on the FLSA, we answer a delightfully mad question from Robert Rautio regarding the supposed “right to travel” in the Constitution.  Answering this doozy takes us back into the weird and wonderful world of “sovereign citizens” — you won’t want to miss it!

Finally, we end with a brand new Thomas Takes the Bar Exam question #8 about whether a company dumping toxic waste has a duty to warn trespassers.  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. The relevant provisions of the FLSA for this episode are 29 USC § 207 (maximum hours) and 29 USC § 213 (exempt employees).
2. Title VII of the Civil Rights Act of 1964 begins at 42 USC § 2000e and can be found here.
3. This is the original rule promulgated by Obama’s Department of Labor.
4. Here is the judicial injunction blocking the implementation of the rule.
5. And here is the judge’s decision not to overturn his own injunction after a motion for reconsideration.
6. Please laugh at — but DO NOT FILE! — this suggested “brief” by the weirdos at The Lawful Path who think you can get out of a traffic ticket by filing this nonsense.  (You can’t.)
7. And here’s another absolutely bonkers list of random string-cites that purports to show that you have an absolute right to travel guaranteed by the Constitution.  (You don’t.)

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Today’s episode is part one of a two-part series on pending changes to the Fair Labor Standards Act (“FLSA”).  As we’ve previously mentioned, in 2016, the Obama Department of Labor promulgated new rules requiring that employees who are “exempt” from the FLSA’s overtime requirements must earn at least $47,476 per year.  A district court judge issued an injunction blocking those rules from going into effect; that decision is currently pending on expedited review before the 5th Circuit Court of Appeals.  In this episode, Andrew explains why he thinks those rules are going to eventually go into effect and what that means for employers and employees.

We begin, however, with a listener correction regarding the FLSA and tipped employees.  As it turns out, Andrew mis-spoke on a prior episode and employers must ensure that an employee’s total compensation (including tips) meets the federal minimum wage.

After our main segment on the FLSA, the much-beloved “Are You A Cop?” segment returns with a myth about President Trump revoking the commutation of Chelsea Manning’s prison sentence.

Finally, we end with the answer to Thomas Takes the Bar Exam question #7 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)!

Show Notes & Links

1. The relevant provisions of the FLSA for this episode are 29 USC § 207 (maximum hours) and 29 USC § 213 (exempt employees).
2. The DOL Fact Sheet #15 referred to listener Victoria McNair is here.
3. This is the original rule promulgated by Obama’s Department of Labor.
4. Here is the judicial injunction blocking the implementation of the rule.
5. And here is the judge’s decision not to overturn his own injunction after a motion for reconsideration.
6. Finally, here’s the New York Times story about President Obama commuting Chelsea Manning’s sentence.

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Today’s episode is part two of our two-part series on whether the Emoluments Clause of the Constitution applies to incoming President Donald Trump.

We begin, however, with a listener question from Erik Alsman who asks whether the Supreme Court has the power to declare an amendment to the Constitution unconstitutional.  Along the way we’ll learn a little bit about the history of judicial review in the United States.

In our main segment, we conclude our interview with Lecturer Seth Barrett Tillman of the Maynooth University Department of Law, exploring Tillman’s thesis that the Emoluments Clause does not apply to President Trump because the Presidency is not an “office… under the United States” for purposes of Constitutional analysis.  Afterwards, Thomas and Andrew break down the argument and offer their views on the issue.

Next, we air some listener comments and questions regarding the difference between a “barrister” and a “solicitor” in UK law.

Finally, we end with a brand new Thomas Takes the Bar Exam question #7 about the admissibility of a hearsay statement during a civil trial.  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. This is the text of Marbury v. Madison, 5 U.S. 137 (1803), in which the Supreme Court articulated — some say, invented! — the doctrine of judicial review.
2. Prof. Tillman can be found on Twitter at @SethBTillman, and here is his professional page.
3. In November of 2016, Prof. Tillman wrote a brief piece for the New York Times summarizing his thesis about the Emoluments Clause.
4. This 2009 Memorandum from the President’s Office of Legal Counsel assumes — without argument or citation — that the Emoluments Clause applies to the President.
5. In December of 2016, Norm Eisen, Richard Painter, and Laurence Tribe wrote a paper for the Brookings Institution arguing that the Emoluments Clause does apply to the President.
6. Zephyr Teachout’s law review article, The Anti-Corruption Principle sets forth her argument that the Constitution, including the Emoluments Clause, enshrines a fundamental principle to protect against corruption of our highest offices, including the Presidency.
7. Tillman’s Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle is here.
8. Teachout’s specific response to Tillman on the Emoluments Clause is here.
9. Tillman’s reply to Teachout can be found here.
10. Teachout’s final reply to Tillman can be found here.

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Today’s episode is part one of a two-part series on whether the Emoluments Clause of the Constitution applies to incoming President Donald Trump.

We begin, however, by addressing another Trump-related question:  Does a recent report claiming that 50+ Trump electors are ineligible provide the relief of preventing Trump from assuming the Presidency?  We delve into the report and answer the question in a way that may surprise you.

Our main interview segment is with Lecturer Seth Barrett Tillman of the Maynooth University Department of Law.  Tillman’s thesis is that the Emoluments Clause does not apply to President Trump because the Presidency is not an “office… under the United States” for purposes of Constitutional analysis.

Next, we answer a listener question from William Stemmler about officeholders in the line of Presidential Succession who are themselves ineligible to become President.  Could Donald Trump nominate George W. Bush to be Secretary of State?  Find out!

Finally, we end with the answer to Thomas Takes the Bar Exam question #6 about pre-nuptial agreements.  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. Here’s the Raw Story report on disqualified Trump electors, and the full text of the report can be downloaded from Alternet.
2. Prof. Tillman can be found on Twitter at @SethBTillman, and here is his professional page.
3. In November of 2016, Prof. Tillman wrote a brief piece for the New York Times summarizing his thesis about the Emoluments Clause.
4. This 2009 Memorandum from the President’s Office of Legal Counsel assumes — without argument or citation — that the Emoluments Clause applies to the President.
5. In December of 2016, Norm Eisen, Richard Painter, and Laurence Tribe wrote a paper for the Brookings Institution arguing that the Emoluments Clause does apply to the President.
6. Zephyr Teachout’s law review article, The Anti-Corruption Principle sets forth her argument that the Constitution, including the Emoluments Clause, enshrines a fundamental principle to protect against corruption of our highest offices, including the Presidency.
7. Tillman’s Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle is here.
8. Teachout’s specific response to Tillman on the Emoluments Clause is here.
9. Tillman’s reply to Teachout can be found here.
10. Teachout’s final reply to Tillman can be found here.

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