Opening Arguments

January 28, 2019January 29, 2019

OA248: The Cert(iorari) Show!

Today’s episode features a deep dive into a bunch of different issues around granting the writ of certiorari — “cert” — and some of the intricacies of how the Trump administration is trying to take advantage of the activist Supreme Court. Oh, and we also tackle a lawsuit that’s being grossly misrepresented by the media.

We begin with a discussion of the unique procedure of “cert before judgment.” What is it, how rare is it, and… why is the Trump administration trying to deploy it with alarming frequency? Listen and find out!

Then, we revisit litigation regarding the census that we first discussed back in Episode 232, and the administration’s effort to… get cert before judgment (of course).

Our main segment looks at something Andrew has never seen before: essentially, a four-justice dissent from a denial of certiorari. Why is this weird? Listen and find out as we dissect that very opinion in Kennedy v. Bremerton School Dist.

Next, we tackle a recent clickbaity headline involving a dishwasher allegedly showered with money for “skipping work to go to church.” Find out why the reporting on this case has been totally irresponsible and what really happened.

After all that, it’s time for the answer to Thomas Takes The Bar Exam #111, which involved a contract for defective water bottles. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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

“Cert before judgment” is governed by Supreme Court Rule 11.
We first discussed the census litigation back in Episode 232. You can read the motion to dismiss the writ of certiorari as improvidently granted, as well as the U.S. reply.
Click here to read the “statement” regarding the denial of cert in Kennedy v. Bremerton School Dist.
Click here to read the CBS news report on the Hilton lawsuit, and here to read the (even worse) reporting by the Friendly Atheist blog.
By contrast, you can read the actual Jean Pierre Hilton overtime lawsuit and the jury’s verdict. Oh, and here’s the EEOC’s statement limiting punitive damages in retaliation cases to just $300,000 (not $21 million).

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January 24, 2019January 25, 2019

OA247: Status of the Trans Ban

Today’s episode tackles the recent Supreme Court orders in the Trump ban on transgender service members. How did we get here and what’s next? Listen and find out.

We begin, however, with a brief Andrew Was Wrong segment regarding the history and modern politics of the State of the Union.

After that, it’s time for the main segment, which dives deeply into the history of trans service in the U.S. military, including a discussion of what it means to bring a case pursuant to the equal protection clause and what the future likely holds.

Then, it’s time for a rapid-fire round of questions about Trump’s shutdown. Why is Congress still getting paid? Who can sue, and why haven’t they? Find out the answers to these questions and more!

We end, as always, with a brand new Thomas Takes the Bar Exam Question #111 regarding the delivery of water bottles. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Thomas was just the guest host on Episode 179 of God Awful Movies. Give it a listen! 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

1. The must read Advocate Article interviewing long-standing friend of the show Alice Ashton.
2. 2016 Open Service Directive: Directive-type Memorandum (DTM) 16-005, “Military Service of Transgender Service Members”
3. 2017 Trump Memorandum rescinding the Open Service Directive
4. 2018 Mattis Policy: Military Service by Transgender Individuals
5. Mattis “Study”: Dept of Defense Report and Recommendations on Military Service by Transgender Persons
6. We last discussed Hively v. Ivy Tech (7th Cir.) and Zarda v. Altitude Express (2nd Cir.) in Episode 152
7. Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011)
8. FLSA lawsuit regarding the Shutdown
9. Federal Judiciary extended to February 1st
10. 13 U.S.C. § 1350 – Criminal penalty

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For show-related questions, check out the Opening Arguments Wiki, which now has its own Twitter feed! @oawiki

And email us at openarguments@gmail.com

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January 21, 2019January 22, 2019

OA246: Alex Jones & Sandy Hook

Today’s episode features a deep dive into the latest developments in the lawsuit brought by parents of the victims in the Sandy Hook Massacre against Alex Jones and Infowars for repeatedly portraying the school shooting as a hoax.

We begin, however, with a question regarding our views of the 2016 Presidential Election from a Trump supporter who’s hate-funding us. Hey, we’re good to our word!

After that, it’s time to dig in to the defamation lawsuit against Alex Jones. We tackle the minutiae — standing, jurisdiction, statute of limitations — and the big issues as well. If you want to know where defamation law is headed in this era of “fake news,” well, this is the show for you!

Then, it’s time for a quick visit to Yodel Mountain to check in on Rudy Giuliani and Michael Cohen. Because of course it is.

Finally, it’s time for the answer to Thomas Takes The Bar Exam #110, which involved a dentist being sued for malpractice and product liability. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Andrew was just a guest on Episode 138 of the Naked Mormonism podcast. Give it a listen! 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

1. NYT articles on using third-party votes to hack elections.
The Secret Social Media Experiment in Alabama Senate Race Imitated Russian Tactics and how the Democrats Faked Online Push to Outlaw Alcohol in Alabama Race.
2. Politico story on the Justice Democrats plans to mount primaries against incumbent Democrats it deems too moderate with the apparent backing of Alexandria Ocasio-Cortez.
3: NYT on Alex Jones and Sandy Hook
4. Media Matters 7 minute, 13 second compilation on Alex Jones about Sandy Hook.
5. Media Matters timeline of Jones promoting conspiracy theories about Sandy Hook.
6. Yodel Mountain: Rudy Giuliani is not helping!
7. WSJ on Cohen and poll-rigging and Cohen’s response on the story: “As for the @WSJ article on poll rigging, what I did was at the direction of and for the sole benefit of @realDonaldTrump @POTUS. I truly regret my blind loyalty to a man who doesn’t deserve it.”
8. The GLORIOUS “Women for Cohen” Twitter account: Because some things on twitter make you ask, “Why?”.

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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January 17, 2019January 18, 2019

OA245: More on Barr and the Shutdown

Today’s episode covers the William Barr confirmation hearings before the Senate Judiciary Committee to become the next Attorney General, as well as the ongoing legal battles regarding Trump’s shutdown of the government.

We begin with Barr, who’s proven to be a complex individual. How did he fare in his testimony before the Senate? Are there reasons for optimism? Is his notorious memorandum (which we covered in Episode 237) not really that bad? The answers… are all over the map, and will certainly surprise you.

Then, we discuss the ongoing shutdown, which looks to prove Andrew Wrong by not ending tomorrow. What are the legal implications? How are they going to be resolved? Is there any hope, either politically or legally? Listen and find out!

Finally, it’s time for Thomas Takes The Bar Exam #110 which involves a dentist being sued for malpractice and product liability. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Appearances

Andrew was just a guest on Episode 138 of the Naked Mormonism podcast. Give it a listen! 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

1. Kamala Harris’ statements regarding her opposition to Barr’s nomination.
2. Former Justice Department official of the George H.W. Bush administration Zachary Terwiliger and the speculation that he will once again be Barr’s deputy.
3. Barr’s concerning views on executive power and reasons he has drawn so much criticism.
4. We discuss our past Episode OA 237: Lowering the Barr (Memo)
5. Jonathan Turley, GWU Law professor and gadfly, arguing about Barr
7. Jack Goldsmith, HLS professor, has written a response. “A Qualified Defense of the Barr Memo: Part I”
8. The 1995 OLC memo: Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges
9. 28 U.S.C. § 458: Relative of Justice or Judge Ineligible to Appointment
10. Marist polling data on the Shutdown
11. NTEU v. Mulvaney
12. Barr’s written testimony

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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January 14, 2019January 15, 2019

OA244: Clarence Thomas vs. Thurgood Marshall

Today’s episode features a little more about Corey Robin, including the argument addressed on the show that criticisms of Clarence Thomas’s competence are a racist echo of similar claims made against Thurgood Marshall. Find out why Andrew made the mistake he did in Episode 242, and also why Andrew still stands behind his answer to that question.

We begin with Robin, winding our way from his blog posts to the jurisprudence of two of Andrew’s heroes, Laurence Tribe and Ronald Dworkin! Ultimately, you’ll learn why Andrew continues to defend the proposition that attacks on Thomas’s competence are not inherently racist.

After that, it’s time for some behind-the-scenes news about Attorney General nominee William Barr just in time for his confirmation hearings. What company does he keep when it comes to interpreting the Founding Fathers? Listen and find out! (Hint: this isn’t good.)

Finally, it’s time for the answer to Thomas Takes The Bar Exam #108 regarding real property. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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 first discussed Robin in Episode 242 as part of a listener question. You can click here to read his Tweet criticizing us for engaging in “tribalism” and playing identity politics.
We discuss two Robin blog posts in depth: (a) “Everything is in the Hands of Heaven Except the Fear of Heaven”, and (b) “The Scandal of Democracy”
It was, in fact, Elena Kagan who said “we’re all textualists now” in 2015.
Click here to check out Tribe’s 2008 book, The Invisible Constitution, which openly contests originalism (and directly engages Scalia in particular).
You should also check out the Ronald Dworkin speech that was turned into an article in the Fordham Law Review.
This is the 2001 Keith Whittington law review article that credits Robin with an assist. This is Whittington’s page at the Federalist Society.
We engage with this tweet from Robin listing four supposed examples of intellectual laziness leveled against Thurgood Marshall.
Some Thurgood Marshall links: (a) his confirmation as reported by the New York Times; and (b) this lovely retrospective on Thomas’s career penned by Juan Williams for the Washington Post.
Finally, you can read some more stuff on Clarence Thomas: (a) the 2014 rates of agreement among Supreme Court justices; and (b) this anecdote reported by attorney Matt Howell.
If you have HeinOnline, you can read the Mark Tushnet law review article in the Georgetown Law Review we discuss on the show. (Otherwise, you’re stuck reading the first page only.)

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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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January 11, 2019January 11, 2019

OA243: Build That Wall!!

Today’s episode tackles the mechanics of the shutdown and whether (and how) Donald Trump can build that wall despite widespread opposition.

We begin with an Andrew Was Wrong about the identity of Corey Robin and the incorporation doctrine. Enjoy a fun segue to Gitlow v. New York and why you should never repeat the trope that free speech doesn’t include the right to shout ‘fire’ in a crowded theater.

After that, it’s a deep dive into… what exactly is a “government shutdown,” anyway? What laws govern this? Why do some federal employees have to keep showing up? Isn’t that “involuntary servitude?” And can Trump declare a state of emergency or use “military eminent domain” to just build the wall anyway?

Then, it’s time for our weekly trip back to Yodel Mountain. In Rod We Trust… so why is he stepping down? And what’s the deal with that secret foreign-owned corporation that shut down an entire floor right before the holidays? Listen and find out!

Finally, it’s time for Thomas Takes The Bar Exam #109, another dreaded real property question! As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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

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

Download Link

January 7, 2019January 8, 2019

OA242: Larry Klayman is Still Crazy After All These Years

Today’s episode features a deep dive into the Bivens action, with a little help from everyone’s favorite nutso conspiracy theorist lawyer, Larry Klayman — and his newest client, Roger Stone sidekick Jerome Corsi. Find out what sorts of wacky shenanigans these guys have been up to, and why they think they’ve hit a $350 million jackpot. (Hint: they haven’t.)

First, though, we begin with an insightful question from a listener regarding Clarence Thomas’s jurisprudence and whether the frequent criticism of Justice Thomas as lazy is tinged with racism.

During the main segment, it’s time for the breakdown of the latest Corsi lawsuit. It’s a doozy — it’s everything you’d expect from someone who hired Larry Klayman (on purpose!) to be his lawyer.

Then, we answer a fun listener question about court filings, time zones, and the international date line. It’s Around Opening Arguments In 80 Days!

After all that, it’s time for the answer to Thomas Takes The Bar Exam #108 regarding civil procedure. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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

This Vice article collects some of the strangest facts about Clarence Thomas, and this is the Jeff Jacoby op-ed that (factually) reports regarding Thurgood Marshall’s declining years and — in Andrew’s opinion — was misrepresented by Corey Robin.
Click here to read Corsi’s lawsuit against Robert Mueller, and here to read Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the recent Supreme Court case limiting Bivens actions.

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

Download Link

January 3, 2019January 4, 2019

OA241: Is This The C-Hook That Could Send PG&E To Prison??

Today’s episode takes a deep dive into the potential criminal liability for Pacific Gas & Electric (PG&E) in connection with the 2018 California Wildfires and the c-hook that just might be the linchpin to the whole thing. Are people going to prison? Listen and find out!

We begin by celebrating a brand-new holiday: Oversight Day, with the inauguration of Nancy Pelosi as Speaker of the House. We talk about funding, job postings, and how they all relate to Yodel Mountain.

After that it’s time to get deep — and we mean deep — into PG&E’s latest court filing, what it has to do with a 2010 explosion and a 2016 order, and what really caused the California Camp Fire. Along the way you’ll learn about obstruction of justice (again!), the Natural Gas Pipeline Safety Act (really!), and how a corporation can have an “abandoned and malignant heart.”

Then we end with an all new Thomas Takes The Bar Exam #108 about interstate car collectors-slash-thieves. As always, 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!

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

Your Oversight Day goodies include (a) this fabulous Savannah Guthrie interview with Speaker Pelosi; (b) this equally fabulous Twitter chain from Paul Krugman; (c) the House operations budget for 2019; (d) the Axios story on Republicans seeking to hire investigative counsel; and (e) the screenshot of the jobs posting.
PG&E filings include (a) the PGE Superseding indictment; (b) the jury verdict; (c) the Sentencing and probationary conditions entered by the court; (d) the Court’s Nov. 27, 2018 written questions about the wildfires; (e) the Court’s supplemental order seeking an amicus from the California Attorney General’s office; (f) the answers filed by PGE – PGE Answers, the US Attorneys’ Office, and the California AG; and finally, the PGE written Report – Exhibit A that contains the information discussed on the show.

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

Download Link

December 31, 2018January 1, 2019

OA240: Libertarianism is Still Bad & You Should Still Feel Bad

Today’s special, hangover-free New Years’ episode follows up on some of the things we discussed during our Episode 238 interview with Matt Donnelly of the Ice Cream Social podcast, including the never-controversial subject of libertarianism. Strap in; it’s been an interesting year!

We begin with a listener question from Ricardo, who asks some follow-up questions to our original hot take on libertarianism waaaaaay back in Episode 22. Is there a robust theory of property rights that serves as a side-constraint on government action? You’ll have to listen and find out! (Hint: no.)

After that, Andrew further explains the “Are You A Cop?”-style segment from Episode 238 regarding whether Brett Kavanaugh “voted with the liberals” in an abortion case. (Hint: no.) You’ll figure out all you need to know about the Supreme Court’s denial of certiorari in Gee v. Planned Parenthood and Andersen v. Planned Parenthood… as well as getting a deep dive into Clarence Thomas’s dissent and an explainer on the Medicaid Act, 42 U.S.C. § 1396a!

After all that, it’s time for the answer to Thomas (and Matt) Take The Bar Exam #107 regarding defamation. As always, remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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

Check out Matt & Mattingly’s Ice Cream Social podcast!
We first discussed libertarianism back in Episode 22.
You can click here to read Clarence Thomas’s blistering (and inaccurate) dissent from the Court’s denial of cert in the Planned Parenthood cases; click here to check out 42 USC § 1396a(a)(23), the statute at issue; and click here to read the Washington Examiner article discussed on the show.

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

Download Link

December 27, 2018December 28, 2018

OA239: The Fourth Circuit’s Puzzling Emoluments Ruling

Today’s episode takes a deep dive into the just-released one-page order by the Fourth Circuit staying all discovery in the Emoluments litigation brought by Maryland Attorney General Brian Frosh. How do we fill more than an hour’s worth of time on one page? Why is this ruling really, really bad for everyone?? Listen and find out!

We begin, however, with a brief foray up Yodel Mountain to discuss (1) the reports circulating that Michael Cohen’s phone was in Prague in the summer of 2016, and (2) the ethics review of “Acting” Attorney General Matthew Whitaker concerning the Mueller probe.

After that, it’s time for a deep dive into the Emoluments litigation, the strange procedural posture of Trump’s response, and what this means for civil litigation generally (and this case in particular). You won’t want to miss it!

Then we end with an all new Thomas Takes The Bar Exam #107 on defamation. As always, 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!

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