Opening Arguments

October 15, 2018October 16, 2018

OA218: Ashers Baking Co., Net Neutrality & Stormy!

Today’s (thankfully) Kavanaugh-free episode — in honor of Thomas’s appearance at QED in Manchester — takes an in-depth look at the Ashers Baking Co. case, as well as developments at the state level to push for Net Neutrality. Oh, and we revisit OA’s favorite legal genius, Stormy Daniels. Strap in, it’s going to be a fun ride!

We begin with a lengthy discussion of the UK Supreme Court’s ruling in Ashers Baking Co., which has been called the “Masterpiece Cakeshop of the UK.” Is that accurate? Listen and find out!

Next, we walk through California’s effort to protect Net Neutrality in that state, and the lawsuits filed by parties on all sides. What’s going to happen? We tell you!

Finally, we take a brief look at Stormy Daniels and update you on the status of her lawsuit in California.

And then, of course, we end with an all new Thomas (and Chad) Take The Bar Exam #97 regarding the tort of negligent misrepresentation. 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

Click here to read the UK Supreme Court’s ruling in Ashers Baking Co.
We first discussed the Trump FCC’s decision to roll back Net Neutrality in Episode 125. You can read the 22-state lawsuit challenging that order here.
This is California’s Bill SB-822, and you can also check out the industry brief filed in the lawsuit challenging it. Oh, and if you need more Hobbs Act (28 U.S.C. § 2342) in your life, we’ve got you covered.
Finally, click here to check out Trump’s motion to dismiss Stormy’s lawsuit, and here to read her interview in “The Cut” (??) where she regrets body-shaming Trump.

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October 11, 2018October 12, 2018

OA217: Can Ethics Complaints Take Down Kavanaugh?

Today’s Rapid Response Friday follows up on the State of Florida and… sadly… returns one last time to the story of Brett Kavanaugh and the ethics complaints lodged against him and referred to the Tenth Circuit. Oh, and we give you real stuff you can do to make a positive difference! You have to listen!

We begin with a follow-up to Tuesday’s episode where we break some news regarding the Democratic Party’s lawsuit in Florida to extend registration for voting in the 2018 midterms before checking in on the Common Cause/League of Women Voters lawsuit we first discussed on Episode 216.

Then it’s time to tackle the ethics complaints filed against Brett Kavanaugh and referred out by Supreme Court Chief Justice John Roberts to the Court of Appeals for the Tenth Circuit.

Finally, we end with an all new Thomas Takes The Bar Exam #97 regarding the tort of negligent misrepresentation. Thomas needs to go 4-for-4… can he do it? You’ll have to listen and find out! And, of course, 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

Thomas will be at QED in Manchester, UK on Oct. 13 and 14.

Show Notes & Links

This episode is sponsored by Audible! Go to audible.com/lawpod or text lawpod to 500500 for the 30-day trial and free audiobook!

Click here to read the court’s denial of the TRO filed by the Democratic Party’s in Florida to extend registration for voting in the 2018 midterms.
And click here to read the newly-filed Common Cause/League of Women Voters lawsuit we first discussed on Episode 216.
We first discussed the Code of Judicial Ethics on Episode 193.
This is the Roberts letter referring the Kavanaugh complaints to the Court of Appeals for the Tenth Circuit.
Click here to read the Rules of Judicial Conduct and Judicial Disability, with proposed changes.
The law we discussed is 28 U.S.C. § 351 et seq.
WHAT YOU CAN DO! Click here to comment on the proposed changes to the Rules of Judicial Conduct and Judicial Disability.
And if you want to apply to work for Fix The Court, check out their notice here.

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For show-related questions, check out the Opening Arguments Wiki

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October 8, 2018October 9, 2018

OA216: Court Packing & More (w/guest Chad Schneider)

Today’s (thankfully) Kavanaugh-free episode takes a look at Florida Governor Rick Scott’s blatant court packing attempt with the Florida Supreme Court, and the lawsuit filed by Common Cause to try and stop him. What will happen? Listen and find out!

First, though, we begin by revisiting our controversial episode (197) on 3-D printed guns by bringing on a real-life expert in 3-D printing to handle some technical questions and understand the arguments and counter-arguments regarding the proliferation of cheap and dangerous handguns.

After that, we delve into Florida Gov. Rick Scott’s transparent attempt to game the system to pack the Florida Supreme Court. What does this mean for “Constitutional Hardball” and the state of the law in Florida? Listen and find out!

Then, we give you a brief preview of next week’s story on California’s net neutrality law.

Finally, we end with an all new Thomas (and Chad) Take The Bar Exam #96 regarding the breach of an employment contract. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Thomas will be at QED in Manchester, UK on Oct. 13 and 14.

Show Notes & Links

We first discussed 3-D printed guns back in Episode 197.
Click here to read the Slate article on Scott’s effort to pack the Florida Supreme Court, and you can also read the 2017 lawsuit filed by Common Cause (and others) that was rejected by the Florida Supreme Court.
Check out guest Chad Schneider’s business, Root3 Labs.

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For show-related questions, check out the Opening Arguments Wiki

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October 4, 2018October 5, 2018

OA215: Is Gamble v US the Real Reason Behind Kavanaugh?

Today’s Rapid Response Friday tackles the #1 emailed story to us this past week: is the real story behind the Kavanaugh nomination that the Trump administration needs him on the Supreme Court to rule in Gamble v. U.S. regarding the dual sovereignty doctrine as it applies to double jeopardy?

We begin with a quick note about the New York Times story on Trump’s taxes which will be covered on Serious Inquiries Only.

Then it’s time to figure out this claim about Gamble v. U.S. that fact-checking website Snopes rated as “true.” Is it, though? (Hint: no.) We’ll tell you everything you need to know about the 5th Amendment’s double jeopardy clause and what it might mean for anyone Trump pardons once Kavanaugh gets to the Court.

And speaking of which, we segue from that claim to an update on all things Kavanaugh this week, including the Mitchell letter, the FBI investigation, Flake’s statements, and even (gasp!) an Andrew Was Wrong.

Finally, we end with an all new Thomas Takes The Bar Exam #96 regarding the breach of an employment contract, with next week’s guest Chad Schneider playing along. Thomas needs to go 5-for-5… can he do it? You’ll have to listen and find out! And, of course, 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

Thomas will be at QED in Manchester, UK on Oct. 13 and 14.

Show Notes & Links

You can read the New York Times story on Trump’s taxes, and listen for Thomas’s take on Serious Inquiries Only.
The leading case on the “dual sovereign” doctrine as applied to the double jeopardy clause is Heath v. Alabama, 474 U.S. 82 (1985).
Click here to read the administration’s opposition brief in Gamble v. U.S., and here to check out the entire docket.
This is the Jed Shugerman article we referenced regarding New York’s “dual sovereigns” law.

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For show-related questions, check out the Opening Arguments Wiki

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October 1, 2018October 3, 2018

OA214: Free Speech, NAFTA & Trump’s Trans Ban

Today’s Kavanaugh-free episode is a classic, three-story, Deep Dive Tuesday into (1) a recent free speech case involving protesters at a Trump rally; (2) the status of Trump’s efforts to ban trans service personnel from the military; and (3) whether Trump can unilaterally abrogate NAFTA. Strap in — it’s going to be a long ride!

We begin with an examination of Nwanguma v. Trump at both the district court level and the recent decision from the 6th Circuit. Should protesters be allowed to sue Trump and his campaign staff for incitement to riot? Listen and find out!

After that, we examine the status of Trump’s latest (Mar. 23, 2018) order on trans personnel in the military. Is there… good news out of the Ninth Circuit??!?

Then, we check out the history of presidential withdrawals from treaty obligations, a case involving a former Presidential candidate (Barry Goldwater) versus a sitting President (Jimmy Carter), and Donald Trump’s constant claims that he can abrogate the North American Free Trade Agreement. Is any of this true? The answer almost certainly will surprise you!

Finally, we end with Thomas Takes the Bar Exam Question #95 regarding the Congressional delegation of rule-making authority to the Forest Service. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Thomas will be at QED in Manchester, UK on Oct. 13 and 14.

Show Notes & Links

If you want to check out our Kavanaugh patron-only special, sign up here and then click here for the bonus download!
You can read the Nwanguma v Trump district court decision as well as the decision by the 6th Circuit.
Click here to read Trump’s latest (Mar. 23, 2018) order on trans personnel in the military, and here is you want to check out the Ninth Circuit’s stay order.
On NAFTA: you can read the NAFTA treaty itself (including Art. 2205), the NAFTA Implementation Act, and you’ll definitely enjoy perusing Goldwater v. Carter, 444 U.S. 996 (1979).

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 26, 2018September 27, 2018

OA213: Rachel Mitchell to Cross-Examine Dr. Ford at Kavanaugh Hearings

Today’s Rapid Response Friday tackles (ugh) the ongoing Judiciary confirmation hearings for Supreme Court Associate Justice nominee Brett Kavanaugh in light of Dr. Ford’s allegations, before segueing into an interesting question from super-listener Teresa Gomez. If you want to know everything about Rachel Mitchell (and so much more!) — well, you’ve come to the right place!

We begin with some good news about QED in Manchester, UK and your ability to hang out with Thomas!

After that, it’s time to figure out what’s going on with Kavanaugh. We examine (1) the political landscape; (2) the status of Blumenthal v. Nat’l Archives, Case No. 18-02143-RDM seeking FOIA information from the National Archives and the CIA; (3) the unprecedented appointment of career sex crimes prosecutor Rachel Mitchell to handle the questioning of Dr. Ford and Kavanaugh; (4) the strange circumstances surrounding Michael Avenatti’s claim to represent additional women allegedly harrassed by Kavanaugh; and (5) what Dianne Feinstein wants. Phew!

After that, we somehow have time to answer a fascinating question about pro se litigants giving testimony in court!

Finally, we end with an all new Thomas Takes The Bar Exam #95 regarding Congressional delegation of rule-making authority. Will Thomas get back on track with just one extra wrong answer to give in the next six questions? Yu’ll have to listen and find out! And, of course, 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

Thomas will be at QED in Manchester, UK on Oct. 13 and 14.

Show Notes & Links

For an in-depth analysis of Dr. Ford’s allegations against Kavanaugh, listen to Episode 158 of Serious Inquiries Only.
On politics: here’s the 538 polling data that Kavanaugh becgan historically unpopular and is getting worse. And this is the (overblown) HuffPo story on the Judicial Crisis Network.
Check out the docket entries in the Blumenthal case!
Rachel Mitchell has no Wikipedia entry (yet!), but was profiled in the National Law Journal and gave this interview to the “Foundations Baptist Fellowship International.” Bill Montgomery’s endorsement was reported in this Arizona Central story.
Avenatti’s client, Julie Swetnick, signed an affidavit under penalties of perjury that you can read here. We detailed Avenatti’s ethical lapses on Episode 181.
Check out Sen. Feinstein’s letter on the Kavanaugh hearings.
Finally, in answering Teresa’s question, we relied on U.S. v. Nivica, 887 F.2d 1110 (1st Cir. 1989)… scroll down to part C!

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September 24, 2018September 25, 2018

OA212: Rod Rosenstein and… G. Zachary Terwilliger?

Today’s episode is that rare Rapid Response Tuesday, necessitated by the persistent rumors that Donald Trump is about to fire Deputy Attorney General Rod Rosenstein. Is it true? How bad are things if it is? And who is this mysterious G. Zachary Terwilliger? You’ll have to listen to know for sure!

We begin by examining the New York Times reporting that predicated the efforts to force out Rosenstein. Listen and you’ll learn why is Andrew confident that these reports are false — and get a rare “Randall Was Right” segment to boot!

After that, we look to the statutory line of succession if Rosenstein is indeed fired, and we wind up at Noel Francisco and… Sideshow Zach? How did THAT happen? Bonus: Is Francisco a Trump hack? All signs point to…

Then, we look to the statutory protections for Mueller even if Rosenstein is fired. Will the entire Russia investigation be fed into a Fargo/Deadpool 2-style woodchipper?

And, if all that wasn’t enough, we also have a mini-deep dive into the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq. Does it matter if Rosenstein was fired or if he resigned?

Finally, we end — at long last! — with Thomas Takes the Bar Exam Question #94 regarding the Forest Service’s new rules. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Lots! Thomas will be at QED in Manchester, UK on Oct. 13 and 14.

Andrew will be debating originalist (and Kavanaugh clerk!) Justin Reed Wilson in Louisville, Kentucky on September 27 at Impellizzeri’s Pizza; to attend, just RSVP on this Facebook link.

Show Notes & Links

This is the first New York Times hit piece on Rosenstein from Friday, 9/21, and this is the follow-up suggesting he would “resign.”
You can, of course, read the 25th Amendment’s Section 4 for yourself; you’ll quickly ascertain that it is, in fact, a ‘clown horn’ argument.
The 28 U.S.C. § 508 sets forth the statutory line of succession for the DOJ.
Here’s the initial Senate confirmation vote on Francisco. You can also read his “oopsie” letter to the Supreme Court below:
This is the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq. We first discussed it back in Episode 126.
Finally, click here to read all about G. Zachary Terwilliger!

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For show-related questions, check out the Opening Arguments Wiki

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September 20, 2018September 21, 2018

OA211: Manafort Flips (and more on Kavanaugh)

Today’s Rapid Response Friday tackles (1) Paul Manafort’s plea deal and (2) the surprise resumption of the Senate Judiciary confirmation hearings for Supreme Court Associate Justice nominee Brett Kavanaugh in light of Dr. Ford’s allegations, which are discussed in depth on Episode 158 of Serious Inquiries Only. What should you look for during Monday’s hearings? Listen and find out!

We begin with an acknowledgment of the story sent to us by several hundred thousand listeners regarding crazy person Cody Wilson.

After that, it’s time for an important Andrew Was Wrong: Paul Manafort did not plea over the weekend; he pled guilty pretty much the second we stopped recording! We break down everything there is to know about his deal, including the strong incentives Manafort has not only to cooperate but to roll over and expose his belly to Mueller’s team in hopes of being thrown a bone or two. Oh, and we time-travel back to the 19th century to answer a super-interesting listener question on asset forfeiture!

Then, it’s time to discuss Kavanaugh again, in light of the troubling accusations made by Dr. Ford and other issues, including the Democratic Senators’s FOIA lawsuit compelling the production of Kavanaugh’s documents that are being withheld while the Republicans try and cram through his nomination. It’s not a pretty segment, but we think you’ll walk away equipped to understand Monday’s hearings.

After all that, we end with an all new Thomas Takes The Bar Exam #94 regarding Congressional delegation of rule-making authority. Will Thomas get back on track with just one extra wrong answer to give in the next six questions? Yu’ll have to listen and find out! And, of course, 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

Andrew will be debating originalist (and Kavanaugh clerk!) Justin Reed Wilson in Louisville, Kentucky on September 27; click here for the Facebook RSVP link if you’d like to attend!

Show Notes & Links

For an in-depth analysis of Dr. Ford’s allegations against Kavanaugh, listen to Episode 158 of Serious Inquiries Only.
You should really read through Mr. Ostrich-Jacket’s plea deal for yourself. (And yes, that’s the show graphic.) This is the TPM article Andrew criticizes; as you’ll see from the Sentencing Table, Manafort faces 210-262 (or more) months in prison.
Here’s the polling aggregator from our friends at 538.; as of today, Democrats have a 1-in-3 chance of retaking the Senate.
Click here to read Blumenthal v. US Nat’l Archives, the FOIA complaint filed by the Senate Judiciary Democrats, and here to read the Motion for TRO (which does not yet have an accompanying Memorandum). FOIA is 5 U.S.C. § 552.
Finally, this is the text of the Sanai letter describing Alex Kozinski and seeking an investigation into Kavanaugh’s knowledge and testimony.

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September 17, 2018September 18, 2018

OA210: Cash Bail, Glucksburg and More

Today’s episode takes two deep dives: first, into California SB10, which eliminates the “cash bail” system of pretrial detention in California, and second, into the Supreme Court’s 1997 decision in Washington v. Glucksberg. What does it all mean? You’ll have to listen to know for sure!

We begin, however, with an update on Wells Fargo’s $1 billion remediation plan first discussed in Episode 169.

After that, we tackle California SB10, which is now law — even though it won’t go into effect until October of 2019. Is this a good or a bad thing? Would it change your mind to learn that the ACLU flip-flopped on this bill? Listen and find out!

From there, we move into an in-depth analysis of Glucksburg and what it means for the future of the Supreme Court.

Then, we give you a little retroactive speculation regarding the possiblity that Paul Manafort might plead guilty. Yes, it’s a living record of the fact that we record on Thursdays — but we think you’ll like the analysis anyway.

Finally, we end with Thomas Takes the Bar Exam Question #93 regarding double jeopardy. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Andrew will be debating originalist (and Kavanaugh clerk!) Justin Reed Wilson in Louisville, Kentucky on September 27 at Impellizzeri’s Pizza; to attend, just RSVP on this Facebook link.

Show Notes & Links

We first discussed Wells Fargo’s fine and remediation requirements in Episode 169; you can check the OCC’s News Releases for yourself to see when the rejection becomes public (if ever). For now, we had to make due with this Reuters article.
You can read California SB10, as well as check out the opposition from both Human Rights Watch and the ACLU.
Here is the full decision in Washington v. Glucksberg, 521 U.S. 702 (1997).
During the Glucksburg segment, we discussed Sen. Coons’s question to Kavanaugh about it, and, of course, Ted Cruz’s “Washington Generals” questions during the confirmation hearings. Also, we referenced earlier written answers from Elena Kagan during her confirmation hearings discussing Glucksburg.
Glucksburg was explicitly distinguished in the Obergefell decision.

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Facebook: https://www.facebook.com/openargs/

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For show-related questions, check out the Opening Arguments Wiki

And email us at openarguments@gmail.com

Direct Download

September 13, 2018September 14, 2018

OA209: Kavanaugh’s Confirmation

Today’s Rapid Response Friday is all about the conclusion of the Supreme Court Confirmation Hearings for Brett Kavanaugh. What did we learn? What’s still outstanding? Are liberals really guilty of trying to bribe Susan Collins? And, most importantly: what can we do about any of this?? Listen and find out!

We begin, however, with an important Andrew Was Wrong.

After that, we delve into all the week’s issues surrounding the Kavanaugh confirmation hearings, including: (1) the status of Kavanaugh’s nomination; (2) whether liberal crowdfunding efforts really count as efforts to “bribe” Republican Sen. Susan Collins; (3) an in-depth look at Kavanaugh’s written answers to the Senate Judiciary Committee; (4) a shockingly misleading question from Opening Arguments’s good friend, Sen. Ted Cruz; and finally (5) a preview of next Tuesday’s discussion of a weird case called Glucksburg. Phew!

After all that, we end with an all new Thomas Takes The Bar Exam #93 regarding double jeopardy. Did Thomas learn enough from the Ashley Judd Law’d Awful Movie of the same name?? We’ll find out! And, of course, 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

Andrew will be debating originalist (and Kavanaugh clerk!) Justin Reed Wilson in Louisville, Kentucky on September 27 at Impellizzeri’s Pizza. Be there and be square!

Show Notes & Links