Opening Arguments

August 6, 2018August 7, 2018

OA198: What Is Alan Dershowitz Thinking?

Today’s episode takes an in-depth look at Donald Trump’s favorite “liberal,” Harvard Law professor Alan Dershowitz as seen through the eyes of one of his former students.

We begin, however, with an update from the Paul Manafort trial, taking a look at the prosecution’s strategy, witness list, and some preliminary rulings by Judge Ellis.

After that, we dive very deeply into what looks like a very weird phenomenon: why is Alan Dershowitz carrying water for a President whom he ostensibly opposes? Why is he saying things that are demonstrably and indefensibly untrue about the law?

Andrew has a theory. Mostly, though, he has stories and research… but they lead to a theory (we promise)!

Finally, we end the answer to Thomas Takes The Bar Exam #87 regarding constitutional law and a state vs. the federal Confrontation Clause. 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

This is the article in The Hill indicating that the prosecution would, in fact, call Rick Gates; earlier, friend of the show Randall Eliason gave a bunch of reasons why they might not. Oh, and Eliason also has you covered as to why ‘collusion’ is, in fact, a crime.
This is the laughable Fox News report on how Judge Ellis hates the prosecution; for a dose of reality, you might want to check out this other article in The Hill about how Judge Ellis chastised both sides’s lawyers.
If you missed it, this is our Episode 107 where we tackled Serial.
Here’s the PBS retrospective on Dershowitz and the OJ trial.
Our Dershowitz story on ‘testilying’ begins with Mapp v. Ohio, 367 U.S. 643 (1961) and the origins of the exclusionary rule; Dershowitz coined the term ‘testilying’ in this New York Times article from 1994.
Testilying is, of course, a consistent problem today (see A, B) — but Dershowitz hasn’t spoken about it since 1998 (and even then, in an entirely different context).
Instead, he attacked Baltimore’s decision to indict the police in the Freddie Gray case in 2015.

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

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August 2, 2018August 3, 2018

OA197: Undetectable, Untraceable, 3-D Printed Guns

Today’s Rapid Response Friday breaks down all of the legal wrangling regarding the Trump Administration’s secret settlement with a self-described “crypto-anarchist” who uploaded material that allows anyone with access to a 3-D printer to make their own plastic, undetectable, untraceable firearm.

We begin, however, with a listener who’s considering coming over to the “dark side” and wants an honest answer about getting electoral help from overseas. What if the Irish want to help elect Liz Warren in 2020? Listen and find out!

The main segment breaks down the “Defense Distributed” settlement and subsequent litigation — and along the way you’ll learn about Cold War arms sales, the Export Control Act, F-15s, Richard Nixon, and… well, let’s just say there’s a lot on the table!

Finally, we end with an all new Thomas Takes The Bar Exam #87 regarding a state supreme court ruling over whether witnesses must face their accusers. If you’d like to play along, 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!

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

We most recently discussed election law and the relevant statute, 52 U.S.C. § 30121, back in Episode 116 with Beth Kingsley.
The seminal Foreign Affairs (1982) article referenced by Andrew is here; and you can also verify the current arms sales numbers from this report in Newsweek.
This is the confidential Trump administration’s settlement with Defense Distributed; here is the Complaint filed by 8 states, along with the opposition brief filed by Wilson as well as the one filed by the Government. Ultimately, the Court granted the TRO.
You can read the Arms Export Control Act, 22 U.S.C. § 2751 et seq., and the implementing regulations at 22 C.F.R. § 125.4(b).
The Pentagon Papers case is more formally known as New York Times Co. v. U.S., 403 U.S. 713 (1971).
Here’s a Harvard Law Review article summarizing Wilson’s loss at the 5th Circuit.
Finally, check out the author note for (but please do not buy!) the Anarchist Cookbook, for sale on Amazon.

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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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July 30, 2018July 30, 2018

OA196: Voting and Sore Losers

Today’s episode tells you everything you need to know about voting, including in particular West Virginia’s “Sore Loser” law and whether it applies to big fat racist criminal loser Don Blankenship… and, in turn, what that means for Joe Manchin’s chances of holding on to his Senate seat in the 2018 midterms. Phew!

We begin, however, with… *sigh*… Andrew Was Wrong. This time, an astute listener clarifies where Andrew elided over two different sections of the Voting Rights Act when discussing the Supreme Court’s opinion in Shelby County v. Holder (2013).

Oh, and we have more on McDonald’s, too! After that, it’s time to dig into West Virginia’s “sore loser” law. What does this mean for the upcoming Senate elections? Listen and find out!

Then, the guys tackle a very good listener question from listener Greg regarding freedom of the press, freedom of speech, limited public fora, and more.

Finally, we end the answer to Thomas Takes The Bar Exam #86 regarding the sale of an automobile and a slippery salesman. 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

Don’t forget to tune in to our live Q&A this Tuesday, 7/31, at 7 pm Eastern / 4 Pacific. And, of course, participate in the questions thread!
We most recently discussed the Voting Rights Act and Shelby County v. Holder back in Episode 188.
If you want to know more about big fat racist criminal loser Don Blankenship, heck, you could start with his Wikipedia page. He’s not shy about being a big fat racist criminal. (He does not yet grasp that he’s a loser, though.)
We cited two provisions of the West Virginia Code: W. Va. Code §§ 3-5-7(d)(6) and 3-5-23.
And just in case you’ve forgotten how conservative Patrick Morrisey is, here’s the quote he gave to CBS news.

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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July 26, 2018July 27, 2018

OA195: Lordy, There Are Tapes!

Today’s Rapid Response Friday breaks down all of a busy week’s developments in the Trump Administration’s trip up Yodel Mountain, including the surprising revelation that Michael Cohen has audio tapes of his conversations with Donald Trump. What does it all mean? Listen and find out!

We begin, however, with a challenging listener question regarding legal ethics and summer associates that hearkens back to our last episode.

The main segment tackles an entire week’s worth of yodeling, including the Cohen tapes, the emoluments lawsuit, and the Manafort trial. Phew!

After that, we check in with our buddy Andrew Seidel from the FFRF about a recent victory in the 9th Circuit regarding prayers at public school board meetings.

Finally, we end with an all new Thomas Takes The Bar Exam #86 involving the questionable sale of a used car. If you’d like to play along, 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!

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

Don’t forget to tune in to our live Q&A this Tuesday, 7/31, at 7 pm Eastern / 4 Pacific. And, of course, participate in the questions thread!
Here’s the Reuters report that there are 12 Cohen-Trump tapes; we’ve heard just part of the first one regarding Karen McDougal, whom we first discussed back in Episode 158.
You can read the Emoluments ruling for yourself; we covered this most recently back in Episodes 160 and 162. For our original two-part interview with Seth Barrett Tillman, check out Episodes 35 and 36.
Some documents from the Manafort trial: 2018.07.22 Yanukovich govt response; 2018.07.20 Yanukovich motion in limine; 2018.07.25 orders on motions in limine; and 2018.07.26 government jury response. And, of course, you should take a look at the government’s Exhibit List.
We discussed the “Bernie Sanders” lawsuit against the DNC back in Episode 106.
Finally, for some good news, check out the 9th Circuit’s opinion in FFRF v. Chino Valley Unified School District; we discussed Town of Greece v. Galloway in Episode 85.

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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July 23, 2018July 24, 2018

OA194: Paul Manafort is Going to Trial! (& McDonald’s!)

Today’s episode tells you everything you need to know before Paul Manafort’s trial in the Eastern District of Virginia, which begins Wednesday, July 25, 2018. Oh, and we break down the recent lawsuit against McDonald’s to boot!

We begin, however, with a very good listener question from “Judicial Noir” regarding ethics, science, and a summer internship!

After that, it’s time to discuss an actual lawsuit over actual cheese. Yes, there’s a class action lawsuit against Thomas’s favorite restaurant (McDonald’s) — and we’re here to help you separate fact from fiction! Oh, and along the way, you might learn something about Microsoft, illegal tying arrangements, and antitrust law!

Then, it’s back to Yodel Mountain to explain in depth exactly what’s going on with our buddy Paulie M, and what you can expect over the next two weeks.

Finally, we end the answer to Thomas Takes The Bar Exam #85 regarding real property. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

If you didn’t see Andrew’s live appearance on Left-Right Radio with Chuck Morse, you can check out the YouTube archive of it. 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

Before we get to McDonald’s, you’ll need to read all about US v. Microsoft, 253 F.3d 34 (2001). While you’re at it, you might as well brush up on the Sherman Anti-Trust Act, 15 U.S.C. § 1 et seq.
After that, you can read the class action lawsuit against McDonald’s regarding the Quarter Pounder and Double Quarter Pounder.
Andrew first broke down Judge Ellis in Episode 172.

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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July 19, 2018July 20, 2018

OA193: This Is Worse Than Watergate – PLUS Mandalay Bay Suing Victims?

Today’s Rapid Response Friday breaks down the recent lawsuit filed by the Mandalay Bay casino regarding the 2017 Las Vegas shooting. Is it true that the casino is suing the victims? What’s that all about?? Listen and find out! Also, we check in with Yodel Mountain and figure out, once and for all, if this is really worse than Watergate. (Hint: yes.)

We begin, however, with everybody’s favorite segment, Andrew Was Wrong, in which we revisit the Supreme Court with a few corrections.

The main segment tackles the Mandalay Bay lawsuit and explains the concept of a declaratory judgent as well as the 2002 SAFETY Act upon which Mandalay Bay is attempting to rely.

Next, we return to Yodel Mountain to discuss the recent Mueller indictments, Donald Trump’s Treason Summit with Russia, and ingenue Mariia Butina. It’s as salacious as OA ever gets!

Finally, we end with an all new Thomas Takes The Bar Exam #85 involving (ugh) real property. If you’d like to play along, 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!

Recent Appearances

Show Notes & Links

This is the link to the 2011 Ethics Report authored by Chief Justice John Roberts.
Here’s the Above The Law article we mentioned at the start of the main segment.
We’ve uploaded a copy of the MGM/Mandalay Bay lawsuit so you can read it for yourself.
The SAFETY Act can be found at 6 U.S.C. § 441 et seq., and the implementing regulations are at 6 CFR § 25.7.
We discussed the Senate Intelligence Committee’s report in Episode 190.
Here’s the link to the Mother Jones article about Butina documenting the claims made in the C segment.

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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July 16, 2018July 16, 2018

OA192: Capital Punishment, the Eighth Amendment &… Obergefell?

Today’s episode takes an in-depth historical look at the Eighth Amendment’s prohibition on “cruel and unusual punishment” and what that might mean for the future of Obergefell v. Hodges in the next Supreme Court. What does capital punishment have to do with gay marriage? Listen and find out!

We begin, however, with a discussion of the District Court’s refusal to modify the Flores settlement we discussed in Episode 184. Find out what the court thinks of Trump’s Executive Order to “keep families together” at the border… by indefinitely detaining minors in violation of the law.

After that, it’s time for a double-length dive into the history of Eighth Amendment jurisprudence, and in particular, the Supreme Court’s decision outlawing capital punishment in 1972 (Furman v. Georgia) and then reversing itself just four years later (Gregg v. Georgia). Is this a blueprint for what the next SCOTUS will do? Listen and find out!

Finally, we end the answer to Thomas Takes The Bar Exam #84 regarding spousal privilege. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

By the time you download this, Andrew will have been a guest discussing Judge Kavanaugh with conservative talk show host Chuck Morse. 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 the President’s Executive Order regarding family separation in Episode 184; and you can click hear to read the District Court’s Order refusing to modify the Flores settlement.
The first case we discussed was Pavan v. Smith, 137 S.Ct. 2075 (2017), in which Roberts refused to sign on with the hard-right dissent.
Our two main cases we broke down were Furman v. Georgia, 408 U.S. 238 (1972) and Gregg v. Georgia, 482 U.S. 153 (1976).
Finally, we strongly recommend reading Justice Brennan’s 1986 Oliver Wendell Holmes lecture in which he explains his view of the Eighth Amendment.

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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July 12, 2018July 13, 2018

OA191: Fact and Fiction About Brett Kavanaugh

Today’s Rapid Response Friday does not take a victory lap about our successful prediction that Brett Kavanaugh would be Donald Trump’s next nominee to the Supreme Court (but seriously, we called that right, y’all.) Instead, Andrew and Thomas break down some of the current stories surrounding Kavanaugh to separate fact from fiction and try and articulate the best mainstream case against confirming Kavanaugh to the Supreme Court.

In the pre-show, we give a shout-out to everyone who made the Opening Arguments Wiki possible — go check it out! It’s amazing!

After that, Andrew Was Wrong returns with a clarification from Episode 187 where Andrew misspoke. And also, the guys have a slight laugh at Andrew’s inability to pronounce locations of things.

The main segment tackles a bunch of current stories surrounding Judge Kavanaugh, including: (1) the allegation that Judge Kavanaugh has concluded that sitting Presidents can’t be indicted; (2) the Yale open letter opposing his nomination; (3) a truly stupid article in The Hill arguing for a lawsuit to block Kavanaugh; (4) the potential conflict of interest with Kennedy’s retirement; and (5) the notion of “packing the Court” in 2020. Phew!

Next, Andrew gives us an eight-second sneak peek at a court’s refusal to permit the Trump administration to modify the Flores settlement and why that’s good news.

Finally, we end with an all new Thomas Takes The Bar Exam #83 involving spousal privilege. If you’d like to play along, 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!

Recent Appearances

Andrew was just a guest co-host on Episode 75 of the Skepticrat podcast; go check it out! Also, Andrew will be discussing Judge Kavanaugh with conservative talk show host Chuck Morse. 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

For starters, here is the Tweet from Alexandria Ocasio-Cortez we criticized, along with the pretty funny humor piece from Andy Borowitz.
You should definitely read Kavanaugh’s 2009 Law Review article “Separation of Powers During the Forty-Fourth Presidency and Beyond” in the Minnesota Law Review.
This is the Yale Open letter.
This is the dreadful Ken Levy article in The Hill that Andrew debunks.
These are the actual Senate Rules, and remember that we broke down the “nuclear option” way back in Episode 59.
On Anthony Kennedy’s negotations, check out Rule 3(C)(1) of the Code of Conduct for U.S. Judges, which we previously discussed in Episode 129.
As homework for next week, read the Court’s order denying the Trump Administration’s request to modify the Flores settlement, which we first covered in Episode 184.
Finally, NEVER ENDING FAME AND FORTUNE goes to:Paul Duggan, Zach Aletheia, Eric Brewer, Teresa Gomez, Andrew Hamilton, Robin Hofmann, and Beverly Karpinski-Theunis for creating the OA Wiki!

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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July 9, 2018July 10, 2018

OA190: Good News, Everyone! (On Abortion Rights & More)

Today’s episode — at long last — brings us some good news from two rather unlikely sources: first, from the state of Iowa (regarding abortion rights), and second, from the Republican-controlled Senate Intelligence Committee. You won’t believe your ears!

We begin, however, with a segment that’s good news for everyone except Andrew: yes, it’s the ever-popular Andrew Was Wrong. This time, Andrew owns up to a serious mistake regarding the fingerprinting regulations at the border, and an almost-as-serious mistake regarding the bustling metropolis of Olathe, Kansas.

In the main segment, Andrew breaks down Planned Parenthood v. Reynolds, a recent state supreme court opinion invalidating a 3-day waiting period (with other onerous restrictions on abortion) that provides optimism and a way forward for progressives as we prepare for decades of a right-wing federal judiciary. Find out how states can protect reproductive freedom and abortion rights separate from the U.S. Supreme Court.

After that, it’s time for a return trip to Yodel Mountain, where we check in on the Senate Intelligence Committee’s endorsement of the joint agency report from January 2017 concluding that the Russian government deliberately interfered in the US elections with a strong preference for Donald Trump to Hillary Clinton.

Finally, we end the answer to Thomas Takes The Bar Exam #83 regarding the tort of assault and an unloaded firearm. Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Andrew was just a guest co-host on Episode 75 of the Skepticrat podcast; go check it out! 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

Click here to read the Planned Parenthood v. Reynolds opinion.
For future activism, click this link to determine whether your state has elected or appointed state supreme court judges.
The Intelligence Community Assessment is here; you can also read the Senate Intelligence Committee’s report validating that assessment here.

Support us on Patreon at: patreon.com/law

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

Don’t forget the OA Facebook Community!

And email us at openarguments@gmail.com

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July 5, 2018July 5, 2018

OA189: Supreme Court Justice Brett Kavanaugh

Today’s Rapid Response Friday gives you a sneak preview of what to expect from the person we predict will become Donald Trump’s next nominee to the Supreme Court, Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit.

We discuss:

Why it’s likely to be Kavanaugh and not any of the other rumored contenders, especially flavor-of-the-minute Amy Coney Barrett
Kavanaugh’s view of the First Amendment’s establishment clause and the future of Lemon v. Kurtzman
Kavanaugh’s views on abortion
How Kavanaugh differs (and how he doesn’t!) from Neil Gorsuch when it comes to Chevron deference
The weird conservative hit squad out to get Kavanaugh
And much, much more!

After all that, we end with an all new Thomas Takes The Bar Exam #83 involving assault with an unloaded gun. If you’d like to play along, 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!

Recent Appearances

Thomas was just a guest on Episode 421 of the Cognitive Dissonance Podcast. 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