Opening Arguments

March 22, 2018March 23, 2018

OA158: Cambridge Analytica

In this rapid-response episode, Thomas and Andrew discuss the scandal regarding Cambridge Analytica. Is there a legal angle? Have crimes been committed? Listen and find out!

In the pre-show segment, Andrew helps out our reporters by giving theme the question they need to be asking regarding Stormy Daniels, which is: “Now that you’ve acknowledged that you’re DD, and you’ve sued Stormy Daniels for $20 million, can you tell us what claims you had against Ms. Daniels that you believe you settled in that agreement? What could you have sued her for?” You’re welcome.

That segues into the “A” segment, where the guys discuss the differences (and one strange overlap) between the recent lawsuit filed by Karen McDougal and the top-of-Yodel-Mountain Stormy Daniels lawsuit.

After the main segment, we tackle a listener question regarding the difference between textualism and originalism, inspired by our most recent episode, Episode 157.

Finally, we end with an all-new TTTBE #68 that requires some math to figure out the appropriate measure of damages for breach of contract. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

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Show Notes & Links

This is the National Review article that actually gets Stormy’s story right.
Here’s Mike Murphy’s article expressing skepticism of CA’s claims.
This is the Price v. Facebook class action civil lawsuit, arising out of California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq. And here’s the statement from NY Attorney General Eric Schneiderman.
If you wanted to set up a SuperPAC, Andrew’s old pals at Covington & Burling have drafted a simple how-to guide for you.
Finally, here’s a hilarious Tweet from Peter Drice Wright that highlights a key problem with textualism.

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March 19, 2018March 20, 2018

OA157: Are Originalist Judges Qualified? (w/guest David Michael)

Way back in Episode 49, Andrew argued that lawyers who claim to follow in the footsteps of Antonin Scalia-style originalism should be disqualified from serving on the U.S. Supreme Court, and that Democrats on the Senate Judiciary Committee need to be challenging Scalia’s acolytes (like Neil Gorsuch) on their underlying philosophy and not just their compassion (or lack thereof).

In this episode, friend of the show David Michael challenges some of the points made by Andrew in the original episode , as well as raises new ones. Along with Thomas, we have a great three-way discussion about U.S. history, the Federalist papers, key cases, the underlying work of Robert Bork, and more. Does Andrew change his mind? Does Thomas? Listen and find out!

After the lengthy interview, we end with the answer to an all-new TTTBE #67 about a gang party where the boss just wanted to “send a message.” Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

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Show Notes & Links

You can listen to our (ahem) original episode on originalism, Episode 49.
Please also check out David Michael’s new podcast, The Quorum!
Here’s a link to the full text of the Federalist Papers.
United States v. Carolene Products, 304 U.S. 144 (1938).
Harmelin v. Michigan, 501 U.S. 957 (1991) is the infamous decision in which Scalia declared that the Eighth Amendment only bars punishments that are both “cruel” and “unusual in the Constitutional sense.”

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March 15, 2018March 16, 2018

OA156: Conor Lamb & Pennsylvania Recounts

In this rapid-response episode, Thomas and Andrew discuss Congressman-elect Conor Lamb’s victory in Tuesday’s PA-18 special election and whether the Republicans will be able to recount the results.

After that, Andrew walks through the history of prior restraint under the First Amendment in light of a recent Nevada decision denying the request of the family of one of the Las Vegas massacre victims to suppress his autopsy report… and what that might mean for friend of the show Stormy Daniels.

That segues into another Q&A segment where we tackle Yet More Of Your Stormy Questions; this time relating to (1) choice of law and (2) whether Stormy can simply buy back the settlement for $130,000.

Finally, we end with an all-new TTTBE #67 about a gang party where the boss just wanted to “send a message.” Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

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Show Notes & Links

Thomas discussed the political implications of the Lamb election on Episode 128 of Serious Inquiries Only.
We discussed con artist Jill Stein’s “recounts” way back in Episode 25 of this show, and the Pennsylvania order denying standing is here. You can also read up on Pennsylvania’s Election law, Title 25, Chapter 14.; we specifically discussed §§ 3154(g) (mandatory recounts); 3261-63 (voluntary recounts); and 3459 (bonding requirement).
The key case for prior restraint is New York Times v. U.S., 403 U.S. 713 (1971); you can also read the Nevada Supreme Court opinion.
Please also check out David Michael’s new podcast, The Quorum!

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March 12, 2018March 12, 2018

OA155: Corporations Are People, My Friend… (and More Stormy)

Today’s episode tackles a popular article in The Atlantic which implies that, but for the machinations of one dude in the 1880s, corporations might not be “people,” today. Is it true? Listen and find out!

First, though, we continue to examine the legal genius of Stormy Daniels by answering some of the most common questions raised in response to our episode. This begins (sadly) with a brief “Andrew Was Wrong” clarification about the operative campaign disclosure requirements as well as an analysis of the arbitration order that came to light just after we went to press with Episode 154, and more!

In the main segment, Andrew takes a trip through the history of corporate personhood. After that, we answer a delightful question about hearsay from listener Dr. Jeff Otjen.

Finally, we end with the answer to Thomas (and David) Take the Bar Exam Question #66 about murderous political candidates appearing on an “Iron Chef” knockoff… look, you’ll just have to listen for yourself. Don’t forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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Show Notes & Links

We first discussed the Stormy Daniels lawsuit (and linked her complaint) back in Episode 154. Since then, Susan Simpson has done some pretty top-notch investigative work as to where the Trump campaign may have hid the payoff to Stormy.
The case referred to in the “A” segment is Amendariz v. Foundation Health, 6 P.3d 669 (Cal. 2000).
Our main segment discusses Adam Winker’s article in The Atlantic, focusing on Santa Clara County v. Southern Pacific R.R. Co., 118 U.S. 394 (1886).
Finally, the answer to Dr. Jeff’s question references two different provisions of the Federal Rules of Evidence: Rule 801 (defining hearsay) and Rule 803 (listing the exceptions).

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March 7, 2018March 8, 2018

OA154: Stormy Daniels is a Legal Genius

This emergency episode examines the Complaint filed by Stormy Daniels seeking a legal determination that the Settlement Agreement entered into between her, Donald Trump’s lawyer, and (allegedly) Donald Trump is not legally binding.

We honestly believe that this is a much bigger bombshell than is being portrayed by the press. Listen and find out why.

We also end with an all-new TTTBE #66 featuring David Michael. You won’t want to miss it! Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

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March 5, 2018March 6, 2018

OA153: March Madness on Yodel Mountain

Today’s episode takes an in-depth look at the recent FBI investigation into NCAA basketball.

First, though, the guys take another trip to Yodel Mountain, stopping at base camp to discuss Michael Rogers, Hope Hicks, Jared Kushner, Rick Gates, and everyone’s favorite villain, Paul Manafort.

During the main segment, Andrew and Thomas cover the recent expose by Yahoo regarding college basketball coaches allegedly paying for top talent. What does this mean for the future of the sport right before March Madness? Listen and find out!

After that, we revisit the funniest lawsuit in recent memory, namely, Bob Murray of Murray Energy’s defamation lawsuit against John Oliver, which we first covered back in Episode 84.

Finally, we end with the answer to Thomas Takes the Bar Exam Question #65 about an overzealous Eli Bosnick disciple who accidentally poisoned a meat-eater. Don’t forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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Show Notes & Links

Here is the link to the New York Times story about Adm. Michael Rogers’s testimony.
This is the superseding indictment filed against Gates and Manafort.
This is the Yahoo story on the FBI probe into the NCAA. and these are the NCAA bylaws.
We first discussed the Murray Energy lawsuit in Episode 84 and the amicus brief filed by Jamie Lynn Crofts (“the best legal brief ever written”) in Episode 93.

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March 1, 2018March 2, 2018

OA152: Discrimination is for Dick’s?

In this rapid-response episode, Thomas and Andrew discuss the 2nd Circuit Court of Appeals’ en banc decision in Zarda v. Altitude Express, ruling that Title VII of the Civil Rights Act of 1964’s ban on discrimination on the basis of sex applies to sexual orientation as well. This is a follow-up to our prior discussions of this issue back in Episode 60 and Episode 91.

In the initial segment, Andrew tackles a question from Twitter about the James Damore lawsuit and employment law in general after our most recent coverage in Episode 150.

After the main discussion of Zarda, the guys discuss some of the fallout from the Parkland shooting, including decisions by Dick’s Sporting Goods and Wal-Mart to cease certain kinds of gun sales. Is this inappropriate age discrimination? Listen and find out!

Finally, we end with an all-new TTTBE #65 about vegan criminal law. You won’t want to miss it! Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

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Show Notes & Links

We discussed Hively v. Ivy Tech Community College of Indiana back in Episode 60, and we discussed the panel decision in Zarda v. Altitude Express in Episode 91.
You can read the en banc decision of the Second Circuit in Zarda by clicking here.
In the “C” segment, the case discussed regarding Ladies’ Night is Koire v. Metro Car Wash, 707 P.2d 195 (Cal. 1985).

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February 26, 2018February 27, 2018

OA151: Equal Access, the Americans With Disabilities Act, and HR 620

Today’s episode takes a look at HR 620. What does it mean, and why does Congress want to make changes to one of the most successful, bipartisan, and beloved pieces of legislation in the past 30 years?

First, though, the guys update break down a recent decision from the Eastern District of New York also enjoining Trump’s rescission of DACA. Why did a second court block Trump’s order? Listen and find out!

During the main segment, Andrew walks us through the history of the Americans with Disabilities Act and what restrictions HR 620 would impose on would-be plaintiffs. Is it as bad as people are saying? (Hint: yes.)

After that, we answer a somewhat off-the-wall question from listener Mark Lunn that’s a follow-up to Episode 147 with Lucien Greaves.

Finally, we end with the answer to Thomas Takes the Bar Exam Question #64 about dog law, accidental trespass, and… well, you’ll just have to listen. Don’t forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

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Show Notes & Links

Don’t forget to show up for the monthly Q&A this Wednesday, February 28th, at 8:30 pm Eastern / 5:30 pm Pacific. You can submit your questions here.
We covered the first court decision enjoining Trump’s order on DACA in Episode 140. You can read the second (New York) decision here.
The relevant provision of the ADA modified by HR 620 is 42 U.S.C. § 12188.

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February 22, 2018February 23, 2018

OA150: Janus, The Angry Roman God Of Doorways (And Labor Law?)

In this fast-breaking episode, Thomas and Andrew preview a significant labor case scheduled for oral argument before the Supreme Court this coming Monday, Janus v. AFSCME. You’ll know all about it before the news breaks!

In the initial segment, “Andrew Was Wrong” returns with listener criticism over our repetition of the common media statement that Parkland was the “18th” school shooting of 2018.

After that, Andrew walks us through Janus v. AFSCME and its implications on the future of unions.

Next, the guys revisit ex-Google employee James Damore and discuss the significance of a recent memorandum issued by the National Labor Relations Board regarding his termination. Is The Most Important Lawsuit In The History of Western Civilization still on track? Listen and find out.

Finally, we end with an all-new TTTBE #64 about criminal dog law. You won’t want to miss it! Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We’ll release the answer on next Tuesday’s episode along with our favorite entry!

Recent Appearances

Check out the NEW PODCAST created by our very own Thomas Smith and friend-of-the-show Aaron Rabi, “Philosophers in Space.” You’ll be glad you did!

Show Notes & Links

Janus is, in fact, the angry god of doorways.
We covered the Parkland school shooting in Episode 148.
This is the Washington Post article critical of the “Everytown for Gun Safety” statistics, and here is a link to Everytown’s actual database of incidents. Judge for yourself!
Here is Abood v. Detroit Board of Education, 431 U.S. 209 (1977), discussed extensively during the show.
You can read the NLRB memo advising dismissal here.
We covered the (still-pending) James Damore lawsuit on Episode 111 of Serious Inquiries Only.

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February 19, 2018February 20, 2018

OA149: Russian Indictments & Utah Silence (feat. Bryce Blankenagel)

Today’s emergency episode breaks down the indictments issued in the Mueller probe on Friday, focusing on the shadowy, Putin-funded Internet Research Agency. What does this mean in terms of Yodel Mountain? Listen and find out!

After that, we have a lengthy interview with friend of the show Bryce Blankenagel of the Naked Mormonism podcast. Bryce comes on the show to break down the Rob Porter scandal, an innocuous-sounding bill before the Utah state legislature, and the puppet-mastery of the Mormon Church of all things political in that state.

After that, we end with the answer to Thomas Takes the Bar Exam Question #63, another very difficult question, this one about hearsay. Don’t forget to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE!

Recent Appearances

Check out the NEW PODCAST created by our very own Thomas Smith and friend-of-the-show Aaron Rabi, “Philosophers in Space.” You’ll be glad you did!

Also, Andrew was just a guest on Episode 6 of the Wayward Willis Podcast — give it a listen.

Show Notes & Links