Tag Archives: jurisprudence

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

  1. 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.
  2. 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.
  3. 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).
  4. Finally, we strongly recommend reading Justice Brennan’s 1986 Oliver Wendell Holmes lecture in which he explains his view of the Eighth Amendment.

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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!

Recent Appearances

None!  Have us on your show!

Show Notes & Links

  1. This is the National Review article that actually gets Stormy’s story right.
  2. Here’s Mike Murphy’s article expressing skepticism of CA’s claims.
  3. 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.
  4. If you wanted to set up a SuperPAC, Andrew’s old pals at Covington & Burling have drafted a simple how-to guide for you.
  5. Finally, here’s a hilarious Tweet from Peter Drice Wright that highlights a key problem with textualism.

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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!

Recent Appearances

None!  Have us on your show!

Show Notes & Links

  1. You can listen to our (ahem) original episode on originalism, Episode 49.
  2. Please also check out David Michael’s new podcast, The Quorum!
  3. Here’s a link to the full text of the Federalist Papers.
  4. United States v. Carolene Products, 304 U.S. 144 (1938).
  5. 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.”

Support us on Patreon at:  patreon.com/law

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And email us at openarguments@gmail.com



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