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OA1117 - As Donald Trump’s executive branch nominees continue to work their way through the confirmation process, we welcome Stanford Law professor Anne Joseph O’Connell to learn more about one of the most important legal protections we have against a fully imperial presidency. Professor O’Connell is one of the leading academic experts on the Federal Vacancies Reform Act, the legislation which Trump may or may not have intentionally circumvented in his last term to install acting heads of departments which would otherwise require Senate confirmation, and provides some essential background and context for what we might expect in his second term as his appointments continue to work their way through the confirmation process. Also covered: getting fired by Trump, defending pandas in court, Aileen Cannon and Clarence Thomas’s fringe theory about the unconstitutionality of special counsels, and what Professor O’Connell learned from her time clerking for Ruth Bader Ginsburg. 

• “Actings,” Anne Joseph O’Connell, Columbia Law Review (2020)

• Prof. O’Connell’s Stanford Law bio page

• Bluesky post with Prof. O’Connell’s notice of termination from the Trump administration

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OA1116 - We take stock a few days into the second Trump administration to consider the current state of ICE enforcement, Trump’s blatantly unlawful overrule of the recent Supreme Court decision forcing the divestiture of TikTok, and the President’s new venture in cryptocurrency. Finally, today’s footnote honors the efforts of one person who is doing her part to write history as it happens.

• Judge John Coughenour’s injunction against Trump’s executive order on birthright citizenship (1/23/25)

• SCOTUS decision in TikTok v. Garland (1/17/2025)

• “Application of Protecting America from Foreign Adversary Controlled Applications to TikTok,” (1/20/2025) 

• $TRUMP coin price tracker

• “Enforcement Actions At Or Focused on Sensitive Locations” (original ICE “sensitive locations” memo)(10/24/2011)

• Final text of the Laken Riley Act (sent to the President 1/24/25)

• Judge Amy Berman Jackson’s order on DOJ’s motion to dismiss in U.S. v. Gregory Mijares (1/23/25)

Check out the OA Linktree for all the places to go and things to do!

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OA1107 - Chief Justice John Roberts has used his annual end-of-the-year report to remind us that federal judges should not accept luxury vacations from billionaires, fly insurrectionist flags on any of their properties, or ever be criticized for any reason. Or, you know--at least one of those things. We also answer a patron question about what happens if Republicans can't get their House in order by the time that electoral votes are supposed to be certified on January 6th before getting to today's main story: the very real possibility that TikTok may not live to see the first day of the second Trump administration if the Supreme Court allows current law barring it from doing business in the US to take effect on January 19th. How could the US government shutting down one of our nation's favorite new ways to communicate not constitute a massive First Amendment problem? Why did a majority of Congressional Democrats, the Biden administration and pre-election Donald Trump all agree that TikTok is a threat to national security? And when is Matt going to finally release his signature TikTok dance video? We answer two of these questions before dropping a quick footnote to look back on a stupid Congressperson's idea of a smart person's legal argument in support of overturning a democratic election.

• DC Circuit decision in Tiktok v. Garland (12/6/24)

• “What If Free Speech Means Banning TikTok?,” Alan Rozhenstein, The Atlantic (12/13/24)

• Redacted transcript of U.S. intelligence briefing to House Energy and Commerce Committee on March 7, 2024 filed with DC Circuit

• ACLU amicus brief in Tiktok v. Garland (12/27/24)

• Donald Trump’s amicus brief in Tiktok v. Garland  (12/30/24)

• Protecting Americans From Foreign Adversary Controlled Applications Act (signed into law 4/24/24)

• “2024 Year-End Report on the Federal Judiciary,” John Roberts (12/30/24)

 

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OA1040

We begin in Florida with yet more of Judge Aileen Cannon's efforts to delay Donald Trump's federal case, including a demand for Jack Smith to be nicer to Trump's lawyers and her decision to allow non-parties to join the fun and make arguments in an upcoming hearing about whether Smith was properly appointed to prosecute Trump at all.

Hunter Biden's federal trial began this week in Delaware on charges relating to his purchase and possession of a gun which he owned for 11 days in 2018. Matt breaks down the history of this investigation, the charges, and how this case ended up going to trial before a quick time jump in which we return to review what we know one week into these proceedings. How does this trial compare to the one which concluded a week earlier with the conviction of a former President Donald Trump--and would these charges ever have been brought against someone whose last name wasn’t Biden? 

• 11th Circuit order instructing the clerk's office to stop taking complaints about Judge Cannon

• Mar-A-Lago search warrant

• Jack Smith's Motion for Modification of Conditions of Release

• Quick Facts on 18 U.S.C. § 922(g) Firearms Offenses (US Sentencing Commission)

• Delaware indictment of Robert Hunter Biden (gun charges)

• “How to Think About the Hunter Biden “Laptop,” Marcy Wheeler (6/6/2024)

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Today's episode revisits a question we tackled way back in Episode #16, namely, whether President Trump has the authority to enact his Muslim Ban. We begin with an examination of the recent CREW lawsuit seeking a declaratory judgment that President Trump has violated the Emoluments Clause.  Is that lawsuit likely to prevail?  What could it accomplish?  Listen and find out. In the main segment, we consider not only the recent Trump Executive Order restricting the entry of aliens from seven majority-Muslim nations (the "Muslim Ban").  We address questions of legality and constitutionality, as well as break down the recent injunction handed down by the Southern District of New York in response to the ACLU's lawsuit. After our main segment, we turn to a question from a conservative listener about abortion and whether Roe v. Wade was an "activist" decision. Finally, we end with the answer to Thomas Takes the Bar Exam question #8 about a landowner's duties regarding trespassers who accidentally fall into the landowner's murder lake.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Show Notes & Links

1. The CREW lawsuit is here.
2. We reference two decisions on the "political question" doctrine:  Baker v. Carr, 369 U.S. 186 (1962) and Nixon v. U.S., 506 U.S. 224 (1993).
3. We initially discussed the Muslim Ban way back in OA Episode #16, which is worth another listen!
4. The authorizing statute (the "1952 Law") is 8 USC §1182(f).
5. The "1965  Law" is 8 USC §1152(a).
6. In light of those two provisions, we think you can spot the errors in David Bier's op-ed in the New York Times.
7. I wrote a lot on Facebook about the ACLU lawsuit and the injunction handed down by the court on Saturday, so you can check that out if you want the relevant documents.

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Today's episode is part two of our two-part series on pending changes to the Fair Labor Standards Act ("FLSA").  As we've previously mentioned, in 2016, the Obama Department of Labor promulgated new rules requiring that employees who are "exempt" from the FLSA's overtime requirements must earn at least $47,476 per year.  A district court judge issued an injunction blocking those rules from going into effect; that decision is currently pending on expedited review before the 5th Circuit Court of Appeals.  In this episode, Andrew continues his explanation as to why he thinks those rules are going to eventually go into effect and what that means for employers and employees. We begin, however, with a thoughtful question from friend of the show Noah Lugeons regarding how the FLSA's tipping rules interact with Title VII of the Civil Rights Act of 1964.  Is it illegal for employers to rely on tips knowing how inequally tips are handed out to men and minorities?  Listen and find out! After our main segment on the FLSA, we answer a delightfully mad question from Robert Rautio regarding the supposed "right to travel" in the Constitution.  Answering this doozy takes us back into the weird and wonderful world of "sovereign citizens" -- you won't want to miss it! Finally, we end with a brand new Thomas Takes the Bar Exam question #8 about whether a company dumping toxic waste has a duty to warn trespassers.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Show Notes & Links

1. The relevant provisions of the FLSA for this episode are 29 USC § 207 (maximum hours) and 29 USC § 213 (exempt employees).
2. Title VII of the Civil Rights Act of 1964 begins at 42 USC § 2000e and can be found here.
3. This is the original rule promulgated by Obama's Department of Labor.
4. Here is the judicial injunction blocking the implementation of the rule.
5. And here is the judge's decision not to overturn his own injunction after a motion for reconsideration.
6. Please laugh at -- but DO NOT FILE! -- this suggested "brief" by the weirdos at The Lawful Path who think you can get out of a traffic ticket by filing this nonsense.  (You can't.)
7. And here's another absolutely bonkers list of random string-cites that purports to show that you have an absolute right to travel guaranteed by the Constitution.  (You don't.)

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Today's episode is part one of a two-part series on pending changes to the Fair Labor Standards Act ("FLSA").  As we've previously mentioned, in 2016, the Obama Department of Labor promulgated new rules requiring that employees who are "exempt" from the FLSA's overtime requirements must earn at least $47,476 per year.  A district court judge issued an injunction blocking those rules from going into effect; that decision is currently pending on expedited review before the 5th Circuit Court of Appeals.  In this episode, Andrew explains why he thinks those rules are going to eventually go into effect and what that means for employers and employees. We begin, however, with a listener correction regarding the FLSA and tipped employees.  As it turns out, Andrew mis-spoke on a prior episode and employers must ensure that an employee's total compensation (including tips) meets the federal minimum wage. After our main segment on the FLSA, the much-beloved "Are You A Cop?" segment returns with a myth about President Trump revoking the commutation of Chelsea Manning's prison sentence. Finally, we end with the answer to Thomas Takes the Bar Exam question #7 about hearsay.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Show Notes & Links

1. The relevant provisions of the FLSA for this episode are 29 USC § 207 (maximum hours) and 29 USC § 213 (exempt employees).
2. The DOL Fact Sheet #15 referred to listener Victoria McNair is here.
3. This is the original rule promulgated by Obama's Department of Labor.
4. Here is the judicial injunction blocking the implementation of the rule.
5. And here is the judge's decision not to overturn his own injunction after a motion for reconsideration.
6. Finally, here's the New York Times story about President Obama commuting Chelsea Manning's sentence.

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Today's episode is part two of our two-part series on whether the Emoluments Clause of the Constitution applies to incoming President Donald Trump. We begin, however, with a listener question from Erik Alsman who asks whether the Supreme Court has the power to declare an amendment to the Constitution unconstitutional.  Along the way we'll learn a little bit about the history of judicial review in the United States. In our main segment, we conclude our interview with Lecturer Seth Barrett Tillman of the Maynooth University Department of Law, exploring Tillman's thesis that the Emoluments Clause does not apply to President Trump because the Presidency is not an "office... under the United States" for purposes of Constitutional analysis.  Afterwards, Thomas and Andrew break down the argument and offer their views on the issue. Next, we air some listener comments and questions regarding the difference between a "barrister" and a "solicitor" in UK law. Finally, we end with a brand new Thomas Takes the Bar Exam question #7 about the admissibility of a hearsay statement during a civil trial.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Show Notes & Links

1. This is the text of Marbury v. Madison, 5 U.S. 137 (1803), in which the Supreme Court articulated -- some say, invented! -- the doctrine of judicial review.
2. Prof. Tillman can be found on Twitter at @SethBTillman, and here is his professional page.
3. In November of 2016, Prof. Tillman wrote a brief piece for the New York Times summarizing his thesis about the Emoluments Clause.
4. This 2009 Memorandum from the President's Office of Legal Counsel assumes -- without argument or citation -- that the Emoluments Clause applies to the President.
5. In December of 2016, Norm Eisen, Richard Painter, and Laurence Tribe wrote a paper for the Brookings Institution arguing that the Emoluments Clause does apply to the President.
6. Zephyr Teachout's law review article, The Anti-Corruption Principle sets forth her argument that the Constitution, including the Emoluments Clause, enshrines a fundamental principle to protect against corruption of our highest offices, including the Presidency.
7. Tillman's Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle is here.
8. Teachout's specific response to Tillman on the Emoluments Clause is here.
9. Tillman's reply to Teachout can be found here.
10. Teachout's final reply to Tillman can be found here.

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Today's episode is part one of a two-part series on whether the Emoluments Clause of the Constitution applies to incoming President Donald Trump. We begin, however, by addressing another Trump-related question:  Does a recent report claiming that 50+ Trump electors are ineligible provide the relief of preventing Trump from assuming the Presidency?  We delve into the report and answer the question in a way that may surprise you. Our main interview segment is with Lecturer Seth Barrett Tillman of the Maynooth University Department of Law.  Tillman's thesis is that the Emoluments Clause does not apply to President Trump because the Presidency is not an "office... under the United States" for purposes of Constitutional analysis. Next, we answer a listener question from William Stemmler about officeholders in the line of Presidential Succession who are themselves ineligible to become President.  Could Donald Trump nominate George W. Bush to be Secretary of State?  Find out! Finally, we end with the answer to Thomas Takes the Bar Exam question #6 about pre-nuptial agreements.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Show Notes & Links

1. Here's the Raw Story report on disqualified Trump electors, and the full text of the report can be downloaded from Alternet.
2. Prof. Tillman can be found on Twitter at @SethBTillman, and here is his professional page.
3. In November of 2016, Prof. Tillman wrote a brief piece for the New York Times summarizing his thesis about the Emoluments Clause.
4. This 2009 Memorandum from the President's Office of Legal Counsel assumes -- without argument or citation -- that the Emoluments Clause applies to the President.
5. In December of 2016, Norm Eisen, Richard Painter, and Laurence Tribe wrote a paper for the Brookings Institution arguing that the Emoluments Clause does apply to the President.
6. Zephyr Teachout's law review article, The Anti-Corruption Principle sets forth her argument that the Constitution, including the Emoluments Clause, enshrines a fundamental principle to protect against corruption of our highest offices, including the Presidency.
7. Tillman's Opening Statement, Citizens United and the Scope of Professor Teachout’s Anti-Corruption Principle is here.
8. Teachout's specific response to Tillman on the Emoluments Clause is here.
9. Tillman's reply to Teachout can be found here.
10. Teachout's final reply to Tillman can be found here.

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Today's episode is a mini-masterclass on Copyright.  We begin by answering a question from listener Sue Barnum who asks if a simple list can be copyrighted. After that, we move to the main discussion over the Copyright Act and the "fair use" defense, using as an illustration the recent story where CNN appropriated the graphic from the hit videogame Fallout 4 to illustrate a story about Russian hacking.  Did this violate copyright law?  Or was CNN's activity "fair use" of the game screen? Next, we answer a fun listener question from Damian Kumor about the portrayal of law in media.  What's Andrew's favorite obscure legal TV show?  Listen and find out! Finally, we end with Thomas Takes the Bar Exam question #6 about prenuptial agreements.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s)! Show Notes & Links

1. Here's the text of Feist Publications v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991).
2. This article from cnet explained CNN's use of the Fallout 4 graphic.
3. The Copyright Act of 1976 is codified at 17 U.S.C. § 101 et seq.
4. Learn about the incredibly low-rated cancelled TV show "Justice" at its IMDB page.

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Today's episode begins with Breakin' Down the Law in which we discuss the recently-enacted "Frank R. Wolf International Religious Freedom Act," and whether the Act constitutes a significant legal protection for atheists. During our main segment, we are excited to have on Simon Tam, founder of the band "The Slants," for an extended interview that follows up on our discussion of Lee v. Tam from Episode 30.  Simon tells us about the history of the band, answers some tough legal questions, and also describes how he combines his music with social justice activism. After the interview, we turn to a listener comment from friend of the show Dr. Dave Hawkes, who helps answer a plausibility question we had from Law'd Awful Movies. Finally, we end with the answer to Thomas Takes the Bar Exam question #5 about the garnishment of wages.  For every episode going forward, TTTBE will give you a new question on Friday, followed by the answer on Tuesday.  And remember that you can play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s)! Show Notes & Links

1. Learn all about The Slants and download authorized samples of their songs at www.theslants.com.
2. This is the press release issued by the American Humanist Association that also contains the full text of the Frank R. Wolf Act.
3. If you missed our initial coverage of The Slants on OA30, you should go back and listen to that episode!
4. And if you still haven't listened to our free episode of Law'd Awful Movies #1, you can download that here.
5. Finally, this is a copy of the Slants’ Supreme Court brief, which is reasonably entertaining for a legal brief.

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Today's episode begins with a question from Adrien Thuren about the minimum wage.  How come restaurants can seemingly pay wait staff less than minimum wage?  And if that's legal, why don't other industries don't start paying their employees less than minimum wage too?  Andrew tells us why or why not. For our main segment, we bring back guest Chris Kristofco from OA6.  In addition to being an ex-lawyer and current-day blogger about the Green Bay Packers, Chris is also a casino employee and former dealer.  He joins us to help break down the recent verdict in federal court in New Jersey requiring Phil Ivey to pay back $10.1 million to the Atlantic City Borgata casino. Next, "Breakin' Down the Law" returns with a segment that explains the difference between a "lawyer" and an "attorney."  Be honest -- you didn't know the answer, either, did you?? Finally, we end with Thomas Takes the Bar Exam, where Thomas tackles question #5 about garnishment of wages.  For every episode going forward, TTTBE will give you a new question on Friday, followed by the answer on Tuesday.  And remember that you can play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s)! Show Notes & Links

1. If you like football, and you love (or hate!) the Packers, you should listen to Chris Kristofco's excellent podcast, Titletown Sound Off.
2. If you missed Chris's first appearance way back on OA6, you should go back and listen to his predictions about the "pending NFL apocalypse," and you'll understand why we hold his feet to the fire on this return visit.
3. This is the Washington Post article explaining the Ivey verdict, based on the recent damage ruling.
4. And this is the full text of the October decision by the federal court on liability, which mostly went unnoticed even though it decided the key issue in the Borgata's favor.
5. Finally, this link contains a graphic representation of the purple Gemaco cards that were the subject of the suit as well as the "flaw" exploited by Ivey.

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Welcome to the first Opening Arguments of 2017, and the first episode on our new two-episode-per-week schedule.  Just a reminder:  we will be releasing these episodes on Tuesdays and Fridays every week.  More on scheduling below. Today's episode begins with a far-fetched (but interesting!) hypothetical about what would happen if Donald Trump refused to take the Presidential Oath of Office.  We dig into the Constitution, the 20th Amendment, and the 25th Amendment and go down some fun rabbit trails. For our main segment, we return to the McDonald's "Hot Coffee" lawsuit we discussed in OA 29, and tackle some common questions about negligence raised by listeners. Next, "Breakin' Down the Law" returns with a segment that explains the difference between "legalizing" and "decriminalizing" ... stuff.  Yeah, "stuff." Finally, we end with Thomas Takes the Bar Exam, where we find out how our intrepid co-host did in answering real-life bar exam prep question #4 about trespass.  Going forward, TTTBE will always be an answer on Tuesday followed by a new question on Friday. Remember that you can play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s). Show Notes & Links

1. If you missed OA29, you might want to go back and listen to find out all that's right and wrong about the McDonald's "Hot Coffee" lawsuit.
2. Also, we gave you a little holiday present by releasing LAM #1: The Firm to all of our listeners.  If you haven't listened already, we think you'll enjoy it.

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Well, it's finally here:  the last Opening Arguments of 2016.  We're looking forward to 2017 (and our amazing two-episode-per-week schedule). We begin with some announcements about Law'd Awful Movies, and then turn to Thomas Takes the Bar Exam, where we find out how our intrepid co-host did in answering real-life bar exam prep questions. Then, we answer a listener question from Jim Sabatowski about the foreseeability of one's negligence by taking a trip back to law school and talking about the crazy, fireworks-on-a-train-exploding-scale madness that is Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928). In our main segment, we tackle the confusion world of religious-themed holiday displays.  When is it okay to put a little baby Jesus on the courthouse steps?  We'll tell you insofar as the Supreme Court has told us, which... isn't always perfectly clear. In our "C" segment, we tackle yet another listener question; this one from Skeptic Sarah regarding the controversy over trademark registration for the all Asian-American band "The Slants" and their unique crowdfunding of their Supreme Court legal costs. Finally, we conclude with TTTBE #4.  Remember that you can play along by following our Twitter feed (@Openargs) and quoting the tweet that announces this episode along with your guess and reason(s). We'll see you in 2017... twice as often! Show Notes & Links

1. Here's a link to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), which will help you answer TTTBE #3.
2. While we're at it, this is the full-text link to Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99 (1928), the case every law student knows.
3. Lemon v. Kurtzman, 403 U.S. 602 (1971), set forth the "Lemon test" that we talk about in the main segment.
4. Lynch v. Donnelly, 465 U.S. 668 (1984), was the 1984 case that said it was perfectly legitimate for a courthouse to display little baby Jesus in a manger.
5. But weirdly, Allegheny County v. ACLU, 492 U.S. 573 (1989), was the case from just five years later where the Supreme Court said no, courts couldn't just display little baby Jesus in a manger, but they could display a menorah, a Christmas tree, and a liberty plaque all together.
6. We defy you to explain the difference between Van Orden v. Perry, 545 U.S. 677 (2005), which upheld a Ten Commandments monument in Texas, and a decision handed down the exact same day, McCreary County v. ACLU, 545 U.S. 844 (2005), which struck down Ten Commandments posted on the walls out two courthouses in Kentucky.
7. Finally, this is a copy of the Slants' Supreme Court brief, which is reasonably entertaining for a legal brief.

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OA1039

Trump’s prosecution for election interference in Georgia was just stayed by the Court of Appeals, leaving no chance that this trial will proceed before November. What happened, and how unexpected was this delay? We investigate.

We then turn to our main story: Biden administration’s executive actions to “shut down the border” and close the door to asylum for many people who would otherwise be eligible. Matt explains what’s actually going on here and how much of it was already in place before we consider the practical and political consequences of Joe Biden effectively carrying out the border bill which Trump bullied Republicans not to pass. 

We end by spending a few minutes discussing a recent opinion from Judge Frank Easterbrook of the 7th Circuit Court of Appeals, who has very strong--and extremely appropriate--opinions about fonts.

• Georgia appeals court order staying Trump’s criminal trial

• “A Proclamation on Securing the Border” (June 4, 2024)

• Interim Final Rule (“Securing the Border”)(June 4, 2024)

• Attorney Taylor Levy’s donation page

 

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SPECIAL CHRISTMAS GIFT! This is normally for Patrons only, but we wanted to gift our non-patronizing listeners a gift and a sample of what they might be missing over at patreon.com/law!! Behold the majesty of what you are about to receive.  This is, hands down,  the worst legal movie ever made.  From the opening credits to the cheesy ending voice-over, literally everything this movie has to say about the law is completely and utterly wrong. Yes, for our first Patreon movie reward, we suffered through all 2 hours and 34 minutes of The Firm (1993), which chronicles the amazing journey of Mitch McDeere (Tom Cruise), an I'm-no-idealist Harvard Law grad who refuses to break some imaginary law he thinks exists regarding attorney-client privilege, but has no problems with extortion, illegal wiretapping, fraud, and kicking a 92-year-old man to death. Come for the crazy legal subplot that can be solved in two seconds!  Stay for the crazy second legal subplot that gets introduced for the first time right after most movies are rolling the credits!  Stay even longer to watch the epic Tom Cruise-Wilford Brimley fight to the death!   Special guest:  Sam from Comedy Shoeshine. --------- Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com  

It's a two-episode week!  In this week's Wednesday episode, we are joined by Tom & Cecil of the Cognitive Dissonance podcast for a discussion about freedom of speech and whether online platforms such as Facebook and Twitter ought to be considered "public spaces."

We begin with some announcements about the schedule, including Thomas Takes the Bar Exam, which will remain a weekly feature once we move to our twice-per-week format in January.  So no new question today, but you will have a few extra days to answer TTTBE #3.

Then we take a look at the new Texas law requiring funereal services for aborted embryos and miscarriages, and Thomas takes a shot at analyzing the issue.  Is all his hard work studying for the Bar Exam paying off?  Listen and find out!

Finally, the show concludes with a discussion of the 1994 McDonalds "Hot Coffee" lawsuit, Liebeck v. McDonald's Restaurants, as an example of legal myths gone awry.  What exactly happened in that case, and what does it say about whether we should have caps on punitive damages or other forms of "tort reform" in the U.S.?

After that, we look at the abortion-related question of the lawsuit ostensibly brought by Sofia Vergara's frozen embryos.  Is this a meritorious lawsuit or a publicity stunt orchestrated by a goofball anti-abortion columnist?

Show Notes & Links

1. Check out the Cognitive Dissonance podcast!
2. Here are the actual fetal tissue rules promulgated by the Texas Health Services that require "interment" of "the products of spontaneous or induced human abortion."
3. A federal judge in the Western District of Texas recently issued a temporary restraining order blocking the implementation of the rules pending a preliminary injunction hearing to be held on January 3.
4. Whole Women's Health v. Hellerstedt, 136 S.Ct. 2292 (2016), provides some guidance as to how the Supreme Court might treat the Texas abortion rules.
5. Here's the CollegeHumor video on the McDonald's "Hot Coffee" lawsuit.

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In this week’s episode, we conclude our discussion of Planned Parenthood v. Casey, 505 U.S. 833 (1992), and how the “undue burden” test the Supreme Court developed in that case continues to govern laws protecting (and restricting) abortion today. However, we begin with the moment you’ve all been waiting for:  the answer to Thomas Takes … Continue reading OA28: Abortion and Planned Parenthood v. Casey, Part 2 →

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In this week’s episode, we return to the subject of abortion and pick up with a cliffhanger from way back in episode #11, where Thomas was asked how he would have handled what became the Supreme Court case of Planned Parenthood v. Casey, 505 U.S. 833 (1992).  We talk about that landmark decision, how it changed the … Continue reading OA27: Abortion and Planned Parenthood v. Casey, Part 1 →

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This week’s super-sized episode is literally jam-packed with five all-new segments for our listeners; six if you haven’t heard both parts of the Second Amendment Masterclass already.  And make sure you stay tuned all the way to the end for our exciting new segment! First, you get an all-new introduction with new quotes, many of which were … Continue reading OA26: Second Amendment Masterclass, Part 2 →

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In this week’s episode, we discuss the recent efforts by Jill Stein and the Green Party to raise funds for Presidential recounts in Wisconsin, Pennsylvania, and Michigan.  Should you rush out and open your wallets to help raise funds for the Green Party? “Breakin’ Down the Law” returns with a discussion on court structure.  If … Continue reading OA25: Could Jill Stein Decide the Presidency? (No.) →

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In part two of this two-part episode, we continue to address every unique listener question posted to the Opening Arguments Facebook page relating to the impending Trump presidency. So if you’re wondering whether Trump will be impeached, if Obama can recess appoint Merrick Garland to the Supreme Court, about the future of the ACA, or … Continue reading OA24: Trump Presidency Legal Q and A, Part 2 →

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In part one of this two-part episode, we tackle every unique listener question posted to the Opening Arguments Facebook page relating to the impending Trump presidency. So if you’re wondering whether Trump will be impeached, if Obama can recess appoint Merrick Garland to the Supreme Court, about the future of the ACA, or what Trump’s … Continue reading OA23: Trump Presidency Legal Q and A, Part 1 →

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PLEASE PLEASE fill out a very brief survey for us!!! https://survey.libsyn.com/openargs In this week’s episode, we tackle the legal and philosophical issues underlying libertarianism.  We take on such issues as :  what is “property,” why is it a right, and is it cognizable as a side-constraint against government action?   At the end of the day, … Continue reading OA22: Libertarianism is Bad and You Should Feel Bad →

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PLEASE PLEASE fill out a very brief survey for us!!! https://survey.libsyn.com/openargs By listener request, we are bringing you this special “deep dive” episode into the history and jurisprudence underlying the Second Amendment.  This episode was originally broadcast on Atheistically Speaking earlier in 2016. Just in time for the election, we tackle a thorny political issue: … Continue reading OA21: Second Amendment Masterclass, Part 1 →

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OA's Official Bar Tutor returns! We've got the answer to Question 26, but with Heather's signature style where we're going to learn a whole lot along the way. Then, in Question 27, we've got some Constitutional Law!

Be sure to play along by submitting your answer! Use #T3BE, or play on reddit.com/r/openargs!

PLEASE PLEASE fill out a very brief survey for us!!! https://survey.libsyn.com/openargs In this special episode, we look at breaking news:  the jury verdict in United States v. Ammon Bundy et al., a federal case brought in the United States District Court for the District of Oregon as a result of the armed takeover of the Malheur National … Continue reading OA20: What Happened With Ammon Bundy? SPECIAL EDITION →

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PLEASE PLEASE fill out a very brief survey for us!!! https://survey.libsyn.com/openargs In this week’s episode, we look at some of the interesting details surrounding the intentional release of classified materials by Edward Snowden.  In particular, we looked at the legacy of Snowden’s leaks,  how they played out in the Second Circuit’s decision in ACLU v. Clapper, 785 F.3d … Continue reading OA19: Should Edward Snowden Be Pardoned? →

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In this week’s super-sized episode, we conclude our three-part role-playing experiment “You Be The Supreme Court,” using an actual case that is currently pending before the Court:  Trinity Lutheran Church of Columbia, Inc. v. Pauley. Last time, we went through the State of Missouri Department of Natural Resources’s response brief.  This week, we look at the … Continue reading OA18: You Be The Supreme Court, Part 3 →

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  In this week’s episode, we return to our little role-playing experiment “You Be The Supreme Court,” using an actual case that is currently pending before the Court:  Trinity Lutheran Church of Columbia, Inc. v. Pauley. Last time, we went through the Petitioner’s brief seeking to overturn the lower court’s decision to deny Trinity Lutheran Church the … Continue reading OA17: You Be The Supreme Court, Part 2 →

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In this week’s bonus episode, we tackle the breaking legal question of whether the RNC can legally replace Donald Trump as the Republican nominee for President, and if so, what the consequences would be.  You don’t want to miss this episode! In our opening segment, we bring back a classic “Breakin’ (Down) the Law” by … Continue reading OA16: Dump Trump? →

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In this week’s episode, we tackle a breaking legal issue:  is Andrew’s old law school buddy Ted Cruz correct that the U.S. government just “gave away the Internet?”  (Hint:  Ted Cruz is never right about anything.)  We walk you through everything you could possibly want to know about #savetheinternet. (If you’re looking for Part 2 … Continue reading OA15: #SaveTheInternet →

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In this episode, we try something a little bit different.  Instead of simply analyzing a case, we let you play the role of Supreme Court Justice working your way through a difficult case that is currently pending before the Court:  Trinity Lutheran Church of Columbia, Inc. v. Pauley. You’ll learn what kind of cases make their … Continue reading OA14: You Be The Supreme Court, Part 1 →

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In this episode, we delve — at long last, and just in time for the first Presidential debate — into the question of Democratic Presidential candidate Hillary Clinton’s use of a private email server during her tenure as Secretary of State. In particular, we answer the question:  “did Hillary Clinton receive preferential treatment” when the … Continue reading OA13: Hillary Clinton’s Damned Emails! →

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In this episode, we delve into the wacky world of tax protesters and “sovereign citizens,” people who believe that the legal world is a magical place filled with secret code words that, if invoked properly, can force the Illuminati-run courts to admit you into the secret chamber where nobody has to pay their taxes or … Continue reading OA12: Tax Protesters, Sovereign Citizens, and Other Wackiness →

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In this week’s hour-length episode, we finally conclude our three-part discussion of abortion and defending the jurisprudence behind the Supreme Court’s 1973 opinion in Roe v. Wade… only to leave you with another cliffhanger and a topic for a future show.  (Bingo!) Also, given our Patreon support, we’ll now be answering a viewer question every episode!  In … Continue reading OA11: Abortion, Roe v. Wade, and the Constitution, Part 3 →

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OA1038

Today we're joined by Vox Senior Correspondent, Ian Millhiser! In his reporting, Ian focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. Ian gives us an excellent and comprehensive breakdown of Grants Pass v. Johnson, a case that could be decided any day now. As usual with this Court, the question is: How scared should we be?

Check out Ian's excellent article and other reporting here.

If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

Our discussion of abortion continues as we walk through the Supreme Court’s opinion in Roe v. Wade and its aftermath. In our first segment, “Closed Arguments” continues with a look at whether you should call your law professor by her first name.  (No.  No, you should not.)  And in our closing segment, we answer a question … Continue reading OA10: Abortion, Roe v. Wade, and the Constitution, Part 2 →

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In Episodes 7 and 8, we discussed a recent decision by a federal court in Missouri dismissing a lawsuit brought by the Satanic Temple challenging certain Missouri laws that arguably restrict abortion rights.  In this episode, we take a step back and look at the right to abortion itself and the sometimes-controversial Supreme Court decision … Continue reading OA9: Abortion, Roe v. Wade, and the Constitution, Part 1 →

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In this episode, we wrap up the recent decision by the United States District Court for the Eastern District of Missouri dismissing a lawsuit brought by the Satanic Temple challenging several laws relating to getting an abortion in Missouri.  Andrew tells you what “motions to dismiss” are, and Thomas proves that he knows more about the … Continue reading OA8: You Won’t Have the Satanic Temple to Kick Around Any More, Part 2 →

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In this episode, we look at a recent lawsuit filed by the notorious Satanic Temple challenging abortion restrictions in the state of Missouri.  In the main segment, Andrew tells you how to read a Complaint, and Thomas offers advice to the Satanic Temple’s lawyers about which arguments are more persuasive to him. Our opening segment … Continue reading OA7: You Won’t Have the Satanic Temple to Kick Around Any More, Part 1 →

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In this week’s episode, Andrew sits down in the interviewer’s chair and talks with Chris Kristofco, another real lawyer and the lead editor at Title Town Sound Off, a Green Bay Packers fan site. If you’ve been following the NFL’s investigation into alleged performance enhancing drugs use by several of its star players, you’ll enjoy … Continue reading OA6: The Pending NFL Apocalypse (with Chris Kristofco) →

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Finally wrapping up their four-part discussion of the 2000 U.S. Presidential election, Andrew and Thomas follow the Gore campaign’s lawsuit as it goes to the Supreme Court.  How legitimate is Bush v. Gore?  Does it hold water?  Find out in this episode. Show Notes & Links The Supreme Court’s decision in Bush v. Gore, 531 U.S. … Continue reading OA5: Bush v. Gore and the 2000 Election, Part 4 →

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Continuing our discussion from OA3, Andrew lays the background for the most tumultuous Presidential election in modern American history, discussing the politics, history, and the legal background that led us to Bush v. Gore. Show Notes and Links Pres. Bill Clinton’s approval ratings, 1999-2000. Voting history for West Virginia, once a reliable Democratic stronghold. A … Continue reading OA4: The 2000 Election (#NeverForget), Part 3 →

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Andrew and Thomas continue their discussion of the 2000 U.S. Presidential election, moving from resurrecting long-dead jokes about “hanging chads” to explaining how the legal challenge that could determine the Presidency began in a tiny county courthouse in Florida. Show Notes & Links The Supreme Court’s decision in Bush v. Gore, 531 U.S. 98 (2000). Palm … Continue reading OA3: The 2000 Election (#NeverForget), Part 2 →

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On the last episode of Atheistically Speaking with Andrew Torrez (AS259), Andrew teased us with the promise that he’d be back to discuss what really happened back in the 2000 U.S. Presidential election (and promised that it might have something to do with our current Presidential election)!  Well, Andrew’s back, and in Part 1, he and I … Continue reading OA2: The 2000 Election (#NeverForget), Part 1 →

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In this introductory pre-episode, Thomas and Andrew talk about their backgrounds and their vision for the show.  We also preview our upcoming show segments and topics, tell you how to get in touch with us, and talk a little bit about how the show got started. Segments  Listener Questions:  We field a question from Eric … Continue reading OA1: “The Story Begins” – Introducing the Show & Segments →

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OA1037

THE JURY IS IN! Opening Arguments is coming at you LIVE AND UNEDITED today as we react in realtime to the announcement of the verdict in People v. Trump--conveniently timed for exactly the time that we had already planned to record this week! We also take a look at the lengthy closing arguments from both sides and Matt answers patron questions about some of New York’s more unusual trial practices before getting into what we can expect next.

We finish out the fun with Thomas’s dramatic reading of Samuel Alito’s indignant, mendacious, and entirely unsolicited response to the Senate Judiciary Committee’s demands to speak with the Supreme Court’s manager and take a moment to appreciate his full-throated defense of a woman’s absolute right to choose (flags). 

• Jury instructions in People v. Trump

• People v. Owens, 69 N.Y.2d 585 (1987)(providing jury with written excerpt of jury instructions was reversible error)

• Alito’s letter to Senators Dick Durbin and Sheldon Whitehouse dated May 29, 2024

Heather is back for another bar question! Yay! Except... it's real property... NOOOOO
We only do the question on this one, since we did both the Q and A last time. So, this is just a short little uncharged episode to get us back on track. It also allows me to catch up on Patron thanks!

Note: two new Gavel Gavels are out, with more coming very, very soon!

If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

OA1036

Two great stories for you today - following OA1034 on how much Alito sucks, the Law Dork himself, Chris Geidner, is on to discuss the flag habits of Samuel Alito, as well as the exclusive story he broke regarding Alito’s stock activity immediately after Libs of TikTok called for a boycott against Bud Light because…transphobia. After we vent about Alito for a bit, Chris walks us through what an Alabama judge threatened to do to a group of LGBTQ+ lawyers and it’s even worse than you could imagine.

Be sure to follow Chris (@chrisgeidner/@chrisgeidner.bsky.social) and subscribe to his Substack to support independent legal journalism!

• Law Dork's coverage of Judge Liles Burke's orders out of the US District Court for the Northern District of Alabama

If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!