Opening Arguments – Détails, épisodes et analyse

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Opening Arguments

Opening Arguments Media LLC

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Fréquence : 1 épisode/3j. Total Éps: 1204

Opening Arguments is a law show that helps you make sense of the news! Comedian Thomas Smith brings on legal analysts to help you understand not only current events, but also deeper legal concepts and areas! The typical schedule will be M-W-F with Monday being a deep-dive, Wednesday being Thomas Takes the Bar Exam and patron shoutouts, and Friday being a rapid response to legal issues in the news!

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The Vacancies Act - How Trump Has Used and Abused It, and Might Again

Épisode 1117

lundi 27 janvier 2025 • Durée 57:27

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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

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

To support the show (and lose the ads!), please pledge at patreon.com/law!

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Triaging All the Horrible

Épisode 11116

vendredi 24 janvier 2025 • Durée 46:42

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!

If you’d like to support the show (and lose the ads!), please pledge at !

SCOTUS Fast-Tracks TikTok Case; Trump Files Nonsense Amicus Brief

Épisode 1107

vendredi 3 janvier 2025 • Durée 53:56

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 (12/30/24)

Hunter Biden's Trial Is Everything MAGA Thinks The Trump Trial Was

Épisode 1040

lundi 10 juin 2024 • Durée 57:59

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)

OA39: Trump's Muslim Ban

Épisode 39

mardi 31 janvier 2017 • Durée 01:20:34

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

The CREW lawsuit is here.
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).
We initially discussed the Muslim Ban way back in OA Episode #16, which is worth another listen!
The authorizing statute (the "1952 Law") is .

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OA38: FLSA and Exempt Employees, Part 2

Épisode 38

vendredi 27 janvier 2017 • Durée 01:05:42

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

The relevant provisions of the FLSA for this episode are 29 USC § 207 (maximum hours) and 29 USC § 213 (exempt employees).
Title VII of the Civil Rights Act of 1964 begins at 42 USC § 2000e and can be found here.
This is the original rule promulgated by Obama's Department of Labor.

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OA37: FLSA and Exempt Employees, Part 1

Épisode 37

mardi 24 janvier 2017 • Durée 59:23

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

The relevant provisions of the FLSA for this episode are 29 USC § 207 (maximum hours) and 29 USC § 213 (exempt employees).
The DOL Fact Sheet #15 referred to listener Victoria McNair is here.
This is the original rule promulgated by Obama's Department of Labor.
Here is the judicial injunction blocking the implementation of the rule.

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OA36: The Emoluments Clause (w/Seth Barrett Tillman) Part 2

Épisode 36

vendredi 20 janvier 2017 • Durée 01:16:06

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

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.
Prof. Tillman can be found on Twitter at @SethBTillman, and here is his professional page.
In November of 2016, Prof. Tillman wrote a brief piece for the New York Times summarizing his thesis about the Emoluments Clause.

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OA35: The Emoluments Clause (w/Seth Barrett Tillman) Part 1

Épisode 35

mardi 17 janvier 2017 • Durée 01:03:55

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

Here's the Raw Story report on disqualified Trump electors, and the full text of the report can be downloaded from Alternet.
Prof. Tillman can be found on Twitter at @SethBTillman, and here is his professional page.
In November of 2016, Prof. Tillman about the Emoluments Clause.

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OA34: The "Fallout" Over Copyright

Épisode 34

vendredi 13 janvier 2017 • Durée 01:06:00

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

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

Support us on Patreon at: patreon.com/law Follow us on Twitter: @Openargs Facebook: https://www.facebook.com/openargs/ And email us at

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