Opening Arguments

In this episode, Andrew goes through five of the worst, most embarrassing cases in Supreme Court history. First, though, the guys tackle a question from Scott, who's considering becoming a patron of the show (good!) but has some questions about a standard form indemnification clause in the Patreon agreement. In the main segment, we look at the worst of the worst in Supreme Court history.  From the embarrassingly racist to the embarrassingly activist, come visit the Supreme Court's "Hall of Shame" with Andrew and Thomas. After that, fan favorite Breakin' Down the Law returns with an examination of a new mandatory arbitration provision for civil cases in Cook County, Illinois. Finally, we end with a brand new Thomas Takes the Bar Exam question #20.  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 a

In this episode of Opening Arguments, the guys look at both United Airlines and an obscure law from 1996 that could threaten the "administrative state" held in such disdain by our newest Supreme Court Justice, Neil Gorsuch. First, of course, Andrew breaks down the legality of the recent decision by United Airlines to forcibly remove a passenger.  How badly is United going to get sued?  You know we deliver the goods. Then, Andrew and Thomas discuss a little-known law passed in 1996 as part of the Republican Revolution and Newt Gingrich's "Contract With America":  the Congressional Review Act.  What is it, and why does it matter?  Listen and find out! In the "C" segment, Andrew answers a question from his mom.  Really! Finally, we end with the answer to Thomas Takes the Bar Exam Question #19 about diversity jurisdiction.  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

In this episode, we take a look at a landmark decision by the 7th Circuit Court of Appeals, Hively v. Ivy Tech Community College of Indiana. First, though, we tackle a question from listener Justin Wilder who wants to know about serving a subpoena on Amazon for evidence in a civil case related to information that might be stored on your Echo.  We love that our listeners are becoming civil procedure geeks! In the main segment, Andrew walks us through the landmark Hively decision and discusses what it means and what the likely future of the case will be. After that, fan favorite Breakin' Down the Law returns with an examination of South Dakota SB 149 which extends protections to adoption agencies in the state with (wait for it) sincerely held religious or moral beliefs. Finally, we end with a brand new Thomas Takes the Bar Exam question #19 that asks about diversity jurisdiction in federal court between two companies.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesda

In this highly unlikely episode of Opening Arguments, the guys run through three segments in which they defend President Donald J. Trump.  Sometimes truth is stranger than fiction First, listener T.Sp. asks about the just-invoked "nuclear option," and whether that vote itself could have been filibustered, thus triggering an endless loop of filibusters...  Obviously the answer is no -- but why?  We learn about some arcane Senate procedures and the guys conclude that the Democrats probably would have done the same thing if the situation were reversed. In the main segment, Andrew and Thomas break down the recent use of force by President Trump in Syria.  Does it violate the Constitution?  The War Powers Act of 1973?  Some other law?  (No.)  Yet again, the guys defend President Trump. In the "C" segment, our beloved Yodelin' Trump returns and the guys break down a popular video by Robert Reich that lays out five grounds for impeaching Trump.  How good are they?  Hint: check out the title of this show. Finally, we

  Today's episode is part two of a two-part series in which Thomas and Andrew walk through the short-lived history of the USFL, an alternative football league that ran into the bulldozer that is Donald J. Trump.  Along the way, we learn about jury nullification, antitrust law, and get some insight into Trump's legal strategies that just might have some relevance today.... First, though, "Breakin' Down the Law" defines "antitrust" in order to get you prepared to tackle the rest of our main story.  Afterwards, we answer a question from listener Eric Johnston, who wants to know what exactly "laches" and "estoppel" are. Finally, we end with a brand new Thomas Takes the Bar Exam question #18 that asks about the Constitutionality of an oppressive new law restricting clothing.  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

Today's episode is part one of a two-part series in which Thomas and Andrew walk through the short-lived history of the USFL, an alternative football league that ran into the bulldozer that is Donald J. Trump.  Along the way, we learn about jury nullification, antitrust law, and get some insight into Trump's legal strategies that just might have some relevance today.... First, though, "Breakin' Down the Law" defines "jury nullification" in order to get you prepared to tackle our main story.  Afterwards, we answer a question from listener Collin Boots, who wants to know why Andrew was so dismissive of term limits back in Episode 54. Finally, we end with the answer to Thomas Takes the Bar Exam Question #17 about selling a lemon of a used car in "as is" condition. 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

In today's episode, we look at a recent Supreme Court decision that could have wide-ranging effects on future trials. We begin, however, by "Breakin' Down the Law" regarding House Intelligence Chairman Devin Nunes.  Did he just violate the law Republicans kept trying to insist applied to Hillary Clinton's emails?  (Yes.) In our main segment, we delve into a recent Supreme Court decision, Pena-Rodriguez v. Colorado, in which the Court held that a defendant's Sixth Amendment right to a fair trial means that jurors must be free to report blatant racial bias in otherwise-private jury deliberations, even if the law says otherwise.  How the Court came down on this issue is also reflective of the split on the Supreme Court between the originalist justices and the mainstream ones. Next, long-time friend of the show Eric Brewer returns with a question about felon voting rights. Finally, we end with a brand new Thomas Takes the Bar Exam question #17 that asks about the common law behind "as is" used cars.  Remember tha

Today's episode continues our look at appellate jurisprudence, Supreme Court nominee Neil Gorsuch, and the philosophy of originalism that Andrew continues to insist is so extreme ast o be disqualifying. First, our much-beloved segment "Are You A Cop?" returns in triumphant fashion with an examination of a claim being raised by many Trump supporters; namely, that the 9th Circuit is "the most reversed appellate court in the country" with a "90% reversal rate."  Is this claim true?  (No.) In the main segment, we take a look at the Supreme Court's just-released opinion in Endrew F. v. Douglas County School District.  Is this a "unanimous reversal" of Gorsuch on appeal while Gorsuch's nomination remains pending??  As usual, we correct the news sources that got this story wrong and explain its significance to you. Next, we answer a question/comment from Ed Brayton, author of the "Dispatches From The Culture Wars" blog, who has a different take on originalism. Finally, we end with the answer to Thomas Takes the Bar

In today's episode, we look at the history and potential future of gerrymandered congressional districts. We begin, however, with a listener question that's come to us from multiple sources, including Patrons Greg Boettcher and Adrian Borschow, who want to know if there's any difference between a "jail" and a "prison."  We deliver the goods! In our main segment, we delve into three recent cases regarding the time-honored practice of gerrymandering a state into congressional districts so as to maximize the number of safe seats for any one political party.  How significant is this problem, and can the courts fix it?  Listen and find out! Next, our much-beloved segment "Closed Arguments" returns with a look at a British tabloid journalist, Katie Hopkins, who was recently forced to pay more than 300,000 pounds (that's still real money, right?) after mistakenly taunting another journalist on Twitter. Finally, we end with a brand new Thomas Takes the Bar Exam question #16 that asks whether an administrative assista

In today's episode, we take a look at a recent claim being made by Sen. Al Franken and others that Attorney General Jeff Sessions perjured himself during his confirmation hearings. First, we begin with an examination of some legal issues in the news related to the Trump administration.  What does it mean that the ABA rated Supreme Court nominee Neil Gorsuch "well qualified," and does that mean Andrew is rethinking his opinions to the contrary in Episode 40 and Episode 49?  (No.)  We also delve into a discussion of the recent (non-)story regarding the release of Donald Trump's 2005 form 1040, as well as the recent decisions by U.S. District Courts in Hawaii and Maryland to issue temporary restraining orders blocking Trump's Revised Executive Order ("Muslim Ban"). In the main segment, we break down exactly what Sessions said and whether it meets the technical requirements for perjury. Next, we answer a question from patron Anthoni Fortier, who asks us what "cert" is and why Andrew keeps saying it. Finally, we e

In today's episode, we look at some legal terms that our patrons asked us to define.  In a twist, however, the guys switch chairs and Andrew asks the questions while Thomas tries to offer legal definitions.  How did that work out?   Listen and find out! We begin, however, with a listener question from Rachel Doty, who -- in keeping with this episode's theme -- asks us to define "Alford plea." Then, based on a suggestion from patron Marie Kent, we ask Thomas to define as many legal terms as he can in half an hour.  We think this would make an awesome game show, so if any of our listeners are TV producers, please give us a call. Next, we take a look at a listener who recommended a Facebook post from an immigration attorney, and the guys discuss the concept of "illegal" immigration. Finally, we end with a brand new Thomas Takes the Bar Exam question #15 that asks whether eyewitness testimony can be tainted by viewing the suspect in police custody.  Remember that TTTBE issues a new question every Friday, followed

In today's episode, we take a look at the recent Supreme Court decision to rescind its grant of certiorari in the 4th Circuit opinion of Grimm v. Gloucester County School District.  What happened, and what does this mean for transgender rights? First, we begin with an examination of the Trump administration's revised Executive Order (sometimes called the "Muslim Ban") restricting entry from now six Muslim-majority nations. As you may recall, we first addressed this issue back in Opening Arguments episode #43.  Does this revised order comply with the law and solve the problems outlined by the 9th Circuit, or is it still "obviously unconstitutional," as many news sources claim?  You'll know better than the New York Times soon enough! In our main segment, we look at Title IX's prohibition on "sex" discrimination and discuss whether it applies to discrimination on the basis of sexual orientation and gender identity while walking through the somewhat unique procedural history of the Grimm decision. Next, we evalua

In today's episode, we take a look at a rule first proposed by President Obama's Department of Labor in 2016 that would require financial advisers to abide by a "fiduciary" duty with their clients.  What does that mean?  Listen and find out! We begin with a relevant note about the status of the rule, which is due to be implemented in 60 days. Next, in our main segment, we take a look at the implications of the Fiduciary Rule by consulting an expert; in this case, certified financial planner Ben Offit, CFP® who has a somewhat novel take on this enhanced obligation.  He breaks down what the proposed rule means for you and the financial professionals you might hire. After the main segment, we turn to a petition that has been garnering significant attention on the Internet:  #ReVote2017.  What is it?  Is it really pending before the Supreme Court, and what does that mean? Finally, we end with a brand new Thomas Takes the Bar Exam question #14 regarding the tort of the intentional infliction of emotional distress.

In today's episode, we take a long look at the judicial philosophy of "originalism" made popular by former Supreme Court Justice Antonin Scalia and advocated by his would-be replacement. First, we begin with a question from Jodi, who asks Andrew for his opinion of LegalZoom and other law-in-a-box services.  Andrew gets a little emotional in his response.... Next, we break down originalism as a form of jurisprudence and examine why it is (1) internally incoherent and contradictory; (2) dangerous and unconstrained; and (3) contrary to the fundamental purpose of the judiciary.  Andrew's argument is that originalists do not belong on the Supreme Court.  Period. Finally, we end with the answer to Thomas Takes the Bar Exam question #13 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 alo

Today's episode is a little bit different than our usual format; today, we take a look at three cases that our listeners have asked about on Twitter and Facebook. First up is an order entered by the U.S. District Court for the Western District of Texas enjoining the state of Texas (and nitwit Attorney General Ken Paxton) from disqualifying Planned Parenthood as an authorized Medicaid service provider on the basis of fake videos. Next, we tackle a recent ruling by the Washington Supreme Court applying that state's anti-discrimination law to a florist that decided she couldn't sell wedding flowers if the participants were gay.  Is this really the worst violation of individual freedom in the history of Western Civilization? Third, we look at the recent victory in the 11th Circuit by our colleague Dr. Steven Novella of the Skeptic's Guide to the Universe Podcast, and discuss what the ruling means for (say) podcasters who get sued for libel. Finally, we end with a brand new Thomas Takes the Bar Exam question #13 r

In today's episode, we take a look at the just-decided case of Kolbe v. Hogan out of the United States Court of Appeals for the Fourth Circuit.  Is this case as big a deal as people are saying it is? We begin, however, with a preliminary question from patron Alice Ashton, who asks about the controversial flavor-of-the-week, recently deplatformed Milo Yiannopolous.  Does knowing about a crime and not reporting it make you an accessory after the fact?  Find out! Next, we break down Kolbe v. Hogan and explain whether this recent decision lives up to the hype (and why)! After our main segment, we answer another patron question, this one from Derek Timp, who has some questions about the separation of church and state. Finally, we end with the answer to Thomas Takes the Bar Exam question #12 about that criminal squirrel-feeder.  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 Faceb

Today's episode concludes our two-part look at one of your most requested questions:  what might be in Donald Trump's taxes! We begin, however, with a listener criticism from Peter Crinklaw, who thinks Andrew gave short shrift to the policy argument for educational vouchers. Next, we conclude our two-part interview Tony Di Fatta, a practicing CPA, to take a deep-dive into all the things we might -- and might not -- find in the event that Donald Trump's taxes are ever disclosed.  All of this is meant to shed some light on the question:  should Democrats be focused on finding out what's in Trump's taxes? After our main segment, we tackle another listener question; this one from our top patron Zabby, who wants to know about the recently-passed Jacksonville, Florida Human Rights Ordinance. Finally, we end with a brand new Thomas Takes the Bar Exam question #12 regarding witness credibility.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to pla

In today's episode, we take a look at one of your most requested questions:  what might be in Donald Trump's taxes! We begin, however, with a preliminary question from Jim Sabatowski, who asks us what's the big deal with Trump's tax returns, anyway?  Is there a good reason to think we can get information that's necessary to evaluate a candidate? Next, we give you part one of our two-part interview Tony Di Fatta, a practicing CPA, to take a deep-dive into all the things we might -- and might not -- find in the event that Donald Trump's taxes are ever disclosed.  All of this is meant to shed some light on the question:  should Democrats be focused on finding out what's in Trump's taxes? After our main segment, we inaugurate a new segment about how close President Trump is to impeachment with a question about 18 USC § 1001 and the prohibition against making false statements. With a bonus reference to The Price Is Right! Finally, we end with the answer to Thomas Takes the Bar Exam question #11 about the best evid

In today's episode, we take a look at arbitration, an increasingly popular device being used to take disputes out of the courtroom.  What might arbitration mean for you?  Listen and find out! We begin, however, with a question from patron Faye Reppas, who asks about HR 2802, the so-called "First Amendment Defense Act." Next, in our main segment, we take a look at the implications of arbitration -- particularly in the employment context, where your employer may have inserted a mandatory arbitration clause in your employment agreement.  What does arbitration do?  Can you be compelled to do it?  We break it all down for you. After our main segment, we tackle another listener question; this one from Eric Walls about corporate personhood. Finally, we end with a brand new Thomas Takes the Bar Exam question #11 regarding the testimony of a plaintiff who's had surgical sponges accidentally left inside of her (a surprisingly common occurrence).  Remember that TTTBE issues a new question every Friday, followed by the a

In today's episode, we take a look at the ongoing status of Executive Order 13769 (often referred to as the "Muslim Ban").  What exactly did the 9th Circuit decide, and how does it affect the status of efforts to restrict emigration going forward? We begin, however, with a Breakin' Down the Law segment where we examine the so-called "Johnson Amendment."  What is it?  Would it be a bad thing if the Trump administration repeals it?  Does it really make a difference?  We break down the law so you'll be armed with the information you need to answer these questions. Next, we take a deep-dive into the 9th Circuit's recent ruling denying the Government's emergency motion for a stay.  What does that mean?  Where is this lawsuit headed next?  You won't know if you only read The New York Times, but you will know if you listen to this show! After our main segment, we turn to a question from listener Schofield Miller about why courts hand down multiple-life sentences that run to hundreds of years.  Figure out what it mea