Opening Arguments

Today's episode is brought  to you by Audible! Go to audible.com/lawpod for your free 30 day trial!! In today's episode, we take a look at the law of contracts, and particularly in the context of the recent lawsuit involving former Speaker of the House Denny Hastert. We begin, however, with a related question from patron Michael, who asks whether the Scientologists can really enforce that billion-year contract to join to Sea Org.  (This answer will not surprise you.) That leads into our main segment, where we look at the strange and tragic lawsuit being brought against Hastert by a victim of his past sexual assault.  Hastert agreed to pay the victim $3.5 million for his silence, and then stopped paying after he came under federal investigation.  Recently, Hastert counter-sued to recover the hush money previously paid, and we break down all the intricacies of contract law to try and figure out who's likely to get what. After our main segment, we tackle another listener question; this time, about whether employ

In today's episode, we examine one of the favorite policy recommendations of President Trump's Secretary of Education, Betsy DeVos:  the school voucher.  What is it?  Is it constitutional?  Listen and find out! We begin, however, with a Breakin' Down the Law segment where Andrew looks at a popular Twitter account's explanation of the odd fact that Donald Trump filed his re-election papers four years early.  Is there some nefarious purpose to him having done so, or is this innocuous?  We break down the law so you'll be armed with the information you need to navigate these kinds of claims. In the main segment, Andrew walks us through Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the most recent Supreme Court case to consider school vouchers, with a focus on whether providing federal tax dollars to private religious institutions violates the First Amendment's Establishment Clause. After our main segment, we turn to a question from ex-Mormon about the infamous "Mormon Extermination Order," an executive order (No

In today's episode, we take a look at President Trump's Supreme Court nominee, Neil Gorsuch.  The main segment was recorded before the announcement and reflects our guess (correctly!) that he would be the nominee, so you'll hear some speculative language. We begin, however, with a question from David Durman who wants to know if a citizen can bring a private civil suit against President Trump while he's in office.  The answer may surprise you! During our main segment, we also discuss Gorsuch's originalism and some of the opinions and dissents he issued while serving on the U.S. Court of Appeals for the 10th Circuit.  Oh, and he also wrote a snottly little editorial for the right-wing mag National Review. After our main segment, "Closed Arguments" returns with a question about Jared Kushner and the anti-nepotism law.  Is Trump violating the law?  The answer will probably not surprise you. Finally, we end with a brand new Thomas Takes the Bar Exam question #9 which is the single hardest question so far, in that

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 landow

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

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 Tr

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 que

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 Thoma

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 &

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 (@Ope

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 q

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 answ

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

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 mov

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 o

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 → The post OA28: Abortion and Planned Parenthood v. Casey, Part 2 appeared first on Opening Arguments.

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 → The post OA27: Abortion and Planned Parenthood v. Casey, Part 1 appeared first on Opening Arguments.

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 → The post OA26: Second Amendment Masterclass, Part 2 appeared first on Opening Arguments.

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.) → The post OA25: Could Jill Stein Decide the Presidency? (No.) appeared first on Opening Arguments.

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 → The post OA24: Trump Presidency Legal Q and A, Part 2 appeared first on Opening Arguments.