Opening Arguments

Today's episode takes a deep dive into an 1832 decision, Worcester v. Georgia, to try and answer the question of what happens when the executive and judicial branches come into conflict. Yes, there's a lesson to be drawn to today's Supreme Court-vs.-Donald Trump showdown over the citizenship question on the census. We begin, however, with a pair of updates to previous shows, including "Joey Salads" and his nonsense "complaint" against AOC, and a listener email and update from our friend Seth Barrett Tillman regarding the status of the emoluments clauses litigation in both Maryland and DC. In fact, a late-breaking decision in the DC case led to a Patreon-only bonus extra on the topic! Then, it's time for the main event: breaking down the case that led to the famous aphorism, "Justice Marshall has made his decision, now let him enforce it." As is usually the case with these deep dives, there isn't an easy answer as to what the outcome will be when the executive and judiciary stare each other down, but we c

Today's episode tackles the recently-released trove of unredacted documents in the Southern District of New York in Michael Cohen's case and explains why Hope Hicks might have been ensnared by America's greatest legal mind, Stormy Daniels. Oh, and have you heard that the Congress ordered the DOJ to investigate... whether the military weaponized ticks and if so, whether those ticks were released against Americans? It's a weird story that can't possibly be true... can it? We begin, however, with the resolution to last episode's #T3BE (formerly #TTTBE) controversy regarding the definition and conditions required for assault. Learn the results of whether "hissing" constitutes a physical threat... and whether that even matters! Then, it's time for long trip up Yodel Mountain. We begin by discussing the... conclusion? of the citizenship question and Andrew lets you know what's still to come in those cases. After that, it's time to discuss the House's resolution of criminal contempt against Bill Barr and Wilbur

Today's episode features a grab-bag of stories that have been making the rounds, including the recent ruling out of the Second Circuit regarding Donald Trump's use of Twitter, a setback for our buddy Brian Frosh's efforts to enforce the Emoluments Clauses of the Constitution, and an update on the real-word consequences of the Janus v. AFSCME decision we decry so much around here. We begin with the Second Circuit's ruling in Knight First Amendment Inst. v. Trump, which established that a government official may convert a social media platform such as Twitter into a "limited use public forum," from which he may not block users on the basis of the political content of their speech -- i.e., viewpoint discrimination. Almost no one understands this decision; we'll make sure you're one of the lucky ones who do! Then, it's time for a breakdown of the 4th Circuit's ruling in In re Trump, which directs the lower court to dismiss the lawsuit (and pending discovery) against Trump in the lawsuit brought by Maryland

Today's episode gives you the legal background you need to understand all of the different legal fronts in the various pending proceedings involving Jeffrey Epstein and the allegations of underage sex trafficking, including the recent criminal indictment in the Southern District of New York, currently pending civil defamation lawsuits against Epstein associates (including Alan Dershowitz), and the effort to reverse the non-prosecution agreement in Florida. We begin, however, with a preview of some HUGE NEWS -- our upcoming live show in New York City the weekend of August 9, 2019! Clear your calendars now and get ready to come see us live and in person! Then, it's time to unpack all of the various legal proceedings surrounding Jeffrey Epstein. (For more of a factual analysis of the Florida non-prosecution agreement, check out Episode 259.) You'll learn about the various defamation lawsuits, their status, and what's next. And then you'll also learn where we stand with respect an effort that's now 11 years

Today's episode welcomes Monica Miller, counsel for the American Humanist Association, back to the show! Miller, as you know, was the lead counsel and presented the AHA's argument before the Supreme Court in the American Legion v. American Humanist Ass’n case involving the 40-foot Latin cross on public property in Bladensburg, Maryland. Andrew and Monica spend the entire show doing a deep dive into the decision, trying to figure out issues like (1) is the Lemon v. Kurtzman test really dead?; (2) how can we make sense of the court's admonition to "respect the beliefs" of those who oppose taking down the cross?; (3) how can local activists proceed in light of this decision, and much, much more! After a wide-ranging interview, it's time for the answer to what Andrew has dubbed the Worst, Stupidest Bar Exam question -- this one involving the "equitable conversion" doctrine in the sale of land. Did Thomas somehow manage to get a crazy, stupid, awful real property question correct? Listen and find out! Appea

Today's episode reveals Andrew's plan for how to fix the Supreme Court! Oh, and while you're here, we'd love it if you would vote for us in the Podcast Awards by clicking on that link (or heading to www.podcastawards.com), clicking the blue ">> Nominations Now Open

Today's episode revisits a narrow area of administrative law we last discussed in Episode 266, namely, Auer deference. Andrew made a bold prediction in that episode, and find out where he was wrong -- and where he was right now that the Supreme Court has ruled in Kisor v. Wilkie. We also discuss the recent unsealing of court records thanks to a CNN reporter and we witness the return of listener favorite segment "Are You A Cop?" with a fabulous question about drinking and driving. Buckle up! We begin, however, with a look at a recent request made by CNN's Katelyn Polantz regarding certain court proceedings and records relating to the Mueller Investigation. Does this mean that "BILL BARR KILLED 7 OPEN INVESTIGATIONS?" (No.) But it is significant, and you won't want to miss why. Then, it's time for a deep-dive explainer that starts with a reminder on the principles of agency deference. Don't remember the exact difference between Chevron deference and Auer deference? We've got you covered -- including, in pa

Today's rapid response episode breaks down the latest decisions from the Roberts court, including the ostensible "win" in Dep't of Commerce v. Ross (the citizenship question case), and the crushing loss in Rucho v. Common Cause (the gerrymandering cases). Oh, and along the way we'll also discuss the opioid crisis and the news that Robert Mueller will testify before the House Judiciary Committee. It's going to be a long and wild ride, so strap in! We begin by taking a quick trip to Yodel Mountain to discuss the significance and substance of the Congressional subpoena issued to Robert Mueller. What does it all mean? Listen and find out! Then, it's time to break down the theory and developments in State of Oklahoma v. Purdue Pharma, et al., CJ-2017-816, the case that's at the forefront of the efforts to hold pharmaceutical companies responsible for their role in causing the opioid crisis in this country. Find out what a "public nuisance" is, whether manufacturing and selling opioids is one, why this case is

Today's SUPER SPECIAL BONUS EPISODE tackles a bunch of issues that came up during the week that we didn't want to get buried on the whiteboard, including the Flores settlement, a deep dive into non-compete clauses, and a really good Andrew Was Right & Wrong segment about the Hatch Act. It's everything you love about Opening Arguments, only more so! We begin with an examination of the oral arguments before the 9th Circuit regarding ICE detainment centers and whether those comply with the conditions mandated by the Flores settlement that require "safe and sanitary" conditions for minors separated from their families at the border. After that, it's time for a deep dive into a really good listener question from Erin regarding covenants not to compete. Learn all about the "Legitimate Business Interest" (LBI) test and how to gauge whether a noncompete clause is (likely) enforceable, plus learn about the recent economic and political trends surrounding noncompetes that may surprise you. Then, it's time fo

Today's episode takes a deep dive into executive privilege, evaluating the legal arguments being raised by the Trump administration asserting executive privilege over former communications director Hope Hicks and former counsel Don McGahn. Find out how good those arguments are -- spoiler: some aren't terrible! -- and what's next for the Congressional Democrats. First, though, we begin with coverage of the American Legion v. American Humanist Ass'n decision from last week; that's the Bladensburg Cross case that we've discussed at some length on this show. How bad is this decision? (Bad.) Then, it's time for the intersection of Rapid Response Friday and Deep Dive Tuesday in which we time travel all the way back to 1971 to evaluate the Trump Administration's claims regarding executive privilege "over the last five decades." As you've come to expect from OA, we tell you what the administration got right... and, of course, what they got wrong. If you want to know if and when Congress will ever get meaningful

Today's episode -- #OpposeJustinWalker -- tells you everything you need to know about Donald Trump's latest nominee for a lifetime appointment to the federal bench (and Andrew's former debate opponent) Justin Walker. You already know he's a lifelong member of the Federalist Society. Why is it specifically worth opposing him? Listen and find out! First, though, the guys break down the Supreme Court's 7-2 ruling in U.S. v. Gamble, affirming the "dual sovereignty" doctrine and finally putting the last nail in the coffin of a crazy lefty conspiracy theory we debunked way back in Episode 215. And, as a bonus (?), we find out why Clarence Thomas's concurrence is "the most horrifying thing in print in the past 50 years." Seriously! After that breakdown, it's time to analyze the background and writings of Justin Walker. We learn that he has virtually no litigation experience and that he's a right-wing ideologue; you probably expected that. But you'll also learn that his two major contributions to academic juris

Today's episode explains exactly what happened with the story you probably saw about how Led Zeppelin "got a new hearing" in their lawsuit with the estate of Randy California. What's going on? Listen and find out! We also break down the latest ethical wrangling over Yale law professor Amy Chua and Brett Kavanaugh. Is it as bad as everyone says? We begin with the tale of "Tiger Mom" Amy Chua, the Yale law professor who wrote a stirring defense of Brett Kavanaugh as a "mentor to women" after Kavanaugh had offered Chua's daughter a plum clerkship. Did that pot get sweetened when Kavanaugh was confirmed to the Supreme Court? (Hint: yes.) We break down all of the ethics & more in this segment. Then, it's time to revisit the lawsuit brought by the estate of Randy California against Led Zeppelin alleging that Led Zep stole the iconic riff for "Stairway to Heaven" from California's band, Spirit. If you haven't listened to Episode 236, go give that a listen right now, and then come back to find out what's new

Today's Rapid Response Friday covers all of the breaking developments this week, including a ruling from the Wisconsin Supreme Court, the latest news out of the House of Representatives, and the Office of Special Counsel's latest request that Donald Trump should fire Kellyanne Conway for "flagrant" serial violations of the Hatch Act. What does all that mean? Listen and find out! We begin by revisiting the state of Wisconsin, where Republicans in gerrymandered-safe seats in the state legislature stripped power away from the incoming Democratic Governor and Attorney General. A trial court issued an injunction preventing that law from going into effect, and just two days ago, the state Supreme Court finally ruled on that injunction. How did that go? (You know the drill.) Then, we move into the main segment, in which we discuss all of the developments related to the census question we last discussed in Episode 286. Learn about one respondent's petition for limited remand, the White House's assertion of execu

Today's episode takes a deep dive into recent developments following the death of Republican operative Thomas Hofeller -- the architect of the REDMAP -- that may impact the census question case currently pending before the Supreme Court, Department of Commerce v. New York. First, however, we begin with an Andrew Was Wrong about the 2006 midterm elections and the Pension Protection Act. That was, in fact, a Democratic wave year -- but the PPA was passed in August, nearly five months before that new Democratic congress was seated. Oops. Then it's time to delve into the strange files of Thomas Hofeller, the architect of REDMAP -- you know, the gerrymandering strategy and software that turned Republican minorities into majorities in states like Wisconsin and tiny Republican majorities into one-sided dominance in states like North Carolina. Want to know his plan for helping "Non-Hispanic Whites?" Of course you do! We break down exactly how this development may affect Dep't of Commerce v. New York, which has

Today's instant-breaking episode takes a look at the significance of Lt. Gen. Michael Flynn's decision to fire his lawyers, Andrew's buddies over at Covington & Burling. Oh, and we also take a semi-deep-dive into President Trump's decision to impose tariffs on "all goods" imported from Mexico. What does it all mean? Listen and find out! We begin, however, with a slight preview of next week's show, which will break down the impending tariffs on goods imported from Mexico. How is this like (or unlike) Trump's decision to impose steel tariffs on China? You'll have to listen and find out! Then, it's time for the main segment in which we learn that Lt. Gen. Michael Flynn has fired his lawyers at Covington & Burling? What does that mean? Only time will tell. For the "C" segment, we break down the upcoming DNC debate, who's qualified, and what legal remedies some of the "loser" candidates might have. After all that, it's time for #TTTBE involving torts, contributory negligence, and joint and several

Today's episode is a tragedy in three acts, bringing together three seemingly-unrelated stories: (1) understanding the looming crisis at the Pension Benefits ordonuarantee Corporation; (2) figuring out who Gordon Hartogensis is and why he's about to gain control over potentially hundreds of billions of dollars in assets; and finally, (3) putting together all the pieces to see how President Trump has acted to protect his crony, Treasury Secretary Steven Mnuchin, from potential criminal and civil liability in connection with his management of Sears. Strap in; it's going to be a bumpy ride! We begin in Act I, in which the guys break down the Employee Retirement Income Security Act of 1974 (ERISA), its creation, the Pension Benefits Guaranty Corporation (PBGC), and the developments over the last 45 years that have pushed the PBGC to the brink of collapse. Act II, then, takes over with the recently-appointed International Man of Mystery, Gordon Hartogensis, to lead the PBGC. Who is this guy, and what has he d

Today's episode breaks down the statement made this week by Robert Mueller in connection with his report and investigation. Is it a good sign? Is it a bad sign? Is it both? Listen and find out! We begin, however, with a bit of housekeeping, including a recommendation that you check out Episode 194 of Serious Inquiries Only (featuring Eli Bosnick!) for the official OA answer to all things milkshaking. We also preview a bit of next week's show, which involves revisiting Eddie Lampert, Steve Mnuchin, and the alleged looting of Sears. Is it worse than you think? (It's always worse than you think.) Next, we check in on four Supreme Court orders that relate to gerrymandering. Is that worse than you think? (It's always worse than you think.) After all that, we're not even halfway done! Our main segment breaks down the Supreme Court's brief, two-page per curiam order in Box v. Planned Parenthood... and the sprawling, nonsensical 20-page concurrence written by Clarence Thomas that literally repeats David Barton

Lost in the (justifiable) concern over Secretary of Housing and Urban Development Ben Carson's apparent lack of understanding of REOs, OREO, and just about anything pertinent to his job is a recently-proposed HUD rule that would deliberately reverse an Obama-era regulation requiring nondiscrimination in the provision of services to the homeless based on gender identity. Is it as bad as you think? (Yes.) First, however, we begin with an Andrew Was Wrong and a bit more discussion on abortion, including the difference between Plan B and the oral abortifacient RU-486, and the difference between a zygote and a blastocyst. After that, it's time for our deep dive into Secretary Carson's laughable testimony... and the real issue hiding beneath the surface, which involves crafting a religious exception to the Equality Rule of 2016. Then, it's time to debut Optimist Prime(TM) vs. Negatron(TM) on impeachment. Find out why Andrew thinks the tide is turning and Thomas... doesn't. Where do you wind up? Listen and fi

Today's episode breaks down Judge Mehta's recent order in the Trump v. Mazars litigation, which is parallel to the Deutsche Bank lawsuit we discussed on last week's show. Why is this ruling significant, how does it accelerate the House's efforts to uncover crucial financial documents, and what does this mean for the future of the Trump Presidency? Listen and find out! We begin, however, with a look at some late-breaking news from Sen. Elizabeth Warren and Rep. Alexandria Ocasio-Cortez, who have requested information from Treasury Secretary Steven Mnuchin related to his tenure at Sears (that we discussed in Episode 273) and whether that conduct continued during his time working for the Trump administration. Then, it's time for the main segment, in which we discuss Judge Mehta's order, what it means for the future of the Trump investigations (and for future presidential administrations!), as well as deal with skeptical questions about the potential timeframe. Learn how the Congressional Democrats maneuvere

Today's episode takes an in-depth look at the recent abortion bans passed in Georgia and Alabama, breaking down exactly what these laws say (and don't say!) to help you sort through the panic from the actual news. It's not always a pleasant trip, but it's a journey worth taking to figure out exactly what's at stake. We begin, however, with a listener question about abortion -- and specifically, about whether the federal government can preemptively prevent the states from doing the kinds of things we talked about back in Episode 276. Find out why Andrew thinks the conservative Supreme Court isn't likely to uphold the constitutionality of a federal law prohibiting states from recognizing abortion rights. After that, it's time for a deep dive in to the very confusing Georgia statute , HB 481. Exactly what does this bill do (and not do), and how scared should you be? Listen and find out. And if that's not enough, we also walk you through the more straightforward (but still terrifying) Alabama statute, HB