Opening Arguments

Today's Rapid Response Friday is actually a Follow Up Friday!  We revisit four stories from recent episodes and go into more depth on each one, particularly in light of recent developments. We begin with our most recent story regarding reporter's privilege in Episode 200.  What's the other side of the argument?  Find out why friend of the show Randall Eliason thinks that reporter's ought not to have the right to keep their sources confidential! After that, we move back one more episode to Episode 199 and tackle some important listener questions about asbestos.  Along the way, we discuss the difference between strict liability and negligence and delve into theories of market share liability. Our main segment covers the unsurprising fact that Masterpiece Cakeshop is back in the news.  What does this mean?  How has the Supreme Court's decision changed the landscape for religious exemptions to laws?  Listen and find out! After that, we go back to Yodel Mountain and check in with the conclusion of the Manafort tri

Today's episode takes an in-depth look at the legal protections reporters have (and don't have) to keep their sources confidential. We begin, however, with an update on how "Elections Have Consequences," this time, looking at the state of the House of Representatives in light of last week's special election in OH-12. After that, we dive deeply into reporter privilege, beginning with a discussion of the Supreme Court's decision in Branzburg v. Hayes and continuing through to the recently-proposed Free Flow of Information Act of 2017. Next, the guys break down the Electronic Frontier Foundation's take on the 3-D guns.  Do Andrew and Thomas change their minds?  Listen and find out! Finally, we end the answer to Thomas Takes The Bar Exam #88 about waiver and/or modification of contract.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was recently a guest on The Thinking Atheist podcast with Seth Andrews.  If you'd

Note: the SaneBox url in this episode is incorrect. Please go to https://www.sanebox.com/opening to take advantage of a great deal on their product! Today's Rapid Response Friday breaks down everything you need to know regarding the Trump EPA's recent rules change regarding asbestos.  Is it as ominous as it sounds?  (Yes.) We begin, however, with the oddest OA segment of all time:  Devin Nunes was right!  What was he right about, and what's a Michael Kinsley gaffe?  You'll just have to listen and find out! After that, in a bonus segment, the guys break down the recent indictment of Chris Collins (R-NY-27) for insider trading. The main segment breaks down the EPA's Significant New Use Rule (SNUR) regarding asbestos and help you evaluate the competing claims being lobbed back and forth.  Did the Trump Administration open up the use of asbestos in household products?  Or did they make it harder to use asbestos as the EPA claims?  We give you a definitive answer. After that, Andrew partially answers a listener qu

Today's episode takes an in-depth look at Donald Trump's favorite "liberal," Harvard Law professor Alan Dershowitz as seen through the eyes of one of his former students. We begin, however, with an update from the Paul Manafort trial, taking a look at the prosecution's strategy, witness list, and some preliminary rulings by Judge Ellis. After that, we dive very deeply into what looks like a very weird phenomenon:  why is Alan Dershowitz carrying water for a President whom he ostensibly opposes?  Why is he saying things that are demonstrably and indefensibly untrue about the law? Andrew has a theory.  Mostly, though, he has stories and research... but they lead to a theory (we promise)! Finally, we end the answer to Thomas Takes The Bar Exam #87 regarding constitutional law and a state vs. the federal Confrontation Clause.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None!  If you'd like to have either of us as a gue

Today's Rapid Response Friday breaks down all of the legal wrangling regarding the Trump Administration's secret settlement with a self-described "crypto-anarchist" who uploaded material that allows anyone with access to a 3-D printer to make their own plastic, undetectable, untraceable firearm. We begin, however, with a  listener who's considering coming over to the "dark side" and wants an honest answer about getting electoral help from overseas.  What if the Irish want to help elect Liz Warren in 2020?  Listen and find out! The main segment breaks down the "Defense Distributed" settlement and subsequent litigation -- and along the way you'll learn about Cold War arms sales, the Export Control Act, F-15s, Richard Nixon, and... well, let's just say there's a lot on the table! Finally, we end with an all new Thomas Takes The Bar Exam #87 regarding a state supreme court ruling over whether witnesses must face their accusers.  If you'd like to play along, just retweet our episode on Twitter or share it on Faceb

Today's episode tells you everything you need to know about voting, including in particular West Virginia's "Sore Loser" law and whether it applies to big fat racist criminal loser Don Blankenship... and, in turn, what that means for Joe Manchin's chances of holding on to his Senate seat in the 2018 midterms.  Phew! We begin, however, with... *sigh*... Andrew Was Wrong.  This time, an astute listener clarifies where Andrew elided over two different sections of the Voting Rights Act when discussing the Supreme Court's opinion in Shelby County v. Holder (2013). Oh, and we have more on McDonald's, too!  After that, it's time to dig into West Virginia's "sore loser" law.  What does this mean for the upcoming Senate elections?  Listen and find out! Then, the guys tackle a very good listener question from listener Greg regarding freedom of the press, freedom of speech, limited public fora, and more. Finally, we end the answer to Thomas Takes The Bar Exam #86 regarding the sale of an automobile and a slippery salesm

Today's Rapid Response Friday breaks down all of a busy week's developments in the Trump Administration's trip up Yodel Mountain, including the surprising revelation that Michael Cohen has audio tapes of his conversations with Donald Trump.  What does it all mean?  Listen and find out! We begin, however, with a challenging listener question regarding legal ethics and summer associates that hearkens back to our last episode. The main segment tackles an entire week's worth of yodeling, including the Cohen tapes, the emoluments lawsuit, and the Manafort trial.  Phew! After that, we check in with our buddy Andrew Seidel from the FFRF about a recent victory in the 9th Circuit regarding prayers at public school board meetings. Finally, we end with an all new Thomas Takes The Bar Exam #86 involving the questionable sale of a used car.  If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's epi

Today's episode tells you everything you need to know before Paul Manafort's trial in the Eastern District of Virginia, which begins Wednesday, July 25, 2018.  Oh, and we break down the recent lawsuit against McDonald's to boot! We begin, however, with a very good listener question from "Judicial Noir" regarding ethics, science, and a summer internship! After that, it's time to discuss an actual lawsuit over actual cheese.   Yes, there's a class action lawsuit against Thomas's favorite restaurant (McDonald's) -- and we're here to help you separate fact from fiction!  Oh, and along the way, you might learn something about Microsoft, illegal tying arrangements, and antitrust law! Then, it's back to Yodel Mountain to explain in depth exactly what's going on with our buddy Paulie M, and what you can expect over the next two weeks. Finally, we end the answer to Thomas Takes The Bar Exam #85 regarding real property.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play

Today's Rapid Response Friday breaks down the recent lawsuit filed by the Mandalay Bay casino regarding the 2017 Las Vegas shooting.  Is it true that the casino is suing the victims?  What's that all about??  Listen and find out!  Also, we check in with Yodel Mountain and figure out, once and for all, if this is really worse than Watergate.  (Hint:  yes.) We begin, however, with everybody's favorite segment, Andrew Was Wrong, in which we revisit the Supreme Court with a few corrections. The main segment tackles the Mandalay Bay lawsuit and explains the concept of a declaratory judgent as well as the 2002 SAFETY Act upon which Mandalay Bay is attempting to rely. Next, we return to Yodel Mountain to discuss the recent Mueller indictments, Donald Trump's Treason Summit with Russia, and ingenue Mariia Butina.  It's as salacious as OA ever gets! Finally, we end with an all new Thomas Takes The Bar Exam #85 involving (ugh) real property.  If you'd like to play along, just retweet our episode on Twitter or share it

Today's episode takes an in-depth historical look at the Eighth Amendment's prohibition on "cruel and unusual punishment" and what that might mean for the future of Obergefell v. Hodges in the next Supreme Court.  What does capital punishment have to do with gay marriage?  Listen and find out! We begin, however, with a discussion of the District Court's refusal to modify the Flores settlement we discussed in Episode 184.  Find out what the court thinks of Trump's Executive Order to "keep families together" at the border... by indefinitely detaining minors in violation of the law. After that, it's time for a double-length dive into the history of Eighth Amendment jurisprudence, and in particular, the Supreme Court's decision outlawing capital punishment in 1972 (Furman v. Georgia) and then reversing itself just four years later (Gregg v. Georgia).  Is this a blueprint for what the next SCOTUS will do?  Listen and find out! Finally, we end the answer to Thomas Takes The Bar Exam #84 regarding spousal privilege

Today's Rapid Response Friday does not take a victory lap about our successful prediction that Brett Kavanaugh would be Donald Trump's next nominee to the Supreme Court (but seriously, we called that right, y'all.)  Instead, Andrew and Thomas break down some of the current stories surrounding Kavanaugh to separate  fact from fiction and try and articulate the best mainstream case against confirming Kavanaugh to the Supreme Court. In the pre-show, we give a shout-out to everyone who made the Opening Arguments Wiki possible -- go check it out!  It's amazing! After that, Andrew Was Wrong returns with a clarification from Episode 187 where Andrew misspoke.  And also, the guys have a slight laugh at Andrew's inability to pronounce locations of things. The main segment tackles a bunch of current stories surrounding Judge Kavanaugh, including:  (1) the allegation that Judge Kavanaugh has concluded that sitting Presidents can't be indicted; (2) the Yale open letter opposing his nomination; (3) a truly stupid article

Today's episode -- at long last -- brings us some good news from two rather unlikely sources:  first, from the state of Iowa (regarding abortion rights), and second, from the Republican-controlled Senate Intelligence Committee.  You won't believe your ears! We begin, however, with a segment that's good news for everyone except Andrew:  yes, it's the ever-popular Andrew Was Wrong.  This time, Andrew owns up to a serious mistake regarding the fingerprinting regulations at the border, and an almost-as-serious mistake regarding the bustling metropolis of Olathe, Kansas. In the main segment, Andrew breaks down Planned Parenthood v. Reynolds, a recent state supreme court opinion invalidating a 3-day waiting period (with other onerous restrictions on abortion) that provides optimism and a way forward for progressives as we prepare for decades of a right-wing federal judiciary.  Find out how states can protect reproductive freedom and abortion rights separate from the U.S. Supreme Court. After that, it's time for a r

Today's Rapid Response Friday gives you a sneak preview of what to expect from the person we predict will become Donald Trump's next nominee to the Supreme Court, Brett Kavanaugh of the United States Court of Appeals for the D.C. Circuit. We discuss: Why it's likely to be Kavanaugh and not any of the other rumored contenders, especially flavor-of-the-minute Amy Coney Barrett Kavanaugh's view of the First Amendment's establishment clause and the future of Lemon v. Kurtzman Kavanaugh's views on abortion How Kavanaugh differs (and how he doesn't!) from Neil Gorsuch when it comes to Chevron deference The weird conservative hit squad out to get Kavanaugh And much, much more! After all that, we end with an all new Thomas Takes The Bar Exam #83 involving assault with an unloaded gun.  If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearan

Today's episode takes a look at three recent decisions from this Supreme Court and how each one will affect voting in the midterm elections:  Husted v. Randolph Institute, Abbott v. Perez, and (surprisingly) Janus v. AFSCME. First, though, we begin by addressing a conspiracy theory that's making the rounds suggesting some nefarious relationship between Anthony Kennedy's son, Justin, and Donald Trump.  Does this story hold water?  Listen and find out! Then, we break down each of the three cases:  Husted, involving Ohio's efforts to purge voters from its rolls; Abbott, involving Texas's efforts to racially gerrymander Congressional districts; and Janus, which will result in drastically weaker public sector unions.  What does this mean for the midterms?  (Hint: it's not good.) Finally, we end the answer to Thomas Takes The Bar Exam #82 regarding the search and seizure of heroin from plain sight.  Remember to follow our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE

Today's Bonus Episode asks if there's a way to make sense of the Supreme Court's Lukumi jurisprudence in light of this week's rulings in Trump v. Hawaii (the Travel Ban), Masterpiece Cakeshop, and the somewhat surprising decision to remand the Arlene's Flowers case back to the state of Washington. We begin, however, by checking in with the Southern District of New York's Order approving the Taint Team's review of documents seized from Michael Cohen's offices by the Department of Justice.  How many documents did the Team recommend the Court withhold as privileged?  The answer may surprise you! After that, we revisit the thesis advanced by Andrew Seidel in Episode 180 that the Supreme Court's decision in Masterpiece Cakeshop might result in a more vigorous application of its 1993 decision in Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993). Next, we break down the Supreme Court's 5-4 decision in NIFLA v. Becerra, in which the Court struck down a California law regulating so-called "cris

Today's Rapid Response Friday comes after a busy week at the Supreme Court, capped off by the (somewhat) surprising announcement that Associate Justice Anthony Kennedy intends to retire as of July 31, 2018. We break down everything about this news, including: What the Trump administration is likely to do next Who President Trump might nominate to fill Kennedy's spot How the Democrats should respond What the next Supreme Court might look like How all of this plays in with the 2018 midterms and 2020 Presidential election And much, much more! We're also going to bring you a bonus episode to make sure you're fully informed as to all the other goings-on in the law this week! After all that, we end with an all new Thomas Takes The Bar Exam #82 involving the legality of a search for heroin.  If you'd like to play along, just retweet our episode on Twitter or share it on Facebook along with your guess and the #TTTBE hashtag.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent A

Today's episode tries to put a positive spin on some recent developments, including the Supreme Court's gerrymandering decisions, the Department of Justice OIG report on the 2016 election, and the triumphant return of Everyone's Favorite Segment (TM):  "Are You A Cop?" We begin with the Office of the Inspector General's 2016 Election Final Report, which we modestly point out validates literally everything we said in one of our favorite Episodes, OA 13, "Hillary Clinton's Damned Emails."  There's so much more to learn, so you'll want to listen up! After that, we tackle the main segment, looking for some good news out of the Supreme Court's recent "decisions" on gerrymandering in Gill v. Whitford (Wisconsin) and Benisek v. Lamone (Maryland).  These 9-0 decisions are widely viewed as having punted on gerrymandering; is that right, and if so, what does the future hold? After that, we tackle a trope that "everyone knows" in fan-favorite segment "Are You A Cop?"  This week, it's that "everyone knows" cops can't hav

Today's Rapid Response Friday helps separate fact from fiction when it comes to the heartwrenching issue of families being separated at the border.  Is the Trump administration to blame?  Did the recent Executive Order fix the problem?  Listen and find out. First, though, we bring back (almost) everyone's favorite segment:  Andrew Was Wrong!  Specifically, Andrew was wrong when he predicted back in Episode 83 that Maajid Nawaz didn't have much of a defamation case against the Southern Poverty Law center, and in Episode 84 that he didn't have much leverage, either.  Well, both of those predictions looked foolish now that the SPLC has agreed to pay Nawaz $3,375,000 and issue an unconditional apology. In the main segment, we break down Trump's EO regarding separating families at the border and requesting a modification to the Flores v. Reno settlement.  It's bad.  And if it weren't bad enough, we also discuss the administration's change in asylum policy. After that, we discuss the Supreme Court's recent opinio

**Today's episode is brought to you by Framebridge! To custom frame your favorite things, go to framebridge.com promo code: OA** Today's episode takes a deep dive into two recent 8-1 decisions by the Supreme Court:  Collins v. Virginia and Sveen v. Melin.  What makes a decision nearly unanimous, and what causes that lone Justice to dissent?  Listen and find out! Our first 8-1 case involves two unique aspects of the 4th Amendment:  the "curtilage" exception and the "automobile" exception.  Which one takes precedence, why, and which Supreme Court justice vehemently disagreed?  Find out if you agree with Thomas -- and whether the law is "a ass."  (Seriously!) Our second 8-1 case is Sveen v. Melin, which involves whether the state of Missouri can legislate certain presumptions regarding "governing instruments."  It's the Contracts Clause!  Seem arcane?  It won't after you listen to our breakdown! After that, we answer a fun listener question about how a law firm makes someone a partner in light of our assessment

**Today's episode is brought to you by The Great Courses Plus! Go to thegreatcoursesplus.com/OA to start your free month!** Today's Rapid Response Friday spends a lot of time on Yodel Mountain, and in particular evaluating whether Paul Manafort is headed to prison for violating the terms of his pre-trial release as per 18 U.S.C. § 3148(b)(1)(A).  You'll know soon enough, but we're predicting that Paulie M is headed to prison. Of course, no trip to Yodel Mountain has just a single stop, so we also discuss the late-breaking New York state lawsuit filed against Donald Trump, his kids, and the Trump Foundation; the status of the media's efforts to unseal the Mueller documents, and much, much more! After that lengthy trip to Yodel Mountain, we also update you on the recent court decision upholding the AT&T / Time Warner merger first discussed in Episode 128. Finally, we end with an all new Thomas Takes The Bar Exam #80 which asks how a court would rule in a convoluted case involving car-washing, sudden deep fr