Opening Arguments

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

Today's episode takes a deep dive into allegations of attorney misconduct.  We begin with following investigative reporting concerning the involuntary bankruptcy of the Eagan Avenatti firm, and discover some potentially disturbing facts about the lawyer who's currently outfoxing the bad guys at every turn, Michael Avenatti. After that, we discuss the Supreme Court's recent unanimous per curiam decision in Azar v. Garza, the tragic case of the young woman denied her constitutional right to an abortion and subjected to harassment and "crisis pregnancy center" anti-abortion counseling until the D.C. Circuit Court of Appeal stepped in.  So... why did the Supreme Court just vacate that opinion?  It (potentially) has to do with attorney misconduct.  Oh, and this story also tells you everything you needed to know about price ceilings on underwear in the 1940s.  (Really!) Then, we examine the biggest example of attorney misconduct at the moment -- Donald Trump's ever-fluctuating team of lawyers defending the indefens

Join us for an early Rapid Response Friday, in which we break down the Supreme Court's decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  To tackle a topic this big, we needed a little extra help, so we brought back our favorite guest, Andrew Seidel, attorney with the Freedom From Religion Foundation.  But that's not all!  We recorded so much information that we decided to do a crossover episode with Serious Inquiries Only, so you can have over two hours of Andrew-on-Andrew (and Thomas!) action. We begin, however, on Yodel Mountain, with two pieces of news arising out of Paul Manafort's criminal trial.  Is Paulie M going to jail?  Did he engage in illegal witness tampering?  Did he back up his encrypted WhatsApp messages on an unencrypted iCloud?  Listen and find out!  We also delve into Manafort's response to the press's motion to unseal the Mueller investigation documents first discussed in Episode 168.  And, as long as we're yodeling, we might as well catch up on what's going on in the

Today's episode takes a deep dive into two developments concerning the right to an abortion in the U.S., followed by our continuing discussion on plea bargaining with listener comments from prosecutors, public defenders, the U.S. judiciary, and even international listeners.  You won't want to miss it! We begin with an in-depth examination of the so-called "gag rule" just proposed by Trump's Department of Health and Human Services.  Is it really a gag rule?  (Yes.) After that, we look into the Supreme Court's recent decision not to grant certiorari in Planned Parenthood v. Jegley, allowing an 8th Circuit decision to stand that, in turn, denied a preliminary injunction blocking a restrictive Arkansas abortion law, HB1394.  Is this a bad sign?  (Yes.) After that, we return to the subject of plea bargaining that's been a hot topic in our inbox for weeks, capped off by the Iowa Supreme Court's discussion of the issue in  Schmidt v. Iowa. Finally, we end the answer to Thomas Takes The Bar Exam #78 regarding whether

Join us for yet another Rapid Response Friday, in which we continue to evaluate claims on the left challenging the legality of the NFL's policy regarding the national anthem, as well as discuss two items that are also of interest to Donald Trump. We begin with a listener question we didn't get to during our Q&A regarding the similarities and differences between the John Edwards affair and the Stormy Daniels affair.  Is this the kind of thing that should give Trump comfort?  (Hint:  no.)  Oh, and you might also learn something about an "Allen charge" if you follow us all the way down all our rabbit trails! After that, we break down the "state action doctrine" while considering some liberal arguments making the rounds ostensibly challenging the legality or constitutionality of the NFL's new rules.  Andrew still isn't buying it! Then, we trek back to Yodel Mountain to discuss the recent developments in Michael Cohen's case in the Southern District of New York.  Was Andrew... wrong?  Listen and find out! Fina

Today's episode takes a deep dive into the recent Supreme Court decision in Epic Systems Corp. v. Lewis, a Gorsuch opinion that is exactly what we told you to expect back when he was nominated to the Court.  Oh, and we also tackle the latest policy issued by the NFL with our four-time guest, Chris Kristofco. And that's where we begin:  with a detailed breakdown of the legal implications of the NFL's just-announced policy prohibiting on-field peaceful protests during the national anthem.  You won't want to miss it! During the main segment, we break down the Supreme Court's 5-4 decision upholding the use of mandatory arbitration clauses that waive the right to class action lawsuits in take-it-or-leave-it contracts of adhesion.  But -- because this is a Gorsuch opinion -- you won't be surprised to learn that it's so very much worse than you thought. After that, we move into a listener comment on plea bargaining that foreshadows an upcoming episode.... Finally, we end with the answer to Thomas Takes the Bar Exam

It's time for another Rapid Response Friday, which means we get to break down whether Donald Trump has to respond to the Summer Zervos defamation lawsuit.  (Hint:  yes) We begin, however,  with a potential Stormy Setback.  What's the deal with press reports of a $10 million judgment entered against Stormy Daniels' attorney, Michael Avenatti?  Could it jeopardize the pending litigation?  Listen and find out! After that, we break down the recent federal district court opinion in Knight First Amendment Institute v. Trump, which we covered when the case was first filed way back in Episode 77.  Are Donald Trump's Tweets really a "protected forum" to which the First Amendment applies?  Listen and find out! Then, we break down exactly how duplicitious Donald Trump's personal lawyer has been regarding the Summer Zervos lawsuit.  It's exactly as much as you'd expect! Finally, we end with an all new Thomas Takes The Bar Exam #77 regarding the constitutional requirement to a trial by jury.  If you'd like to play along w

Today's episode takes a deep dive into two important Supreme Court opinions decided last week:  McCoy v. Louisiana, which prohibits attorneys from conceding their client's guilt over that client's objections in a capital murder trial, and  Murphy v. NCAA, which struck down the Professional and Amateur Sports Protection Act (PASPA), 28 U.S. Code § 3701 et seq.  In both cases, we hope to show that these cases have two legitimate sides. We begin, of course, with sportsball.  What is PASPA, why did the Court strike it down, does it make sense, and most importantly:  when can you bet against the San Jose Sharks? In the main segment, we break down the difficult questions surrounding the representation of capital murder defendants. After that, we head back overseas with a really insightful listener comment that takes us deeper into the law of treaties. Finally, we end with the answer to Thomas Takes the Bar Exam Question #76 about present recollection refreshed.  Remember to follow our Twitter feed (@Openargs) and l

It's time for another Rapid Response Friday, which means we get to break down Michael Avenatti's response to the opposition to his motion to appear pro hac vice in the Southern District of New York -- amongst many, many other issues! We begin, however,  with a brief Andrew Lived Through The 1980s segment (formerly: Andrew Was Wrong), that segues into an update on the Panmunjom Declaration discussed in Episode 173. After that, it's time to go yodeling, where we break down Paul Manafort's other criminal trial, Michael Avenatti's ethical responsibilities regarding SARs,  Donald Trump's financial disclosures, and (sadly) much, much more. Finally, we end with an all new Thomas Takes The Bar Exam #76 regarding the admissibility of witness testimony.  If you'd like to play along with our new Patreon perk, just retweet our episode on Twitter or share it on Facebook along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None!  If you'd like to have

Today's episode heads overseas to discuss foreign policy; specifically, the Trump administration's actions with respect to Iran and North and South Korea.  Is there a common thread here?  Listen and find out! First, though, we update you on the Young America Foundation lawsuit against the University of California at Berkeley regarding Ann Coulter and an (alleged) hidden Secret Evil Cabal Conspiracy to Silence Conservatives. After that, we crank up the time machine and go back... all the way back to World War II to discuss what happened on the Korean Peninsula that paved the way for the recent Panmunjom Declaration.  If you've ever wanted Opening Arguments to go all Ken Burns, well, this is the show for you! Then, we take a look at the Joint Comprehensive Plan of Action signed in Vienna on July 14, 2015 -- or, as Trump calls it, the "terrible Iran deal."  Is it a terrible deal?  What are the legal ramifications?  We've got you covered! Finally, we end with the answer to Thomas Takes the Bar Exam Question #75 a

It's time for another SUPER-SIZED Rapid Response Friday, which means we get to break down Judge Ellis's statements in the Paul Manafort criminal trial (amongst many, many other issues)! We begin, however,  with a brief Andrew (well, mostly ABC and NBC) Was Wrong. After that, the guys discuss a recent 10th Circuit opinion regarding the treatment of detainees in private prisons.  What does it mean for the future of class action litigation?  Listen and find out! After that, it's back to Yodel Mountain, where we break down not only Judge Ellis, but all the developments in or connected to the Mueller investigation, including Michael Flynn and Michael Cohen's "follow the money" report.  Phew! Finally, we end with an all new Thomas Takes The Bar Exam #75 about a contract and a subsequent oral modification that Andrew admits he would have muffed.  If you'd like to play along and show Andrew you're the better lawyer, just retweet our episode on Twitter or share it on Facebook along with your guess.  We'll release the