Opening Arguments

In this episode, we revisit what Andrew has called the worst problem in American politics:  gerrymandering -- but this time with a twist. We begin, however, with a listener question from Anna Bosnick, who is also our special guest for Law'd Awful Movies #7 - Legally Blonde! Anna watched the movie and listened to our intro and wants to know:  what exactly is habeas corpus, anyway? Then, we tackle the recent news about Montana Congressional candidate Greg "Body Slam" Gianforte.  Can he really take office if he's convicted of assault? In the main segment, Andrew and Thomas walk through the recent Supreme Court decision in Cooper v. Harris and discuss what it might mean for the future of gerrymandering legislation. After that, Andrew answers another listener question, this one from the exceptionally prescient Garry Myers, who wants to know whether corporations can assert 5th Amendment rights. Finally, we end with a brand new Thomas Takes the Bar Exam question #25 about smoking pot and crashing cars.  Remember tha

In this episode, the guys address whether the political left or the political right is the biggest threat to freedom of speech in the United States.  Their answer probably won't surprise you, but it will give you some ammunition during your next twitter fight with some dude with a Pepe the Frog icon. To tee up this subject, the guys examine the case of journalist Dan Heyman, who was just arrested (!) for trying to ask a question about the AHCA to a rather reluctant Tom Price, the guy who's Secretary of Health and Human Services and who's job description includes answering these kinds of questions. In the main segment, the guys compare the real threat to free speech with the latest complaint filed by our friends over at the Alliance Defending Freedom.  This particular lawsuit was filed on behalf of creationist lunatic Andrew Snelling, who wants to steal rocks from the Grand Canyon so he can prove something something Jesus moon lasers something and therefore, the earth is only 6,000 years old.  What you won't e

This episode begins the switch to a new, more responsive format in which we are better able to cover breaking news within a day of its release.  And, of course, what better way to kick off that format by addressing the most pressing topic of the moment:  is Donald Trump guilty of obstruction of justice in his firing of James Comey in light of the recent evidence?  We break it down for you with the help of a guest expert, Prof. Randall Eliason of the Sidebars blog. First, though, we continue our ascent up Yodel Mountain with the question as to whether it's legal for Donald Trump to surreptitiously record White House conversations (as Press Secretary Sean Spicer recently failed to deny). In the main segment, the guys turn to a former prosecutor and expert on public corruption and the obstruction of justice, Prof. Randall Eliason, and ask about the strengths and weaknesses of mounting a case against the President for obstruction of justice. After that, Andrew answers a question from Jake (the Fake Jake) who want

In this episode, the guys analyze the justification given by Deputy Attorney General Rod Rosenstein for President Trump to fire former FBI Director James Comey. First, though, fan-favorite Yodelin' Trump returns with a related question from our listeners (including Kevin Hicks), who ask whether Trump's tweet about Sally Yates violated the law. In our main segment, Andrew breaks down the Rosenstein memo. Then, we answer a great listener question from Patron Ben Hatcher, who wants to know exactly what things are admissible in the record on appeal. Finally, we end with the answer to Thomas Takes the Bar Exam Question #23 about a class action breach-of-contract lawsuit against a scammer who sells your private information.  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 along with your guess and reas

In this episode, the guys tackle a recent Internet meme regarding convicted murderer Aaron Hernandez's suicide with help from NFL expert and friend of the show Chris Kristofco of the Titletown Sound podcast. First, though, Andrew tackles a question from listener Joel Forman who asks whether Andrew can help secure him a "letter of marque."  What is a letter of marque and why does Joel want one?  Listen and find out! In the main segment, the guys break down the law regarding Aaron Hernandez's suicide.  Does it really vacate Hernandez's conviction for murder?  Are the Patriots really on the hook for $6 million?  Is it all a big conspiracy?  We tell the hard truths. After that, Andrew answers a question from Hall of Fame patron R.J. Rautio about an obscure procedural quirk in the confirmation of Supreme Court Justice Neil Gorsuch.  Does this mean President Elizabeth Warren can kick Gorsuch off the Court in 2020?? Finally, we end with a brand new Thomas Takes the Bar Exam question #23 about a breach of contract la

In this episode, the guys analyze the recent Presidential Executive Order Promoting Free Speech and Religious Liberty. First, though, we discuss why the show rejected a potential sponsor. Next, we answer a great listener question from our (only?) conservative listener, "Dan Dan the Conservative Man."  Dan wanted to know about the exclusionary rule, so-called "illegal" aliens, a recent Supreme Court decision, and how all of those things play in to "Sanctuary Cities."  We think we answered this. In our main segment, Andrew breaks down the meaningless portions of the Trump EO and contrasts them with the Definitely Unconstitutional provision. Then, we answer another listener question, this one from Shane Argo, who wants to know about the legal and philosophical reasons for treating "attempted murder" differently than regular murder. Finally, we end with the answer to Thomas Takes the Bar Exam Question #22 about a buyer who finds a priceless artifact at a yard sale and knowingly buys it for a fraction of its true

In this episode, the guys break down the recent decision by a federal court to enjoin the enforcement of President Trump's Executive Order 13768 regarding Sanctuary Cities. First, though, Andrew tackles a popular question from Brad Kalmanson (and others) as to whether Donald Trump can really make good on his weird threat to "break up" the 9th Circuit.  The answer will almost certainly surprise you. In the main segment, we analyze the Sanctuary Cities Executive Order and the Trump Administration's rather amazing legal "strategy" they orchestrated to try and defend it.  If you have Trump supporters in your news feed (or are one yourself!), you'll be amazed at what the administration did. After that, Andrew answers an in-person question from David at ReasonCon about the practice of law. Finally, we end with a brand new Thomas Takes the Bar Exam question #22 about selling a priceless work of art.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget

In this episode, Thomas continues his choose-your-own-adventure in which we discover how two well-meaning efforts to protect privacy on the Internet somehow left us with the "Selling The Internet" Bill, S.J.R. 34.  We also tackle the wackiest of wacky lawsuits, starring everyone's favorite Internet troll, Ann Coulter. First, though, Andrew assigns homework to the listeners for the very first time, previewing what will be an in-depth discussion of the recent Federal Court order granting injunctive relief and blocking President Trump's "Sanctuary Cities" executive order. Then, we return to our story from Friday's show, unraveling the connections between the FCC, the FTC, Internet Privacy, and the Republican Congress. After that, we discuss the Berkeley College Republicans' lawsuit against the school in connection with Milo Yiannopolous and Ann Coulter.  Is this lawsuit as hilarious as it seems?  (Yes.  Yes it is.) Finally, we end with the answer to Thomas (and Phil!) Take the Bar Exam Question #21 about a state

In this episode, Thomas begins a choose-your-own-adventure in which two well-meaning trains collide, producing the so-called "Selling The Internet" Bill, S.J.R. 34.  How did this happen? First, though, Andrew revisits a very difficult TTTBE question (#18), and answers a question from long-standing friend of the show Eric Brewer about the differences between a corporation and an LLC. In the main segment, Thomas gets to choose between the well-meaning FCC and the well-meaning FTC in boarding his doomed train.  Choose along with Thomas and figure out where we're headed! After that, Closed Arguments looks at the Fearless Girl statue and moral rights associated with copyright. Finally, we end with a brand new Thomas Takes the Bar Exam question #21 about repealing gay marriage.  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 tha

In this episode of Opening Arguments, Andrew and Thomas invite on Phil Ferguson, host of the cleverly-titled Phil Ferguson Show, to discuss why only suckers save money for college. First, Andrew discusses the scuttlebutt surrounding whether Ivy Tech will appeal the decision in Hively v. Ivy Tech that the guys discussed in Episode 60. After that, we look at the best(?) potential educational bill that might come before Donald Trump's desk:  H.R. 529, which would make modest expansions to so-called "529" college savings plans.  This, of course, is to set up our "C" segment, in which the guys interview Phil Ferguson and find out what he really thinks of 529 plans in specific and saving for college in general.  How clickbaity is our episode title?  You'll have to listen and find out! Finally, we end with the answer to Thomas Takes the Bar Exam Question #20 about whether a law prohibiting hiring those undergoing drug treatment or with prior drug convictions would violate the equal protection clause.  Remember that

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