Opening Arguments

In today's episode, we take a long look at the judicial philosophy of "originalism" made popular by former Supreme Court Justice Antonin Scalia and advocated by his would-be replacement. First, we begin with a question from Jodi, who asks Andrew for his opinion of LegalZoom and other law-in-a-box services.  Andrew gets a little emotional in his response.... Next, we break down originalism as a form of jurisprudence and examine why it is (1) internally incoherent and contradictory; (2) dangerous and unconstrained; and (3) contrary to the fundamental purpose of the judiciary.  Andrew's argument is that originalists do not belong on the Supreme Court.  Period. Finally, we end with the answer to Thomas Takes the Bar Exam question #13 about hearsay.  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 alo

Today's episode is a little bit different than our usual format; today, we take a look at three cases that our listeners have asked about on Twitter and Facebook. First up is an order entered by the U.S. District Court for the Western District of Texas enjoining the state of Texas (and nitwit Attorney General Ken Paxton) from disqualifying Planned Parenthood as an authorized Medicaid service provider on the basis of fake videos. Next, we tackle a recent ruling by the Washington Supreme Court applying that state's anti-discrimination law to a florist that decided she couldn't sell wedding flowers if the participants were gay.  Is this really the worst violation of individual freedom in the history of Western Civilization? Third, we look at the recent victory in the 11th Circuit by our colleague Dr. Steven Novella of the Skeptic's Guide to the Universe Podcast, and discuss what the ruling means for (say) podcasters who get sued for libel. Finally, we end with a brand new Thomas Takes the Bar Exam question #13 r

In today's episode, we take a look at the just-decided case of Kolbe v. Hogan out of the United States Court of Appeals for the Fourth Circuit.  Is this case as big a deal as people are saying it is? We begin, however, with a preliminary question from patron Alice Ashton, who asks about the controversial flavor-of-the-week, recently deplatformed Milo Yiannopolous.  Does knowing about a crime and not reporting it make you an accessory after the fact?  Find out! Next, we break down Kolbe v. Hogan and explain whether this recent decision lives up to the hype (and why)! After our main segment, we answer another patron question, this one from Derek Timp, who has some questions about the separation of church and state. Finally, we end with the answer to Thomas Takes the Bar Exam question #12 about that criminal squirrel-feeder.  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 Faceb

Today's episode concludes our two-part look at one of your most requested questions:  what might be in Donald Trump's taxes! We begin, however, with a listener criticism from Peter Crinklaw, who thinks Andrew gave short shrift to the policy argument for educational vouchers. Next, we conclude our two-part interview Tony Di Fatta, a practicing CPA, to take a deep-dive into all the things we might -- and might not -- find in the event that Donald Trump's taxes are ever disclosed.  All of this is meant to shed some light on the question:  should Democrats be focused on finding out what's in Trump's taxes? After our main segment, we tackle another listener question; this one from our top patron Zabby, who wants to know about the recently-passed Jacksonville, Florida Human Rights Ordinance. Finally, we end with a brand new Thomas Takes the Bar Exam question #12 regarding witness credibility.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to pla

In today's episode, we take a look at one of your most requested questions:  what might be in Donald Trump's taxes! We begin, however, with a preliminary question from Jim Sabatowski, who asks us what's the big deal with Trump's tax returns, anyway?  Is there a good reason to think we can get information that's necessary to evaluate a candidate? Next, we give you part one of our two-part interview Tony Di Fatta, a practicing CPA, to take a deep-dive into all the things we might -- and might not -- find in the event that Donald Trump's taxes are ever disclosed.  All of this is meant to shed some light on the question:  should Democrats be focused on finding out what's in Trump's taxes? After our main segment, we inaugurate a new segment about how close President Trump is to impeachment with a question about 18 USC § 1001 and the prohibition against making false statements. With a bonus reference to The Price Is Right! Finally, we end with the answer to Thomas Takes the Bar Exam question #11 about the best evid

In today's episode, we take a look at arbitration, an increasingly popular device being used to take disputes out of the courtroom.  What might arbitration mean for you?  Listen and find out! We begin, however, with a question from patron Faye Reppas, who asks about HR 2802, the so-called "First Amendment Defense Act." Next, in our main segment, we take a look at the implications of arbitration -- particularly in the employment context, where your employer may have inserted a mandatory arbitration clause in your employment agreement.  What does arbitration do?  Can you be compelled to do it?  We break it all down for you. After our main segment, we tackle another listener question; this one from Eric Walls about corporate personhood. Finally, we end with a brand new Thomas Takes the Bar Exam question #11 regarding the testimony of a plaintiff who's had surgical sponges accidentally left inside of her (a surprisingly common occurrence).  Remember that TTTBE issues a new question every Friday, followed by the a

In today's episode, we take a look at the ongoing status of Executive Order 13769 (often referred to as the "Muslim Ban").  What exactly did the 9th Circuit decide, and how does it affect the status of efforts to restrict emigration going forward? We begin, however, with a Breakin' Down the Law segment where we examine the so-called "Johnson Amendment."  What is it?  Would it be a bad thing if the Trump administration repeals it?  Does it really make a difference?  We break down the law so you'll be armed with the information you need to answer these questions. Next, we take a deep-dive into the 9th Circuit's recent ruling denying the Government's emergency motion for a stay.  What does that mean?  Where is this lawsuit headed next?  You won't know if you only read The New York Times, but you will know if you listen to this show! After our main segment, we turn to a question from listener Schofield Miller about why courts hand down multiple-life sentences that run to hundreds of years.  Figure out what it mea

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