Category: 3-LawSometimeCommentary

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 trial.  Phew! And if all that wasn't enough, we end with an all new Thomas (and Yvette) Take The Bar Exam #89 involving the appropriate damages for breach of contract. 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 Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links

1. We discussed reporter's privilege in Episode 200; for the other side, check out this 2007 article by Randall Eliason on the BALCO scandal or this law review article in the American University Law Review.
2. Of course, we discussed asbestos in Episode 199, but we first broke down the law of negligence way back in Episode 29.  We cite to the Restatement (Second) of Torts § 520 and Sindell v. Abbott Labs, 607 P.2d 924 (1980).
3. Click here to read the new Masterpiece Cakeshop complaint.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  

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 like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links

1. Some political links:  click here to read The Hill's report on Trump claiming that he was "5-for-5," and here to check out the Cook Political Report's revisions to House races in light of the Balderson-O'Connor race in OH-12,
2. Click here to read the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), and here to read the recently-proposed Free Flow of Information Act of 2017.
3. We discussed 3-D guns in Episode 197, and you can read the EFF's take here.  The EFF's primary case is Herceg v. Hustler Magazine, 814 F.2d 1017 (5th Cir. 1987).

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com Direct Download

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 question in light of Rick Gates's testimony in the Manafort trial while teasing that the rest will get answered sometime soon. And if that wasn't enough, we end with an all new Thomas Takes The Bar Exam #88 involving a contract, waiver and modification, and subsequent assignment to another party.  Phew!  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 Appearances Andrew was recently a guest on The Thinking Atheist podcast with Seth Andrews.  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links

1. Here's a link to the NBC story on the Devin Nunes tape; and here's a link to one in the Washington Post; they're both delightful.
2. This is the Collins indictment, and this is the text of 17 CFR 240.10b-5.
3. The TSCA is 15 U.S.C. § 2601 et seq.
4. Here's the letter that the ACC wrote to the EPA back in August of 2016 arguing that they should be able to use asbestos.
5. For an in-depth critique of the Trump EPA's evaluative process, you can check out the annotated source documents and the summary article in the New York Times.
6. Here's the text of the new EPA SNUR, and here's the (laughable) EPA dissembling as to what it means.
7. Finally, here's the report on Rick Gates's cross-examination over his affairs.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com Direct Download

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 guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links

1. This is the article in The Hill indicating that the prosecution would, in fact, call Rick Gates; earlier, friend of the show Randall Eliason gave a bunch of reasons why they might not.  Oh, and Eliason also has you covered as to why 'collusion' is, in fact, a crime.
2. This is the laughable Fox News report on how Judge Ellis hates the prosecution; for a dose of reality, you might want to check out this other article in The Hill about how Judge Ellis chastised both sides's lawyers.
3. If you missed it, this is our Episode 107 where we tackled Serial.
4. Here's the PBS retrospective on Dershowitz and the OJ trial.
5. Our Dershowitz story on 'testilying' begins with Mapp v. Ohio, 367 U.S. 643 (1961) and the origins of the exclusionary rule; Dershowitz coined the term 'testilying' in this New York Times article from 1994.
6. Testilying is, of course, a consistent problem today (see A, B) -- but Dershowitz hasn't spoken about it since 1998 (and even then, in an entirely different context).
7. Instead, he attacked Baltimore's decision to indict the police in the Freddie Gray case in 2015.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  

 Amicus’ summer of exploring great legal writing continues this week with Jeff Rosen, whose biography of William Howard Taft reveals a president who was scrupulous in observing constitutional boundaries, and much happier on the bench than in the White House.

Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com.

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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 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 Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links

1. We most recently discussed election law and the relevant statute, 52 U.S.C. § 30121, back in Episode 116 with Beth Kingsley.
2. The seminal Foreign Affairs (1982) article referenced by Andrew is here; and you can also verify the current arms sales numbers from this report in Newsweek.
3. This is the confidential Trump administration's settlement with Defense Distributed; here is the Complaint filed by 8 states, along with the opposition brief filed by Wilson as well as the one filed by the Government.  Ultimately, the Court granted the TRO.
4. You can read the Arms Export Control Act, 22 U.S.C. § 2751 et seq., and the implementing regulations at 22 C.F.R. § 125.4(b).
5. The Pentagon Papers case is more formally known as New York Times Co. v. U.S., 403 U.S. 713 (1971).
6. Here's a Harvard Law Review article summarizing Wilson's loss at the 5th Circuit.
7. Finally, check out the author note for (but please do not buy!) the Anarchist Cookbook, for sale on Amazon.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  

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 salesman.  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 guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links

1. Don't forget to tune in to our live Q&A this Tuesday, 7/31, at 7 pm Eastern / 4 Pacific.  And, of course, participate in the questions thread!
2. We most recently discussed the Voting Rights Act and Shelby County v. Holder back in Episode 188.
3. If you want to know more about big fat racist criminal loser Don Blankenship, heck, you could start with his Wikipedia page.  He's not shy about being a big fat racist criminal.  (He does not yet grasp that he's a loser, though.)
4. We cited two provisions of the West Virginia Code:  W. Va. Code §§ 3-5-7(d)(6) and 3-5-23.
5. And just in case you've forgotten how conservative Patrick Morrisey is, here's the quote he gave to CBS news.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  

On June 11, 2018, the Supreme Court decided Washington v. United States, a case considering off-reservation fishing rights of multiple Native American Tribes in the State of Washington.
The 1854-1855 Stevens Treaties were a series of treaties between several Native American Tribes and the State of Washington. As part of these treaties, the Tribes relinquished land, watersheds, and offshore waters adjacent to a particular area, “Case Area,” in exchange for guaranteed off-reservation fishing rights. In 2001, twenty-one tribes and the United States complained in federal district court that the State had been building and maintaining culverts that impeded the transit of mature and juvenile salmon between the sea and their spawning grounds. In 2007, the district court issued an injunction requiring the State to correct these culverts, and the U.S. Court of Appeals for the Ninth Circuit affirmed.
The Supreme Court granted certiorari to address (1) whether a treaty “right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens” guaranteed “that the number of fish would always be sufficient to provide a ‘moderate living’ to the tribes”; (2) whether the district court erred in dismissing the state's equitable defenses against the federal government where the federal government signed these treaties in the 1850s, for decades told the state to design culverts a particular way, and then filed suit in 2001 claiming that the culvert design it provided violates the treaties it signed; and (3) whether the district court’s injunction violates federalism and comity principles by requiring Washington to replace hundreds of culverts, at a cost of several billion dollars, when many of the replacements will have no impact on salmon, and plaintiffs showed no clear connection between culvert replacement and tribal fisheries.
In a per curiam opinion, an equally divided Supreme Court affirmed the judgment of the Ninth Circuit.
To discuss the case, we have Lance Sorenson, Olin-Darling Fellow in Constitutional Law at Stanford Law School.

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 episode along with our favorite entry! Recent Appearances None!  If you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links

1. Don't forget to tune in to our live Q&A this Tuesday, 7/31, at 7 pm Eastern / 4 Pacific.  And, of course, participate in the questions thread!
2. Here's the Reuters report that there are 12 Cohen-Trump tapes; we've heard just part of the first one regarding Karen McDougal, whom we first discussed back in Episode 158.
3. You can read the Emoluments ruling for yourself; we covered this most recently back in Episodes 160 and 162.  For our original two-part interview with Seth Barrett Tillman, check out Episodes 35 and 36.
4. Some documents from the Manafort trial:  2018.07.22 Yanukovich govt response; 2018.07.20 Yanukovich motion in limine; 2018.07.25 orders on motions in limine; and 2018.07.26 government jury response.  And, of course, you should take a look at the government's Exhibit List.
5. We discussed the "Bernie Sanders" lawsuit against the DNC back in Episode 106.
6. Finally, for some good news, check out the 9th Circuit's opinion in FFRF v. Chino Valley Unified School District; we discussed Town of Greece v. Galloway in Episode 85.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com  

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 along with #TTTBE! Recent Appearances If you didn't see Andrew's live appearance on Left-Right Radio with Chuck Morse, you can check out the YouTube archive of it.  And if you'd like to have either of us as a guest on your show, drop us an email at openarguments@gmail.com. Show Notes & Links

1. Before we get to McDonald's, you'll need to read all about US v. Microsoft, 253 F.3d 34 (2001).  While you're at it, you might as well brush up on the Sherman Anti-Trust Act, 15 U.S.C. § 1 et seq.
2. After that, you can read the class action lawsuit against McDonald's regarding the Quarter Pounder and Double Quarter Pounder.
3. Andrew first broke down Judge Ellis in Episode 172.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! For show-related questions, check out the Opening Arguments Wiki And email us at openarguments@gmail.com