Category: 3-LawSometimeCommentary

For today's show, we break down the Supreme Court's recent decision in Trinity Lutheran v. Comer with guest lawyer Andrew Seidel from the Freedom From Religion Foundation. We begin, however, with a parenting question from Garrett Thomas Fox in our Super-Secret Patron-Only Q&A thread that didn't get answered on our patron-only special. In our main segment, Andrew Seidel helps explain what went wrong in the Trinity Lutheran case that Andrew confidently predicted would go 6-3 the other way. After that, we tackle the Supreme Court's recent decision staying the judgment in the 4th and 9th Circuits, which in turn had enjoined the enforcement of Executive Order 13780.  What does all of this mean?  Listen and find out! Finally, we end with a brand new Thomas Takes the Bar Exam question #30 about cross-examination, in which our guest Andrew Seidel plays along!  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 reason(s)! Recent Appearances Andrew was a guest on Episode 14 of Habeas Humor, cracking lawyer-themed "yo mama" jokes.  Check it out! Show Notes & Links

1. Here is a link to the Trinity Lutheran v. Comer decision.
2. We first discussed Trinity Lutheran during our three-part "You Be The Supreme Court" series; part 1 (Episode 14) is available here, part 2 is available here, and part 3 is available here.
3. This is the letter that the Missouri Attorney General sent indicating that, post-election, Missouri would change its policy.
4. Here is a link to the Supreme Court's decision allowing most of EO 13780 to go into effect.
5. Finally, please check out Andrew Seidel's great work at the Freedom From Religion Foundation.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com Direct Download

On June 19, 2017, the Supreme Court decided Matal v. Tam. Simon Tam of The Slants, an Asian American rock band, applied to register the band’s name with the U.S. Trademark Office, but the application was denied. The Office claimed that the name would likely be disparaging towards “persons of Asian descent,” citing the Disparagement Clause of the Lanham Act of 1946, which prohibits trademarks that “[consist] of or [comprise] immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” Tam appealed to a board within the Office but was again denied. On appeal, the U.S. Court of Appeals for the Federal Circuit, ultimately held en banc that the Disparagement Clause violated the First Amendment on its face. -- By a vote of 8-0, the Supreme Court affirmed the judgment of the Federal Circuit. In an opinion by Justice Alito, the Court held that the Disparagement Clause of the Lanham Act violates the First Amendment's Free Speech Clause. Parts I, II, and III-A of Justice Alito’s majority opinion were joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Justice Thomas joined except for Part II. Parts III-B, III-C, and IV of Justice Alito’s majority opinion were joined by the Chief Justice and Justices Thomas and Breyer. Justice Kennedy filed an opinion concurring in part and concurring in the judgment, in which Justices Ginsburg, Sotomayor, and Kagan joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Gorsuch took no part in the consideration or decision of the case. -- To discuss the case, we have Michael R. Huston, who is Associate Attorney at Gibson Dunn & Crutcher LLP.

On June 19, 2017, the Supreme Court decided Packingham v. North Carolina. Lester Packingham was convicted in 2002 of taking “indecent liberties” with a minor in violation of North Carolina law, and sentenced to prison time followed by supervised release. In 2010, he was arrested after authorities came across a post on his Facebook profile--which he had set up using an alias--in which he thanked God for having a parking ticket dismissed. Packingham was charged with, and convicted of, violating a North Carolina law that restricted the access of convicted sex offenders to “commercial social networking” websites. -- Packingham challenged his conviction on First Amendment grounds, arguing that the North Carolina statute unlawfully restricted his freedom of speech and association, but the Supreme Court of North Carolina ultimately rejected his claim. The website access restriction, the Court concluded, was a content-neutral, conduct-based regulation that only incidentally burdened Packingham’s speech, was narrowly tailored to serve a substantial governmental interest, and left open ample alternative channels of communication. -- By a vote of 8-0, the U.S. Supreme Court reversed the judgment of the Supreme Court of North Carolina and remanded the case. In an opinion by Justice Kennedy, the Court held that the North Carolina statute, which makes it a felony for a registered sex offender "to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages,” impermissibly restricts lawful speech in violation of the First Amendment. Justice Kennedy’s majority opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito filed an opinion concurring in the judgment, in which the Chief Justice and Justice Thomas joined. Justice Gorsuch took no part in the consideration or decision of the case. -- To discuss the case, we have Ilya Shapiro, who is Senior Fellow in Constitutional Law at the Cato Institute.

The Supreme Court’s 2016 term may not have contained the usual number of blockbuster cases, but it did have its fair share of drama. Between the stonewalling of Merrick Garland, the filibustered confirmation of Neil Gorsuch, rumors about Anthony Kennedy’s possible retirement, and in the background, the White House offensive against the federal judiciary, court-watchers had no shortage of things to keep them up at night.

And so this week on Amicus, we pour a couple of our favorite court-watchers a big cup of coffee and plop some microphones down at Slate’s annual “Breakfast Table.” Mark Joseph Stern and Pamela Karlan join us to discuss what we learned about the justices this term and what we can expect from them in the fall.   

Transcripts of Amicus are available to Slate Plus members, several days after each episode posts. For a limited time, get 90 days of free access to Slate Plus in the new Slate iOS app. Download it today at slate.com/app.

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

Podcast production by Tony Field. 

Learn more about your ad choices. Visit megaphone.fm/adchoices

In this episode, Thomas and Andrew interview Denise Howell from the This Week in Law podcast. First, however, we take a look at the Supreme Court's recent decision denying certiorari in an appeal of a Fourth Circuit case striking down various provisions of a North Carolina law that restricted voting rights.  There's a lot of misinformation going on, so you'll want to listen! In the main segment, Denise Howell breaks down the "law of emojis" and a 🐿️ time is had by all. After that, Breakin' Down the Law returns with the recent FTC decision to try and block the FanDuel-Draft Kings merger. Finally, we end with the answer to Thomas (and Denise) Take the Bar Exam Question #29  regarding assumption of risk.  Will Thomas beat the practicing lawyer?  Listen and find out, and 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 reason(s)! Recent Appearances None.  But if you're on the East Coast, you should check out Andrew's speech to the Lehigh Valley Skeptics on "Skepticism and the Law" on July 2, 2017 at 11 am by clicking here. Show Notes & Links

1. This is the Supreme Court's denial of certiorari, which is worth reading.
2. The underlying case is NC State Conference of NAACP v. McCrory, 831 F. 3d 204 (4th Cir. 2016).
3. The Supreme Court's 2-line denial of the application to stay McCrory, 137 S.Ct. 27 (2016) is here.
4. This is a link to the "American News X" (wrong) "hot take."
5. You can read Prof. Eric Goldman's delightful law review article on emojis here.
6. And Denise recommends falling down the Wikipedia rabbit hole by reading the history of emojis.
7. This is the FTC complaint against Draft Kings and FanDuel.
8. And here are a few links to articles by and about new FTC Acting Director of Bureau of Competition Tad Lipsky.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com  

It's our first Flashback Friday!  On today's episode, we revisit topics from previous episodes that are once again back in the news. We begin with the breaking-est of breaking news, the new Senate version of the AHCA that literally just got released right before the show was scheduled to record.  What's in the new bill?  Listen and find out! After that, our main segment goes through the recent Supreme Court victory for our friend Simon Tam of the Slants, who previewed this case for us way back on Episode 33.  Find out what the ruling means and how it might impact future issues (like a certain D.C.-area football team). After that, we take a look at the Supreme Court's recent grant of certiorari in the Wisconsin gerrymandering case we discussed back in Episode 54.  What's the prognosis for whether the Supreme Court will finally do something about partisan gerrymandering?  Listen and find out! Finally, we end with a brand new Thomas (and Denise) Take the Bar Exam Question #29, in which next week's guest, Denise Howell, joins the guys for a preview and plays along.  Remember that you too can 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 reason(s).  Answers, as always, drop on Tuesday. Recent Appearances None.  But if you're on the East Coast, you should check out Andrew's speech to the Lehigh Valley Skeptics on "Skepticism and the Law" on July 2, 2017 at 11 am by clicking here. Show Notes & Links

1. Flash back to our first discussion with Simon Tam of the Slants on Episode 33, and keep groovin' with gerrymandering by listening to Episode 54.
2. This is the text of the Senate's version of the AHCA.
3. MACPAC's analysis of the ACA referenced on the show is here.
4. This table shows the DSH allotment by state for 2016.
5. Here is the full text of the Supreme Court's opinion in Matal v. Tam (formerly Lee v. Tam).
6. Finally, here's the text of the Cooper v. Harris decision we discussed on Episode 72 that gives Andrew some cause for concern.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com

In this episode, Thomas and Andrew break down the Trump Administration's decision to withdraw from the Paris Agreement regarding climate change. First, however, we celebrate Thomas being prescient in taking an in-depth look at the Ninth Circuit's rather surprising decision regarding Trump's EO 13780, the so-called "Muslim Ban." In the main segment, Andrew and Thomas answer some questions and bust some myths regarding the U.S.'s withdrawal from the Paris Agreement.  Can Trump do that?  Can the states pick up the slack?  Is there one weird trick that will solve climate change?  The answers may surprise you. After that, Andrew tackles a fun question from patron Myk Dowling about disclaimers. Finally, we end with the answer to Thomas Takes the Bar Exam Question #28, which involved a pizza joint defaming a nearby burger hut.  Can Thomas start a new, 2-game winning streak?  Listen and find out!  And, as always, we'll release a new #TTTBE question this Friday and answer that question the following Tuesday.  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 reason(s), and don't forget that patrons who support us at any level get early access to the answers (and usually a fun post analyzing the question in more detail). Recent Appearances Andrew was just a guest on Episode 390 of This Week in Law, throwin' down the devil horns.  Give it a listen! Show Notes & Links

1. You can read the Ninth Circuit's recent opinion here.
2. This is the text of Executive Order 13780.
3. This is the text of Goldwater v. Carter, 444 U.S. 996 (1979), the odd case on whether a President can unilaterally withdraw from a treaty.
4. This is a link to NASA's data regarding climate change.
5. And this is the text of the U.N. Framework Convention on Climate Change, to which the U.S. was a signatory in 1992.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com  

If it's Friday, it's a current events episode, and if it's current events, we're probably talking about Donald Trump. We begin, however, with Breakin' Down the Law, in which Andrew answers the question raised by every single person in the universe this week:  can Jeff Sessions really do that? In our main segment, we look at the recent emoluments lawsuit brought by the Attorneys General for Maryland and Washington DC. After that, Yodel Mountain returns with a look at the Washington Post's breaking news that Donald Trump is under investigation by the FBI, as well as the GOP's purported talking points as to why this is no big deal. Finally, we end with a brand new Thomas Takes the Bar Exam question #28 about a malicious pizza store owner.  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 reason(s)! Recent Appearances Andrew was a guest on today's (6/16/2017) episode of This Week in Law, as well as on Episode 24 of the Scenic City Skeptics show.  Check 'em out! Show Notes & Links

1. We first discussed obstruction of justice in Episode #70, and analyzed the status of Executive Order 13780 in Episode #51.
2. You can read the text of U.S. v. Nixon, 418 U.S. 683 (1974) here.
3. Here is a link to the Maryland/DC complaint against Trump.
4. And here is a link to Trump's motion to dismiss the CREW lawsuit.
5. This is the Washington Post story breaking news of the investigation by the FBI into Trump.
6. Here are the ostensible (and terrible) GOP "talking points" about the investigation.
7. And this is the text of the Rosenstein order appointing Mueller as special counsel.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com  

In this episode, Thomas and Andrew talk to the co-host of one of their favorite podcasts, Oh No Ross and Carrie, along with the show's lawyer, Matthew Strugar -- proving once and for all that other podcasts need lawyers, too. First, however, Andrew breaks down a recent viral story about whether Donald Trump's Twitter account can be a "designated public forum," a term our listeners should remember from Episode #73's discussion with Travis Wester. In the main segment, Carrie Poppy sits down for a fun and wide-ranging interview about her job and the potential legal perils that stem from investigating pseudoscience, the paranormal, and potentially dangerous religious cults. After that, the much-beloved "Are You A Cop?" segment returns with a question from listener Brian Babcock about how to deal with standard-form contracts. Finally, we end with the answer to Thomas Takes the Bar Exam Question #27, which was a complicated fact pattern involving drunk driving, punitive damages, insurance limits, and cross-examination.  Did Thomas break his streak?  Listen and find out.  And, as always, we'll release a new #TTTBE question this Friday, and, as always, answer that question the following Tuesday.  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 reason(s), and don't forget that patrons who support us at any level get early access to the answers (and usually a fun post analyzing the question in more detail). Recent Appearances: Andrew was just a guest on Episode #84 of the Cellar Door Skeptics Podcast; give it a listen here. Show Notes & Links

1. Check out the Oh No Ross and Carrie podcast!
2. This is the link to Matthew Strugar's law firm in California.
3. If you want to brush up on the concept of a "designated public forum," you can revisit our discussion with Travis Wester in Episode #73 by clicking here.
4. Here is the text of the Knight First Amendment Institute's letter to Donald Trump regarding Twitter.
5. ...and here is the text of Davison v. Loudon County, 2017 WL 58294 (E.D. Va. Jan. 4, 2017), the case cited in the footnotes.

Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com Direct Download Direct Download

In his much-anticipated testimony on Capitol Hill this week, former FBI Director James Comey described several uncomfortable interactions with President Trump that preceded his firing. The big question for all watching was: could any of those interactions be considered “obstruction of justice?” On this week’s episode, we put the question to Stanford Law School Professor Robert Weisberg.

We also discuss the ongoing litigation around President Trump’s executive order on immigration with Kate Shaw, an associate professor at the Cardozo School of Law and a Supreme Court analyst for ABC News. Shaw is the author of a new article in the Texas Law Review that considers what sorts of presidential speech is and isn’t admissible in a court of law. [Read Shaw’s recent New York Times op-ed on the subject here.]

Transcripts of Amicus are available to Slate Plus members, several days after each episode posts. For a limited time, get 90 days of free access to Slate Plus in the new Slate iOS app. Download it today at slate.com/app.

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

Podcast production by Tony Field. 

Learn more about your ad choices. Visit megaphone.fm/adchoices