Category: 3-LawSometimeCommentary

Today's extra-long, extra-early Rapid Response episode tackles the two biggest stories in the news right now:  Paul Manafort's conviction, and Michael Cohen's plea deal.  We tell you exactly what these two big stories actually mean. We begin with Paul Manafort.  What did the jury decide?  Why did they fail to reach a verdict on 10 counts?  What were those counts?  How long is Paulie M going to stay in prison and what's next?  And, most importantly:  what does this mean for Yodel Mountain?  How likely is Paulie M to flip on Donald Trump?  We answer all of these questions and more! After that, we turn to everyone's favorite weasel, Michael "I Would Take A Bullet For Donald Trump" Cohen, who... has not taken a bullet for Donald Trump but has in fact pled guilty to eight separate crimes.  What are they, what does it mean, and what comes next?  Listen and find out! And if all that wasn't enough, we end with an all new Thomas Takes The Bar Exam #90 involving  foreseeability, cross-motions for summary judgment, and tortious conduct.  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. You'll want to start with the Manafort indictment, and you can also read the Manafort verdict.  Of the eight guilty counts, Manafort was convicted under 18 U.S.C. § 1344, 26 U.S.C. § 7206(1), and 31 U.S.C. § 5322.
2. We first discussed the Federal Sentencing Guidelines back in Episode 162; you can check out the full manual (long!) and also the FSG Sentencing table to figure out how long Paulie M is going away.
3. And don't forget Manafort still has another trial pending in DC!  We gave you a primer on that back in Episode 194, and you can check out the pending indictment in that case.
4. If Paulie M flips, it will be to take advantage of Rule 35(b) of the Federal Rules of Criminal Procedure.
5. Of course, we first covered how Stormy Daniels is a Legal Genius back in Episode 154, and then the Karen McDougal story in Episode 158.
6. Here's Cohen's plea deal; here are the conditions of his release; and here's the article quoting his allocution.
7. Sneak preview of the bonus episode:  here's the DOJ manual on prosecuting campaign finance violations that proves Alan Dershowitz is lying.  Again.

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 recent $289 million dollar verdict handed down by a California state jury for a man who alleges that the herbicide Roundup (TM) gave him cancer. First, we break down the facts of the lawsuit.  Then, we have on special guest Yvette d'Entremont -- a.k.a. the SciBabe -- to break down the science behind glyphosate (the active chemical in Roundup). After that, it's time for everyone's favorite Thomas (& Yvette) Take the Bar Exam, where our dynamic duo attempts to get it right when it comes to the proper measure of damages for breach 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 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. If you'd like to read some of the original court documents, here's the Roundup complaint, the Roundup motion to strike; and finally, here's the Roundup verdict.
2. In the legal analysis, we discussed Rule 702 of the Federal Rules of Evidence and the standards set forth in Daubert v. Merrell Dow, 509 U.S. 579 (1993).
3. And, of course, you should check out the SciBabe's website.

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 18, 2018, the Supreme Court decided Lozman v. City of Riviera Beach, FL, a case involving a claim of retaliatory arrest in violation of the First Amendment.
Fane Lozman moved to Riviera Beach, FL in 2006, where he lived on a floating home in the Riviera Beach Marina--a part of the city designated for redevelopment under the City’s new redevelopment plan that would use eminent domain to revitalize the waterfront. After hearing news of the plan, Lozman became an “outspoken critic,” and filed suit against the City in June 2006 after a special City Council emergency meeting to push through the redevelopment plan before the Governor of Florida signed a bill into law that would prohibit the use of eminent domain for private development.
Later at a public City Council meeting in November 2006, Lozman began to discuss the arrest of a former county official during the public comments portion of the meeting. He was interrupted by a member of the City Council, who, after exchanging words with Lozman, called a city police officer to dismiss Lozman from the podium. Lozman refused to leave the podium without finishing his comments, the police officer warned him that he would be arrested if he did not comply, and, upon the continuance of his comments, Lozman was arrested for disorderly conduct and resisting arrest without violence (charges later dismissed). In 2008, Lozman filed suit in federal district court against the City of Riviera Beach, claiming that his arrest had constituted unlawful retaliation by the City due to Lozman’s earlier opposition to the redevelopment plan. The jury found that the arrest had been supported by probable cause, which the District Court concluded must defeat Lozman’s First Amendment claim of retaliatory arrest. The U.S. Court of Appeals for the Eleventh Circuit affirmed that judgment, but the Supreme Court then granted certiorari to address whether the existence of probable cause defeats a First Amendment claim for retaliatory arrest.
By a vote of 8-1, the Supreme Court vacated the judgment of the Eleventh Circuit and remanded the case. In an opinion delivered by Justice Kennedy, the Court held that the existence of probable cause for Lozman’s arrest for disrupting a city council meeting did not bar his First Amendment retaliatory arrest claim under the circumstances of this case.
Justice Kennedy’s majority opinion was joined by the Chief Justice and Justices Ginsburg, Breyer, Alito, Sotomayor, Kagan, and Gorsuch. Justice Thomas filed a dissenting opinion.
To discuss the case, we have Lisa Soronen, Executive Director of the State & Local Legal Center.

You Don’t Own Meis Orly Lobel’s fascinating examination of a landmark legal battle between plastic dolls. The Mattel v MGA, Barbie v Bratz case exposed questions about gender, culture and rights in the workplace. This episode of Amicus takes you inside a case involving corporate espionage, intellectual property, and icons of American girlhood.

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 Sara Burningham.

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You Don’t Own Meis Orly Lobel’s fascinating examination of a landmark legal battle between plastic dolls. The Mattel v MGA, Barbie v Bratz case exposed questions about gender, culture and rights in the workplace. This episode of Amicus takes you inside a case involving corporate espionage, intellectual property, and icons of American girlhood.

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 Sara Burningham.

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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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