Category: 3-LawSometimeCommentary

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 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 panel guest on The Thinking Atheist episode "Donald Trump's America," which you can listen to by clicking right here. Also, Seth Andrews, host of the Thinking Atheist, has just released his "Secular State of the Union" address which you can listen to right here. Show Notes & Links

1. Thomas did a fabulous, full-length episode of Serious Inquiries Only about Milo; you should give that a listen.
2. Alice's question referenced a post and attached video on the Joe.My.God. website which you can see here.
3. This is the text of the Kolbe v. Hogan decision.
4. And here is DC v. Heller, 554 U.S. 570 (2008).
5. Here's a brief rundown of clergy serving in Congress.

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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 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: Thomas was interviewed by Conatus News about the development of the atheist community on the internet, including the role played by his other podcast, Serious Inquiries Only. Andrew was a guest on the David Pakman show; you can watch the 14-minute video interview here. Andrew was also a guest on the Biskeptical Podcast, episode #19, with Trav Mamone and Morgan Stringer, discussing free speech and Milo Yiannopolous. Hall of Fame Patron Charone Frankel started her own legal comedy podcast, Habeas Humor.  Go check it out. Show Notes & Links

1. This is the economist survey regarding vouchers mentioned by Peter.
2. To find out more about Tony, click here for his website, or give him a call at (443) 791-5726.
3. This is a link to Donald Trump's 2016 financial disclosures.
4. Here's the hilarious Onion article, "You People Made Me Give Up My Peanut Farm!"
5. This is the text of the Jacksonville HRO.

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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 evidence rule.  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: Thomas was interviewed by Conatus News about the development of the atheist community on the internet, including the role played by his other podcast, Serious Inquiries Only. Andrew was a guest on the David Pakman show; you can watch the 14-minute video interview here. Andrew was also a guest on the Biskeptical Podcast, episode #19, with Trav Mamone and Morgan Stringer, discussing free speech and Milo Yiannopolous. Show Notes & Links

1. To find out more about Tony, click here for his website, or give him a call at (443) 791-5726.
2. This is a link to Donald Trump's 2016 financial disclosures.
3. Here's the hilarious Onion article, "You People Made Me Give Up My Peanut Farm!"
4. This is the text of 18 USC § 1001.

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In 2010, a Mexican teenager in Juarez was shot to death by a Border Patrol agent on the U.S. side of the border. In Hernandez v. Mesa, set for argument next week, the Supreme Court will determine whether the boy’s parents can sue the agent in U.S. courts. We are joined by Deepak Gupta, the family’s attorney, to discuss the case and its potential implications on American intelligence activities abroad. 

We also sit down with Virginia Attorney General Mark Herring to discuss this week’s ruling by a federal judge in one of the lawsuits challenging President Trump’s travel ban. Herring explains why Virginia joined the plaintiffs in that suit, and what the role of state attorneys general will be in the next four years of the Trump era.                                                                                           

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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 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)! Show Notes & Links

1. This is the text of the proposed HR 2802, the First Amendment Defense Act.
2. Andrew wrote two articles on arbitration for his firm blog:  you can read Part 1 and Part 2 for more in-depth analysis.
3. Here's a link to the Federal Arbitration Act, 9 U.S.C. § 1 et seq.
4. Here is a link to Andrew's appearance on the David Pakman show.

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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 means to be sentenced to "ten consecutive life sentences." Finally, we end with the answer to Thomas Takes the Bar Exam question #10 about witness testimony.  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)! Also:  Andrew was recently on Episode #103 of the Gaytheist Manifesto podcast talking about executive orders more generally; give it a listen! Show Notes & Links

1. Andrew also discussed the Johnson Amendment when he was a guest on The Scathing Atheist podcast episode #208.
2. Andrew also did a guest spot on episode #103 of the Gaytheist Manifesto talking about executive orders.
3. Judge Robart of the U.S. District Court for the Western District of Washington's Order issuing a temporary restraining order (TRO) blocking the Executive Order is here.
4. And the 9th Circuit's opinion refusing to issue a stay is here.

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A little more than a week after President Trump announced his ban on travel from a handful of majority-Muslim nations, the U.S. Court of Appeals for the Ninth Circuit this week refused to lift a temporary restraining order blocking enforcement of the new rule. This week, Dahlia sits down with fellow Slate legal writers Mark Joseph Stern and Jeremy Stahl for a special off-week episode to discuss the ruling and its implications.

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On January 18, 2017, the Supreme Court heard oral argument in Ziglar v. Abbasi, which was consolidated with the cases Ashcroft v. Abbasi and Hasty v. Abbasi. Ziglar v. Abbasi was part of a series of lawsuits brought by Muslim, South Asian, and Arab non-citizens who were who were detained after the terrorist attacks on September 11, 2001 and treated as “of interest” in the ensuing government investigation. These plaintiffs contended, among other things, that the conditions of their confinement violated their constitutional rights to due process and equal protection. The defendants included high-level officials in the Department of Justice (DOJ) such as Attorney General John Ashcroft, FBI director Robert Mueller, and Immigration and Naturalization Service Commissioner James Ziglar, as well various detention officials. Some of the parties reached settlements, and the district court eventually dismissed some of the allegations against the DOJ officials for failure to state claim. The U.S. Court of Appeals for the Second Circuit affirmed the lower court’s dismissal of plaintiffs’ Free Exercise claims, but otherwise reversed most of the district court’s judgment. Plaintiffs, the Second Circuit held, had adequately pleaded claims for violations of substantive due process, equal protection, the Fourth Amendment, and civil conspiracy, and Defendants were not entitled to qualified immunity. Defendants then sought, and the Supreme Court granted, a petition for writ of certiorari. -- The questions now before the Supreme Court are threefold: (1) whether the Second Circuit, in finding that Plaintiffs’ due process claims did not arise in a “new context” for purposes of implying a remedy under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, erred by defining “context” at too high a level of generality; (2) whether the Second Circuit erred in denying qualified immunity to Defendant Ziglar; and (3) whether the Second Circuit erred in holding that Plaintiffs’ Fourth Amendment Complaint met the pleading requirements identified by the Supreme Court in its 2009 decision in Ashcroft v. Iqbal. -- To discuss the case, we have Jamil N. Jaffer, who is Adjunct Professor of Law and Director of the Homeland and National Security Law Program at the Antonin Scalia Law School.

On January 18, 2017, the Supreme Court heard oral arguments in Lee 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 to the U.S. Court of Appeals for the Federal Circuit, a panel of judges determined that the Office officials were within their rights to refuse the application. The Federal Circuit then reviewed the case en banc and found that the Disparagement Clause violated the First Amendment and that the Office should not have refused the application. -- The question before the Supreme Court is whether the disparagement provision of the Lanham Act, 15 U.S.C. 1052(a), which provides that no trademark shall be refused registration on account of its nature unless, inter alia, it “[c]onsists of . . . matter which may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute” is facially invalid under the Free Speech Clause of the First Amendment. -- To discuss the case, we have Megan L. Brown, who is Partner at Wiley Rein LLP.

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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 employers can fire you for smoking marijuana in the privacy of your own home if you live in a state like Colorado that's legalized marijuana use. Finally, we end with a brand new Thomas Takes the Bar Exam question #10 which is another very, very hard question.  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)! Show Notes & Links

1. This Chicago Tribune article sets forth the facts of the Hastert case.
2. And this Tribune article contains the actual text of Haster's counterclaim that we discuss during the show.
3. On Thursday, Andrew was a guest on The Scathing Atheist podcast episode #208.
4. That same day (he's a busy guy!), Andrew also did a guest spot on episode #103 of the Gaytheist Manifesto podcast.

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