Category: 3-LawSometimeCommentary

Today's episode is a deep dive into cryptocurrency. First, we're delighted to share some breaking news with you that follows up on our Episode 132 about a student and his crazy-person lawyer trying to introduce creationism at Thomas's old high school, Bret Harte High.   As it turns out, friend of the show and FFRF attorney Andrew Seidel has written a masterful letter to the school and offered to co-counsel with them pro bono. In the extra-length main segment, we discuss some of the issues surrounding cryptocurrency and the law. Finally, we end with an all-new Thomas Takes the Bar Exam Question #56 about the fraudulent sale of a stove.  Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was recently a guest on Episode 14 of the How-To Heretic podcast!  Give it a listen! Show Notes & Links

1. We first discussed Bret Harte High in our Episode 132; you can also read an account of the school board hearing; visit crazy person Greg Glaser's website and read all about the evils of vaccinations, numerological theology, and (of course) his proposed Earth Constitution.
2. Andrew Seidel's letter is republished (with his permission) here.
3.  The actual cases relevant to the dispute are Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969) and Kitzmiller v. Dover, 400 F.Supp.2d 707 (M.D. Pa. 2005).
4. If you love Andrew Seidel, you might want to go back to his previous appearances on the show, Episode 82 (on Trinity Lutheran), Episode 85 (which was originally a Patreon-only exclusive),Episode 111, and Episode 131.
5. And if that's still not enough Andrew for you, you can catch up on Andrew Seidel's most recent writings:  his op-ed on Masterpiece Cakeshop, which you can read here; his blog post on right-wing legal organizations; and, of course, his FFRF press release celebrating the victory in keeping Mateer and Talley off the federal bench.
6. You can view the IGM survey we discuss here.
7. This is the bitcoin FAQ.
8. The case I discuss is SEC v. Shavers, 2013 WL 4028182 (E.D. Texas Aug. 6, 2013, Case No. 4:13-cv-416).

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Happy holidays, everyone!  Today's special episode tackles a number of issues about being in law school and being a lawyer. First, however, we begin with an update on the Trump administration's efforts to restrict the reproductive rights of young women in federal custody first discussed in Episode 117. In the main segment, Andrew solicits some advice from some lawyer and law student friends-of-the-show and tries to answer some of your most recurring questions like "Should I go to law school?"  "If so, where?"  "What's it like?"  "Will I like being a lawyer?" and so forth.  If you've ever dreamed about sitting in the chair opposite Thomas, this is the show for you! Finally, we end with the answer to Thomas TakeS The Bar Exam question #55 about water damage to a boat.  Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances None!  Have us on your show! Show Notes & Links

1. We broke down Jane Doe v. Wright in Episode 117.
2. You can read the government's stay application in Hargan v. Garza by clicking here, and the court's Order here.
3. Resources for law students include the National Association of Law Placement's 2017 research, the in-depth reports put out by Law School Transparency, the somewhat off-color "Law School Sewage Pit Profiles" site, and the ATL report on cheapest law schools in the country.
4. Finally, if you're dying to know what a scorpion bowl is, you can check out the Kong's website.  It's a Harvard institution!

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As a gift to our amazing listeners, here's the great Eli Bosnick breaking down Miracle on 34th Street with the guys! If you enjoy this Law'd Awful Movies, make sure to check out Patreon.com/law for more!  

The cultural whirlwind of #MeToo has reached the judiciary, reluctantly bringing Dahlia Lithwick into the fray along with it. In a piece for Slate, she detailed her firsthand experiences with Judge Alex Kozinski. Dahlia’s was one of many accounts that that have now surfaced. Heid Bond was one of the first women prepared to go on the record. A former clerk to Judge Kozinski, she now writes romance novels under the name Courtney Milan. You can read Bond’s piece here and Judge Kozinski’s statement here. We speak with three of Kozinski’s accusers—Heidi Bond, Emily Murphy, and Leah Litman—and hear their ideas about what needs to change to allow women to work safely and successfully in a system often shrouded in secrecy. Then Dahlia is joined by Mark Joseph Stern for a run through the headline arguments and decisions from the Supreme Court in 2017 and a look ahead at what to expect in 2018. 

Transcripts of Amicus are available to Slate Plus members several days after each episode posts. To learn more about Slate Plus, go to Slate.com/amicusplus.

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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The cultural whirlwind of #MeToo has reached the judiciary, reluctantly bringing Dahlia Lithwick into the fray along with it. In a piece for Slate, she detailed her firsthand experiences with Judge Alex Kozinski. Dahlia’s was one of many accounts that that have now surfaced. Heid Bond was one of the first women prepared to go on the record. A former clerk to Judge Kozinski, she now writes romance novels under the name Courtney Milan. You can read Bond’s piece here and Judge Kozinski’s statement here. We speak with three of Kozinski’s accusers—Heidi Bond, Emily Murphy, and Leah Litman—and hear their ideas about what needs to change to allow women to work safely and successfully in a system often shrouded in secrecy. Then Dahlia is joined by Mark Joseph Stern for a run through the headline arguments and decisions from the Supreme Court in 2017 and a look ahead at what to expect in 2018. 

Transcripts of Amicus are available to Slate Plus members several days after each episode posts. To learn more about Slate Plus, go to Slate.com/amicusplus.

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 episode is all about the budding legal expert co-host of this show, one Thomas Smith, Esq. soon-to-be of Thomas's Second Chance Law Firm. First, taking a cue from the hilarious failed nomination of Matthew Petersen to the federal bench, Andrew asks Thomas the same kinds of basic questions.  Is Thomas more qualified than Trump's judicial nominees?  (The answer will not surprise you.) In the main segment, the guys break down a threatened "God's Not Dead 2"-style lawsuit at Thomas's old high school, Bret Harte High.  Strap in for a bumpy ride, because this one is a roller coaster of crazy. Finally, we end with an all-new Thomas Takes the Bar Exam Question #55 about damaging a boat.  Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None!  Have us on your show! Show Notes & Links

1. The fabulous "Thomas's Second Chance Law Firm" graphic was designed by fan of the show Kristen Hansen; you can follow her @wrathofkhansen on Twitter.
2. If you haven't yet watched Sen. Kennedy (R-LA) humiliate laughably unqualified former Trump federal judicial nominee Matthew Petersen, you really should.
3. You can read all about the hearing at Thomas's high school here.
4. Crazy person Greg Glaser is a serial blogger who writes about the evils of vaccinations, numerological theology; and (of course) his proposed Earth Constitution.
5.  The actual cases relevant to the dispute are Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969) and Kitzmiller v. Dover, 400 F.Supp.2d 707 (M.D. Pa. 2005).

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On November 6, 2017, the Supreme Court issued per curiam decisions in Kernan v. Cuero and Dunn v. Madison, both cases involving habeas petitions filed by state prisoners. In this episode, we will be discussing both decisions.
Up first is Kernan v. Cuero. Michael Cuero pled guilty to two felony charges, on the understanding that the maximum prison time he faced was 14 years and 4 months. In the course of making his plea Cuero admitted to a previous conviction for residential burglary, which qualified as a predicate offense or “strike” under California’s “three strikes” law. After the plea but before sentencing, however, the prosecution realized that another of Cuero’s previous convictions counted as a second such strike. Over Cuero’s objection, the trial court granted the prosecution’s motion to amend its criminal complaint to add the additional strike--but also permitted Cuero to withdraw his guilty plea in light of the change. He ultimately entered a new guilty plea to the amended complaint, and the presence of the second strike exposed him to an enhanced sentence of a minimum of 25 years and a maximum of life imprisonment. Cuero was then sentenced to 25 years to life, the conviction and sentence were affirmed on direct appeal, and his state habeas petition was denied by the California Supreme Court.
Cuero then sought habeas relief in federal district court, which denied his petition. The U.S. Court of Appeals for the Ninth Circuit, however, reversed that judgment and held that the state trial court had “acted contrary to clearly established Supreme Court law” by refusing to enforce the original plea agreement with its 14-years-and-4 months maximum sentence.
On November 9 the U.S. Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In a per curiam opinion, the Court held that the Ninth Circuit had erred when it held that “federal law” as interpreted by the Supreme Court “clearly” established that specific performance of the original plea agreement was constitutionally required.
Our next case is Dunn v. Madison. In 2016, Vernon Madison petitioned an Alabama trial court to stay his death sentence after a series of recent strokes which, he argued, left him incompetent to be executed. Madison has been awaiting his death sentence since the 1980s, when he was convicted of capital murder. In Ford v. Wainwright and Panetti v. Quarterman the Supreme Court indicated that a person is entitled to relief if it could be proven that he “suffers from a mental illness which deprives [him] of the mental capacity to rationally understand that he is being executed as a punishment for a crime.” The trial court held a hearing to consider the testimony of two psychologists: one court-appointed and the other hired by Madison’s counsel. Although they acknowledged that Madison’s mental awareness and memory of past events may have declined post-stroke, both psychologists indicated that he could understand that Alabama was seeking retribution against him for his criminal act. The trial court denied Madison’s petition.
Madison then sought habeas relief in federal district court, claiming that the state court had incorrectly applied Ford and Panetti and that its judgment was “based on an unreasonable determination of the facts in light of the evidence presented.” The District Court denied relief but a divided panel of the U.S. Court of Appeals for the Eleventh Circuit granted a certificate of appealability and reversed. As Madison no longer remembers committing his capital offense, the Eleventh Circuit reasoned, he cannot rationally understand the connection between his crime and his execution.
The U.S. Supreme Court thereafter reversed the judgment of the Eleventh Circuit, explaining in a per curiam opinion that neither Panetti nor Ford “clearly established” that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case. The state court, the Supreme Court held, did not apply Panetti or Ford unreasonably, nor rely upon an unreasonable assessment of the evidence before it. Madison therefore was not entitled to federal habeas relief.
Justice Ginsburg, joined by Justices Breyer and Sotomayor, issued a concurring opinion. Justice Breyer also issued a concurring opinion.
To discuss these cases, we have Kent Scheidegger, Legal Director of the Criminal Justice Legal Foundation.

Today's episode welcomes back one of our favorite guests -- and the show's only three-time guest, Andrew Seidel, attorney with the Freedom From Religion Foundation. Together, Andrew, Andrew, and Thomas tackle a bunch of church and state separation issues.  First, they break down Andrew Seidel's recent success in convincing the Senate Judiciary Committee to reject their most unqualified judges, Jeff Mateer and Brett Talley. Then, the gang does a deep dive into the oral arguments in the Masterpiece Cakeshop hate-bakery case. After that, Andrew Seidel gives us his take on a new Christian right-wing lobbying group co-founded by Gordon Klingenschmitt. Finally, we end with the answer to Thomas (and Andrew!) Take The Bar Exam question #54 about witness statements and overlapping privilege.  Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was just a guest on Episode 75 of The Science Enthusiast podcast and Episode 229 of the Atheist Nomads podcast.  Give 'em a listen! Show Notes & Links

1. We broke down the Masterpiece Cakeshop case in Episode 105, and you can follow along with the guys by reading the transcript of the Masterpiece Cakeshop oral argument before the Supreme Court!
2. If you love Andrew Seidel, you might want to go back to his previous appearances on the show, Episode 82 (on Trinity Lutheran), Episode 85 (which was originally a Patreon-only exclusive), and Episode 111.
3. And if that's still not enough Andrew for you, you can catch up on Andrew Seidel's most recent writings:  his op-ed on Masterpiece Cakeshop, which you can read here; his blog post on right-wing legal organizations; and, of course, his FFRF press release celebrating the victory in keeping Mateer and Talley off the federal bench.
4. Find out all about Go Klings's latest right-wing "legal" group here.
5. Finally, consider supporting the Freedom From Religion Foundation.

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Today's episode talks about the disastrous wildfires that have ravaged Thomas's home state of California, and who winds up footing the bills for these disasters.  It's exactly as much insurance law as you wanted to learn! First, we begin with some news items, including an update on the Net Neutrality vote, a new mega-merger, and the Supreme Court's denial of certiorari in Evans v. Georgia Regional Hospital, a case we discussed back in Episode 112. After the main segment, Andrew and Thomas also update on the pending tax bill and some other items in the news. Finally, we end with an all-new Thomas Takes the Bar Exam Question #54 about witness statements and overlapping privileges.  Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was just a guest on Episode 229 of the Atheist Nomads podcast; give it a listen! Show Notes & Links

1. We discussed the AT&T/Time Warner merger in OA 128; you can read about the new Disney/Fox merger here.
2. This is the petitioners' brief for cert in Evans, and this is the response brief filed by the hospital.
3. We discussed several provisions of the California Insurance Code, including Section 1861.05 ("Proposition 103" that prohibits rate hikes); Section 2032 (a consumer protection provision); and Section 2071 (standard form fire insurance policy).
4. Here's a New York Times article about the impending tax deal, and this is the begging letter sent by the American Bar Association.

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Should you take legal advice from a viral video on YouTube? Today's episode is all about judges, lawyers, attorney-client privilege, and the police.  We begin with the news that Supreme Court Justice Elena Kagan has recused herself in the case of Jennings v. Rodriguez; why? After that, the guys break down a video called "Don't Talk To The Police" and discuss some hallmarks of legal videos online. After that, Andrew tackles Donald Trump Jr.'s assertion that whenever a lawyer enters the room, attorney-client privilege shields everything.  Is that really true?  (No.) Finally, we end with the answer to Thomas Takes The Bar Exam question #53 about witness impeachment.  Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was just a guest on Episode 75 of The Science Enthusiast podcast; give it a listen! Show Notes & Links

1. This is the recusal letter sent on behalf of Justice Kagan; and here is the Code of Conduct for U.S. Judges.
2. You can watch the "Don't Talk To The Police" video.
3. Here's the data on Regent University's fake law school.
4. The first out-of-context quote comes from Watts v. Indiana, 338 U.S. 49 (1949).
5. The second out-of-context quote comes from Justice Breyer's dissent in Rubin v. U.S., a 1998 cert petition regarding the extent of executive privilege.

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