Opening Arguments

Latest Episodes:

Enough Gaslighting - Trumpism Is Fascism. Oct 07, 2024

Show notes

Is it okay to call Trump a “fascist”? Is our democracy itself really on the line next month? And what might our legal system look like after a second Trump term? We look behind the headlines to begin to examine the nuances of these questions in this first of several planned episodes on the current state of the American right.

The Anatomy of Fascism, Robert Paxton (2004)
“The Rise of Competitive Authoritarianism,” Steven Levitsky and Lucan A. Way, Journal of Democracy (April 2002)
They Thought They Were Free (full text), Milton Meyer (1955)
The Road to Unfreedom: Russia, Europe, America, Timothy Snyder (2018)
Nothing is True and Everything is Possible: The Surreal Heart of the New Russia, Peter Pomerantsev (2015)

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The Adams and Trump Cases Should Be Open and Shut. But Due to Awful SCOTUS Rulings, They May Not Be... Oct 04, 2024

Show notes

OA1074: We begin with a quick look at JD Vance’s cringiest moment during this week’s VP debate. Does the junior senator from Ohio know anything about immigration law--let alone vice presidenting?

In our main story: Two of last term’s worst U.S. Supreme Court decisions surrounding “official acts” have been playing out in real time this week in two of the most important criminal prosecutions in the US. First, special counsel Jack Smith has just filed a monster of a brief in the DC case against Donald Trump for his responsibility for the events of January 6th, 2001. Why is this filing so unique, and what can we learn about the evidence against Trump and DOJ’s strategy going forward? Meanwhile, New York Mayor Eric Adams has filed a motion to dismiss his pending bribery charge on the grounds that bribery is pretty much legal now. Could the SCOTUS decision in Snyder v. US actually make a difference here?

Finally, Matt drops a rare animal law footnote to explain how the fate of one adorable little beaver became the single most important issue facing the Massachusetts government this week.

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That Time Trump's Lawyer Melted Down While Cross Examining Michael Cohen Oct 02, 2024

Show notes

Calling an audible here for reasons explained in the intro!

Instead of T3BE this week, here is the very best day of Eli Bosnick playing Michael Cohen for Gavel Gavel. This was the infamous day of the Trump Trial when Todd Blanche start cross examination in the stupidest, weirdest way imaginable. Enjoy!

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The Eric Adams Indictment Is Objectively Hilarious Sep 30, 2024

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OA1073 - This week we are serving up the sticky Turkish delight which is the US Attorney for the SDNY’s 53-page speaking indictment against NYC mayor Eric Adams. Matt proudly explains why Boston is historically better at (among other things) corruption than New York before we get into the quid and the quo of it all.

Finally, we review Adams’s weird career as a public safety advocate and self-published author and consider what’s next for this “true friend of Turkey.”

U.S. v Eric Adams indictment (unsealed 9/26/24)
Google Books excerpt of Don’t Let it Happen, Eric Adams (self-published, 2009)

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The Completely Unnecessary Killing of Marcellus Williams Sep 27, 2024

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We begin by considering Alexandria Ocasio-Cortez's claim that Israel's recent unprecedented operation against Hezbollah's pagers and walkie-talkies was a violation of international law. Was this one of the most sophisticated military intelligence operations in history or an indiscriminate act of terror?

Did the US Supreme Court just allow Missouri to execute an innocent man? We consider the evidence against Marcellus Williams as well as the many legal and Constitutional issues with his conviction--and just how much blood enemy-of-the-show Missouri Attorney General Andrew Bailey has on his hands in his rush to push forward an execution that the same DA's office which convicted Williams 23 years ago was desperately trying to stop.

Finally, Matt drops a footnote to share his legal strategy for recovering 20 years of his digital life from the largest social media company on the planet. Do you really have to have (or be) a lawyer just to talk to Facebook's managers?

Revised Statutes of Missouri Sec. 547.031
St Louis Prosecuting Attorney’s motion to vacate Marcellus Williams’s murder conviction
Marcellus Williams’s Application for Stay of Execution to the U.S. Supreme Court (9/23/24)
“How small claims court became Meta's customer service hotline,” Karissa Bell, Endgadget (6/20/240

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OA Bar Prep With Heather! T3BE42 Sep 25, 2024

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The answer for T3BE41 is coming your way, and we launch our next Bar Prep question with Heather!

Right now, the best place to play (if you aren't a patron...) is at reddit.com/r/openargs!

If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

How the 5th Circuit Won by Losing, with Steve Vladeck Sep 23, 2024

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We are excited to welcome Georgetown law professor Steve Vladeck back to Opening Arguments for a look back at how the Supreme Court responded to the infamously unruly--and increasingly more extreme--Fifth Circuit Court of Appeals in its last term. How did the 5th “win by losing,” and why is there still cause for future concern even after SCOTUS reversed all but three of the eleven cases it took up from them? What kind of messages are the high court justices trying to send back to the 5th, and why aren’t they receiving them?

Also discussed: Neil Gorsuch’s most recent not-quite-true statement, why the Supreme Court continues to tolerate the dumbest standing arguments on Earth, the 5th’s use (and abuse) of administrative stays, and what may or may not be wrong with Matt’s brain.

Subscribe to Prof. Vladeck’s free weekly One First newsletter
“The Fifth Circuit Won by Losing,” Steve Vladeck, The Atlantic (July 9, 2024)
“30 Hours of SB4 Whiplash,” Steve Vladeck, LexisNexis.com (March 20, 2024)

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We Find John Roberts' Lack of Integrity Disturbing Sep 20, 2024

Show notes

OA1070

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We begin today’s show with updates on two small victories for the power of art against the Donald Trump legal-industrial complex before turning to our main story: the biggest leak of internal communications in Supreme Court history. We review what we can learn about how Chief Justice John Roberts has been managing his (and the Court’s) public image from the extremely unauthorized release to the New York Times of memos that we were never supposed to read.

Also, Fulton County Judge Scott McAfee has just eliminated three more counts from the Georgia RICO indictment against Donald Trump and the co-conspirators charged with their attempt to submit a false slate of Presidential electors to a federal court based on 134-year-old Supreme Court precedent. What’s going on here, and how safe is this indictment now?

Finally in this week’s Footnote Fetish, Matt explains why some scruffy-looking nerf-herder is trying to convince a British court that his legal rights were violated by Lucasfilm’s digital resurrection of the deadliest villain in Star Wars history.

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OA Bar Prep With Heather! T3BE41 Sep 18, 2024

Show notes

Secure your privacy with Surfshark! Enter coupon code OPENING for 4 months EXTRA at https://surfshark.com/OPENING

The answer for T3BE39 is coming your way, and we launch our next Bar Prep question with Heather!

Right now, the best place to play (if you aren't a patron...) is at reddit.com/r/openargs!

If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

The Surprising History of the Supreme Court Footnote Sep 16, 2024

Show notes

OA1069

Matt is doing a bit of blending of work and pleasure today, by sharing with everyone his footnote fetish. Let's all make this a safe place for Matt to share his more controversial proclivities. Joining us is the author of the book in the episode title, Peter Charles Hoffer. Professor Hoffer is Distinguished Research Professor of History at the University of Georgia. Unlike the justices, Professor Hoffer is an actual historian. Listen and find out not only the fascinating footnote history, but also yet more reasons why originalism and "history and tradition" are not good ways for untrained amateur historians like Samuel Alito to do jurisprudence.

If you’d like to support the show (and lose the ads!), please pledge at patreon.com/law!

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