May 28, 2017

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From the official website:

Today’s episode takes a deep dive into the recent Supreme Court decision in Epic Systems Corp. v. Lewis, a Gorsuch opinion that is exactly what we told you to expect back when he was nominated to the Court. Oh, and we also tackle the latest policy issued by the NFL with our four-time guest, Chris Kristofco.

And that’s where we begin: with a detailed breakdown of the legal implications of the NFL’s just-announced policy prohibiting on-field peaceful protests during the national anthem. You won’t want to miss it!

During the main segment, we break down the Supreme Court’s 5-4 decision upholding the use of mandatory arbitration clauses that waive the right to class action lawsuits in take-it-or-leave-it contracts of adhesion. But — because this is a Gorsuch opinion — you won’t be surprised to learn that it’s so very much worse than you thought.

After that, we move into a listener comment on plea bargaining that foreshadows an upcoming episode….
Finally, we end with the answer to Thomas Takes the Bar Exam Question #77 about the constitutional requirements (if any) to a 12-person jury and/or a unanimous one.

Show Notes & Links

  1. If you liked Chris and want to hear more, you can check out his excellent sportsball podcast, Titletown Sound Off, or you can check out his previous appearances on the show: Episode 6 (on the NFL), Episode 32 (on Phil Ivey’s gambling), and Episode 68 (on Aaron Hernandez).
  2. Also, our guest Chris Kluwe predicted something like this back in Episode 115.
  3. Click here to read the Supreme Court’s opinion in Epic Systems Corp. v. Lewis. If you want to check out the data cited in Ginsburg’s dissent; that’s here.

Law Talkin' Stuff

It's in the Constitution
Law Court Thingies
Magic Law Words






  • [00:00:00] Intro
    • [00:01:22] The National Anthem
  • [00:04:39] Sportsball with Chris Kristofco
    • [00:05:42] NFL's National Anthem policy
    • [00:10:09] First Amendment issues
    • [00:11:16] Employer imposed conditions
    • [00:15:56] Possibility of collusion to keep protesting players out the league
    • [00:18:09] The Player's union's response to the policy
    • [00:19:47] The effects of the protest on NFL ratings
  • [00:28:34] Commercial
  • [00:30:18] B Segment: Epic Systems Corp. v. Lewis
    • [00:32:16] Arbitration clauses
    • [00:38:32] The National Labor Relations Act vs Federal Arbitration Act
    • [00:40:32] Neil Gorsuch's majority opinion
    • [00:48:48] Neil Gorsuch & Chevron deference
    • [00:54:06] Ruth Bader Ginsberg's dissent
  • [00:55:25] Listener Questions: A point on plea bargaining
  • [01:03:37] New Patron Tuesday
  • [01:06:56] Thomas Takes The Bar Exam: Jury size - answer
  • [01:15:15] Outro

(The time stamps above are derived from the audio provided on the official website; they may vary from audio without ads that are provided through the patreon feed.)

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