Shows
Oral ArgumentEpisode 216: Mac-a-tizerJoe and Christian talk about the pandemic and, then, some nonsense.
2021-01-2759 minOral ArgumentEpisode 210: ExponentialJust Joe and Christian on the pandemic, new articles, and spring break.
Achieving A Fair and Effective COVID-19 Response: An Open Letter to Vice-President Mike Pence, and Other Federal, State, and Local Leaders from Public Health and Legal Experts in the United States
The President in discussion with pharma execs on a vaccine
2020-03-0340 min
Oral ArgumentEpisode 209: The Gun SubsidyWe are joined by our student, Justin Van Orsdol, who has co-authored a paper with Christian about a new approach to the gun violence crisis.
Justin Van Orsdol's writing
Christian Turner and Justin Van Orsdol, The Gun Subsidy
Oral Argument 101: Tug of War
Special Guest: Justin Van Orsdol.
2020-02-211h 29Oral ArgumentEpisode 208: Competition CornerWe discuss a proposal by Sen. Hawley to abolish, more or less, the Federal Trade Commission, the agency that administers consumer protection and antitrust laws, and place its responsibilities in the Justice Department. Antitrust, the unitary executive, independent agencies, Joe's Competition Commission, and more.
Josh Hawley, Overhauling the Federal Trade Commission
Mike Masnick, William Barr's Move to Rid the DOJ of Independence Shows One of Many Reasons Josh Hawley's FTC Plan Is Dangerous
2020-02-141h 05Oral ArgumentEpisode 207: BriberySometimes in law, as in other areas of life, we think we know something, but the more we think about, the more we realize we don't know it at all. Legal scholars have focused on puzzles like this before, like why blackmail should be illegal. Deborah Hellman joins us to discuss her attempt to answer a question you might not have known you had: What is wrong with bribery, and what is bribery anyway? The difficulties here shed some light on recent events.
Deborah Hellman's faculty profile and writing
Deborah Hellman, A Theory of Bribery
Oral Argument 206: What...
2020-01-311h 22Oral ArgumentEpisode 206: What Are We?Joe and Christian discuss Christian's latest paper, on the way we define and separate markets, including European football, campaign finance, surrogate motherhood, and water bottles in disaster zones.
Christian Turner, The Segregation of Markets (SSRN) (SocArXiv)
2020-01-171h 40Oral ArgumentEpisode 205: iBonusChristian calls Joe out of the blue to celebrate our sixth anniversary and to talk about heroes.
2019-12-2227 minOral ArgumentEpisode 204: TheocracyWe discuss new calls to integrate church and state. The conversation ranges over liberalism, religion, religious zeal, and, obviously, some nonsense.
Micah Schwartzman and Jocelyn Wilson, The Unreasonableness of Catholic Integralism
Adrian Vermeule, Integration from Within
Christina Deardurff, "The Depths of the Church Are Not to Be Disturbed": An interview with Adrian Vermeule
2019-10-131h 31Oral ArgumentEpisode 203: Fifty-FourOn immaturity, defensiveness, art, the intellect, models, and the self. And mailbag on scholarship and practice, Title VII, and Star Trek. It's Joe's birthday.
2019-09-081h 43Oral ArgumentEpisode 202: ConversationsWe discuss dictionaries, up and down on maps, and excellence in seminar conversation.
Joseph Miller, Suggestions for Law School Seminars
Seminar Skills – Learning Collaboratively
2019-08-231h 24Oral ArgumentEpisode 201: The BagJust Joe and Christian, lumbering into season 2, talking about tipping and fraud in the gig economy, bar exam fiascos, legal scholarship, and fireworks.
Andy Newman, DoorDash Changes Tipping Model After Uproar From Customers
Donna Hershkowitz, The State Bar of California, Statement on July 2019 Bar Exam Release of General Topics
Oral Argument 61: Minimum Competence (guest Derek Muller)
The Weeds, Vox's podcast for politics and policy, the episode Dysfunctional Federalism with David Schleicher is accessible within their player or, obv, in your podcast app
2019-07-291h 45Oral ArgumentEpisode 200: Cite Me, Don't Slight MeWe kick off Season 2 with assorted nonsense before diving into our second SCOTUS round-up, which consists entirely of the Supreme Court's decision on the census citizenship question.
Dep't of Commerce v. New York
2019-07-082h 11Oral ArgumentEpisode 199: Offended ObserverWe discuss items from the mailbag and go ahead and conduct our annual, absurd Supreme Court round-up (fifty minutes in).
James Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation
Obriecht v. Splinter
Johari Canty, Florida Deputies Find Sign Warning Drivers About Upcoming Speed Trap
American Legion v. American Humanist Ass'n
Knick v. Township of Scott
2019-06-232h 11Oral ArgumentEpisode 198: The Means of RandomizationHow would you feel if you found out you were unwittingly the subject of an experiment testing two alternatives? You got A, and another group got B. Many people object to this. But what if neither A nor B was at all objectionable and in fact each is served up at many other places unilaterally and without reason for preferring one to the other? Why should we object to being randomly given A or B for the purpose of testing, when we would not object to having either uniformly and arbitrarily imposed? We are joined again by Michelle Meyer...
2019-05-281h 33Oral ArgumentEpisode 197: LARPingWe talk about LARPing, emotions, meaning, exam writing, grading, happiness, and other things.
Lawrence S. Krieger and Kennon M. Sheldon, What Makes Lawyers Happy? A Data-Driven Prescription to Redefine Professional Success
2019-05-161h 27Oral ArgumentEpisode 196: It at Least ExistsIs the common law efficient? Richard Posner, among many others, has argued that it is, perhaps even without judges ever themselves focusing on that goal. Daniel Sokol joins us to discuss how understanding law as a platform, like modular and open-source software platforms, helps to see how some areas of the law might indeed become more efficient over time while others might not.
Daniel Sokol's faculty profile and writing
Daniel Sokol, Rethinking the Efficiency of the Common Law
Special Guest: Daniel Sokol.
2019-04-211h 16Oral ArgumentEpisode 195: BasedWe dip back into the mailbag to discuss verdicts, unpublished opinions, "based off," canons and anti-canons, and more.
2019-04-081h 19Oral ArgumentEpisode 194: TopoiWith Zahr Said and Jessica Silbey, we discuss new narrative forms, their setting, and their influence on law and legal education. How do the natures of podcasts, twitter, fake news, and deep fakes affect the way we experience culture together and how do they construct that culture and our legal culture?
Zahr Said's faculty profile and writing
Jessica Silbey's faculty profile and writing
Zahr Said and Jessica Silbey, Narrative Topoi in the Digital Age
Ryan Calo, Digital Market Manipulation
Daniel Solove, Privacy and Power: Computer Databases and Metaphors for Information Privacy
Special Guests: Jessica Silbey and Zahr...
2019-03-2459 minOral ArgumentEpisode 193: A Giant ThunderstormFast on the heels of her last appearance, Carissa Hessick joins us to talk about corpus linguistics, which means... well, we debate this, but, generally, the use of computer-based methods to draw inferences from large databases of texts. What is this enterprise? How can and should it be used to answer legal questions? What does it mean to mean something? These questions, thunder, sense, nonsense, and a continued delving into Joe's pscyhe all feature in this episode.
Carissa Hessick’s faculty profile and writing
Carissa Byrne Hessick, Corpus Linguistics and the Criminal Law
Lawrence Solum, Legal Theory Lexicon: Co...
2019-03-171h 19Oral ArgumentEpisode 192: PrecisificationAt long last, we discuss originalism with one of its foremost proponents, Lawrence Solum. In this conversation, we focus on Larry's recent effort to identify what constitutes originalism as a category of interpretive theories and what distinguishes it from other theories, including living constitutionalism.
This episode's links:
Larry Solum's faculty profile and writing
Legal Theory Blog (see also Larry's very helpful Legal Theory Lexicon)
Lawrence Solum, Originalism versus Living Constitutionalism: The Conceptual Structure of the Great Debate (As mentioned in this episode, this article is a great starting point for understanding the various theories and methods...
2019-03-031h 23Oral ArgumentEpisode 191: DynastyAfter discussion of failing memory, mispronunciation of names, and legal scholarship, we turn to a very serious topic with our guest, Eric Kades. The looming threat of dynastic wealth in the United States has been much discussed since, and even before, the publication of Thomas Piketty's Capital in the Twenty-First Century. We discuss Piketty's now-famous inequality, r > g, how certain legal rules handled the building of perpetual dynasties, the attack on those rules during the historically unusual period during which many of us have grown up, and Eric's proposed tax to fend off some of the dangers.
...
2019-02-241h 17Oral ArgumentEpisode 190: Why We WriteJust Joe and Christian talking about, inter alia, a paper about judicial writing and practice by the late Judge Wald. Live to tape and shipped without editing. Buyer beware!
Patricia Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings
2019-02-111h 26Oral ArgumentEpisode 189: RepugnanceKim Krawiec rejoins us to discuss "repugnant" transactions. One common target of this adjective is trade in human body parts. While on the one hand making more matching kidneys available saves lives and prevents large amounts of suffering, on the other hand revulsion and concerns about coercion and distributive fairness arise when kidneys are bought and paid for. In recent years, a number of innovative market designs have allowed strangers to exchange kidneys without engaging in impersonal, commodified market transactions. And now there have been several global examples of such exchanges, transferring not only kidneys but also the resources...
2019-01-271h 17Oral ArgumentEpisode 188: Common Law CrimesIf you were charged with a crime, would you rather it be one written down by a legislature and codified in the tomes of a state's laws or one marked out by the decisions of judges over time? You're hardly alone if you chose the first option, and it is in fact the conventional wisdom that we have rightfully abandoned and prohibited "common law crimes." Not so fast, says our guest, Carissa Hessick. Our system of criminal law is still host to a good deal of common law, in the interstices of statutory text, through explicit incorporation, and sometimes...
2019-01-2057 minOral ArgumentEpisode 187: Both Sides of the VJocelyn Simonson returns to the show to wake us up to the many public interests on both sides (and no sides and all sides) in criminal cases. We discuss whether prosecutors are synonymous with "the People" and how a broader conception of "the People's" interests in criminal adjudication might suggest more robust public participation in the criminal process.
Jocelyn Simonson’s faculty profile and writing
Jocelyn Simonson, The Place of "the People" in Criminal Procedure
Oral Argument 95: Own the Block (guest Jocelyn Simonson)
Serial Season 3
Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics
Unsigned No...
2019-01-121h 16Oral ArgumentEpisode 186: EphemeralExactly five years after our first show, we record a conversation on the ephemeral or perduring nature of podcasts and blogs, dockless scooters and local regulation, and viewer mail.
2018-12-221h 12Oral ArgumentEpisode 185: Embassy SuitesBrexit, China, international trade, security, distribution, resentment, madness, and coffee with Tim Meyer.
Tim Meyer's faculty profile and writing
Oral Argument 105: Bismarck’s Raw Material (guest Tim Meyer)
Oral Argument 2: Bust a Deal, Face the Wheel (guest Tim Meyer)
Timothy Meyer and Ganesh Sitaraman, Trade and the Separation of Powers
Nicolas Lamp, How Should We Think about the Winners and Losers from Globalization? Three Narratives and Their Implications for the Redesign of International Economic Agreements
Special Guest: Tim Meyer.
2018-12-041h 26Oral ArgumentEpisode 180: SpectralJust Joe and Christian on: listener feedback (01:09), the Supreme Court confirmation crisis and constitutional structure (round one) (08:00), more feedback (17:16), reading glasses (36:10), Apple and Daring Fireball and caring (41:43), peak iPhone (52:34), and the current state of the Kavanaugh nomination, partisanship, and Supreme Court nominations generally (01:01:31).
2018-09-232h 10Oral ArgumentEpisode 177: The Hard Drive Has Always Been the EnemyIt's our annual Supreme Court term roundup, with special guest Ian Samuel. We discuss, natch, one case, Carpenter v. United States, which concerns the need for a warrant to get records from cell phone companies concerning the location of your phone. But there's much more, including: hard drive upgrades, the sum total of human writing, audio vs. text for messaging, emojis, AI and grunts, Supreme Court-packing / balancing / restructuring (16:37), what rules of procedure an enlarged Court should set for itself and what rules should be imposed on it (29:00), podcast lengths and listening habits (51:04), Carpenter v. United States(01:02:06), Batman movies, and...
2018-08-072h 15Oral ArgumentEpisode 174: Podcast of RecordJust Joe and Christian on a double-album of an episode. Lots of nonsense and a smattering of sense, including: notaries public, international sport and boycotts and drugs, bears and snakes, the Deep South and weather, these days and conversation, a tiny, incomplete dip into the mailbag, the pronunciation of Argunauts, what we should do with our lives, law and neutrality, law as a substitute for war, 2 + 2 = 5 and right and wrong, hard and easy problems, freedom reasoning and the New Lochner, court packing, changing the constitution of the Supreme Court, religious tests for office and the nature of convictions about...
2018-07-072h 11Oral ArgumentEpisode 171: Garbage GutSteve Vladeck rejoins us on ... lots of things. Christian returns from a conference abroad, french fries, standing, Iceland, patents and trial by battle, Trump, pronunciation in the Supreme Court and in various American cities, thunder. And then, (at 26:41 if you want to skip to the more serious part) a Dalmazzi update and general speculation about the authorship of pending cases and what's going on in the building. Will the big cases this term - travel ban, redistricting - fizzle like Masterpiece? Are there lessons or opportunities for reform of the Court's jurisdiction, procedures, and politics (46:21)? Then we discuss the...
2018-06-121h 47Oral ArgumentEpisode 165: Raging FireLate at night, mics dragged up by the fire, talking mailbag items on conversation, Banach spaces, mental models, the Facebook dumpster fire, and Christian's weird old tricks for managing your online world. Finally, Mr. Rogers and being better.
This show’s links:
Larry Alexander, Constrained by Precedent
Scott Hershovitz, Integrity and Stare Decisis
Aaron Glantz and Emmanuel Martinez, For People of Color, Banks Are Shutting the Door to Homeownership
Zhigang Wei, Hugh McDonald, and Christine Coumarelos, Fines: Are Disadvantaged People at a Disadvantage?
Banach spaces
Christian Turner, Models of Law
Lawerence Solum, On the Indeterminacy Crisis: Cr...
2018-03-241h 36Oral ArgumentEpisode 160: In the BarrelSteve Vladeck rejoins us on the law of civilian-military separation, whether Marbury v. Madison was rightly decided, and how his recent oral argument before the Supreme Court went (spoiler: amazingly but weirdly). (Ignore Christian's use of the term "basises" (wtf?) and other misstatements and inanities ... you try recording ever week between classes....)
This show’s links:
Steve Vladeck’s faculty profile and academic writing
The National Security Law Podcast 54: Family Ties or Family Matters?
First Mondays OT2017 #12: False Idol (guest Steve Vladeck)
SCOTUSblog page for Dalmazzi v. United States (including links to all the briefs and more...
2018-01-271h 03Oral ArgumentEpisode 159: MagicalLive to tape, we discuss viewer mail, Tolkien, laptops, and (kind of) a couple of SCOTUS cases.
This show’s links:
Foundations of American Law (an undergraduate course created by Christian, featuring a textbook and companion podcast series with Christian and Joe)
Legal Theory 101 (Christian's introductory course to legal philosophy, featuring a reading list (with links) and a companion podcast series)
2018-01-221h 15Oral ArgumentEpisode 149: We've Been Given the Finger (Live at the Tech Law Institute)We returned this week to the annual Tech Law Institute meeting in Atlanta. We talk about data, law, and society: Joe and Christian's fight over data on the way to the conference, a new Supreme Court case involving cloud data and international boundaries, and the decisions that technology will force us to make. (Thanks to Jacob Davis for helping us provide written materials for the conference!)
This show’s links:
SCOTUSblog page on United States v. Microsoft (including links to the petitions for cert and the Second Circuit's panel opinion)
Paul Schwartz, Legal Access to Cloud In...
2017-10-2254 minOral ArgumentEpisode 147: Busting FamineJust Joe and Christian, coming to you after a terrible week. We talk guns, ex-Judge Posner's book and humility, the right rules for disabled stoplights, the closing of a coffeehouse, and airplane seat reclining behavior.
This show’s links:
Oral Argument 101: Tug of War
Richard Posner, Reforming the Federal Judiciary
Steven Lubet, Richard Posner, Unedited (Part One)
Zoran Tasic, Reforming Richard Posner
Oral Argument 32: Go Figure (on Judge Posner's gay marriage opinion in Baskin) and Oral Argument 131: Because of Sex (featuring discussion with Anthony Kreis about Judge Posner's Hively opinion)
WINIR
How do you pronounce Utrecht?
Th...
2017-10-061h 03Oral ArgumentEpisode 142: NormativityJeffrey Kaplan joins us to discuss his work in philosophy on the nature of law, law’s connection to morality, and the way law gives us reasons to follow it. We discuss the connection with Christian’s work and also succeed (wildly but sporadically) in providing the usual nonsense.
This show’s links:
Jeffrey Kaplan’s webpage
First Mondays
Summary Judgment
Jeffrey Kaplan, Attitude and the Normativity of Law
Christian Turner, Models of Law
Christian Turner, Legal Theory 101 (note the links and episodes on Hart, Dworkin, Fuller, Shapiro, and Hershovitz
Scott Hershovitz, The End of Jurisprudence
Stephen...
2017-07-231h 19Oral ArgumentEpisode 141: The Picard Meltdown PrincipleLeah Litman joins us to discuss the problematic argument that a law’s novelty is a reason to believe it is unconstitutional. In particular, she focuses on arguments that statutes that affect the separation of powers or the federalism balance are suspect if they are somehow unprecedented. Also, brief updates on: a wasp, Joe’s living situation, Christian’s health, Leah’s bee-related flight delay.
This show’s links:
Leah Litman’s faculty profile and writing
Leah Litman, Debunking Antinovelty
First Mondays
United States v. Windsor; Romer v. Evans
Printz v. United States; Free Enterprise Fund v. PCAOB; NF...
2017-07-091h 20Oral ArgumentEpisode 137: Steve Vladeck Pincer MoveWhere federal courts, national security, and subtle but important problems lurk, you’ll find Steve Vladeck explaining things. Steve joins us to talk about a seemingly narrow question of the proper application a statute prohibiting civil-office holding by military officers. The issue, though, could hardly be more far-reaching, asking us to consider the principles of civilian control of the military and military non-control of civil life. Also, a little on the use of “treason” to describe the allegations of the Trump campaign’s collusion with Russian operatives and Flynn’s work for Turkey.
This show’s links:
Steve Vl...
2017-06-021h 19Oral ArgumentEpisode 136: The Coase of CopyrightWith Zahr Said, we discuss what makes creative works similar and the role of the “reader” in constructing a work’s meaning. Christian derails with a James Bond commercial. But we get back on track and talk about paintings, poems, Star Wars, textualism, and the Big Sick.
This show’s links:
Zahr Said’s faculty profile and writing
Zahr Said, A Transactional Theory of the Reader in Copyright Law
Joseph Miller, Hoisting Originality
About Louise Rosenblatt
Oral Argument 132: The Soul of Music (guest Joe Fishman)
Joseph Fishman, Music as a Matter of Law
Mark A. Lemley, Our Bizarr...
2017-05-261h 18Oral ArgumentEpisode 134: CrossoverIt’s finally here, the one where we talk with the hosts of the world-famous First Mondays podcast, Ian Samuel and Dan Epps. Topics include physics conundrums, podcasts (05:13), the politics of Supreme Court nominations (27:08), and radically changing the rules governing the Supreme Court’s docket (54:54).
This show’s links:
First Mondays
Dan Epps’ faculty profile and writing
Ian Samuel’s faculty profile and writing
Feynman on mirrors
Randall Munroe, The Goddamn Airplane on the Goddamn Treadmill
Randall Munroe, xkcd: 28-Hour Day
Christian Turner, Podcasts (and somehow this post about Streamers is still online)
The Bernie Sanders Show
Chris...
2017-05-061h 32Oral ArgumentEpisode 132: The Soul of MusicWhat is music? With IP scholar Joe Fishman, we talk about music to work by, whether being unable to imagine doing anything else is a sign you’re doing the right thing, and, mostly, what in music should be protected by copyright. Is the essence of music just melody? And should copyright aim at any such essence? How does our choice about legal protection affect the kind of music people make - and should we worry about that? Why am I asking so many questions? Will these show notes ever end?
This show’s links:
Joseph Fish...
2017-04-211h 09Oral ArgumentEpisode 130: Simian MentationJoe and Christian discuss submarine statutes, the essence of decisionmaking, and the problems of complexity and institutional fit. And we discuss some viewer mail: on partisan cooperation between levels of government, Joe’s lack of knitting diligence, and supercomputers.
This show’s links:
Jessica Bulman-Pozen, Partisan Federalism; Jessica Bulman-Pozen, Unbundling Federalism: Colorado's Legalization of Marijuana and Federalism's Many Forms
Christian Turner, Submarine Statutes
Harlan F. Stone, The Common Law in the United States
Marty Lederman, Why the Strikes Against Syria Probably Violate the U.N. Charter and (Therefore) the U.S. Constitution; Harold Koh, Not Illegal: But...
2017-04-071h 15Oral ArgumentEpisode 127: I Own My FistWhen people say they can do whatever they want with their property, what do they mean? With Christopher Newman, we go back to first principles to think about property and copyright in new, and yet old, ways.
This show’s links:
Christopher Newman’s faculty profile and writing
Christopher Newman, Vested Use-Privileges in Property and Copyright
Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning
Christian Turner, Legal Theory 101, Reading 3: Hohfeld
Tom Bell and Chris Newman discussing Bell’s book, Intellectual Privilege
Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency
Lucas v. South...
2017-02-241h 16Oral ArgumentEpisode 124: Sung HeroJust Christian and Joe talking a little about the outrageous first week of the new administration (refugees, emoluments, Russia, and more) and then opening up the mailbag. Nixonian firings, self-driving cars, and more. No other show notes this week!
2017-01-291h 21Oral ArgumentEpisode 114: Tort FestivityCausation and responsibility are interrelated, crucial, and yet puzzling concepts in law. With tort scholar Shahar Dillbary, we explore situations in which spectators “cause” accidents in a drag race that they merely witness and in which the more tortfeasors there are, the better. Also, burning Christian’s car and an update on Joe’s recent cold.
This show’s links:
Shahar Dillbary’s faculty profile and writing
The Election Profit-Makers Podcast
Shahar Dillbary, Causation Actually
About the Learned Hand formula for negligence
Shahar Dillbary, Tortfest
Special Guest: Shahar Dillbary.
2016-10-201h 08Oral ArgumentEpisode 111: A Random WalkThe merits of going live-to-tape, RSS woes, podcasts, mailbag, judges and voting, decisionmaking machines, breaking the law by not facilitating others’ breaking the law, shipping Perceiving Law, cutting one’s favorite scene, a mysterious phone call.
This show’s links:
Info about the Technology Law Institute seminar at which we will record an episode in front of a live studio audience
Michael Clemente, A Reassessment of Common Law Protections for “Idiots”; Michael Clemente, Executing Idiots; Adam Liptak, Supreme Court to Consider Legal Standard Drawn from “Of Mice and Men”
Christian Turner, Perceiving Law (ssrn or socarxiv)
Joseph Miller...
2016-09-161h 14Oral ArgumentEpisode 107: Unleash the JoeA special live-to-tape dig through the mailbag.
This show’s links:
Christian’s Modern American Legal Theory audio downloads (paste this into your podcast app: http://www.hydratext.com/malt2016?format=rss)
Episodes relevant to driverless cars: No Drones in the Park (guest Frank Pasquale and Sense-Think-Act (guest Ryan Calo)
Jonathan Masur’s episode: All over the Gander
SustainAtlanta
Oral Argument 74: Minimum Curiosity (guest Amanda Frost)
More Perfect (a side project of Radiolab)
Oral Argument 77: Jackasses Are People Too (guest Adama Kolber)
Oral Argument 44: Serial
Sarah Koenig, Judge Orderns New Trial for Adnan Syed (containing a link a...
2016-08-131h 19Oral ArgumentEpisode 106: Legal AsteroidJoe and Christian talk about this fraught election, focusing on RBG’s Trump remarks. Joe makes a confession.
This show’s links:
ELB Podcast Episode 14: Erwin Chemerinsky, Did Justice Ginsburg Cross the Line?
Dahlia Lithwick, Deciphering Justice
Richard Hasen and Dahlia Lithwick, The Real Reason Why Judges Should Keep Quiet About Elections
Mark Sherman, AP Interview: Ginsburg Doesn’t Want to Envision a Trump Win (“I don't want to think about that possibility, but if it should be, then everything is up for grabs.” Note that this is what Christian mistakenly remembered as “all bets are off.”)
Adam...
2016-07-291h 17Oral ArgumentEpisode 104: Drunk in a Dorm RoomChristian, Joe, and frequent co-host Sonja West dig into the mail and tweet bags and discuss nonsense, sense, and antisense. Topics include: Judge John Hodgman’s weighing in on speed trap law, podcast listening speeds, the Slate Supreme Court Breakfast Table, the insurable liability approach to the gun crisis, Joe sings (yes) a line from “The Externality Song” and (relatedly, obv) Hamilton vs. Upstream Color, price matching and the morality quiz, footnoting and in-text citation and madness, an argument over Guantanamo and rights, more on the culturally polarized gun debate and on rights generally, Posner’s skepticism of academia, and how...
2016-07-081h 32Oral ArgumentEpisode 101: Tug of WarAfter the deadliest mass shooting in American history, we talk about the problem of gun violence and a possible way forward.
This show’s links:
Christian Turner, The Freedom to Kill and Maim
About guns and suicide (literature overview)
Harvard Injury Control Research Center, Firearms Research (a collection of findings on gun ownership, use, injuries, risks, and more)
Dylan Matthews, What No Politician Wants to Admit about Gun Control
German Lopez, America’s Gun Problem, Explained
Mark Follman, Gavin Aronson, and Deanna Pan, US Mass Shootings, 1982-2016: Data from Mother Jones' Investigation
2016-06-1541 minOral ArgumentEpisode 100: A Few Minutes in the Rear-View MirrorIn honor of our base 10 number system, we revert to type and have recorded a long, self-indulgent episode. We reflect on our show, respond to feedback, and wonder about law and legal academia. Also Joe’s travels and nonsense. Feedback includes the other side of the expedite problem, a morality quiz for Joe, the proper playback speed for this show, political processes in arrest and indictment, professionalism norms and racism, SSRN’s purchase by Elsevier, more on the Bluebook and its connection with the problems of legal knowledge creation, and what our jobs are and whether we should keep doin...
2016-06-111h 49Oral ArgumentEpisode 96: Students as MeansA show about, among other things, the morality of the law journal system. We start with Joe’s ailments and our scheduling issues. (You’re welcome; we know this is why people tune in.) Then a little about online review sessions, Slack, online classes, and video conferencing (2:32). Radiohead, Trump, and Ted Cruz (9:02). Next we open the mail and Twitter bags: Carl Malamud, the re-christened Indigo Book, and the possibility of a transcript of one of our episodes, all followed by Chris Walker’s posts on Prawfsblawg about student law journal podcasts (13:19). Next, listener Justin on laptops in classrooms and uncons...
2016-05-061h 25Oral ArgumentEpisode 94: BonusThis is something different, a recording of a conversation we had for Christian’s Modern American Legal Theory class, which is being run online this semester. It’s a discussion of, among other things, the place of the public/private distinction in law and legal theory, critical legal studies, two-by-two boxes, and the vices and virtues of “universalization.” We had fun with it. So here’s a bonus episode.
This show’s links:
Duncan Kennedy, The Stages of the Decline of the Public/Private Distinction
Christian Turner, Origins of the Public/Private Theory of Legal Systems
2016-04-0949 minOral ArgumentEpisode 92: Deficit PeacockWe’re joined by tax scholar Daniel Hemel to discuss a puzzling problem. Why don’t presidents use their regulatory powers to affect tax law like they do to affect the law in many other areas? But before that, we talk about Christian’s birthday disappointment (0:01:15) and law reviews and the Bluebook (0:06:47). Then we talk Joe’s Oral Argument cruise proposal and segue to today’s topic (0:21:32), a president’s power to tax (0:27:19), an example of “carried interest” (the tax issue that flared up in the 2012 presidential campaign) (0:37:12), Daniel’s game-theoretic model and discussion of hawks, peacocks, debt ceilings, and presidential h...
2016-03-181h 23Oral ArgumentEpisode 89: AdequacyThis week we tackle the simple and uncontroversial topic of education funding with Josh Weishart. We plumb the depths of equity, equality, luck, adequacy, and sufficiency. Legislatures vs. courts, duties and immunities. Luckily Josh saves us from our usual inadequacy.
This show’s links:
Josh Weishart’s faculty profile and writing
Amy Piller, I’m a New York City school administrator. Here’s how segregation lives on.
Joshua Weishart, Transcending Equality Versus Adequacy
San Antonio Independent School District v. Rodriguez
About John Rawls’ Difference Principle
Elizabeth Anderson, What Is the Point of Equality?
Debra Satz, Equality, Adequacy...
2016-02-201h 15Oral ArgumentEpisode 88: The Blue LineWe record live at the University of Georgia School of Law at the invitation of the Georgia Law Review. The main topic is law journals, but we also give an update on Christian’s crumbling infrastructure, talk about gravitational waves, and introduce a new and complete system of citation.
This show’s links:
Baby Blue: web page and PDF
The Bluebook
David Post, The New (and Much Improved) ‘Bluebook’ Caught in the Copyright Cross-Hairs
Links to correspondence between lawyers for The Bluebook and others and the Baby Blue team
Oral Argument 73: Looking for the Splines
B.P. Abbot...
2016-02-131h 15Oral ArgumentEpisode 86: The Further FreedomingJoe shook off the plague and won a major prize all in one week. In celebration, we debate and discuss the lottery, choosing numbers, and the endowment “effect.” Into the mailbag we go and discuss our Speluncean episodes, an executioner’s privilege, robotic burritos and sandwiches, engineering happiness and social welfare functions, school funding, freedom, bro country, speed trap brief return, Canadian real estate as political barometer, the rougiest judge, knitting, and the Re-Framing.
This show’s links:
Gregory Klass and Kathryn Zeiler, Against Endowment Theory: Experimental Economics and Legal Scholarship
Oral Argument Hymn 1 and Hymn 2
Regina v...
2016-01-221h 03Oral ArgumentEpisode 80: We'll Do It LIVE!We talk about the war between ad networks, data brokers, publishers, and consumers in front of a live studio audience. At the invitation of Paul Arne and the Tech Law section of the Georgia State Bar, we recorded this episode at the annual Tech Law Institute. But, of course, Big Data didn’t need this description to know that.
This show’s links:
The Thrill of Victory and the Agony of Defeat
The Bush-Kerry (not Bush-Gore as Christian had remembered) debate moment that seemed similar to Joe’s “Want some ranch?” utterance
The Technology Law Section of the Sta...
2015-10-251h 03Oral ArgumentEpisode 76: BrutalityWe start with, among other things, some decidedly negative feedback. But then we’re joined by the endlessly fascinating Al Brophy to discuss the history of slavery, Nat Turner’s rebellion and its aftermath, Thomas Cobb and pro- and anti-slavery intellectuals and judges, whether we should revere our Constitution, and what to do with symbols and monuments to the cause of slavery.
This show’s links:
Al Brophy’s faculty profile and writing
Jack Ewing, Volkswagen Says 11 Million Cars Worldwide Are Affected in Diesel Deception
Oral Argument 41: Sense-Think-Act (guest Ryan Calo)
The 30th Annual Technology Law Institut...
2015-09-261h 44Oral ArgumentEpisode 75: Air GapWe start with some feedback and thoughts on the Constitution, the Declaration of Independence, criminal law, and Christian’s brush with Upstream Color greatness. Also Joe’s thank-you notes. Then we’re joined by Mary Ellen O’Connell to talk about international law, weapons, hacking, Stuxnet, war, and killer robots. Mary Ellen maintains that the law we have is perfectly capable of dealing with what seem like new challenges.
This show’s links:
Mary Ellen O’Connell’s faculty profile and writing
Danielle Allen, Our Declaration
The Declaration of Independence
Upstream Color
Dan Goodin, Meet “badBIOS,” the Mysterious Mac...
2015-09-181h 26Oral ArgumentEpisode 74: Minimum CuriosityShould judges surf the web to scrutinize the truth of facts in front of them? With Amanda Frost, we discuss a recent case in which Judge Posner did just that. Some basic internet research cast serious doubt on a prison doctor’s medical opinion suggesting a prisoner did not need Zantac before meals to control a serious esophageal condition. While the websites Posner visited and cited did not control the outcome, they supported his conclusion that the evidence in the district court was insufficient to throw out the prisoner’s case.
This show’s links:
Amanda Frost’...
2015-09-111h 17Oral ArgumentEpisode 72: The Guinea Pig ProblemWith Michelle Meyer, a scholar of bioethics and law and a longtime listener of this show, we talk about human testing and Facebook. There’s a lot to talk about, but it doesn’t dissuade us from our customary, introductory nonsense, this time including a gift from listener Michelle, Star Wars, Joe’s mangling of last names, and Joe — and this actually happened — eating dog food. If you hate fun and want to get right to the colloquium part of America’s Faculty Colloquium, it starts a little after 23 minutes in. Should corporations be able to experiment on its customers an...
2015-08-281h 55Oral ArgumentEpisode 71: Rolex Tube SocksWith IP scholar Mark McKenna, we discuss a body of law we at least all agree should exist: trademark. Why is it essential? What are design patents? (Christian didn’t really know. But he opposes them nonetheless.) How do and should they differ from trademarks? Should there be a much shorter but partly functional protection for innovators’ identities as innovators? We discuss the example of Apple, Samsung, Android, and dilution.
This show’s links:
Mark McKenna’s faculty profile and writing
About the escutcheon
About Joe Miller, the Alaskan politician
The A.V. Club’s Podmass, featuring...
2015-08-221h 15Oral ArgumentEpisode 70: No Drones in the ParkDrones and robots are or soon will be watching you, driving you, delivering to you, and maybe even trying to kill you. They’re loud, nosy, deadly, useful, safe, and dangerous. There are many different kinds of them and many different kinds of us. What should we do when, say, a man shoots a camera-bearing drone out of the sky above his property? Or when a creditor remotely shuts down your car when you’re behind on your payments but, unfortunately, while you’re on the highway? For some answers and more questions, we chat with delightfully deep-thinking Frank Pasqua...
2015-08-071h 18Oral ArgumentEpisode 68: Listen to My Full PointJust Christian and Joe focusing on a few topics from listener feedback. Our discussion includes: BPA-free containers, Joe’s health, John Pfaff in the news on prison reform and mass incarceration, Pluto and seagulls, listener Anthony’s good news, the Church of Marijuana, religious exemptions, racist appointments, what “tuition” means, how to choose a law school, how to prepare for law school (we disagree), what law schools should be, and feedback we decide to delay.
This show’s links:
Oral Argument 51: The Faucet (guest John Pfaff)
German Lopez, Mass Incarceration in America, Explained in 28 Maps and Charts (vo...
2015-07-181h 25Oral ArgumentEpisode 62: Viewer MailIt’s just Joe and Christian this week, clearing out viewer mail. We discuss our show, Kerbal Space Program, the bar exam, Virginia’s bar exam dress code, follow-up on ExamSoft, licensing and control, probability, the Monty Hall problem, and being hit by meteors.
This show’s links:
Kerbal Space Program (and see, e.g., this video tutorial by the Scott Manley)
Temma Ehrenfeld, Should You Knit?
Randall Munroe, Orbital Mechanics on xkcd.com
David Letterman’s Viewer Mail and the Pyramid of Comedy
Oral Argument 61: Minimum Competence
Daniel Solove, The Multistate Bar Exam as a Theory o...
2015-05-221h 38Oral ArgumentEpisode 57: Light It on Fire and Shove It into the AtlanticWe hereby deliver an evening episode comprising role-playing, word pictures, and other podcasting art forms to convey critical information on, among other miscellany: Christian’s week of broken things, follow-up on lines, math and the book of true reasons, Mark Lemley’s article on “faith-based IP,” imagining Benjamin Franklin’s lightning powered potato peeler, iPhone copycats, and, morality aside, the death penalty’s stupidity, and the measure of a civilization.
This show’s links:
The Wirecutter and the Sweet Home
Oral Argument 55: Cronut Lines
The documentary about people competing to win a truck, Hands on a Hardbody
Oral...
2015-04-171h 42Oral ArgumentEpisode 56: Cracking and PackingWhen you have election law and constitutional law scholar Lori Ringhand on your show, you start, of course, by talking about the problem with email, the uses of texting, and apps like Periscope. Lori thinks Christian should read more novels. Fueled by listener Bunny’s small-batch, home-roasted, fine coffee, we move on to the much easier topics of race, voting, and gerrymandering. What do you do when the Supreme Court’s color-blindness understanding of the Equal Protection Clause collides with the Voting Rights Act? And why do geographic voting districts with single winners make sense anyway? Voting’s hard to mak...
2015-04-101h 37Oral ArgumentEpisode 54: No ThrottlingChristian finds himself among two telecommunications and IP experts, Joe and guest Aaron Perzanowski, to discuss the FCC’s recently issued regulations mandating some form of “net neutrality” on broadband internet providers. Will these regulations hold up? Why does your cable company want to provide you with “antivirus” software? What did we receive in the mail last week? Which listener thinks we’re full of it? It’s all in this week’s show.
This show’s links:
Aaron Perzanowski’s faculty profile and writing
Episode 52 and Episode 53 on King v. Burwell
William Baude, Could Obama Bypass the Supreme C...
2015-03-271h 43Oral ArgumentEpisode 52: NihilismJoe and Christian try to understand King v. Burwell, or Obamacare II, in light of the oral argument last week.
This show’s links:
The SCOTUSblog page for King v. Burwell, containing the briefs, commentary, and links to the argument`
The Supreme Court’s page for downloading audio of the oral argument
Dahlia Lithwick’s Amicus episode about the case
2015-03-071h 35Oral ArgumentEpisode 50: We Have Fully Exhausted the TopicLast year’s cert denials in various same-sex marriage cases led to renewed discussion concerning the counterintuitive (to Christian, at least) notion but conventional wisdom that state courts are not bound to follow lower federal courts’ interpretations of federal law. While we discussed and debated this last fall, Amanda Frost was putting the finishing touches on an article reviewing, challenging, and otherwise completely examining this curious doctrine. Was Michael Dorf’s Hammer Blow, as we named the episode with him, the final blow or might some of Christian’s naive doubts be rehabilitated by Prof. Frost’s exhaustive analysis? Yep, that...
2015-02-201h 31Oral ArgumentEpisode 48: Legal TruthWith evidence and criminal procedure scholar Lisa Kern Griffin, we discuss the role of narrative, storytelling, and probability in assessing guilt and innocence. Also, feedback on coffee, citation, librarians, and argument.
This show’s links:
Lisa Kern Griffin’s faculty profile and writing
Sonja West, First Amendment Neighbors, citing Joe Miller, Christian Turner, and Sonja West, Oral Argument 1: Send Joe to Prison at 46:53, available at http://oralargument.org/1
Bunny’s coffee-roasting links: the Nesco Professional 800-watt Roaster, Green Coffee Buying Club, and information from Sweet Maria’s; Listener Zachary’s links: the Fresh Roast Plus 8 and White Moun...
2015-01-301h 23Oral ArgumentEpisode 47: Making Lisa So MadWe clear the docket while enjoying some listener-provided coffee. Topics include coffee roasting, listener feedback, the Oral Argument roadshow, and a recent decision on the taxation of egg donors.
This show’s links:
Two Story Coffeehouse
Rene Stutzman, Lawsuits by Drivers Ticketed for Flashing Headlights Produce Change, No Money
The Madigan Memorial Hospital, Houlton, Maine (jpeg)
Oral Argument on Twitter and on Facebook
Oral Argument 45: Sacrifice, on which we discussed Nicholas Georgakopoulos’s email on reasonable doubt
Derek Muller’s invitation to make a stop at Pepperdine Law on the Oral Argument road show, which stop is ima...
2015-01-231h 14Oral ArgumentEpisode 45: SacrificeAfter beginning with, let’s face it, nonsense, we respond to listener feedback (beginning at 8:30) on, among other topics, speed traps, Serial, and Judge Edwards’ critique of legal scholarship. We wind up discussing reasonable doubt and probability (beginning at about 30:00).
This show’s links:
Judge John Hodgman
Episode 18: Oral Argument (with Tom Goldstein), featuring Josh Stein’s paper
Richard Stallman’s info packet
Episode 44: Serial
Natasha Vargas-Cooper, Jay, Key Witness from “Serial” Tells His Story for First Time, parts one, two, and three
Slate’s Serial Spoiler Special podcast discussing the Jay interviews
Ezra Klein, Serial Revisited
Susan...
2015-01-131h 32Oral ArgumentEpisode 44: SerialThe Serial podcast, about the 1999 murder of Hae Min Lee and subsequent conviction of Adnan Syed, has become the most popular podcast ever. In our first anniversary show — which, sure, we could have broken into two parts but consider this super-sized show our gift to you for the holidays — we talk with listeners and past guests about their own reactions to the show and to the case. We discuss reasonable doubt, race, procedure, evidence, voyeurism, what we think, what others think, and the inherent (but vastly improvable) tragedy of criminal justice. Guests: Hunt Wofford, Nathan, Anthony Kreis, Jasmine Guillory, Mehr...
2014-12-232h 27Oral ArgumentEpisode 40: The Split Has OccurredThis is the week the circuits split. We discuss Judge Sutton’s opinion for a panel of the Sixth Circuit upholding bans on gay marriage in several states. Although Joe and Christian mainly agree about this case, Joe finds plenty of other things Christian says and does to be irritating, especially during our first eighteen minutes when we discuss feedback.
This show’s links:
Michael Dorf, Why Danforth v. Minnesota Does Not Undermine My View About State Court Decisions to Follow Lower Federal Court Precedent
Our episode with Peabody award winner, Tom Goldstein
About typefaces (and the...
2014-11-081h 44Oral ArgumentEpisode 39: The Ayn Rand NightmareIt’s our ebola episode. You know, I think that’s description enough.
This show’s links:
Fazal Khan’s profile and his writing
Our U.S. News rankings episode, Heart of Darkness
More on the debate about state courts’ following federal circuit courts (relevant to the gay marriage rulings) that arose during our episodes with Michael Dorf and with Steve Vladeck: (1) a post by Michael Dorf, (2) a post by Steve Vladeck, and (3) a post by Christian Turner
About Ebola virus diseased and about Ebola in the United States
The CDC’s information page on Ebola transmission...
2014-10-311h 39Oral ArgumentEpisode 37: Hammer BlowWhat do the federal appeals courts’ striking down of same-sex marriage bans actually mean for marriage equality in the states? Are the state courts bound to follow these decisions while the Supreme Court pursues other interests? Well, Christian got this completely wrong last week, and luckily Michael Dorf is on the line to set us straight. Knowledge bombs galore are dropped.
This show’s links:
Michael Dorf’s profile, his writing, and his world-famous blog Dorf on Law
Amicus, the new Slate podcast by Dahlia Lithwick
Oral Argument 36: Firehose of Equality, the last episode in which Anthon...
2014-10-181h 16Oral ArgumentEpisode 34: There’s Not Really a Best FontWe discuss the role of design in the practice of law with renowned typographer-lawyer Matthew Butterick. The conversation ranges among very practical tips for making better documents, why so many legal documents are poorly designed, why lawyers should care about design, and what it even means to design a document. Matthew explains why IRS forms are some of the most well-designed legal documents around. Also, Joe manages to connect (positively) enjoying physical books with smelling gasoline.
This show’s links:
About Matthew Butterick, also here and @mbutterick on Twitter
Nicholas Georgakopoulos, Knee Defender, Barro’s Error, and...
2014-09-271h 25Oral ArgumentEpisode 33: Other MindsCan non-human animals be “victims” of a crime? The Oregon Supreme Court recently decided they could be. We talk with Matthew Liebman, senior attorney with the Animal Legal Defense Fund, about the law of animals. Why and how do we prohibit animal cruelty? Is it to protect our own feelings, the inherent rights of animals themselves, a little of both? Does prohibiting cruelty protect us from hurting one another? Does a housefly have a right to an education? We discuss the difficulties of being perfect, the omnipresence of trade-offs, whaling by native peoples, whether a chimpanzee can sue in habe...
2014-09-201h 40Oral ArgumentEpisode 32: Go FigureWe’re back with knees and gay marriage. And constitutional scholar Lori Ringhand. In the battle between recliners and knee defenders, Joe tells us the real enemy is the airline who has sold the same space twice. Somehow nose-punching, rapid window shade flipping, and the high arctic figure into the discussion. Turning to Judge Posner’s smackdown of midwestern marriage bans, we start with style: is there such a thing as too much smack? Then we turn to the really interesting bit, Posner’s reimagining of judicial scrutiny of discrimination. Also: speed traps.
This show’s links:
Lori...
2014-09-131h 29Oral ArgumentEpisode 31: Knee DefenderOur labor day episode, in which we discuss: Judge Posner’s castigation of state attorneys in gay marriage cases, professionalism (shiver) and politeness, the knee defender and recliners, airplane boarding and luggage retrieval, the exciting new adventures of the Town of Greece, satanists, and contempt of cop.
This show’s links:
Seventh Circuit arguments in Baskin v. Bogan and Wolf v. Walker
Christian Turner, 404: Argument Not Found
Paul Ford, How to Be Polite
About the duty to rescue
Paul Bloom, Against Empathy in the Boston Review, with respondents
Richard Greenstein, Against Professionalism
The Knee Defender
AP, Plan...
2014-08-291h 21Oral ArgumentEpisode 29: Alpha DogIt’s our back to school episode. We pick up in the middle of a conversation about the order of the months of the calendar and then turn to our main topic: how to teach law. With Mehrsa Baradaran we delve into why classes might turn on you, how to manage the awkward student-teacher relationship, and presumptions of competence and incompetence. We dig into Mehrsa’s Teaching While Woman blog post and all our experiences with privileges, failures, and successes. First names, last names, cold-calling? Authenticity, professionalism, and, obviously, nudist colonies. Also: Mehrsa’s aspiration to be the Postmaster Genera...
2014-08-151h 16Oral ArgumentEpisode 28: A Wonderful CatastropheNow we turn to Joe’s favorite case(s). And monkey selfies. First, some great listener feedback, and Joe’s argument that feedback should be at the end of the show. Then we dive into Erie, the first of two cases decided on April 25, 1938 that together are his favorite case(s). A man injured by an errant door on a passing train brings the case that fundamentally transforms the federal judiciary. Justice Brandeis transcends transcendental nonsense to recognize that courts make common law rather than discover it and thereby gives up power in a move Joe likens to George Wash...
2014-08-081h 31Oral ArgumentEpisode 27: My Favorite CaseWhat’s your favorite case? It’s a difficult question, but in this episode Christian answers it: the infamous decision in Plessy v. Ferguson that upheld racial apartheid under the “separate but equal” principle. Joe accuses him of cheating a bit, because Christian’s “favorite” is actually Justice Harlan’s celebrated solo dissent. Its greatness, though, does not lie in any sort of perfection. Severely flawed and yet great, at the same time.
This show’s links:
Plessy v. Ferguson, which you should scan through as bit, as recommended during the show
Some background here and here on Homer Ples...
2014-07-191h 28Oral ArgumentEpisode 24: Vacation from CompetitionWe talk technology and law with Kevin Collins and begin with the law of the horse. The Supreme Court has given us decisions about searching cell phones, tiny antennae and broadcast television, and patents on business methods implemented in software. Molecules, hair-drying calculating machines, DNA, and the meaning of knowledge. It’s an IP festival this week.
This show’s links:
Kevin Collins’ faculty profile and writing
Edinburgh’s statue of Adam Smith, though not the photo taken by listener Barbara:
Riley v. California, the cell phone search case, PDF and HTML
Frank Easterbrook, Cyberspace and the Law...
2014-06-281h 39Oral ArgumentEpisode 23: Rex SunsteinWe dive into the legal nature of the regulatory state with Ethan Leib of Fordham Law School. In what sense is the making of regulatory policy, whether on the environment or on net neutrality, a legal process? Should regulatory agencies adhere to precedent or otherwise be bound by law-like doctrines? We learn about the White House’s influence over rulemaking through OIRA and question how OIRA should function and what legal principles should govern it.
This show’s links:
Ethan Leib’s faculty profile and articles
This Week in Law 263: More Bodies on Blackacre, on which Joe an...
2014-06-201h 21Oral ArgumentEpisode 20: Twelve Billion DollarsWe start, of course, with speed traps and the suggestion of a radio talk show host that giving speed trap warnings is a religious obligation. Our major topic, though, is the insanity of the textbook market. Christian takes a typically moderate position and argues that all textbooks should be free. Joe takes a typically strident position and argues that it’s more complicated than that. We discuss our respective projects to change the nature and distribution of law school casebooks. Topics include: textbooks as playlists, how their production is like and unlike the production of wikipedia, the traditional model an...
2014-05-231h 40Oral ArgumentEpisode 19: The Prayer AbidesShaking off the rust after a two-week break, we’re back to argue about the Supreme Court’s latest entry in the “Let Us Pray” genre. We are joined by law and religion scholar Nathan Chapman and focus on ancient Greece, where by Greece we mean Greece, New York, and by ancient we mean 1999. That’s when the town began to invite local clergy to its monthly Town Board meetings to deliver short prayers. For almost a decade, these prayers were uniformly Christian and almost always explicitly so. Government and prayer: what to do? We disagree.
This show’s lin...
2014-05-171h 42Oral ArgumentEpisode 18: Oral ArgumentWe finally get around to talking about oral argument on Oral Argument. And, oh do we do so in style. Supreme Court advocate and SCOTUSblog co-founder Tom Goldstein joins us for a portion of the show to talk about what oral arguments are, whether they are worth their costs, what they accomplish, and more. Joe complains about absurd hypotheticals. Christian is unfamiliar with any other kind. Also, we begin with errata, in which we acknowledge Christian’s abuse of the English language.
This show’s links:
Tom Goldstein’s profile and law firm
SCOTUSblog and its About...
2014-04-251h 06Oral ArgumentEpisode 14: The Astronaut's HairThis is the one about eggs. Human eggs. And whether selling them is like selling chicken eggs, teaching law school, or being a good samaritan. Lisa Milot joins us to talk about taxing proceeds from transfers of human body materials. We discuss Christian’s beard, astronaut hair, egg donations, oil reservoirs, how to pronounce Kim Krawiec’s name, speed traps, and follow-up on the US News episode.
This show’s links:
Episode 12: Heart of Darkness, the episode about the U.S. News Law School Rankings
The Ranking Game, Jeffrey Stake’s do-it-yourself rankings website
Jeffrey Stake and Mich...
2014-03-281h 31Oral ArgumentEpisode 11: Big Red DieselThe Spring Break episode in which Joe and Christian take a break from solving the world’s legal problems to talk about the technology and culture of writing. We start with some listener feedback, and then Joe reports on an accidental experiment he performed with his car lights. Moving on to email, we discuss a number of bad habits, including needless attachments and clicking on links. Then, the big daddy: Microsoft Word. We discuss what Christian thinks is horribly wrong with it and the excellent, usable alternative to the whole concept of the WYSIWYG word processor. We argue. We cl...
2014-03-081h 41Oral ArgumentEpisode 10: My Beard Is Not a Common CarrierThis is the one about the internet, that which is neither truck nor tube. Christina Mulligan joins us to talk about our beloved cable companies, Netflix, network neutrality, regulation, monopolies, common carriers, sunken and ancient computers, and her super-secret new project (which Christian suggests could yield an excellent new conspiracy theory that would make Logan Sawyer cry). Also we answer viewer mail. Because this is a super-sized show (pour a beverage), we also mention bonobos, Schweddy Balls, Candy Crush, Candyland, the odd shape of either my coffee mugs or Joe’s face, whether we should change our name to im...
2014-03-021h 56Oral ArgumentEpisode 9: Torches and PitchforksLaw and banking in one podcast. Take deep breaths lest your racing heart burst in your chest. You think I'm joking. Probably because you don't know Mehrsa Baradaran. But then, you probably do, because everyone does. We talk about, among other things, how one should say “Mehrsa,” what banking is, It’s a Wonderful Life, how banks are subsidized and regulated, how 40 percent of the country doesn’t really bank or at least “underbanks,” and payday lenders. Christian does not call Joe “Adam Smith.” Mehrsa defends banking at the post office (dubbed by one banking industry exec “the worst idea since the For...
2014-02-221h 14Oral ArgumentEpisode 8: Party All Over the WorldFresh off a week-long, snow and ice shutdown, Joe tells Christian he doesn’t want to be called Adam Smith anymore. We discuss viewer mail. Then we circle back to the emerging show specialty: whether you can be charged for warning drivers of a speed trap. Turns out it’s a debate that sprawls over more than a hundred years. We also talk about leveling up one’s understanding of law, from bare opinions about disputes to theories of institutional assignment. Roll for initiative: it’s time for Oral Argument.
This show’s links:
Electric Light Orchestra...
2014-02-1555 minOral ArgumentEpisode 6: Productive ThoughtlessnessJoe, Christian, loyal dog Darcy, a fire, some coffee, and melting snow. We kick back and talk about stuff that has been on our minds. This leads to three very different topics. First: we disagree whether the Supreme Court should strike down the President’s recess appointment to the National Labor Relations Board. Text vs. history vs. practice. Second: The Atlanta snowstorm traffic fiasco, in which we discuss mountaineering and computer programming. Third: What makes Dahlia Lithwick so great? Darcy makes a few appearances.
This show’s links:
Cornell’s Legal Information Institute
SCOTUSblog page for NLRB v...
2014-02-011h 17Oral ArgumentEpisode 3: Cut It OffShould we just get rid of intellectual property law altogether? IP scholar Paul Heald, joining us from his home in Illinois, doesn’t think so. But what should we do about patent trolls? Is it even feasible to create virtual fences around ideas? Paul suggests that patent should work a bit more like copyright (which we all think is broken) and should be used to encourage exchange. The conversation ranges from trade secrets, to programmers, to the invention of the airplane. Turning to the runaway train that is copyright law, Paul tells us his spouse was a plaintiff in th...
2014-01-111h 03Oral ArgumentEpisode 1: Send Joe to PrisonThe real first episode of Oral Argument doesn’t hold back. Prof. Sonja West joins us to talk about the the press, the First Amendment, and other cool things. We discuss Supreme Court justices’ getting to talk about whatever they want, the Press Clause, the religion clauses (and even the quartering clause), Judith Miller and the Iraq War, peyote, bathrobed bloggers, the Twitter, who the press might be, Sonja’s press test, press access to prisons, why Joe should got to prison, religious and secular orthodoxy, bong hits for Jesus, student newspapers and local versions of the controversies over the Wa...
2013-12-281h 21Oral ArgumentWho Is Your Hero?This is not the first episode, but it is the launch of Oral Argument, a weeklyish show on which Joe and I talk to people about legal practice, theory, and education and also about random things that interest us. No guests in this test episode we recorded. But we do chat about nonsense, Duck Dynasty, and bad questions abour heroism. We recorded an additional segment on law school exams, but that will have to await the director's cut version of episode 0, due out never.
Relevant links:
Phil Magary, Duck Dynasty's Phil Robertson Gives Drew Magary a...
2013-12-2255 min