Shows
Divided ArgumentCounter-Counter-Counter-DesignationsWill and Dan record a rare live show in an unusual venue: the Salamander Resort in Middleburg, Virginia, at the annual attorney retreat for trial boutique Wilkinson Stekloff. Dan teaches Will some of the new lingo he's learned from the firm's trial experts before a deep dive into civil procedure. First, we dig into the recently argued Coney Island Auto Parts Unlimited v. Burton, which presents a seemingly easy legal question and harder questions about SCOTUS advocacy and ethics. Then we look back at last Term's LabCorp v. Davis, which the Court DIG'd but which raises some fundamental questions...
2025-11-2055 minDivided ArgumentCrazy Half-Drunk Unreliable Research AssistantDivided Argument is in its sixth season! Our first episode of the term focuses, of course, on the latest developments on the shadow docket. These include several grants of interim relief to the Trump administration, as well as some dissents from the denial of certiorari. But first, an update on Dan's travel schedule and ChatGPT usage, and an important correction to our previous episode.
2025-10-311h 03Divided ArgumentWhy Are We Here?We celebrate the 100th episode of the podcast with a special cross-over episode with Sarah Isgur at Advisory Opinions! Sarah, Will, and Dan break down today's blockbuster decision in Trump v. CASA, forbidding universal injunctions (and not saying much about birthright citizenship).
2025-06-281h 12Divided ArgumentCaesar's FaceAfter some feedback and further thoughts on our Skrmetti episode and a shocking revelation about "LabCorp," we circle back to an earlier June opinion about religious distinctions, Catholic Charities Bureau v. Wisconsin Labor & Industry Review Commission. Dan keeps Will up past his bedtime.
2025-06-251h 04Divided ArgumentTruth and ReconciliationWe start out by debating who's responsible for Dan's audio snafus last time before digging into a various odds and ends, such as the Chief Justice's toast at the Supreme Court Historical Society dinner and President Trump's renunciation of Leonard Leo and the Federalist Society. We then try to make sense of the DIG in Labcorp v. Davis and see whether our predictions about Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos panned out.
2025-06-0757 minDivided ArgumentDelete This. Call Me.With apologies for Dan's horrendous audio quality: we catch up on the latest emergency-docket happenings and debate whether Trump v. Wilcox is a big deal or small potatoes. We also catch up on listener feedback and, for the first time in a long time, play a couple of messages received on our voicemail line (314-649-3790 for anyone else who wants to chime in).
2025-06-021h 19
Make It a Great One with Dr. Dan: #1 Podcast for Inspiring Conversations to Live and Lead On PurposeAI, Digital Justice, and Creating a Fair and Just World with Avriel EppsDr. Dan interviews Dr. Avriel Epps, a dynamic scholar, author, and strategist whose work sits at the crossroads of transformative justice and artificial intelligence. With a PhD in Human Development and a masters in Data Science from Harvard University, Dr. Epps brings a fresh and critical perspective to conversations about technology, equity, and social justice.
On today’s episode, Dr. Dan and Dr. Epps explore her work around how bias in predictive technologies affects racial, gender, and sociopolitical identity development. She aims to understand the complex ways that algorithm design and computer-mediated social expectations—often communicated through arti...
2025-05-291h 13Divided ArgumentIn Whack ASAPThanks to the Harvard Law Review, we recorded a live episode in the famed Austin Hall at Harvard Law School. While we hoped to discuss merits cases, the Court gave us far too much shadow docket activity to break down.
2025-04-1159 minDivided ArgumentSufficiently IKEA-likeWe are back with an unexpectedly concise episode focused on last week's "ghost guns" decision, Bondi v. Vanderstok. But first we talk about the calls to reconsider the Court's Confrontation Clause doctrine and also return to the number of votes needed to call for the views of the Solicitor General (CVSG).
2025-04-0248 minDivided ArgumentStunned But RespectfulWe announce the new Divided Argument blog! After discussing the blog and some listener feedback, we break down two recent 5-4 decisions -- the shadow docket fight over USAID funding in Department of State v. Aids Vaccine Advocacy Coalition and the Section 1983 exhaustion decision in Williams v. Reed (or should we say Rev. Stat. 1979?).
2025-03-141h 06Divided ArgumentNatural Side EffectBack in the studio after a couple of fun live shows, we discover that the Court has finally given us too much to talk about. We discuss the new Trump Administration's first shadow docket adventure, a number of interesting solo opinions from the orders list, the decline in summary reversals, and the overall quality of oral advocacy before the Court. We then take a deep dive into the Court's opinion in Glossip v. Oklahoma, a capital case with many factual, jurisdictional, and remedial complexities.
2025-02-271h 20Divided ArgumentHypothetical UnicornDivided Argument is live from the Northwestern Pritzker School of Law, hosted by the Northwestern Federalist Society! We discuss whether we are in the middle of a constitutional crisis, the coming demise of Humphrey's Executor, and various shadow docket developments. Then we preview the issues at stake in next month's oral argument about firearms liability, Smith & Wesson v. Estados Unidos Mexicanos.
2025-02-141h 04Divided ArgumentDouble NegativesDivided Argument is live from Stanford Law School, hosted by the Stanford Constitutional Law Center! We review an unusual summary reversal in a capital habeas case and the latest universal injunction developments, and discuss some of the implications of the change in administration. After that, we are joined by a very special guest to discuss the recent arguments in the excessive force case of Barnes v. Felix.
2025-01-301h 07Divided ArgumentReference CheckIn unpredictable fashion, we record a shockingly timely episode to reflect on the Court's hasty per curiam in the TikTok case. Along the way, we catch up on the shadow docket happenings, manage not to get derailed by an ethics discussion, discover a surprising opinion revision in real time, and break down the Court's opinion in Royal Canin U. S. A. v. Wullschleger. Most importantly, Dan—with help from loyal listeners—collects on a bet Will unwisely made years ago.
2025-01-191h 05Divided ArgumentAide-de-campAfter an unpredictably long hiatus, we're back to break down what we missed. We debate the off-the-rails FedSoc panel Dan was on, work through some shadow docket happenings and the Court's two recent DIGs, ponder the implications of the election on the Court, and briefly discuss the first merits opinion of the Term, Bouarfa v. Mayorkas.
2024-12-171h 10Divided ArgumentSeparation-of-Powers PoliceAfter a long hiatus, we're particularly unpredictable with an episode that isn't about the Supreme Court. We're joined by NYU law professor Daryl Levinson to talk about his exciting and important new book on constitutional theory, Law For Leviathan: Constitutional Law, International Law, and the State. Listen to learn why the Supreme Court's constitutional pronouncements on separation of powers might not matter as much as you thought—and along the way you'll find out what might happen to Will if he starts breaking into his colleagues' cars at the University of Chicago parking lot. Law for Leviathan: htt...
2024-09-261h 12Divided ArgumentNot the Best FounderWe take a long last look at two more end-of-term cases, where the Court made news with what it did NOT decide: Moyle v. United States (the abortion/EMTALA case), and Moody v. Net Choice (state regulation of social media). But first, a bit of debate about some prominent figures in constitutional history.
2024-08-091h 16Divided ArgumentHype MusicUnpredictably, our recent torrent of episodes continues. We take a deep dive into Moore v. United States, which addressed the scope of Congress's constitutional power to tax.
2024-08-051h 02Divided ArgumentReticulated PythonWe continue our breakneck pace and dig into two substantive criminal law opinions: Fischer v. United States and Snyder v. United States.
2024-08-011h 11Divided ArgumentUltimatum GameWe're back just a few days after our last episode to dive in to Harrington v. Purdue Pharma, a 5-4 decision about the power of the bankruptcy system to release claims against third parties.
2024-07-2958 minDivided ArgumentLibertarian Legal Morality TalesAs the dust settles on the end of the term, we look back to examine two of the Court's criminal procedure cases: Smith v. Arizona (applying the Confrontation Clause to expert testimony) and Diaz v. United States (interpreting Federal Rule of Evidence 704(b)) after a brief discussion of AI, political developments, and judicial robes.
2024-07-261h 12Divided ArgumentEvil BatmanAfter a vacation-related hiatus, we're back to discuss Loper Bright Enterprises v. Raimondo (overruling Chevron) and Corner Post v. Board of Governors (time limits for challenges to regulations). We try to figure out just how disruptive these decisions will be for the administrative state and somehow manage not to waste half the episode debating Supreme Court ethics.
2024-07-191h 25Divided ArgumentBack on the IslandWill makes Dan interrupt his vacation to talk about the case you've all been clamoring for: Trump v. United States.
2024-07-041h 15Divided ArgumentHope Springs EternalWe break down SEC v. Jarkesy and City of Grants Pass v. Johnson.
2024-06-301h 34Divided ArgumentFelony-AdjacentWe cut to the chase with extended discussions of two of last week's cases: United States v. Rahimi, which upheld a federal gun law against Second Amendment challenge and produced six concurring and dissenting opinions; and Erlinger v. United States, a case about the jury's role in sentencing that continues a line of cases starting 25 years ago in Apprendi v. New Jersey.
2024-06-261h 08Divided ArgumentSmall VictoriesAfter another discussion of Supreme Court ethics and legitimacy (hopefully our last for a long time), we discuss three of last week's decisions. We cover issues of statutory interpretation in Garland v. Cargill (the bump stock case), of standing in FDA v. Alliance for Hippocratic Medicine (the mifepristone case), and of constitutional remedies in US Trustee v. John Q Hammons (a bankruptcy case).
2024-06-201h 28Divided ArgumentVexillologyUnpredictably, we take a new approach and record immediately after the Court drops new opinions. We dig into Alexander v. South Carolina State Conference of the NAACP (voting rights) and NRA v. Vullo (free speech). Before that, we engage with listener feedback and talk about the latest developments in the endless Alito flag saga.
2024-06-021h 37Divided Argumentp(doom)Continuing our pattern of staying a week behind the Court's latest output, we discuss last week's opinions: CFPB v. Community Financial Services Association (the Appropriations Clause), Harrow v. Department of Defense (jurisdiction and equitable tolling); and Smith v. Spizzirri (arbitration), while also covering the shadow docket order in a Louisiana redistricting case. Before those, we touch on a bunch of topics including Justice Alito's flag display and the degree of existential risk posed by artificial intelligence.
2024-05-241h 29Divided ArgumentPoison Pill in Your PocketWe follow up on feedback, puzzle over the Court's apparent continued lack of interest in Fourth Amendment cases, and then discuss two of the latest opinions—Culley v. Marshall (civil forfeiture) and Warner Chappell Music, Inc. v. Nealy (copyright).And yes, we know Dan's audio sounds terrible due to a technical snafu, sorry!
2024-05-161h 16Divided ArgumentRadical AgreementAfter taking some listener questions, we analyze the lengthy shadow docket opinions in Labrador v. Poe, dealing with universal relief, emergency applications, and more. We then tackle two recent merits opinions: Devillier v. Texas (takings) and Muldrow v. St. Louis (Title VII).
2024-04-261h 10Divided ArgumentBootlegging-AdjacentAfter discussing a few pending issues at the Court, we look back to analyze several decisions from last month-- FBI v. Fikre, a mootness case with national security implications, and the shadow docket dispute in one of many cases named United States v. Texas (the SB4 case)-- and then turn to last Friday's more recent decision in Sheetz v. County of El Dorado about the Takings Clause and local land use policies.
2024-04-161h 04Divided ArgumentDinkusAfter grappling with listener feedback ranging from the acoustic to the typographical, we catch up on last month's decisions in Great Lakes v. Raiders Retreat Realty (admiralty) and McElrath v. Georgia (double jeopardy). We then turn to last week's decisions about public officials on social media, Lindke v. Freed and O'Connor-Ratliff v. Garnier, and then finally to the statutory interpretation decision in Pulsifer v. United States. It's a lot of cases in just over an hour!
2024-03-201h 03Divided ArgumentPolitical Hacks Pretending to be LawyersWe (of course) break down the Court's opinions in Trump v. Anderson, the Section Three case from Colorado. We also discuss the Court's cert. grant on Trump's immunity from criminal prosecution, and several other opinions on the orders list, dealing with rent control, magnet school admissions, and campus speech.
2024-03-0559 minDivided ArgumentVotin' for LincolnAfter quick review of an order about admissions at West Point and two new unanimous opinions, we spend almost all of the episode breaking down last week's oral arguments in Trump v. Anderson. What excuse will the Supreme Court use to keep Colorado from disqualifying Trump from the ballot?
2024-02-1353 minDivided ArgumentInto the Brick WallAfter catching up on a few odds and ends, we decide to give the people what they want and discuss Section Three of the Fourteenth Amendment and whether the Supreme Court could possibly declare Donald Trump ineligible for the Presidency. You won't want to miss it.
2024-01-111h 06Divided ArgumentMuppetproofWe discuss the passing of Justice Sandra Day O'Connor, then turn to two interesting opinions on the shadow docket (in Griffin v. HM Florida and DuPont v. Abbott), and finally break down the Court's first merits opinion of the term in Acheson Hotels v. Laufer, at the intersection of standing and mootness. Will also expresses skepticism about Dan's latest AI habit.
2023-12-101h 08Divided ArgumentEasy WinWe discuss the Court's new Code of Conduct, catch up on shadow docket happenings, and debate what historians can teach originalists. We then recap the argument United States v. Rahimi, (the Term's big Second Amendment case). Finally, we stay on brand by circling back to Pulsifer v. United States from the October sitting, where the Justices puzzled over deep questions about statutory interpretation.
2023-11-161h 12Divided ArgumentGood DigThe October Term is now underway, and that means it's time for Season 4 of the show. We catch up on the inevitable shadow docket happenings before diving into a discussion of two cases that were argued earlier in the month. First, we dig into Acheson Hotels, LLC v. Laufer, and debate which jurisdictional ground the Court will rely on to get rid of the case. Then, we give the people what they want and talk about admiralty law in Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC.
2023-10-271h 07Divided ArgumentScreaming ClownThe Court hasn't done too much while the summer recess drags on, but we're back for what might be our last episode of Season 3 before Season 4 kicks off with the new Term. We manage to piece together an episode with some items from the mailbag, some SG gossip, and a few shadow docket happenings.
2023-09-181h 04Divided ArgumentLib FanfictionThe Justices have beenoff on their European vacations for a couple of months but we're still cranking out episodes breaking down last Term. We start off by discussion Will and Michael Stokes Paulsen's SSRN-breaking article arguing that Donald Trump is ineligible for the presidency under Section 3 of the Fourteenth Amendment. We then break down a couple of shadow-docket happenings involving "ghost guns" and the Purdue bankruptcy. We then finally clear our backlog of June cases by discussing two last opinions: Coinbase v. Bielski, which involves the intersection of arbitration and appellate jurisdiction, and Groff v. DeJoy, which importantly clarified em...
2023-09-011h 09Divided ArgumentMap GuyWe recap some shadow docket happenings and catch up on the latest SCOTUS ethics news before continuing our march through June opinions we missed. This time, we dive back into Indian law in Arizona v. Navajo Nation and try to make sense of private causes of action and the so-called Spending Clause in Health and Hospital Corporation of Marion County v. Talevski. Along the way, Will reveals his closet cartographical interests.
2023-08-091h 10Divided ArgumentTriple ThreatWhat could be more unscheduled and unpredictable than our fourth episode in little more than a week? We briefly discuss the latest developments in the Mountain Valley Pipeline shadow docket dispute, and then revisit ethics controversies. Then, we continue marching through the June cases we missed. We talk about the First Amendment's "true threats" exception in Counterman v. United States, and then ponder the two student loan cases, Biden v. Nebraska and Department of Education v. Brown.
2023-07-311h 05Divided ArgumentDishonorable TraditionWe defy all predictions by releasing a third episode in a week. This time, we talk about the intersection of public accommodations law and the First Amendment in 303 Creative and the Confrontation Clause in Samia v. United States.
2023-07-271h 14Divided ArgumentPeak SGIn the spirit of keeping things unpredictable, we're back with a new episode barely days after the last one. This time, we take a deep dive into two jurisdiction-y cases in the Divided Argument wheelhouse: Jones v. Hendrix and Moore v. Harper.
2023-07-241h 52Divided ArgumentMy Despised WorldAfter some inevitable self-flagellation for our lengthy hiatus, we catch up on some recent news and debate SCOTUS ethics. We then talk about implications of the Harvard/UNC affirmative action case, revisit Mallory v. Norfolk Southern, and break down the latest case captioned "United States v. Texas."
2023-07-211h 55Divided ArgumentDemokratiaWe record our first inter-continental episode, as Will reports in from a visit to Tel Aviv. We then dive in to two of this month's opinions: Haaland v. Brackeen, which rejects a series of challenges to the Indian Child Welfare Act, and United States v. Hansen, which upholds a federal immigration law against a free speech overbreadth challenge.
2023-06-281h 33Divided ArgumentJustified True BeliefWe discuss a recent effort to identify the least interesting SCOTUS case, and then discuss Tyler v. Hennepin County, United States ex rel. Schutte v. Supervalu Inc., and Glacier Northwest, Inc. v. Teamsters.
2023-06-051h 09Divided ArgumentPale FireWe debate Justice Gorsuch's unusual "statement" in Arizona v. Mayorkas. Then, we don't let our complete lack of knowledge of intellectual property law stop us in trying to make sense of Andy Warhol Foundation for Visual Arts, Inc. v. Goldsmith, the big copyright throw-down between Justices Sotomayor and Kagan.
2023-05-241h 11Divided ArgumentBreak the Fourth WallAfter catching up on news and bemoaning some listener feedback, we look at some opinions that the Court dropped last week. We take a deep dive into National Pork Producers Council v. Ross and briefly discuss the two fraud cases, Percoco and Ciminelli.
2023-05-1959 minDivided ArgumentProvocative SubtitleWe talk (and argue) with special guest Steve Vladeck about his new book, The Shadow Docket, just published by Basic Books. Steve explains why it is important to educate the public about the Court's use of unsigned and sometimes unexplained orders, and how it is changing. Will and Dan press him on whether his criticisms go too far . . . or not far enough.
2023-05-1654 minDivided ArgumentCreator of the Stars of NightWe cover many developments -- Justice Alito's unusual interview in the Wall Street Journal, the release of Justice Stevens' papers, more news on Supreme Court ethics, as well as a new cert. grant on the Chevron doctrine, the mifepristone shadow-docket ruling, and still more jurisdictional news in Moore v. Harper. But first -- an anonymous caller drops a new voicemail song.
2023-05-061h 12Divided ArgumentBest SuitsWe revisit a story about Justice Scalia from last episode and then discuss recent allegations about Justice Thomas's financial disclosures, and Supreme Court ethics more broadly. We also briefly turn to two recent merits opinions -- Türkiye Halk Bankasi A.S. v. United States and Reed v. Goertz.
2023-04-2449 minDivided ArgumentA Chanting of Morrison v. OlsonWe spend most of our time on some meaty opinions on the orders list -- including separate opinions in Chapman v. Doe (starting at 25:41) and Donziger v. United States (starting at 35:15) -- and touch on the recent merits opinions. But first, we have an extended revisit of Cruz v. Arizona, which proves far more mysterious than we first realized.
2023-04-031h 01Divided ArgumentMr. JurisdictionWe're back to break down two of the Supreme Court's recent 5-4 opinions—Bittner v. United States, about penalties under the Bank Secrecy Act, and Cruz v. Arizona, a death penalty case about state procedures and federal jurisdiction. But first, we take a brief look back at the oral arguments in the student loan case, and a new order and jurisdictional developments in Moore v. Harper (the independent state legislature case).
2023-03-061h 08Divided ArgumentLeast IncorrectWe're live at Washington University School of Law in St. Louis! After a check-in with our most faithful corrector, Prof. Ron Levin, we take a deep dive into the two upcoming cases about the legality of President Biden's student loan forgiveness plan. Will explains his theory of why the challengers should lose because they lack standing—but also predicts that the Court is unlikely to agree.
2023-02-181h 05Divided ArgumentMarching OrdersWe revisit the leak investigation, catch up on recent news, and then take a deep dive into the recent dispute in United States v. Texas (starting at 37:56) over the scope of courts' power to vacate administrative rules and the related controversy over so-called "nationwide" injunctions.
2023-02-111h 02Divided ArgumentSoft TargetWe're back sooner than expected to talk about the Court's release of the Marshal's report about the investigation of the Dobbs leak!
2023-01-2148 minDivided ArgumentExpanded UniverseWe catch up on some odds and ends, take a long detour through a debate about the merits of the Star Wars trilogies, and then dig into Türkiye Halk Bankasi A.S. v. United States (starting at 38:10), an interesting case about the scope of foreign sovereign immunity being heard in the January sitting.
2023-01-141h 16Divided ArgumentUnpersuasive Scholar TrollingWe talk through the implications of the story about an alleged leak in the Hobby Lobby case, respond to a mysterious voicemail, and then break down two interesting federal criminal fraud cases, Cimenelli v. United States and Percoco v. United States.
2022-11-241h 19Divided ArgumentRelentless Personal AttacksIn this mega-episode, we catch up on the orders list, circle back to Mallory, which we talked about last episode, and the dive into oral arguments in the affirmative action cases.
2022-11-141h 24Divided ArgumentFor Liberty and not for FascismWe check in on some Court-related news and developments and Dan gives Will a hard time for his recent bold claim about the conservative justices. We then dig deep into Mallory v. Norfolk Southern Railway Co., a fascinating personal jurisdiction case being argued in the November sitting.
2022-11-021h 00Divided ArgumentHorse SausageWe provided an extended preview of the arguments in one of the October cases, National Pork Producers Council v. Ross, which takes us into a long discussion of the "dormant" Commerce Clause and extraterritorial regulation. But first we discuss some statements from Justice Alito and Ginni Thomas, the newest circuit justice assignment, and some updates from last episode.
2022-10-021h 04Divided ArgumentMaoist TakeoverWe open Season 3 with a live show at William and Mary Law School, part of the Scalia-Ginsburg Collegiality Speaker Series. With our first-ever guest, we discuss the limits of friendship and offer advice on civil disagreement. But first we break down the Supreme Court's ruling on an important stay application from Yeshiva University.
2022-09-191h 03Divided ArgumentI Say "Timbre"We catch up on listener questions and feedback (both positive and negative), and then spend a while on the neglected case of Vega v. Tekoh, about the intersection of remedies and Miranda. We also discuss Kennedy v. Bremerton, the case of the praying football coach. Unfortunately, Will recorded all of this into the wrong microphone.
2022-07-301h 24
Bannon’s War RoomWarRoom_EP_2009: Merrick Garland’s Political Witch Hunt, Lockdowns In Uvalde From Human Trafficking Bail Outs, Rap Epps Relationship With LaWe discuss the J6 committee, Ray Epps, polling, and more. Our Guests Are: Mike Davis, Viva Freiheit, Darren Beattie, Richard BarisStay ahead of the censors - Join us warroom.org/joinAired On: 7/18/2022Watch:On the Web: http://www.warroom.orgOn Gettr: @WarRoomOn Podcast: http://warroom.ctcin.bioOn TV: PlutoTV Channel 240, Dish Channel 219, Roku, Apple TV, FireTV or on https://AmericasVoice.news. #news #politics #realnews ...
2022-07-1853 minDivided ArgumentSettling of ScoresWe reflect on the Supreme Court term as a whole, and the direction and politics of the Court. We focus on West Virginia v. EPA, which canonized the "major questions" doctrine, and the upcoming case of Moore v. Harper, which confronts the "independent state legislature doctrine."
2022-07-101h 20Divided ArgumentCharacter SketchesIn our longest episode yet, we break down two massively consequential cases: Dobbs v. Jackson Women's Health Organization and New York State Rifle & Pistol Association v. Bruen.
2022-06-281h 57Divided ArgumentCOBRAWe try to catch up after the Court's big opinion dump this week, and end up focusing on Ysleta del Sur Pueblo v. Texas, Denezpi v. United States, Viking River Cruises, Inc. v. Moriana, and the DIG in Arizona v. San Francisco. Come for the legal analysis, stay for the health insurance advice.
2022-06-191h 28Divided ArgumentSMUGLERWe're back to talk about Wednesday's decision in Egbert v. Boule and the problem of constitutional remedies. But first we catch up on the Court's pace of opinions, the leak investigation, the attempted attack on Justice Kavanaugh, and Puerto Rico (United States v. Vaello-Madero).
2022-06-111h 21Divided ArgumentMarshal LawWe're back to talk about the big news: the draft of Justice Alito's opinion in Dobbs, and the questions that surround it -- how and why this might have happened, what it means for the Court, and what the Court can do about it.
2022-05-051h 00Divided ArgumentHoosiersWe try to clear our backlog after a break. We manage to make it through United States v. Tsarnaev, Ramirez v. Collier, and a few other odds and ends.
2022-04-031h 07Divided ArgumentShmolandWe try to catch up on what the Court did since we last recorded, but end only making it through the Court's opinions in United States v. Zubaydah and Wooden v. United States.
2022-03-1257 minDivided ArgumentKnife in the BackWe catch up on the nomination of Judge Ketanji Brown Jackson, a new opinion by Justice Breyer, revisit a debate about who the greatest law professor on the Supreme Court is, and talk through each of our recent scholarly efforts. Tune in to hear Dan surprisingly attack Will's Fourth Amendment views from the right flank, learn an interesting tidbit about Justice Brandeis, and get some insight into the mysterious originalist gathering in San Diego.
2022-03-0258 minDivided ArgumentSpeakin' to the YouthWe're back after a long absence, but there's a good excuse. We catch up on the biggest developments from the last couple months, including the Breyer retirement, the Court's COVID decisions, the masking imbroglio, and the Alabama redistricting shadow-docket ruling. We also discuss Dan's childhood meeting with Justice Thomas, speculate about the median age of our listenership, and invent a new empirical metric for evaluating Supreme Court justices.
2022-02-121h 31
You Don't Have to YellHow Civil Suits Can Chill Free Speech | The Case of Doe v Mckesson | Garrett EppsDan speaks with Garrett Epps, Professor Emeritus of the U of Baltimore School of Law, about the case of DeRay Mckesson - a BLM organizer locked in a 5 year legal battle with a police officer who sustained injuries at a rally he spoke at. In this episode, we discuss how civil suits provide states a convenient way to suppress free speech through threat of financial ruin. This is a public episode. If you would like to discuss this with other subscribers or get access to bonus episodes, visit youdonthavetoyell.substack.com
2022-01-2035 min
You Don't Have to YellHow Civil Suits Can Chill Free Speech | The Case of Doe v Mckesson | Garrett EppsDan speaks with Garrett Epps, Professor Emeritus of the U of Baltimore School of Law, about the case of DeRay Mckesson - a BLM organizer locked in a 5 year legal battle with a police officer who sustained injuries at a rally he spoke at. In this episode, we discuss how civil suits provide states a convenient way to suppress free speech through threat of financial ruin.
2022-01-2035 minDivided ArgumentCompletely Naïve IdiotWill and Dan try to make sense of the Court’s decisions in the two cases addressing the possibility of preenforcement challenges to Texas’s novel abortion ban.
2021-12-141h 09Divided ArgumentOut of WhackWe’ve been waiting for months to bring you this one: we can finally talk about the President’s Supreme Court Commission, which just finalized its report this week. We also briefly talk about the recent argument in Dobbs and try to predict what the Court might do.
2021-12-101h 12Divided ArgumentFirst in FlightDan and Will catch up on what the Court's been up to other than dealing with the Texas abortion law, including cert grants addressing the EPA's power to regulate carbon emissions, a couple of summary reversals, and some other shadow-docket action.
2021-11-061h 06Divided ArgumentFast and LooseDivided Argument is back after an unscheduled, unpredictable break to kick off a brand new season. We dig into this week's oral arguments in two cases involving Texas's abortion law.
2021-11-021h 04Divided ArgumentSovereign to SovereignThe road show continues as Will and Dan record another live episode at the National Association of Attorneys General's State Solicitors General and Appellate Chiefs Conference in Chicago. They delve deeper into Texas's abortion law and the US's lawsuit seeking to stop it. Then, they have a broader discussion about the role and power of states in Supreme Court litigation.
2021-09-2555 minDivided ArgumentUnspeakable CrueltyDivided Argument is live from the University of Chicago Law School! In our first ever episode in front of a live studio audience, we catch up on recent Court-related developments, such as several Justices' recent public remarks pushing back on Court politicization and the Court's latest foray into whether capital prisoners can have spiritual advisors with them in the execution chamber.
2021-09-2247 minDivided ArgumentThe Lightning DocketWill and Dan break down the Court's late-night refusal to block the implementation of Texas's controversial "fetal heartbeat" law, and what it might mean for the future of the Court's abortion jurisprudence.
2021-09-021h 07Divided ArgumentOut on a LimbDan and will try to catch up on the flurry of news from Thursday afternoon, including an update on the Acting Solicitor General and the Court’s surprising grant of injunctive relief against New York’s eviction procedures. Come for the breaking news, stay to find out how Dan procrastinate and to learn the relevance of Catskills humor to the shadow docket.
2021-08-1427 minDivided ArgumentBeyond The PaleAs Will, Dan, and the Court all navigate their August vacations, we learn how a controversy over the qui tam statute indirectly saved Roe v. Wade. We then catch up on a few legal developments: The Biden Administration has renewed its eviction moratorium, confusing many legal observers in the process. The administration has also finally given us a nomination for Solicitor General. And a controversial cert. petition by the state of Oklahoma provokes an extended discussion of stare decisis and lawyer shaming.
2021-08-1456 minDivided ArgumentSecondary TrollingAs October Term 2020 recedes in the rear-view mirror, Dan and Will take a moment to reflect. We ponder the current balance of power on the Court and how the pandemic era might change the institution. We also address some listener feedback on Transunion; Will defends himself against the charge that he worships the justices too much; and Dan takes issue with a bold claim that Will snuck in on a previous episode.
2021-08-0259 minDivided ArgumentInner SanctumWill and Dan deal with listener feedback that prompts them to recall some of the Court's most bad-faith decisions in recent years. They then do a deep dive into Transunion v. Ramirez, the Court's major standing decision from the end of the Term.
2021-07-2858 minDivided ArgumentCrime of the DayWill and Dan deal with some tough but fair listener feedback, and then get through AFP v. Bonta (finally). Listen to see if they get further!
2021-07-2446 minDivided ArgumentVery BreyeresqueDan and Will return after their vacations to catch up on what they've missed. After checking in briefly on Justice Breyer, they try to talk about two of the Court's biggest cases from the end of the Term. They only manage to get through one of them: Brnovich v. DNC.
2021-07-171h 15Divided ArgumentHouse PartiesWill and Dan break down two more decisions from Wednesday. First is Collins v. Yellen, a complicated separation of powers and severability case with a lot of money on the line. Second is Lange v. California, a Fourth Amendment case about the "hot pursuit" doctrine, which gives rise to some high school confessions.
2021-06-241h 09Divided ArgumentEvil and Corrupt Language, Images, and ThoughtsThe Court dropped four fascinating constitutional law opinions on Wednesday, and Will & Dan talk through two of them. First up is Mahanoy, which addresses First Amendment protections for Snapchatting school kids. Then we have Cedar Point, an important decision about the Takings Clause.
2021-06-241h 06Divided ArgumentEarly WittgensteinAs October Term 2020 hurtles towards a thrilling conclusion (well, hopefully), Dan and Will break down two of Monday's decisions. They explore the separation of powers and severability in United States v. Arthrex and talk about antitrust law's implications for college sports in NCAA v. Alston.
2021-06-221h 00Divided ArgumentTriple Bank ShotWill and Dan break down the Court's sudden burst of interesting opinions – California v. Texas, Fulton v. Philadelphia, and Nestle v. Doe.
2021-06-181h 20Divided ArgumentSo WhatWill and Dan break down the Court's fascinating decision yesterday in Van Buren v. United States, which interpreted the Computer Fraud and Abuse Act.
2021-06-0452 minDivided ArgumentEverybody ProcrastinatesDan and Will discuss the Court's recent run of unanimous cases, paying particular attention to United States v. Cooley; ponder weighty issues like the role of the Hart & Wechsler casebook in defining the field of federal courts; and announce a new way for listeners to engage with the show: our voicemail line, (314) 649-3790.
2021-06-031h 02Divided ArgumentFaith in PrincesWill and Dan ponder what this podcast is about, continue their discussion of good faith in judging, try to game out exactly what the Court is up to in Dobbs v. Jackson Women's Health, and respond to listener feedback.
2021-05-2355 minDivided ArgumentGrandma's House of ViceWill and Dan ponder the significance Court's grant of certiorari in an abortion case, Dobbs v. Jackson Women's Health Organization, before going on to recap some of the opinions the Court released this week. They discuss Caniglia v. Strom, a Fourth Amendment case, and what it might mean for drug-dealing senior citizens. And they explore the puzzling world of criminal-procedure retroactivity in Edwards v. Vannoy, and in particular Justice Gorsuch's bold concurrence charting a new course for federal habeas corpus law.
2021-05-181h 03Divided ArgumentWoke to the TrendWill and Dan finish up their conversation about the shadow docket. They discuss the Court’s summary reversal practices, try to get to the bottom of what might be wrong with the shadow docket, and ponder what it means for Supreme Court justices to act in “good faith.”
2021-05-1739 minDivided ArgumentNormal Procedural RegularityIn the inaugural episode of Divided Argument, Will and Dan have the first part of a two-part discussion of the Supreme Court's "shadow docket." Will explains how he came to coin the now-famous phrase in a 2013 article, and how good advice from a friend helped him avoid a "terrible title" for that piece. Will and Dan also discuss Justice Alito's contribution to the important field of original jurisdiction before closing out the episode with a plea for reviews on your podcast app of choice.
2021-05-1555 min
Oral 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 32