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Titre
Date
Durée
Episode 217: Except as to Part I(A) Yada Yada
25 Feb 2021
01:11:24
We discuss the morality of concurring and dissenting. And the usual nonsense.
Episode 216: Mac-a-tizer
27 Jan 2021
00:59:56
Joe and Christian talk about the pandemic and, then, some nonsense.
Episode 207: Bribery
31 Jan 2020
01:22:17
Sometimes 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 (https://www.law.virginia.edu/faculty/profile/dh9ev/2299809)
Deborah Hellman, A Theory of Bribery (https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2828840)
[Oral Argument 206: What Are We?][ep206]
[ep206]: https://oralargument.org/206 Special Guest: Deborah Hellman.
Episode 117: Coarsening
11 Nov 2016
01:06:32
The election. And then viewer mail on media for scholarship and ideas, suspense and emotional salience in judicial opinions, and a little more.
This show’s links:
Oral Argument 106: Legal Asteroid (http://oralargument.org/106)
Robert Bolt, A Man for All Seasons (https://en.wikipedia.org/wiki/A_Man_for_All_Seasons)
David Souter on the Danger of America’s “pervasive civic ignorance” (video) (https://www.youtube.com/watch?v=rWcVtWennr0)
Oral Argument 105: Bismarck’s Raw Material (guest Tim Meyer) (http://oralargument.org/105)
Oral Argument 112: Quasi-Narrative (guest Simon Stern) (http://oralargument.org/112)
Popov v. Hayashi (http://news.findlaw.com/hdocs/docs/bonds/popovhayashi121802dec.pdf)
Oyez page for NFIB v. Sebelius (https://www.oyez.org/cases/2011/11-393) (select Opinion Announcement, part 1, for the relevant portion of the hand-down)
Oral Argument 113: The Entrails of Fowl (guest Charles Barzun) (http://oralargument.org/113)
Paul Horwitz, On “The Troublesome Use of Photographs . . . and Other Images” in Federal Court Opinions (http://prawfsblawg.blogs.com/prawfsblawg/2016/10/on-the-troublesome-use-of-photographs-and-other-images-in-federal-court-opinions.html)
Blackmun’s dissent in DeShaney v. Winnebago County Department of Social Services (https://www.law.cornell.edu/supremecourt/text/489/189#writing-USSC_CR_0489_0189_ZD1)
Jamal Greene, Pathetic Arguments in Constitutional Law (http://columbialawreview.org/wp-content/uploads/2016/04/Greene-J..pdf)
The Oral Argument Index (http://www.hydratext.com/oralargumentindex/)
David Ziff, The Worst System of Citation Except for All the Others (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2862090)
Episode 116: Co-Authorial Privilege
04 Nov 2016
01:18:40
We’ve been asking for a true originalist to take us to the woodshed for all our prior doubts and dismissiveness of originalism as a method of interpretation. Enter Will Baude.
This show’s links:
William Baude’s faculty profile (http://www.law.uchicago.edu/faculty/baude) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=398074)
About Ben Linus (https://en.wikipedia.org/wiki/Ben_Linus)
First Mondays (http://www.firstmondays.fm)
Legal Theory 101 (http://www.hydratext.com/legal-theory-101/) (and corresponding blog post (http://www.hydratext.com/blog/2016/11/2/legal-theory-101))
William Baude and Stephen Sachs, Originalism’s Bite (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2851986)
William Baude and Stephen Sachs, The Law of Interpretation (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2783398)
William Baude, Is Originalism Our Law? (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2672631)
Oral Argument 113: The Entrails of Fowl (http://oralargument.org/113) (guest Charles Barzun)
Lawrence Solum, Semantic Originalism (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1120244)
Stephen Sachs, Originalism as a Theory of Legal Change (http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=6059&context=faculty_scholarship)
Richard Re, Promising the Constitution (http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1230&context=nulr)
Two debates about interpretation between Justices Breyer and Scalia: Annenberg Classroom (http://www.annenbergclassroom.org/page/a-conversation-on-the-constitution-judicial-interpretation) and a joint Federalist Society and ACS event (https://www.youtube.com/watch?v=_4n8gOUzZ8I)
Richard Posner, Supreme Court Breakfast Table Entry 27: Broad Interpretations (http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2016/supreme_court_breakfast_table_for_june_2016/richard_posner_clarifies_his_views_on_the_constitution.html)
Radiolab Presents: More Perfect, The Political Thicket (http://www.wnyc.org/story/the-political-thicket)
Mary Sarah Bilder, Madison’s Hand: Revising the Constitutional Convention (https://www.amazon.com/Madisons-Hand-Revising-Constitutional-Convention/dp/0674055276); see also a conversation with Bilder at the National Constitution Center (https://www.c-span.org/video/?401572-3/madisons-hand)
Special Guest: William Baude.
Episode 115: Gonna Work? (Live at the Tech Law Institute)
28 Oct 2016
00:59:32
We made a return to the annual Tech Law Institute meeting in Atlanta and recorded a live episode about self-driving cars. We talked optimism, pessimism, political valence, regulatory challenges, federalism, trolley problems, and more.
Causation 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.
Is originalism required by our law? We chat with Charles Barzun about his critique of the inclusive originalists, the new movement to claim that an originalist interpretive method is not only a good choice among possible methods but is the method which is mandated by a positivist approach to our law.
Is legal writing narrative? How about judgments, appeals, testimony? We talk with Simon Stern about narrative and its techniques and effects, suspense, dicta, authorial purposes, a crazy idea for a novel, mathematical proofs, and more.
The 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
Christian Turner, Perceiving Law (ssrn or socarxiv)
Joseph Miller, A Modest Proposal for Expediting Manuscript Selection at Less Prestigious Law Reviews (ssrn or digital commons)
Episode 110: Equity
02 Sep 2016
01:02:15
After some goofy but needful pre-pre-roll and pre-post-roll, we take with Emily Sherwin about the law and equity distinction, its relation to rules and standards, its relation to candor, how what looked like a formal distinction had surprisingly functional effects, and how to get the most out of “good” rules.
Episode 109: A Common Law for the Age of Regulation
26 Aug 2016
01:27:07
Administrative law expert Cathy Sharkey joins us to talk about conflicting judicial approach(es) to preemption and deference - and the web of institutions and decisionmaking that is modern lawmaking.
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) (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3342629) (SocArXiv) (https://osf.io/preprints/socarxiv/5ehmy/)
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 Liptak, Ruth Bader Ginsburg, No Fan of Donald Trump, Critiques Latest Term (“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president.” “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”)
With returning guest Tim Meyer, we talk about Brexit. Topics include referenda, democracy, comic book villains, the dynamics of union and separation, treaties and executive actions, Iceland, the roles of crisis and convenience. And a dramatic technical difficulty.
Christian, 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 things change and get better.
We’re joined by a scholar of patent law, administrative law, and many other things, Jonathan Masur. Jonathan does not think the patent office has done a very good job of conducting cost-benefit analyses of various rules and procedures for issuing, maintaining, and challenging patents. Supposing patents should exist at all - can you tell who writes these show notes? - how should we account for the effects of the way we administer the system? These questions lead us to some basic conversation about cost-benefit analysis and and the value of patents. And we wind up asking simple questions, like what a cost is.
Despite the fact that our show is pretty much the opposite of careful, we discuss precaution, regulation, and institutional choice with Sarah Light. The environmental and other effects of Uber and Lyft are complicated. If they’re very hard to calculate and understand, how should we regulate them to address their harms? With uncertain webs of causation, can the precautionary principle tell us not simply whether to regulate but who should regulate? Sarah thinks so.
Episode 100: A Few Minutes in the Rear-View Mirror
11 Jun 2016
01:49:51
In 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 doing this show.
Joe is at the airport for a special pre-roll segment. Then we say hello to Lisa Heinzerling, administrative law expert (5:23). After a substantive and goofy discussion of legislation and regulation courses (6:29), we discuss the development of what Lisa calls “the power canons” resulting from recent decisions of the Supreme Court (10:39). If you’re Congress, how do you write a statute meant to solve problems that might evolve in type or degree? Do you have the power to do so, or are you limited to speaking to the here and now? Does the Supreme Court have the power to limit legislative and regulatory power in this way?
This show’s links:
Lisa Heinzerling’s faculty profile (including links to all her scholarship)
City of Arlington v. FCC (C.J. Roberts in dissent: “It would be a bit much to describe the result as ‘the very definition of tyranny,’ but the danger posed by the growing power of the administrative state cannot be dismissed.”)
Like living things, legal theories are born, grow, change, and die. We are joined by Jeremy Kessler and David Pozen to discuss this life cycle and how it applies to some popular theories today, like originalism. We start by discussing what prescriptive legal theories are and how there was a move to transcend politics through process-based theories (3:23). Then: the theory of theories (9:31), the example of Brown v. Board, originalism, and brute political facts (20:17), a sociological story (25:10), the role of law schools and teaching in theory evolution (31:22), a discussion of trees, structure, and the role of higher order principles in law (37:50), theory change in private law (47:14), normative vs. descriptive theories of theories (54:05), and the internal and external approaches to originalism (1:04:27).
Christian calls Joe out of the blue to celebrate our sixth anniversary and to talk about heroes.
Episode 97: Facty
13 May 2016
01:05:43
When interpretations and rules depend on what’s true about the world (so, all the time), judges have to reach conclusions about those truths. But courts are not exactly like administrative agencies or legislatures, and they depend on adversarial parties to contest the truth. The Supreme Court, in particular, has come to rely on an elite bar to organize and present facts and studies. Having been through our usual vetting process of successfully appearing on the Colbert Report, Alli Larsen is ready for the big time and joins us to discuss how courts deal with the problem of factiness (which is the ivory tower version of truthiness). Alli’s appearance on the Colbert Report (01:02). The pronunciation of “amicus” (05:24). The main topic (10:36).
A 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 unconstitutional and re-constitutional statutes (17:38), Bunny on Oral ArgCon cosplay (25:27). And then this week’s main topic: The weird world of law review publishing and the moral aspects of our participation in it (28:23), including Joe’s description of the process, Christian’s calling Expresso “Espresso” (35:03), the transition to electronic submission and the rise of “expedites” (47:00). “Just tell me what your thesis is.” “Why don’t you tell me what it is?” and morality (52:54). Joe’s world (1:08:19). Christian’s world (1:13:53).
Do you have a right to film the police? Should people film the police? A lot of attention has been given to the use by police officers of body cameras (and dash cameras), but what about citizens’ filming arrests on the street? With Jocelyn Simonson, we explore the ways that the use of cameras both facilitates and is expression.
Timothy Williams, James Thomas, Samuel Jacoby, and Damien Cave, Police Body Cameras: What Do You See? (an interactive NY Times feature using videos created by Seth Stoughton); see also Jason Kottke’s link to this piece, which also features links to related ideas in film direction
Floyd v. City of New York (the stop and frisk case); see also p.597 of the same case for the judge’s quotations of police, some used in Jocelyn’s paper, evincing a “contempt and hostility . . . toward the local population”)
This American Life 414: The Right to Remain Silent, Act Two (“For 17 months, New York police officer Adrian Schoolcraft recorded himself and his fellow officers on the job, including their supervisors ordering them to do all sorts of things that police aren't supposed to do.”)
This 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.
We respond to accumulated listener feedback in one unedited take.
This show’s links:
This space intentionally left blank. No links this week.
Episode 92: Deficit Peacock
18 Mar 2016
01:23:35
We’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 hand-offs (1:04:36).
In a world where a single power controlled the language of justice itself, one man (well, several people and a bunch of students, but anyway) rose up to … produce a free guide to the standardized practices of legal citation. Copyright scholar Chris Sprigman joins us to talk about two of his projects: Baby Blue, the open guide to legal citation, and the Restatement of Copyright. Our conversation: about Baby Blue (0:01:33), what in the Bluebook might be copyrightable (0:10:07), trademark and the two manuals’ names and colors (0:23:44), simplification of citation (0:39:43), and the Restatement of Copyright (0:56:52).
Our main topic is fair use, the engine of so much cultural reuse and advancement. We’re joined by one of the doctrine’s most interesting scholars, Mike Madison. But the conversation spans: Joe’s telecomm cursing issues (0:00:36), FBiPhones and the Apple-FBI imbroglio (0:09:26), and fair use (0:28:27), including discussion of Mike’s Big Idea of social practices (0:53:03), reverse engineering, parody, video tapes, and much more.
This 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.
We 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.
We 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 (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3436376)
Adrian Vermeule, Integration from Within (https://americanaffairsjournal.org/2018/02/integration-from-within/)
Christina Deardurff, "The Depths of the Church Are Not to Be Disturbed": An interview with Adrian Vermeule (https://mirrorofjustice.blogs.com/files/vermeule-article.pdf)
Episode 87: Content of the Mark
31 Jan 2016
01:22:45
Joined in the studio by IP scholar Mark McKenna, yielding a two to one ratio of IP to non-IP people at headquarters, we discuss: the dilapidated state of headquarters (0:00), computers in the classroom and the first installment of Joe’s Quandary (6:11), topics we do not yet but one day will discuss and the topic for our upcoming live show (15:25), the speech implications of the revocation of trademark registration as with the Washington football team (20:12), and Knitting with Joe and one other bit of feedback (1:20:15).
Joe 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.
Episode 85: Missouri Duel: Our Second Annual Call-Out Show
01 Jan 2016
02:15:10
It’s our second annual call-out show, and it’s a double-sized episode meant to last two weeks. We’re joined by listeners and previous guests who share with us the bits of culture — books, movies, and television — that have affected them and their experience of law and policy. Many things come up, but here’s the rundown:
Listener Cameron, 0:00, Les Misérables
Listener Michael, 26:11, JFK, the film
Listener Bunny, 44:28, Star Trek: The Next Generation, The Measure of a Man
Listener and co-host Sonja West, 1:11:26, The Feminine Mystique
Listener and co-host Dave Fagundes, 1:41:25, A Wilderness of Error
Hicks v. District of Columbia (in which Justice Douglas cites Les Mis in dissent); Harmelin v. Michigan (approving Michigan’s “three strikes” law); and the dissent from the denial of cert in Riggs v. California (in which the defendant’s third strike under California’s law was for stealing a bottle of vitamins); People v. Taylor (a state court appellate case in which the dissent begins: “In a scenario somewhat reminiscent of a late 20th Century, real life Les Miserables, a hungry, homeless man is sent away for 25 years to life for trying to break into a church so he could eat some food he thought the church would be glad for him to have.”)
It’s a Christmas miracle! Steve Vladeck joins us again! He helps us understand how the Contract with America and a thicket of federal law have resulted in people remaining in prison even though their sentences are based on laws that have been found unconstitutional. Happy Holidays!
Brown v. Allen (Justice Jackson in concurrence: “There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.”)
It was 100,000 cops on the beat, not 1 million. We regret the error. (1 million? Really?)
We’re back with a casual show that starts with Star Wars and criticisms of George Lucas. Then we move to the loneliness of authorship, models of law, movies that make us cry, and an appeal to the listeners to join us live on a future episode.
Episode 82: Hymn, Part 2: Our Strategy Is a Complete Failure
21 Nov 2015
00:49:31
The second part of our conversation about the nature of law. Is it murder if, after your group of trapped spelunkers decides, unanimously, to draw lots and eat the loser, it does so?
First: oil can, a hymn, and feedback, including a discussion of the web and so-called social obligations. Is a hot dog a sandwich, and is it murder if your group of trapped spelunkers decides, unanimously, to draw lots and eat the loser? We end this part of the conversation (part two next episode and part three at a later date) there, just by asking the second question.
This show’s links:
Vienna Teng, The Hymn of Acxiom (“Leave your life open. You don’t have to hide. . . . Let our formulas find your soul.”)
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.
When we do a Supreme Court term preview, we of course turn to Slate’s amazing Dahlia Lithwick, and then we proceed not to discuss the upcoming term. We begin with a whirlwind fourteen minutes of feedback on, among other things, an index for the show, the Cyberloquium, the potential for classes in our goofy style, the North Dakotan listening trend, listening while cooking, the possibility of a Dworkin episode, surname vs. last name, the use of “antepenultimate,” the dearth of recent speed trap law discussion, and a tease further discussion of law and morals. With Dahlia, we then talk about the Supreme Court’s new rule on standing in line for oral arguments, what it means when the Court does things that are not manifest in written opinions, the idea of Supreme Court previews, and looking ahead.
Feedback on “the Cyberloquium,” theme music, affirmative action, oral arguments, podcast apps, Scalia’s opinion announcement in Glossip, the parliamentary system and complexity, postal banking, killer robots, villains and angels in history, and whether philosophy matters much in law.
On 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.
Episode 77: Jackasses Are People Too
03 Oct 2015
01:10:37
Why take the time to write show notes if whether I write them is already determined? We’re joined by Adam Kolber to talk about free will, moral responsibility, determinism, and criminal law.
We 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.
We 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.