Oral Argument – Details, episodes & analysis

We discuss the morality of concurring and dissenting. And the usual nonsense.

Joe and Christian talk about the pandemic and, then, some nonsense.

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.

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)

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.

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.

This show’s links:

• Oral Argument 80: We’ll Do It LIVE!
• NHTSA, Federal Automated Vehicles Policy
• RAND, Autonomous Vehicle Technology: A Guide for Policymakers
• Duncan Black, some posts on self-driving cars: Not Gonna Work, No One Will Listen to Me, Spot the Key Phrase, "the revolutionary transportation technology”….
• Chris Martin and Joe Ryan, Super-Cheap Driverless Cabs to Kick Mass Transit to the Curb
• Tesla, All Tesla Cars Being Produced Now Have Full Self-Driving Hardware (announcement includes a vide demonstration)
• About Tesla’s Autopilot feature (also Tesla’s page on Autopilot)
• Alex Davies, Everyone Wants a Level 5 Self-Driving Car – Here’s What That Means
• Oral Argument 102: Precautionary Federalism (guest Sarah Light)
• Michael Dorf, Should Self-Driving Cars Be Mandatory?
• Oral Argument 41: Sense-Think-Act (guest Ryan Calo)
• Oral Argument 70: No Drones in the Park (guest Frank Pasquale)
• About trolley problems
• Megan Barber, Who Should Driverless Cars Save: Pedestrians or Passengers?
• Frank Pasquale, Get off the Trolley Problem
• Jules Coleman and William Holahan, Review of Guido Calabresi and Philip Bobbitt’s Tragic Choices

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.

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.

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.

This show’s links:

• Charles Barzun’s faculty profile and writing
• Charles Barzun, The Positive U-Turn
• William Baude and Stephen Sachs, The Law of Interpretation
• William Baude, Is Originalism Our Law?
• Oral Argument 98: T3 Jedi (guests Jeremy Kessler and David Pozen)
• Scott Shapiro, Legality (Amazon and Google Books)
• Brown v. Board of Education; Jack Balkin and Bruce Ackerman (eds.), What Brown v. Board of Education Should Have Said
• Charles Barzun, Inside/Out: Beyond the Internal/External Distinction in Legal Scholarship
• Oral Argument 77: Jackasses Are People Too (guest Adam Kolber)

Special Guest: Charles Barzun.

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.

This show’s links:

• Simon Stern’s faculty profile and writing
• Simon Stern, Narrative in the Legal Text: Judicial Opinions and Their Narratives
• William Blackstone, Commentaries on the Laws of England, Book II: Of the Rights of Thing (Simon Stern, ed.); Simon’s introduction to the volume
• William Brewer and Edward Lichtenstein, Event Schemas, Story Schemas, and Story Grammars
• About the Paradox of Suspense
• Jonathan D. Leavitt et al., Story Spoilers Don’t Spoil Stories; Jonathan D. Leavitt et al., The Fluency of Spoilers: Why Giving Away Endings Improves Stories
• Circles Disturbed: The Interplay of Mathematics and Narrative (Apostolos Doxiadis and Barry Mazur, eds.) (Introduction to the book)
• Mitchel Lasser, The European Pasteurization of French Law
• Owen Barfield, This Ever Diverse Pair
• Wikipedia on epistolary novels
• Julie Schumacher, Dear Committee Members
• Oral Argument 48: Legal Truth (guest Lisa Kern Griffin)

Special Guest: Simon Stern.

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
• 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, A Modest Proposal for Expediting Manuscript Selection at Less Prestigious Law Reviews (ssrn or digital commons)