![Steve Jobs’ slide](\"http://ismh.s3.amazonaws.com/2012-10-24-keyboards.jpeg\"){kind=link}
![jpeg](\"http://www.ohmreunion.com/postcards/madigan.jpg\"){kind=link}
![\"http://specials-images.forbes.com/imageserve/0eyc3a96wsgTP/0x600.jpg\"](\"http://specials-images.forbes.com/imageserve/0eyc3a96wsgTP/0x600.jpg\" "\\"\\"")
We discuss the morality of concurring and dissenting. And the usual nonsense.
","summary":"On judges writing separately.","date_published":"2021-02-25T17:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/ba7abe38-71d5-474f-9f8c-c71f06422102.mp3","mime_type":"audio/mpeg","size_in_bytes":51914193,"duration_in_seconds":4284}]},{"id":"44e3955f-b9a0-402b-9aa5-d7f6f3383c6c","title":"Episode 216: Mac-a-tizer","url":"https://oralargument.org/216","content_text":"Joe and Christian talk about the pandemic and, then, some nonsense.","content_html":"Joe and Christian talk about the pandemic and, then, some nonsense.
","summary":"On the pandemic, brightly colored food products, and more.","date_published":"2021-01-27T17:30:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/44e3955f-b9a0-402b-9aa5-d7f6f3383c6c.mp3","mime_type":"audio/mpeg","size_in_bytes":43663752,"duration_in_seconds":3596}]},{"id":"0d081cca-a268-461a-9c72-ffc842aed930","title":"Episode 215: Whirlpool of Garbage","url":"https://oralargument.org/215","content_text":"We discuss the march on the Capitol and... all this.","content_html":"We discuss the march on the Capitol and... all this.
","summary":"On the attack on Congress.","date_published":"2021-01-11T18:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/0d081cca-a268-461a-9c72-ffc842aed930.mp3","mime_type":"audio/mpeg","size_in_bytes":65954451,"duration_in_seconds":5454}]},{"id":"4688dd4b-28e9-4516-904d-05e62e1e15f5","title":"Episode 214: Small Claims","url":"https://oralargument.org/214","content_text":"In this holiday spectacular, we talk about small claims. In particular, would a court for small copyright claims be a good or bad thing? You can probably guess what we each say. In exploring this, we consider the nature of dogs, hunters, and children.","content_html":"In this holiday spectacular, we talk about small claims. In particular, would a court for small copyright claims be a good or bad thing? You can probably guess what we each say. In exploring this, we consider the nature of dogs, hunters, and children.
","summary":"On small copyright claims and big social disagreements.","date_published":"2020-12-22T13:15:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/4688dd4b-28e9-4516-904d-05e62e1e15f5.mp3","mime_type":"audio/mpeg","size_in_bytes":54770590,"duration_in_seconds":4522}]},{"id":"00dc6a7a-f277-4e35-a751-67830bdd548e","title":"Episode 213: Blue Cheese Odyssey","url":"https://oralargument.org/213","content_text":"Joe lowers the boom, and we start talking. In the 213th episode of this very serious podcast, we discuss: scams, flight simulators, flight, K2, Joe's blue cheese odyssey, olives, the nature of expertise, nihilism, and the adversary system. And other things as well.","content_html":"Joe lowers the boom, and we start talking. In the 213th episode of this very serious podcast, we discuss: scams, flight simulators, flight, K2, Joe's blue cheese odyssey, olives, the nature of expertise, nihilism, and the adversary system. And other things as well.
","summary":"Scams, K2, cheese, fear, olives, flight, expertise, and the adversary system.","date_published":"2020-12-16T17:15:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/00dc6a7a-f277-4e35-a751-67830bdd548e.mp3","mime_type":"audio/mpeg","size_in_bytes":51736935,"duration_in_seconds":4269}]},{"id":"0f0d758d-1f02-4f4d-9625-8cc555f8bc3e","title":"Episode 212: House of Worship","url":"https://oralargument.org/212","content_text":"We discuss the Supreme Court's (I know, I know) decision in Roman Catholic Diocese v. Cuomo.","content_html":"We discuss the Supreme Court's (I know, I know) decision in Roman Catholic Diocese v. Cuomo.
","summary":"On religious discrimination and COVID.","date_published":"2020-12-07T13:30:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/0f0d758d-1f02-4f4d-9625-8cc555f8bc3e.mp3","mime_type":"audio/mpeg","size_in_bytes":60581120,"duration_in_seconds":5006}]},{"id":"ab04b140-041f-40dc-b6ec-a9c1cc61a010","title":"Episode 211: Practice","url":"https://oralargument.org/211","content_text":"Is this thing on? What did we miss?","content_html":"Is this thing on? What did we miss?
","summary":"What did we miss?","date_published":"2020-11-24T13:15:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/ab04b140-041f-40dc-b6ec-a9c1cc61a010.mp3","mime_type":"audio/mpeg","size_in_bytes":61538753,"duration_in_seconds":5086}]},{"id":"854774f1-4796-49a5-bafe-5980ed46161d","title":"Episode 210: Exponential","url":"https://oralargument.org/210","content_text":"Just Joe and Christian on the pandemic, new articles, and spring break.\n\n\nAchieving 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\nThe President in discussion with pharma execs on a vaccine\n","content_html":"Just Joe and Christian on the pandemic, new articles, and spring break.
\n\nWe 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.
\n\nSpecial Guest: Justin Van Orsdol.
","summary":"On a solution to the gun violence crisis, with Justin Van Orsdol.","date_published":"2020-02-21T09:15:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/a337b063-b1b2-4dcd-b9be-44785679aab9.mp3","mime_type":"audio/mpeg","size_in_bytes":64360929,"duration_in_seconds":5363}]},{"id":"ce21e5fe-b32a-4520-bef7-7d690afec859","title":"Episode 208: Competition Corner","url":"https://oralargument.org/208","content_text":"We 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.\n\n\nJosh Hawley, Overhauling the Federal Trade Commission\nMike Masnick, William Barr's Move to Rid the DOJ of Independence Shows One of Many Reasons Josh Hawley's FTC Plan Is Dangerous\n","content_html":"We 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.
\n\nSometimes 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.
\n\nSpecial Guest: Deborah Hellman.
","summary":"On bribery, with Deborah Hellman.","date_published":"2020-01-31T16:30:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/eba811f1-a824-4772-859b-aabc35480f92.mp3","mime_type":"audio/mpeg","size_in_bytes":40013524,"duration_in_seconds":4937}]},{"id":"4a8f5a3d-46ac-47db-b9ce-dc33c7846c2f","title":"Episode 206: What Are We?","url":"https://oralargument.org/206","content_text":"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.\n\n\nChristian Turner, The Segregation of Markets (SSRN) (SocArXiv)\n","content_html":"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.
\n\nChristian calls Joe out of the blue to celebrate our sixth anniversary and to talk about heroes.
","summary":"A phone call about heroes.","date_published":"2019-12-22T16:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/9315a615-ee6b-4635-b67e-67f389e004ab.mp3","mime_type":"audio/mpeg","size_in_bytes":13888190,"duration_in_seconds":1671}]},{"id":"116d24e8-cee8-458b-b4be-ccde79c6af8f","title":"Episode 204: Theocracy","url":"https://oralargument.org/204","content_text":"We discuss new calls to integrate church and state. The conversation ranges over liberalism, religion, religious zeal, and, obviously, some nonsense.\n\n\nMicah Schwartzman and Jocelyn Wilson, The Unreasonableness of Catholic Integralism\nAdrian Vermeule, Integration from Within\nChristina Deardurff, \"The Depths of the Church Are Not to Be Disturbed\": An interview with Adrian Vermeule\n","content_html":"We discuss new calls to integrate church and state. The conversation ranges over liberalism, religion, religious zeal, and, obviously, some nonsense.
\n\nOn 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.
","summary":"Musings and mailbag.","date_published":"2019-09-08T12:30:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/9c3d7859-def3-4609-8e06-b949ed53cb33.mp3","mime_type":"audio/mpeg","size_in_bytes":50113192,"duration_in_seconds":6200}]},{"id":"e4d00425-bfd6-4773-a52e-37f9806a05e8","title":"Episode 202: Conversations","url":"https://oralargument.org/202","content_text":"We discuss dictionaries, up and down on maps, and excellence in seminar conversation.\n\n\nJoseph Miller, Suggestions for Law School Seminars\nSeminar Skills – Learning Collaboratively\n","content_html":"We discuss dictionaries, up and down on maps, and excellence in seminar conversation.
\n\nJust Joe and Christian, lumbering into season 2, talking about tipping and fraud in the gig economy, bar exam fiascos, legal scholarship, and fireworks.
\n\nWe 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.
\n\n","summary":"On the census debacle.","date_published":"2019-07-08T16:45:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/0f58b20e-daa5-4429-bf83-f76b987d9e8e.mp3","mime_type":"audio/mpeg","size_in_bytes":63423420,"duration_in_seconds":7863}]},{"id":"98c3099a-85bf-4f96-a250-a42a5d1cb114","title":"Episode 199: Offended Observer","url":"https://oralargument.org/199","content_text":"We discuss items from the mailbag and go ahead and conduct our annual, absurd Supreme Court round-up (fifty minutes in).\n\n\nJames Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation\nObriecht v. Splinter\nJohari Canty, Florida Deputies Find Sign Warning Drivers About Upcoming Speed Trap\nAmerican Legion v. American Humanist Ass'n\nKnick v. Township of Scott\n","content_html":"We discuss items from the mailbag and go ahead and conduct our annual, absurd Supreme Court round-up (fifty minutes in).
\n\nHow 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 to discuss this problem, made famous recently by Facebook and other A/B testing entrepreneurs.
\n\nSpecial Guest: Michelle Meyer.
","summary":"On \"irrational\" reactions to experimentation, with Michelle Meyer.","date_published":"2019-05-28T11:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/15754068-7406-4e7e-9245-1c6656949856.mp3","mime_type":"audio/mpeg","size_in_bytes":56566862,"duration_in_seconds":5601}]},{"id":"e8ab89cc-a663-4f21-b10e-d16c804c6109","title":"Episode 197: LARPing","url":"https://oralargument.org/197","content_text":"We talk about LARPing, emotions, meaning, exam writing, grading, happiness, and other things.\n\n\nLawrence S. Krieger and Kennon M. Sheldon, What Makes Lawyers Happy? A Data-Driven Prescription to Redefine Professional Success\n","content_html":"We talk about LARPing, emotions, meaning, exam writing, grading, happiness, and other things.
\n\nIs 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.
\n\nSpecial Guest: Daniel Sokol.
","summary":"On common law as a platform and its efficiency, with Daniel Sokol.","date_published":"2019-04-21T12:30:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/97b99f0a-a56f-4601-ac67-00803c8de11a.mp3","mime_type":"audio/mpeg","size_in_bytes":46381719,"duration_in_seconds":4582}]},{"id":"a01c19fa-4783-429a-8d4a-bd0cae752166","title":"Episode 195: Based","url":"https://oralargument.org/195","content_text":"We dip back into the mailbag to discuss verdicts, unpublished opinions, \"based off,\" canons and anti-canons, and more.","content_html":"We dip back into the mailbag to discuss verdicts, unpublished opinions, "based off," canons and anti-canons, and more.
","summary":"Into the mailbag we go.","date_published":"2019-04-07T18:15:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/a01c19fa-4783-429a-8d4a-bd0cae752166.mp3","mime_type":"audio/mpeg","size_in_bytes":48213947,"duration_in_seconds":4766}]},{"id":"f0d29f1e-9472-4ab8-8441-6a6aa91f30bc","title":"Episode 194: Topoi","url":"https://oralargument.org/194","content_text":"With 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?\n\n\nZahr Said's faculty profile and writing\nJessica Silbey's faculty profile and writing\nZahr Said and Jessica Silbey, Narrative Topoi in the Digital Age\nRyan Calo, Digital Market Manipulation\nDaniel Solove, Privacy and Power: Computer Databases and Metaphors for Information Privacy\nSpecial Guests: Jessica Silbey and Zahr Said.","content_html":"With 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?
\n\nSpecial Guests: Jessica Silbey and Zahr Said.
","summary":"On narrative topoi, with Zahr Said and Jessica Silbey.","date_published":"2019-03-24T10:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/f0d29f1e-9472-4ab8-8441-6a6aa91f30bc.mp3","mime_type":"audio/mpeg","size_in_bytes":36533817,"duration_in_seconds":3598}]},{"id":"08d00476-4af4-4ef4-bffc-67c8cdffa30c","title":"Episode 193: A Giant Thunderstorm","url":"https://oralargument.org/193","content_text":"Fast 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.\n\n\nCarissa Hessick’s faculty profile and writing\nCarissa Byrne Hessick, Corpus Linguistics and the Criminal Law\nLawrence Solum, Legal Theory Lexicon: Corpus Linguistics\nJames Phillips, Daniel Ortner, and Thomas Lee, Corpus Linguistics and Original Public Meaning: A New Tool to Make Originalism More Empirical\nSpecial Guest: Carissa Hessick.","content_html":"Fast 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.
\n\nSpecial Guest: Carissa Hessick.
","summary":"On corpus linguistics, with Carissa Hessick.","date_published":"2019-03-17T13:30:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/08d00476-4af4-4ef4-bffc-67c8cdffa30c.mp3","mime_type":"audio/mpeg","size_in_bytes":48068445,"duration_in_seconds":4751}]},{"id":"bac789fd-d846-437a-a8cf-69814799e6cd","title":"Episode 192: Precisification","url":"https://oralargument.org/192","content_text":"At 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.\n\nThis episode's links:\n\n\nLarry Solum's faculty profile and writing\nLegal Theory Blog (see also Larry's very helpful Legal Theory Lexicon)\nLawrence 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 of originalism and non-originalism. It contains excellent references to the key literature, which we'd ordinarily include here in the show notes. But since it's so comprehensive, we'll just include this link.)\nDavid Plunkett, Which Concepts Should We Use?: Metalinguistic Negotiations and The Methodology of Philosophy\nSpecial Guest: Lawrence Solum.","content_html":"At 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.
\n\nThis episode's links:
\n\nSpecial Guest: Lawrence Solum.
","summary":"On originalism, with Larry Solum.","date_published":"2019-03-03T10:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/bac789fd-d846-437a-a8cf-69814799e6cd.mp3","mime_type":"audio/mpeg","size_in_bytes":50395955,"duration_in_seconds":4984}]},{"id":"ad8f8593-83f7-4d55-a2ab-6108841fc7e3","title":"Episode 191: Dynasty","url":"https://oralargument.org/191","content_text":"After 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.\n\nThis episode's links:\n\n\nEric Kade’s faculty profile and writing\nEric Kades, Of Piketty and Perpetuities\nThomas Piketty, Capital in the Twenty-First Century\nSpecial Guest: Eric Kades.","content_html":"After 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.
\n\nThis episode's links:
\n\nSpecial Guest: Eric Kades.
","summary":"On wealth inequality and perpetuities, with Eric Kades","date_published":"2019-02-24T10:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/ad8f8593-83f7-4d55-a2ab-6108841fc7e3.mp3","mime_type":"audio/mpeg","size_in_bytes":47207188,"duration_in_seconds":4665}]},{"id":"972d8c7c-88de-476b-a8d5-5069f11f076b","title":"Episode 190: Why We Write","url":"https://oralargument.org/190","content_text":"Just 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!\n\n\nPatricia Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings\n","content_html":"Just 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!
\n\nKim 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 needed to perform transplants in poor countries. But are these alternative designs still "markets," and what exactly is our problem with markets in kidneys anyway?
\n\nSpecial Guest: Kimberly Krawiec.
","summary":"On repugnant transactions, with Kim Krawiec.","date_published":"2019-01-27T12:15:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/8120708f-1285-4837-9afa-003c5fb5bc93.mp3","mime_type":"audio/mpeg","size_in_bytes":46896070,"duration_in_seconds":4634}]},{"id":"d23b5205-a06b-4ab2-8a82-5ec0b1cb2877","title":"Episode 188: Common Law Crimes","url":"https://oralargument.org/188","content_text":"If 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 from thin air. More importantly, if what you care about is the rule of law, then our system of code, in which prosecutors exercise less visible and less precedent-governed authority than any common law judge, hardly fits the bill.\n\n\nCarissa Hessick’s faculty profile and writing\nCarissa Hessick, The Myth of Common Law Crimes\nUnited States v. Hudson and Goodwin\nBordenkircher v. Hayes\nYates v. United States\nBond v. United States\nCarissa Hessick, Vagueness Principles\nBob Ratterman, Judicial Candidate Expresses Frustration with the Plea Bargain Process\nJames Burnham, Why Don’t Courts Dismiss Indictments? A Simple Suggestion For Making Federal Criminal Law A Little Less Lawless\nIon Meyn, Why Civil and Criminal Procedure Are So Different: A Forgotten History\nSpecial Guest: Carissa Hessick.","content_html":"If 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 from thin air. More importantly, if what you care about is the rule of law, then our system of code, in which prosecutors exercise less visible and less precedent-governed authority than any common law judge, hardly fits the bill.
\n\nSpecial Guest: Carissa Hessick.
","summary":"On the virtues and non-extinction of common law crimes, with Carissa Hessick.","date_published":"2019-01-20T11:30:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/d23b5205-a06b-4ab2-8a82-5ec0b1cb2877.mp3","mime_type":"audio/mpeg","size_in_bytes":34855188,"duration_in_seconds":3430}]},{"id":"a3e97e50-ece9-4841-ae66-24cc480829bf","title":"Episode 187: Both Sides of the V","url":"https://oralargument.org/187","content_text":"Jocelyn 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.\n\n\nJocelyn Simonson’s faculty profile and writing\nJocelyn Simonson, The Place of \"the People\" in Criminal Procedure\nOral Argument 95: Own the Block (guest Jocelyn Simonson)\nSerial Season 3\nMarie Gottschalk, Caught: The Prison State and the Lockdown of American Politics\nUnsigned Note, The Paradox of \"Progressive Prosecution\"\nBarry Friedman and Maria Ponomarenko, Democratic Policing\nLaura Appleman, Defending the Jury\nJocelyn Simonson, The Criminal Court Audience in a Post-Trial World\nAlexandra Natapoff, The Penal Pyramid\nCarol Steiker, Tempering or Tampering? Mercy and the Administration of Criminal Justice\nSpecial Guest: Jocelyn Simonson.","content_html":"Jocelyn 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.
\n\nSpecial Guest: Jocelyn Simonson.
","summary":"On public participation in criminal prosecution, with Jocelyn Simonson","date_published":"2019-01-12T10:15:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/a3e97e50-ece9-4841-ae66-24cc480829bf.mp3","mime_type":"audio/mpeg","size_in_bytes":46162813,"duration_in_seconds":4561}]},{"id":"8a80b6ff-741a-44c1-b02a-c14492a563c5","title":"Episode 186: Ephemeral","url":"https://oralargument.org/186","content_text":"Exactly 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.","content_html":"Exactly 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.
","summary":"Just Joe and Christian, on the fifth anniversary of the first episode.","date_published":"2018-12-22T16:30:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/8a80b6ff-741a-44c1-b02a-c14492a563c5.mp3","mime_type":"audio/mpeg","size_in_bytes":43848364,"duration_in_seconds":4329}]},{"id":"dc9ba949-c360-4784-878c-25d54ec07df6","title":"Episode 185: Embassy Suites","url":"https://oralargument.org/185","content_text":"Brexit, China, international trade, security, distribution, resentment, madness, and coffee with Tim Meyer.\n\n\nTim Meyer's faculty profile and writing\nOral Argument 105: Bismarck’s Raw Material (guest Tim Meyer)\nOral Argument 2: Bust a Deal, Face the Wheel (guest Tim Meyer)\nTimothy Meyer and Ganesh Sitaraman, Trade and the Separation of Powers\nNicolas Lamp, How Should We Think about the Winners and Losers from Globalization? Three Narratives and Their Implications for the Redesign of International Economic Agreements\nSpecial Guest: Tim Meyer.","content_html":"Brexit, China, international trade, security, distribution, resentment, madness, and coffee with Tim Meyer.
\n\nSpecial Guest: Tim Meyer.
","summary":"On Brexit, trade, and Trump, with Tim Meyer.","date_published":"2018-12-04T10:45:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/dc9ba949-c360-4784-878c-25d54ec07df6.mp3","mime_type":"audio/mpeg","size_in_bytes":52522062,"duration_in_seconds":5196}]},{"id":"93259b9d-bca1-4fdb-9a72-89f8051f3cb8","title":"Episode 184: Bleep that Bleep","url":"https://oralargument.org/184","content_text":"Here's your Thanksgiving Holiday episode, perfect for travel and your other holiday needs. If you listen only for law-related content, you'll probably want to skip to 01:17:16, where we somewhat casually discuss the controversy over whether the supposed Acting Attorney General was properly appointed. But we discuss many mailbag-related topics: the California fires and climate change (00:25), politeness and over-decorousness (8:53), how we imagine the mailbag and the miracles of pre-computer-age physical organization (11:06), how to find a good coffeeshop and the origins of \"heyday\" (22:15), our supposed bad taste in movies and our regard for certain consumer electronics (38:47), caselaw access and textbooks (55:44), seekers (59:44), markdown and word processing and the inevitable demise of Oral Argument (01:03:19), a discussion of the pretending Acting Attorney General and meltdowns and trainwrecks (01:17:16), podcast recommendations (01:33:30).\n\n\nMary Beard's Ultimate Rome\nAbout Michael Mann\nAbout The Story of Star Wars LP\nTravis Bostick, Jóhann Jóhannsson, Mother!, and Sound Over Score\nCaselaw Access Project; H2O\nAbout Markdown\nOral Argument 11: Big Red Diesel, on Markdown and word processors\nUlysses and Byword\nBat Kid is cancer free\nJed Shugerman, Whitaker’s Appointment as Acting Attorney General Is Statutorily Illegal; Stephen Vladeck, Whitaker May Be a Bad Choice, but He’s a Legal One; Walter Dellinger and Marty Lederman, Initial Reactions to OLC’s Opinion on the Whitaker Designation as “Acting” Attorney General\nPodcasts: Bag Man, Slow Burn, Serial (and Oral Argument 44: Serial), Feeding Us, Ipse Dixit\n","content_html":"Here's your Thanksgiving Holiday episode, perfect for travel and your other holiday needs. If you listen only for law-related content, you'll probably want to skip to 01:17:16, where we somewhat casually discuss the controversy over whether the supposed Acting Attorney General was properly appointed. But we discuss many mailbag-related topics: the California fires and climate change (00:25), politeness and over-decorousness (8:53), how we imagine the mailbag and the miracles of pre-computer-age physical organization (11:06), how to find a good coffeeshop and the origins of "heyday" (22:15), our supposed bad taste in movies and our regard for certain consumer electronics (38:47), caselaw access and textbooks (55:44), seekers (59:44), markdown and word processing and the inevitable demise of Oral Argument (01:03:19), a discussion of the pretending Acting Attorney General and meltdowns and trainwrecks (01:17:16), podcast recommendations (01:33:30).
\n\nEpisode 183: West Coast Model (guest Chris Elmendorf)
\n\nWhy is housing so expensive in major West Coast and northeastern cities? Not just more than you might want to pay, but, often, prohibitively expensive with little sign of new supply in areas people want to live. Chris Elmendorf joins us to explain this problem and the limited effectiveness of two types of solutions, the Northeastern and West Coast models. Drawing on the intergovernmental approach of the Voting Rights Act, Chris argues that a strong state role in reviewing the regulatory activities of local governments, if done in the right way, could be the way forward. And it points to a dramatic rethinking of how land use law should be made and what problems it should try to solve.
\n\nThis show’s links:
\n\nSpecial Guest: Chris Elmendorf.
","summary":"On the housing crisis, with Chris Elmendorf.","date_published":"2018-11-10T17:15:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/790e0eac-ad98-43cf-8f0e-a26c1b435d16.mp3","mime_type":"audio/mpeg","size_in_bytes":56657768,"duration_in_seconds":5610}]},{"id":"9205ed2f-b61f-491b-9124-4200c70ab9e7","title":"Episode 182: An Editorial Board of Dodsonians","url":"https://oralargument.org/182","content_text":"The publication of legal scholarship is, compared with that in other academic disciplines, is, well, weird. Almost all legal journals are edited by students, and authors submit to many journals at once. We talk with Scott Dodson about his paper with law student and journal editor Jacob Hirsch. They elaborate a model code of conduct that could easily be implemented and would prevent some of the system's worst pathologies and bad behavior. We also have a little \"post-roll.\"\n\nThis show’s links:\n\n\nScott Dodson's faculty profile and writing\nScott Dodson and Jacob Hirsch, A Model Code of Conduct for Student-Edited Law-Journal Submissions\nOral Argument 96: Students as Means\nSpecial Guest: Scott Dodson.","content_html":"The publication of legal scholarship is, compared with that in other academic disciplines, is, well, weird. Almost all legal journals are edited by students, and authors submit to many journals at once. We talk with Scott Dodson about his paper with law student and journal editor Jacob Hirsch. They elaborate a model code of conduct that could easily be implemented and would prevent some of the system's worst pathologies and bad behavior. We also have a little "post-roll."
\n\nThis show’s links:
\n\nSpecial Guest: Scott Dodson.
","summary":"On law review submission norms, with Scott Dodson.","date_published":"2018-10-24T10:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/9205ed2f-b61f-491b-9124-4200c70ab9e7.mp3","mime_type":"audio/mpeg","size_in_bytes":53991188,"duration_in_seconds":5343}]},{"id":"1a7b36f9-689b-4d3b-be6a-053db3b9f627","title":"Episode 181: The Dragon","url":"https://oralargument.org/181","content_text":"We talk with our colleague Sandy Mayson about the use of algorithms in criminal law decisionmaking - and especially their troubling and difficult to disentangle incorporation of race. From bail to sentencing to policing effort to hiring and admitting to college, we subject different social groups to different risks of erroneous treatment, predicting, for example, that an individual is likely to commit another crime when in fact he or she will not reoffend. What should we do? Reject the use of algorithms - is that even possible? Attempt to \"correct\" the algorithms? Sandy teaches us about the difficulty of achieving algorithmic fairness.\n\nThis show’s links:\n\n\nSandy Mayson's faculty profile and writing\nSandra Mayson, Bias In, Bias Out\nMalcolm Feeley and Jonathan Simon, The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications\nRobert Martinson, What Works? Questions and Answers about Prison Reform\nAdam Kolber, Punishment and Moral Risk\nDouglas Husak, Kinds of Punishment; Douglas Husak, What Do Criminals Deserve?\nSpecial Guest: Sandy Mayson.","content_html":"We talk with our colleague Sandy Mayson about the use of algorithms in criminal law decisionmaking - and especially their troubling and difficult to disentangle incorporation of race. From bail to sentencing to policing effort to hiring and admitting to college, we subject different social groups to different risks of erroneous treatment, predicting, for example, that an individual is likely to commit another crime when in fact he or she will not reoffend. What should we do? Reject the use of algorithms - is that even possible? Attempt to "correct" the algorithms? Sandy teaches us about the difficulty of achieving algorithmic fairness.
\n\nThis show’s links:
\n\nSpecial Guest: Sandy Mayson.
","summary":"On algorithms and bias, with Sandy Mayson.","date_published":"2018-10-10T10:45:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/1a7b36f9-689b-4d3b-be6a-053db3b9f627.mp3","mime_type":"audio/mpeg","size_in_bytes":45678492,"duration_in_seconds":4447}]},{"id":"ea5d6d10-34d3-4610-986e-31bd1e7c7fac","title":"Episode 180: Spectral","url":"https://oralargument.org/180","content_text":"Just 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). ","content_html":"Just 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).
","summary":"Just Joe and Christian, on SCOTUS confirmation battles, feedback, Apple, and assorted nonsense.","date_published":"2018-09-23T09:30:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/ea5d6d10-34d3-4610-986e-31bd1e7c7fac.mp3","mime_type":"audio/mpeg","size_in_bytes":78822404,"duration_in_seconds":7826}]},{"id":"555b62ca-a4c0-4ab0-ab06-10968362874d","title":"Episode 179: Snowglobe","url":"https://oralargument.org/179","content_text":"Joe becomes the guest guest and Mike Madison the guest host, as we talk about Joe's new research into the web of law and what citations tell us about what law means. As one might expect for a show which is ostensibly about legal theory but actually, as all good argunauts know, an extended meditation on Being Joe, this is a very special episode of Oral Argument.\n\nThis show’s links:\n\n\nJoe Miller's faculty profile and writing\nMike Madison’s website, writing, and blog\nJoseph Miller, Law's Semantic Self-Portrait: Discerning Doctrine with Co-Citation Networks and Keywords\nJoseph Miller, Charting Supreme Court Patent Law, Near and Far; Joseph Miller, Which Supreme Court Cases Influenced Recent Supreme Court IP Decisions? A Citation Study\nCharles Barzun, Three Forms of Legal Pragmatism\nAndrew Green and Albert Yoon, Triaging the Law: Developing the Common Law on the Supreme Court of India\nFrank Pasquale, A Rule of Persons, Not Machines: The Limits of Legal Automation\nJames Scott, Seeing Like a State\nSpecial Guest: Mike Madison.","content_html":"Joe becomes the guest guest and Mike Madison the guest host, as we talk about Joe's new research into the web of law and what citations tell us about what law means. As one might expect for a show which is ostensibly about legal theory but actually, as all good argunauts know, an extended meditation on Being Joe, this is a very special episode of Oral Argument.
\n\nThis show’s links:
\n\nSpecial Guest: Mike Madison.
","summary":"With guest host Mike Madison, we talk with guest guest Joe Miller about citation networks.","date_published":"2018-09-09T12:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/555b62ca-a4c0-4ab0-ab06-10968362874d.mp3","mime_type":"audio/mpeg","size_in_bytes":52411825,"duration_in_seconds":5185}]},{"id":"37657f72-eca8-464a-bf96-0295c1468e73","title":"Episode 178: Dear Bushrod","url":"https://oralargument.org/178","content_text":"This week, it's the latest edition of \"Things Haven't Always Been Like This\". Farah Peterson teaches us about the judges of the early 1800s and their now-strange-seeming institutional world in which judging and legislating were less distinct and more collaborative.\n\nThis show’s links:\n\n\nFarah Peterson’s faculty profile\nFarah Peterson, Interpretation as Statecraft: Chancellor Kent and the Collaborative Era of American Statutory Interpretation\nDark Sky (blog post)\nSiddhartha Mukherjee, The Emperor of All Maladies: A Biography of Cancer\nOral Argument 168: Galaxy-Sized Diamond (with Maggie McKinley on petitioning in Congress)\nRichard Verdon, A Large Meteor\nGuido Calabresi, A Common Law for the Age of Statutes\nSpecial Guest: Farah Peterson.","content_html":"This week, it's the latest edition of "Things Haven't Always Been Like This". Farah Peterson teaches us about the judges of the early 1800s and their now-strange-seeming institutional world in which judging and legislating were less distinct and more collaborative.
\n\nThis show’s links:
\n\nSpecial Guest: Farah Peterson.
","summary":"On judges, legislatures, and statutory interpretation in the early 1800s, with Farah Peterson.","date_published":"2018-08-26T12:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/37657f72-eca8-464a-bf96-0295c1468e73.mp3","mime_type":"audio/mpeg","size_in_bytes":46420902,"duration_in_seconds":4586}]},{"id":"32a0668f-c8d2-490b-900e-1678b23157a4","title":"Episode 177: The Hard Drive Has Always Been the Enemy","url":"https://oralargument.org/177","content_text":"It'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 Hold-Up.\n\nThis show’s links:\n\n\nFirst Mondays\nIan Samuel’s writing\nIan Samuel, The New Writs of Assistance\nSnopes, Did Facebook Shut Down an AI Experiment Because Chatbots Developed Their Own Language? (no, but interesting)\nOral Argument 134: Crossover\nChristian Turner, Amendment XXVIII: A First Draft\nIan Ayres and John Witt, Democrats Need a Plan B for the Supreme Court. Here’s One Option.\nOral Argument 37: Hammer Blow (with Michael Dorf); Oral Argument 38: You're Going to Hate this Answer_ (with Steve Vladeck); Christian Turner, Bound by Federal Law (including links to posts by Michael and Steve on the issue of state courts' not being bound by federal circuit courts)\nCarpenter v. United States\nRadiolab, Eye in the Sky\nIan Samuel, Warrantless Location Tracking\nLucas v. South Carolina Coastal Council\nFlorida v. Jardines\nJustice Souter’s discussion of Plessy and the role of history in judging (watch from minute one until about minute fourteen) and his Harvard Commencement speech on Plessy\nHold Up!\nSpecial Guest: Ian Samuel.","content_html":"It'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 Hold-Up.
\n\nThis show’s links:
\n\nSpecial Guest: Ian Samuel.
","summary":"On searches of cell tower records for location data and on many other things, with Ian Samuel.","date_published":"2018-08-07T10:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/32a0668f-c8d2-490b-900e-1678b23157a4.mp3","mime_type":"audio/mpeg","size_in_bytes":82535141,"duration_in_seconds":8133}]},{"id":"79eda329-9c6e-450a-aa91-54ca74ea21d0","title":"Episode 176: Ultimate Monday","url":"https://oralargument.org/176","content_text":"A full hour of pre-roll before our extended conversation (in the next episode) with Ian Samuel. Opening topics: Words, Joe's new paper, phones and their spam and locations. We argue about how to have an argument. Then we stumble into a psychological typology of judginess and prescriptivism. The heartland of the episode concerns the self, law, death, being and non-being, Joe's youthful fear of blindness, the external and internal point of view, the reality of firehouses, and law as a social practice for reaching acceptable social conclusions vs. law as a queryable thing. (Other potential show titles: Pure Pre-Roll, The Jerk Box, and The Jailor.)\n\nThis show’s links:\n\n\nAbout \"antepenultimate\" (including links to \"propreantepenultimate\")\nAbout Battle Royale games\nTim Dowling, Order Force: The Old Grammar Rule We All Obey Without Realising\nJoe Miller, Law's Semantic Self-Portrait: Discerning Doctrine with Co-Citation Networks and Keywords\nCarpenter v. United States\nAnil Seth, The Real Problem (on the problem of consciousness)\nPhilip Bobbitt, Constitutional Fate: Theory of the Constitution,\n","content_html":"A full hour of pre-roll before our extended conversation (in the next episode) with Ian Samuel. Opening topics: Words, Joe's new paper, phones and their spam and locations. We argue about how to have an argument. Then we stumble into a psychological typology of judginess and prescriptivism. The heartland of the episode concerns the self, law, death, being and non-being, Joe's youthful fear of blindness, the external and internal point of view, the reality of firehouses, and law as a social practice for reaching acceptable social conclusions vs. law as a queryable thing. (Other potential show titles: Pure Pre-Roll, The Jerk Box, and The Jailor.)
\n\nThis show’s links:
\n\nWe're joined by Paul Gowder to discuss the rule of law, private power, and technology. We start, after important discussion of fishing bycatch and speech patterns of the western United States, with Paul's more general thoughts on the rule of law, oligopolies, and equality. Conversation then focuses on the connection between substantive politics and rule of law and principles and then on the role of technology in facilitating collective action, including through Paul's Dr. StrangeContract and a new podcast idea for Paul's fights with customer service at large corporations and a prognostication of a future of AI retention specialists vs. CancelBots.
\n\nThis show’s links:
\n\nSpecial Guest: Paul Gowder.
","summary":"On the rule of law, equality, and technology, with Paul Gowder.","date_published":"2018-07-21T10:30:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/4b6896a4-d864-435f-9eee-7063d5346f27.mp3","mime_type":"audio/mpeg","size_in_bytes":49508119,"duration_in_seconds":4830}]},{"id":"91cd1bce-f63c-4f5d-9e3b-25966c943aad","title":"Episode 174: Podcast of Record","url":"https://oralargument.org/174","content_text":"Just 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 convictions.\n\nThis show’s links:\n\n\nAll about notaries public\nRebecca R. Ruiz and Michael Schwirtz, Russian Insider Says State-Run Doping Fueled Olympic Gold; the \"McLaren Report\" on Russian doping in Sochi\nStephen Herrero, Bear Attacks: Their Causes and Avoidance\nElla Morton, The Snake Catchers Who Handle Australia’s Most Venomous Home Invaders\nAbout the \"Deep South\"\nKatie Herzog, How Air-Conditioning Made America — and How It Could Break Us All\nChristian Turner, The Failures of Freedom\nOral Argument 134: Crossover (guests Dan Epps and Ian Samuel)\n","content_html":"Just 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 convictions.
\n\nThis show’s links:
\n\nThe Constitution requires the President to "take Care that the Laws be faithfully executed." Phrases like "faithful execution" are hardly unique to the constitutional setting. Rather, they have long been signals of both public and private relationships of trust and confidence, relationships that give rise to "fiduciary duties" in law. Ethan Leib and Jed Shugerman argue that the President has fiduciary duties and that these constrain his or her power to pardon and otherwise to act.
\n\nThis show’s links:
\n\nSpecial Guests: Ethan Leib and Jed Shugerman.
","summary":"On the President's fiduciary duties, with Ethan Leib and Jed Shugerman.","date_published":"2018-06-29T12:30:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/1267178e-d91d-4afe-980b-4736c16affa3.mp3","mime_type":"audio/mpeg","size_in_bytes":58819518,"duration_in_seconds":5761}]},{"id":"2d1a99b7-efa8-48b8-beab-ddbf9ddbd08e","title":"Episode 172: Apex Criminality","url":"https://oralargument.org/172","content_text":"If we were starting from scratch, as our guest Aziz Huq puts it, how should our constitution deal with criminality by high government officials? We talk about the constitutional designer's perspective, the criminalization of politics, and the politicization of the rule of law.\n\nThis show’s links:\n\n\nAziz Huq’s faculty profile and academic writing\nAziz Huq, Legal or Political Checks on Apex Criminality: An Essay on Constitutional Design\nThomas Ginsburg, Zachary Elkins, and James Melton, The Lifespan of Written Constitutions; Tom Ginsburg and James Melton, Does the Constitutional Amendment Rule Matter at All? Amendment Cultures and the Challenges of Measuring Amendment Difficulty; Aziz Huq, The Function of Article V\nAziz Huq, Hippocratic Constitutional Design in Assessing Constitutional Performance\nTom Ginsburg and Aziz Huq, How to Save a Constitutional Democracy; Aziz Huq and Tom Ginsburg, How to Lose a Constitutional Democracy (see also the version of these ideas in Tom and Aziz's article for Vox)\nThe Comparative Constitutions Project\nSpecial Guest: Aziz Huq.","content_html":"If we were starting from scratch, as our guest Aziz Huq puts it, how should our constitution deal with criminality by high government officials? We talk about the constitutional designer's perspective, the criminalization of politics, and the politicization of the rule of law.
\n\nThis show’s links:
\n\nSpecial Guest: Aziz Huq.
","summary":"On constitutional design concerning crimes of apex officials, with Aziz Huq.","date_published":"2018-06-22T12:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/2d1a99b7-efa8-48b8-beab-ddbf9ddbd08e.mp3","mime_type":"audio/mpeg","size_in_bytes":46462515,"duration_in_seconds":4525}]},{"id":"2ff509e5-9a6f-49ae-add3-91930cacb08e","title":"Episode 171: Garbage Gut","url":"https://oralargument.org/171","content_text":"Steve 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 new DOJ guidance on asylum, released while we were recording, and the immigration and general political crisis we now face (1:10:42).\n\nThis show’s links:\n\n\nSteve Vladeck’s faculty profile and academic writing\nThe National Security Law Podcast\nSpecial Guest: Steve Vladeck.","content_html":"Steve 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 new DOJ guidance on asylum, released while we were recording, and the immigration and general political crisis we now face (1:10:42).
\n\nThis show’s links:
\n\nSpecial Guest: Steve Vladeck.
","summary":"On the Supreme Court at this moment, with Steve Vladeck.","date_published":"2018-06-12T08:30:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/2ff509e5-9a6f-49ae-add3-91930cacb08e.mp3","mime_type":"audio/mpeg","size_in_bytes":65714449,"duration_in_seconds":6451}]},{"id":"6d30bc02-d8a4-46be-82db-ec0e08b17c0e","title":"Episode 170: The Starters","url":"https://oralargument.org/170","content_text":"We talk with Charles Barzun about what it means to be a legal pragmatist. But first we start with the ending and then talk John Hodgman, the F words (Framers and Founders), the old 2x debate, and finally (at 13:31) about legal pragmatism and its many senses. We connect the topic to interpretation, ethics, the age of our legal asteroid, families, infidelity, rupture, continuity, Justice Souter, quietism agonistes, and more.\n\nThis show’s links:\n\n\nCharles Barzun’s faculty profile and writing\nCharles Barzun, Three Forms of Legal Pragmatism\nAbout Shane Carruth, director of Primer and Upstream Color\nJudge John Hodgman and John Hodgman, Vacationland\nBrian Tamanaha, A Realistic Theory of Law\nCharles Barzun, Inside/Out: Beyond the Internal/External Distinction in Legal Scholarship\nGuy Kahane, Evolutionary Debunking Arguments\nCharles Barzun, Justice Souter’s Common Law\nOral Argument 146: Somehow in the Middle (with Charles discussing Justice Souter)\nSpecial Guest: Charles Barzun.","content_html":"We talk with Charles Barzun about what it means to be a legal pragmatist. But first we start with the ending and then talk John Hodgman, the F words (Framers and Founders), the old 2x debate, and finally (at 13:31) about legal pragmatism and its many senses. We connect the topic to interpretation, ethics, the age of our legal asteroid, families, infidelity, rupture, continuity, Justice Souter, quietism agonistes, and more.
\n\nThis show’s links:
\n\nSpecial Guest: Charles Barzun.
","summary":"On legal pragmatism, with Charles Barzun.","date_published":"2018-05-27T08:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/6d30bc02-d8a4-46be-82db-ec0e08b17c0e.mp3","mime_type":"audio/mpeg","size_in_bytes":59344988,"duration_in_seconds":5814}]},{"id":"15d1df44-fb3e-4c46-a088-b75fe3a59fbe","title":"Episode 169: Terrible Enough for Two Weeks","url":"https://oralargument.org/169","content_text":"Back with a casual conversation about exams, faculties and their politics, and other random things.\n\nThis show’s links:\n\nNone.","content_html":"Back with a casual conversation about exams, faculties and their politics, and other random things.
\n\nThis show’s links:
\n\nNone.
","summary":"Just Joe and Christian on exams and other things.","date_published":"2018-05-11T12:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/15d1df44-fb3e-4c46-a088-b75fe3a59fbe.mp3","mime_type":"audio/mpeg","size_in_bytes":52733695,"duration_in_seconds":5153}]},{"id":"0db5e304-6cfa-42eb-919e-9a47e67ce065","title":"Episode 168: Galaxy-Sized Diamond","url":"https://oralargument.org/168","content_text":"Do you believe that once upon a time, before the rise of the administrative state, our legislature mainly legislated, our executive just carried out laws, and judges resolved individual disputes? Prepare to have your mind blown, as Maggie McKinley explains the central and evolving role that individual petitions for redress before Congress played from before the dawn of the Republic until the 1940s. She argues that our participation in government rather than formal, institutional separation has been the historical guarantor of democratic legitimacy.\n\nThis show’s links:\n\n\nMaggie McKinley's faculty profile and writing\nMaggie McKinley, Petitioning and the Making of the Administrative State\nMaggie McKinley, Lobbying and the Petition Clause\nSonja West, First Amendment Neighbors\nOral Argument 1: Send Joe to Prison (guest Sonja West)\nSpecial Guest: Maggie McKinley.","content_html":"Do you believe that once upon a time, before the rise of the administrative state, our legislature mainly legislated, our executive just carried out laws, and judges resolved individual disputes? Prepare to have your mind blown, as Maggie McKinley explains the central and evolving role that individual petitions for redress before Congress played from before the dawn of the Republic until the 1940s. She argues that our participation in government rather than formal, institutional separation has been the historical guarantor of democratic legitimacy.
\n\nThis show’s links:
\n\nSpecial Guest: Maggie McKinley.
","summary":"On the shockingly central role of petitioning Congress, with Maggie McKinley.","date_published":"2018-04-21T10:30:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/0db5e304-6cfa-42eb-919e-9a47e67ce065.mp3","mime_type":"audio/mpeg","size_in_bytes":51026400,"duration_in_seconds":4982}]},{"id":"287a20cc-1b49-4577-907e-a5cc174d45c8","title":"Episode 167: Fingerprint","url":"https://oralargument.org/167","content_text":"A spur of the moment episode in which we discuss streaming music, public opinion, interpretation and precedent, war and peace, the legality of airstrikes, and the survival of our species.\n\nThis show’s links:\n\n\nNone!\n","content_html":"A spur of the moment episode in which we discuss streaming music, public opinion, interpretation and precedent, war and peace, the legality of airstrikes, and the survival of our species.
\n\nThis show’s links:
\n\nDo judges make law or find and apply it? Or both? Long ago, the realists seemingly won the argument that judging inevitably involves making law, not just identifying it. We talk with Stephen Sachs, who argues for the rehabilitation of the possibility that judges acting in good faith can indeed find the law. Will Stephen and Joe clash over what this means for Erie? You'll just have to listen to find out.
\n\nThis show’s links:
\n\nSpecial Guest: Stephen Sachs.
","summary":"On finding law, with Stephen Sachs.","date_published":"2018-04-01T10:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/29f73747-7d2d-46a9-ac86-d1664f4f87cd.mp3","mime_type":"audio/mpeg","size_in_bytes":56488215,"duration_in_seconds":5528}]},{"id":"6057a99e-13df-4803-ad07-7945ba677d40","title":"Episode 165: Raging Fire","url":"https://oralargument.org/165","content_text":"Late 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.\n\nThis show’s links:\n\n\nLarry Alexander, Constrained by Precedent\nScott Hershovitz, Integrity and Stare Decisis\nAaron Glantz and Emmanuel Martinez, For People of Color, Banks Are Shutting the Door to Homeownership\nZhigang Wei, Hugh McDonald, and Christine Coumarelos, Fines: Are Disadvantaged People at a Disadvantage?\nBanach spaces\nChristian Turner, Models of Law\nLawerence Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma\nRobert Cover, Violence and the Word\nBen Thompson, The Facebook Brand\nWill Oremus, The Real Scandal Isn’t What Cambridge Analytica Did\nOral Argument 72: The Guinea Pig Problem (guest Michelle Meyer)\nMatthew Yglesias, The Case Against Facebook\nNicholas Carlson, Well, These New Zuckerberg IMs Won't Help Facebook's Privacy Problems\nOral Argument 58: Obscurity Settings (guest Woody Hartzog)\nThe trailer for Won't You Be My Neighbor?\n","content_html":"Late 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.
\n\nThis show’s links:
\n\nWhat is the legal precedent following a decision of the Supreme Court that lacks a majority opinion? For a few decades, the meta-rule has been that such as case stands for the position of those justices "who concurred in the judgments on the narrowest grounds." Or has it? And could it? Richard Re joins us to discuss the problems of the Marks rule, the meaning of precedent, and ultimately the nature of our law. This problem will be confronted in the Supreme Court in the coming weeks.
\n\nThis show’s links:
\n\nSpecial Guest: Richard Re.
","summary":"On the viability of finding narrowest grounds, with Richard Re.","date_published":"2018-03-10T16:30:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/06506849-2d4f-4f30-ac3c-6b1bd4a1dfac.mp3","mime_type":"audio/mpeg","size_in_bytes":50511762,"duration_in_seconds":4930}]},{"id":"931b3cb1-9f51-4161-b717-7fee0b7d8de7","title":"Episode 163: Woodshed","url":"https://oralargument.org/163","content_text":"We dive in to the mailbag and one other topic, discussing: nonsense, statutory interpretation and a rebuke to our prior discussion of it, the nature of podcasting, and public corruption by tweet. (No links this week.)","content_html":"We dive in to the mailbag and one other topic, discussing: nonsense, statutory interpretation and a rebuke to our prior discussion of it, the nature of podcasting, and public corruption by tweet. (No links this week.)
","summary":"Just Joe and Christian, into the mailbag and another topic.","date_published":"2018-03-05T19:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/931b3cb1-9f51-4161-b717-7fee0b7d8de7.mp3","mime_type":"audio/mpeg","size_in_bytes":62108456,"duration_in_seconds":6090}]},{"id":"88382ca8-97af-4b73-86ad-a189e2201057","title":"Episode 162: Wealth Gap (live at Georgia Law)","url":"https://oralargument.org/162","content_text":"Audiobooks, capital, banks, slavery, regulation, choice, racism, and the racial wealth gap. Mehrsa Baradaran joins the show for the fourth time to talk about her latest book. Recorded in front of a live audience at the University of Georgia School of Law.\n\nThis show’s links:\n\n\nMehrsa Baradaran’s faculty profile and academic writing\nMehrsa Baradaran, The Color of Money: Black Banks and the Racial Wealth Gap\nBarack Obama, The President's Role in Advancing Criminal Justice Reform\nTa-Nehisi Coates, We Were Eight Years in Power: An American Tragedy\nEric Foner, Reconstruction Updated Edition: America's Unfinished Revolution, 1863-1877 (see also Eric Foner, Why Reconstruction Matters (a brief but informative opinion essay))\nOral Argument 76: Brutality (guest Al Brophy)\nSendhil Mullainathan and Eldar Shafir, Scarcity: Why Having Too Little Means So Much\nMehrsa Baradaran, How the Other Half Banks: Exclusion, Exploitation, and the Threat to Democracy\nAlfred Brophy, Reparations: Pro and Con\nWilliam Darity, Jr. and Dania Frank, The Economics of Reparations\nJamelle Bouie and Rebecca Onion, Reconstruction (a podcast from Slate)\nSpecial Guest: Mehrsa Baradaran.","content_html":"Audiobooks, capital, banks, slavery, regulation, choice, racism, and the racial wealth gap. Mehrsa Baradaran joins the show for the fourth time to talk about her latest book. Recorded in front of a live audience at the University of Georgia School of Law.
\n\nThis show’s links:
\n\nSpecial Guest: Mehrsa Baradaran.
","summary":"On black banking and the racial wealth gap, with Mehrsa Baradaran.","date_published":"2018-02-19T16:45:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/88382ca8-97af-4b73-86ad-a189e2201057.mp3","mime_type":"audio/mpeg","size_in_bytes":33680584,"duration_in_seconds":3247}]},{"id":"6b30a104-c1f1-45f2-acda-c5e9b8ca1c45","title":"Episode 161: Meta","url":"https://oralargument.org/161","content_text":"Scott Shapiro joins us to discuss how law relates to, well, everything. His article with David Plunkett argues that theorizing about the nature of law is a project to understand how talking and thinking about law fit into reality. But first, we talk with him about Twitter, writing, collaboration, Joe's innermost psyche, and more.\n\nThis show’s links:\n\n\nScott Shapiro’s faculty profile and academic writing\nScott Shapiro, Legality\nOona Hathaway and Scott Shapiro, The Internationalists\nOral Argument 112: Quasi-Narrative (guest Simon Stern)\nScott Shapiro and David Plunkett, Law, Morality and Everything Else: General Jurisprudence as a Branch of Meta-Normative Inquiry\nSpecial Guest: Scott Shapiro.","content_html":"Scott Shapiro joins us to discuss how law relates to, well, everything. His article with David Plunkett argues that theorizing about the nature of law is a project to understand how talking and thinking about law fit into reality. But first, we talk with him about Twitter, writing, collaboration, Joe's innermost psyche, and more.
\n\nThis show’s links:
\n\nSpecial Guest: Scott Shapiro.
","summary":"On general jurisprudence (and other things), with Scott Shapiro.","date_published":"2018-02-04T10:30:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/6b30a104-c1f1-45f2-acda-c5e9b8ca1c45.mp3","mime_type":"audio/mpeg","size_in_bytes":52734192,"duration_in_seconds":5153}]},{"id":"b632a9a3-8088-4d9d-bee5-b45985cabbb4","title":"Episode 160: In the Barrel","url":"https://oralargument.org/160","content_text":"Steve 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....)\n\nThis show’s links:\n\n\nSteve Vladeck’s faculty profile and academic writing\nThe National Security Law Podcast 54: Family Ties or Family Matters?\nFirst Mondays OT2017 #12: False Idol (guest Steve Vladeck)\nSCOTUSblog page for Dalmazzi v. United States (including links to all the briefs and more)\nThe oral argument: Oyez version, SCOTUS downloads, and transcript \nOral Argument 137: Steve Vladeck Pincer Move (where we discussed Dalmazzi at the cert stage)\nBurns v. Wilson\nMarbury v. Madison\nWilliam Baude, Exciting Developments in Supreme Court Appellate Jurisdiction:\nSome Would Call It the Second Coming of Marbury v. Madison\nUnited States v. Coe\nex parte Bollman and Swartwout\nAkhil Amar, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court\nLouise Weinberg, Our Marbury\nFelker v. Turpin; see also Oral Argument 84: Felker's Chickens\nUnited States v. Gray\nSpecial Guest: Steve Vladeck.","content_html":"Steve 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....)
\n\nThis show’s links:
\n\nSpecial Guest: Steve Vladeck.
","summary":"With Steve Vladeck, on his Supreme Court argument in Dalmazzi.","date_published":"2018-01-27T14:15:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/b632a9a3-8088-4d9d-bee5-b45985cabbb4.mp3","mime_type":"audio/mpeg","size_in_bytes":39302322,"duration_in_seconds":3809}]},{"id":"ac26a87b-a823-4c4a-9e55-df6c7520676a","title":"Episode 159: Magical","url":"https://oralargument.org/159","content_text":"Live to tape, we discuss viewer mail, Tolkien, laptops, and (kind of) a couple of SCOTUS cases. \n\nThis show’s links:\n\n\nFoundations of American Law (an undergraduate course created by Christian, featuring a textbook and companion podcast series with Christian and Joe)\nLegal Theory 101 (Christian's introductory course to legal philosophy, featuring a reading list (with links) and a companion podcast series)\n","content_html":"Live to tape, we discuss viewer mail, Tolkien, laptops, and (kind of) a couple of SCOTUS cases.
\n\nThis show’s links:
\n\nWe find ourselves in a moment of untruth. Our guest, Brad Wendel, talks with us about political and legal truth and their relation to morality and social roles.
\n\nThis show’s links:
\n\nHoliday nonsense show part 2: on the upcoming Supreme Court arguments Dalmazzi v. United States, millennials and the punishing U.S. economic system, the presidency and the popular vote, and expertise and Twitter.
\n\nThis show’s links:
\n\nHoliday nonsense show part 1: on compressors, the UFOs, nominations of trial judges without trial experience, feuds, listener Brian's question about our evolving balance of optimism and pessimism, listener Andrew's pointing out the public nudity and sex discrimination case Tagami v. City of Chicago, listener Joel's new podcast, the self, our show, conversation and other minds and double escape, humility, art and wilderness.
\n\nThis show’s links:
\n\n","summary":"Just Joe and Christian on various topics.","date_published":"2017-12-24T09:30:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/913035c7-ee1d-40c1-bb5c-1ce3a06dc636.mp3","mime_type":"audio/mpeg","size_in_bytes":45754814,"duration_in_seconds":4455}]},{"id":"dfa249ec-a426-4e1a-a233-927a0f9e12ce","title":"Episode 155: Presidential Utterance","url":"https://oralargument.org/155","content_text":"How do presidents affect the law when they speak? Should courts consider what they say, defer to what they say, and find governmental intentions in what they say? What if a president says one thing, perhaps improvising during a speech, and an official communication of an agency, the Justice Department, or the White House says another? Kate Shaw joins us to talk about her theory that generally (but not always) courts should ignore presidential statements that are not consciously intended to stake out a legal position. Obviously, there's an 800-pound, tweeting gorilla in the corner of the room. \n\nThis show’s links:\n\n\nKate Shaw's faculty profile and writing\nKate Shaw, Beyond the Bully Pulpit: Presidential Speech in the Courts\nJeffrey Tulis, The Rhetorical Presidency\nPeter Strauss, Overseer or \"The Decider\"? The President in Administrative Law\nElena Kagan, Presidential Administration\nOral argument in the Fourth Circuit in International Refugee Assistance Project v. Trump (Muslim ban 3.0) \nKathryn Watts, Controlling Presidential Control\nJack Goldsmith, Will Donald Trump Destroy the Presidency?\nSpecial Guest: Kate Shaw.","content_html":"How do presidents affect the law when they speak? Should courts consider what they say, defer to what they say, and find governmental intentions in what they say? What if a president says one thing, perhaps improvising during a speech, and an official communication of an agency, the Justice Department, or the White House says another? Kate Shaw joins us to talk about her theory that generally (but not always) courts should ignore presidential statements that are not consciously intended to stake out a legal position. Obviously, there's an 800-pound, tweeting gorilla in the corner of the room.
\n\nThis show’s links:
\n\nSpecial Guest: Kate Shaw.
","summary":"On the legal effect of presidential speech, with Kate Shaw.","date_published":"2017-12-17T10:15:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/dfa249ec-a426-4e1a-a233-927a0f9e12ce.mp3","mime_type":"audio/mpeg","size_in_bytes":48772254,"duration_in_seconds":4756}]},{"id":"82c37464-e5ca-444c-8439-0470d66fa62b","title":"Episode 154: Third Place","url":"https://oralargument.org/154","content_text":"Sara Schindler returns to the show to talk about the phenomenon and problems of privately owned, publicly open spaces. We start, though, with a brief conversation about art and sexism. Then (12:23), we turn to Sarah's paper. What are POPOS? How are they created? Are they parks on the cheap or amenities of private businesses? Whether it's Balinese chanting in a corporate atrium, places to fly kites, or a spot to meet a new friend, we all need our third places.\n\nThis show’s links:\n\n\nSarah Schindler's faculty profile and writing\nSarah Schindler, The 'Publicization' of Private Space\nOral Argument 54: Folly Bridges (an episode we did with Sarah about her paper, Architectural Exclusion: Discrimination and Segregation Through Physical Design of the Built Environment)\nOral Argument 63: A Struggle with Every Single One (guest Jessica Owley)\nSpecial Guest: Sarah Schindler.","content_html":"Sara Schindler returns to the show to talk about the phenomenon and problems of privately owned, publicly open spaces. We start, though, with a brief conversation about art and sexism. Then (12:23), we turn to Sarah's paper. What are POPOS? How are they created? Are they parks on the cheap or amenities of private businesses? Whether it's Balinese chanting in a corporate atrium, places to fly kites, or a spot to meet a new friend, we all need our third places.
\n\nThis show’s links:
\n\nSpecial Guest: Sarah Schindler.
","summary":"On privately owned, public spaces, with Sarah Schindler.","date_published":"2017-12-03T13:45:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/82c37464-e5ca-444c-8439-0470d66fa62b.mp3","mime_type":"audio/mpeg","size_in_bytes":43440102,"duration_in_seconds":4223}]},{"id":"01894a40-71bf-4bae-8065-a0f65edc0ea1","title":"Episode 153: Shall Be Reduced","url":"https://oralargument.org/153","content_text":"Constitutional and election law expert Franita Tolson joins us to talk about a little-known section of one of the most well-known parts of the Constitution. The Fourteenth Amendment grants rights enforceable against states, not just against the federal government. And it gives Congress a role in enforcing those rights. But did you know that it also provides an apparently severe and mandatory remedy for abridgments by states of the right to vote? You will.\n\nThis show’s links:\n\n\nFranita Tolson's faculty profile and writing\nFranita Tolson, What is Abridgment?: A Critique of Two Section Twos\nLuther v. Borden (disclaiming power under the Constitution to identify which of two rival factions was the government of Rhode Island); see also Erwin Chemerinsky, Cases Under the Guarantee Clause Should Be Justiciable\nSharrow v. Brown at footnote 9, for an example of a court wrestling with the seemingly mandatory language of section two's reduction formula\nShelby County v. Holder\nSpecial Guest: Franita Tolson.","content_html":"Constitutional and election law expert Franita Tolson joins us to talk about a little-known section of one of the most well-known parts of the Constitution. The Fourteenth Amendment grants rights enforceable against states, not just against the federal government. And it gives Congress a role in enforcing those rights. But did you know that it also provides an apparently severe and mandatory remedy for abridgments by states of the right to vote? You will.
\n\nThis show’s links:
\n\nSpecial Guest: Franita Tolson.
","summary":"On section 2 of the 14th Amendment, with Franita Tolson.","date_published":"2017-11-19T09:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/01894a40-71bf-4bae-8065-a0f65edc0ea1.mp3","mime_type":"audio/mpeg","size_in_bytes":47980985,"duration_in_seconds":4677}]},{"id":"22b44775-d663-4151-94ec-1d3d238d9627","title":"Episode 152: Replication","url":"https://oralargument.org/152","content_text":"We talk with Greg Klass about the use of recent empirical studies to aid in the restatement of the law of consumer contracts - the one-sided, unread \"agreements\" that are ubiquitous in modern life. The conversation covers the purpose of restatements, the methodology of empirical legal scholarship, and more.\n\nThis show’s links:\n\n\nGreg Klass's faculty profile and writing\nGreg Klass, A Critical Assessment of the Empiricism in the Restatement of Consumer Contract Law\nOral Argument 133: Too Many Darn Radio Buttons (guest Jim Gibson)\nJohn Gruber, Apple to Release Software Update to Solve iOS 11 Issue When Typing the Letter \"I\"\nAbout the ALI's draft Restatement of Consumer Contracts\nOren Bar-Gill, Omri Ben-Shahar, and Florencia Marotta-Wurgler, Searching for the Common Law: The Quantitative Approach of the Restatement of Consumer Contracts\nFlorencia Marotta-Wurgler, Does Contract Disclosure Matter?; Yannis Bakos, Florencia Marotta-Wurgler, David Trossen, Does Anyone Read the Fine Print? Consumer Attention to Standard Form Contracts \nArthur Leff, Contract as Thing\nWilliam Baude, Adam Chilton, and Anup Malani, Making Doctrinal Work More Rigorous: Lessons from Systematic Reviews\nGregory Klass and Kathryn Zeiler, Against Endowment Theory: Experimental Economics and Legal Scholarship\nSpecial Guest: Greg Klass.","content_html":"We talk with Greg Klass about the use of recent empirical studies to aid in the restatement of the law of consumer contracts - the one-sided, unread "agreements" that are ubiquitous in modern life. The conversation covers the purpose of restatements, the methodology of empirical legal scholarship, and more.
\n\nThis show’s links:
\n\nSpecial Guest: Greg Klass.
","summary":"On empirics, Restatements, and consumer contracts, with Greg Klass.","date_published":"2017-11-12T12:15:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/22b44775-d663-4151-94ec-1d3d238d9627.mp3","mime_type":"audio/mpeg","size_in_bytes":58393910,"duration_in_seconds":5719}]},{"id":"d4278120-ea94-4925-9a57-d697650fadde","title":"Episode 151: Hungry Ghosts","url":"https://oralargument.org/151","content_text":"We talk with Dave Fagundes about sharing, abandoning, and property law's role in promoting happiness. Topics include the usual nonsense, notions of happiness, consumption and acquisition, charity, and home ownership.\n\nThis show’s links:\n\n\nDave Fagundes's faculty profile and writing\nDavid Fagundes, Why Less Property Is More: Inclusion, Dispossession, and Subjective Well-Being\nAbout Life Is Beautiful\nAbout Marie Kondo\nDavid Fagundes, Buying Happiness: Property, Acquisition, and Subjective Well-Being\nRoger Crisp's entry on Well-Being in the Stanford Encyclopedia of Philosophy (including discussions of Bentham's notion and preferentist accounts)\nAbout Mr. Burns, character from The Simpsons\nRebecca Solnit, The Loneliness of Donald Trump\nJuliet Schor and William Attwood-Charles, The Sharing Economy: Labor, Inequality and Sociability on For-Profit Platforms\nDavid Fagundes, The Social Norms of Waiting in Line\nOral Argument 150: Shutting Down Hal (guest Christina Mulligan); Christina Mulligan, Revenge Against Robots\nLior Strahilevitz, The Right to Abandon\nEduardo Peñalver, The Illusory Right to Abandon\nAaron Perzanowski and Jason Schultz, The End of Ownership\nJoshua Fairfield, Owned: Property, Privacy, and the New Digital Serfdom\nSpecial Guest: Dave Fagundes.","content_html":"We talk with Dave Fagundes about sharing, abandoning, and property law's role in promoting happiness. Topics include the usual nonsense, notions of happiness, consumption and acquisition, charity, and home ownership.
\n\nThis show’s links:
\n\nSpecial Guest: Dave Fagundes.
","summary":"On property and happiness, with David Fagundes.","date_published":"2017-11-05T08:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/d4278120-ea94-4925-9a57-d697650fadde.mp3","mime_type":"audio/mpeg","size_in_bytes":54502422,"duration_in_seconds":5329}]},{"id":"183613da-e16b-4956-934d-b4e5de19e7d7","title":"Episode 150: Shutting Down Hal","url":"https://oralargument.org/150","content_text":"We talk with Christina Mulligan about the salutary effects of smashing robots that have wronged you. Join us for a chat about revenge and satisfaction in the emerging human-robot social space.\n\nThis show’s links:\n\n\nChristina Mulligan's faculty profile and writing\nChristina Mulligan, Revenge Against Robots\nAbout Betty Smith's A Tree Grows in Brooklyn\nAbout the Tree that Owns Itself\nThe Trial of the Autun Rats\nOral Argument 70: No Drones in the Park\nScott Hershovitz, Tort as a Substitute for Revenge\nKate Darling, Palash Nandy, and Cynthia Breazeal, Empathic Concern and the Effect of Stories in Human-Robot Interaction; Kate Darling, \"Who's Johnny?\" Anthropomorphic Framing in Human-Robot Interaction, Integration, and Policy\nOffice Space, the printer scene (nsfw)\nHunter Walk, Amazon Echo Is Magical. It’s Also Turning My Kid into an Asshole.\nHannah Gold, This Mirror that Forces People to Smile Is Going to Piss Everyone Off\nSpecial Guest: Christina Mulligan.","content_html":"We talk with Christina Mulligan about the salutary effects of smashing robots that have wronged you. Join us for a chat about revenge and satisfaction in the emerging human-robot social space.
\n\nThis show’s links:
\n\nSpecial Guest: Christina Mulligan.
","summary":"On vengeance against robots, with Christina Mulligan.","date_published":"2017-10-29T10:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/183613da-e16b-4956-934d-b4e5de19e7d7.mp3","mime_type":"audio/mpeg","size_in_bytes":50401497,"duration_in_seconds":4919}]},{"id":"4f9daf9c-c6ef-470e-b1cd-3cddf6108f1d","title":"Episode 149: We've Been Given the Finger (Live at the Tech Law Institute)","url":"https://oralargument.org/149","content_text":"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!)\n\nThis show’s links:\n\n\nSCOTUSblog page on United States v. Microsoft (including links to the petitions for cert and the Second Circuit's panel opinion)\nPaul Schwartz, Legal Access to Cloud Information: Data Shards, Data Localization, and Data Trusts\nThe National Security Law Podcast 41: Han Shot First (featuring discussion of the United States v. Microsoft)\nJennifer Daskal, There's No Good Decision in the Next Big Data Privacy Case\nSCOTUSblog page on Carpenter v. United States\nOral Argument 42: Shotgun Aphasia (guest Orin Kerr) (discussing Orin Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment)\n","content_html":"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!)
\n\nThis show’s links:
\n\nWe talk with appellate lawyer Chris Landau who represented Puerto Rico in two cases before the Supreme Cost last term. We focus on one of them, in which Puerto Rican criminal convictions were challenged on double jeopardy grounds: that Puerto Rico could not prosecute the defendants because they had already been convicted in federal court on essentially the same charges. This in turn depends on whether Puerto Rico has the same separate sovereign status as the states, whether it itself is the source of its laws or whether the United States is always a silent but superior authority. At bottom this case raised questions about the very identity of this island nation. In the wake of a devastating hurricane and a controversial federal response, we talk about law and sovereign identity - in our usual fashion, going between theory, pragmatic litigation issues, and, in this case, a complicated and fascinating history.
\n\nThis show’s links:
\n\nSpecial Guest: Christopher Landau.
","summary":"On Puerto Rican sovereignty, with Chris Landau.","date_published":"2017-10-15T12:45:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/60c3efaf-0459-4fb3-b0dd-f4a53c6ad69d.mp3","mime_type":"audio/mpeg","size_in_bytes":63469521,"duration_in_seconds":6226}]},{"id":"92568ed3-d82a-4317-998b-46960c399510","title":"Episode 147: Busting Famine","url":"https://oralargument.org/147","content_text":"Just 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.\n\nThis show’s links:\n\n\nOral Argument 101: Tug of War\nRichard Posner, Reforming the Federal Judiciary\nSteven Lubet, Richard Posner, Unedited (Part One)\nZoran Tasic, Reforming Richard Posner\nOral 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)\nWINIR\nHow do you pronounce Utrecht?\nThe Perfect Cappuccino\nTwo Story's Last Day in Five Points (including a photo of Christian with the shop's last cap)\nChristian Turner, The Cost of Foregone Biergartens\nOral Argument 31: Knee Defender (and see episode 32, above, for more knee defender discussion)\nChristopher Buccafusco and Christopher Jon Sprigman, How to Resolve Fights over Reclining Airplane Seats: Use Behavioral Economics\n","content_html":"Just 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.
\n\nThis show’s links:
\n\nWith Charles Barzun, we discuss Justice Souter and the nature of legal justification. But we take the long way around to get there, starting with some of Souter’s opinions, moving on to philosophy – the nature of moral reasoning and its relation to fact and intuition – and then back to legal theory and Charles’s insight concerning Justice Souter’s jurisprudence.
\n\nThis show’s links:
\n\nSpecial Guest: Charles Barzun.
","summary":"On Justice Souter's legal reasoning, with Charles Barzun.","date_published":"2017-09-24T09:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/f626305a-655d-40f9-8309-0676ac5b6821.mp3","mime_type":"audio/mpeg","size_in_bytes":53139930,"duration_in_seconds":5193}]},{"id":"8390b986-b9ac-4b05-9f9f-db6823d13888","title":"Episode 145: The Skeleton","url":"https://oralargument.org/145","content_text":"Back after a long hiatus, we talk about Joe’s latest work on patent law and Supreme Court citations networks. Opening a banana, the opening of corpse flowers, the eclipse, news non-roundup, DACA and naming, and, finally, Joe’s paper, examining the steep increase in patent cases before the Supreme Court over the last two decades by mapping citation networks among intellectual property cases, at 20:02.\n\nThis show’s links:\n\n\nJoseph Miller, Which Supreme Court Cases Influenced Recent Supreme Court IP Decisions? A Citation Study\nHow to peel a banana\nThree Corpse Flowers Bloomed at USBG in 2017\nFred Espenak, Periodicity of Solar Eclipses\nAbout Predestination (which is based on All You Zombies by Robert Heinlein) (Warning: Do Not Read the Plot Summary, just see the movie)\nAbout Saturday morning cartoon preview specials\nAbout the Court of Appeals for the Federal Circuit\nCourt Listener’s Supreme Court Citation Networks tool\nScott Dodson and Colin Starger, Mapping Supreme Court Doctrine: Civil Pleading (Starger’s other papers on SSRN trace NFIB and Windsor)\n","content_html":"Back after a long hiatus, we talk about Joe’s latest work on patent law and Supreme Court citations networks. Opening a banana, the opening of corpse flowers, the eclipse, news non-roundup, DACA and naming, and, finally, Joe’s paper, examining the steep increase in patent cases before the Supreme Court over the last two decades by mapping citation networks among intellectual property cases, at 20:02.
\n\nThis show’s links:
\n\nWe ramble about various non-law things. Maybe this will become the first installment of our annual beach episode series, in which we casually let it all hang out and take a vacation from law. We'll be back in a couple of weeks with the usual nonsense, rather than this unusual nonsense.
","summary":"Just us in a weird episode about nothing in particular.","date_published":"2017-08-04T12:30:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/650bc7ce-9b2e-4f61-a787-6e3647ec2775.mp3","mime_type":"audio/mpeg","size_in_bytes":61937015,"duration_in_seconds":7591}]},{"id":"b0b74aee-e134-4cbf-9534-515d7eb60327","title":"Episode 143: The Gak","url":"https://oralargument.org/143","content_text":"More than the usual nonsense and sniffles as we try to empty the mailbag. Note: Because of a massive gap between time available and time required to edit out the gak, this episode contains many more than the average number of sniffles and echoes. We tried to fire the editor responsible but learned he was one of us, unpaid, and would either be able to release this episode as is or not at all. Religion and American policy (6:19), a chrono-completist suggests a show topic (10:51), on sex discrimination (14:08), incentives for creation (22:16), boilerplate and terms of service (27:04), antitrust and big data (28:50), boilerplate and the FyreFestival (36:59), boilerplate and arbitration and class actions and airline passengers (38:43), ye ole 1x vs. 2x debate and binge-watching/listening (45:35), Asher Steinberg on the major question exception to Chevron (51:21), self-promotion (52:30), “research” not equal to “to search again”(54:03), Grimmelman’s Property Course and IP and the bar exam (57:14), ethicists and the morality of expedited review (1:03:34), return to the place of the constitutional law course (1:06:22), the limited role of books on the web (1:11:47), cosplay (1:13:40), Joel’s article (1:14:22), the politicization of the U.S. Supreme Court and its appointments compared to other countries and more on the Crossover episode (1:15:01), argument in the monkey selfie case (1:23:15), Wonder Woman and Star Trek vs. Star Wars (1:25:06).\n\nThis show’s links:\n\n\nOral Argument 101: Tug of War (on gun violence)\nOral Argument 131: Because of Sex (guest Anthony Kreis on sex discrimination)\nOral Argument 28: A Wonderful Catastrophe (on Joe’s favorite case(s))\nOral Argument 132: The Soul of Music (guest Joe Fishman on copyright in music)\nNicholas Georgakopoulos, The Logic of Securities Law\nOral Argument 133: Too Many Darn Radio Buttons (guest Jim Gibson on boilerplate in contracts)\nHBO, Silicon Valley: Terms of Service; see also Nick Statt, HBO’s Silicon Valley Wades into a Heated Debate about Privacy Policies\nFrom The Economist, no byline: The World’s Most Valuable Resource Is No Longer Oil, but Data\nOral Argument 139: It’s All the Stacey Show (guest Stacey Dogan on competition law and IP)\nAbout the Fyre Festival\nJens David Ohlin, United Airlines’ Own Contract Denied It Any Right to Remove Passenger\nAsher Steinberg, Another Addition to the Chevron Anticanon: Judge Kavanaugh on the “Major Rules” Doctrine\nOral Argument 135: Alexandria (guest James Grimmelman on the Google Books settlement and other things)\nCrabbe's English Synonymes [sic], Centennial Edition (1917), at p. 228 (“re” as intensive)\nOral Argument 61: Minimum Competence (guest Derek Muller on the bar exam)\nOral Argument 96: Students as Means\nGeorge Bodarky, How New York’s Roosevelt Island Sucks Away Summer Trash Stink\nJoel Townsend, Adequacy of Risk Assessment in the Exercise of the Character Cancellation Power under the Migration Act 1958 (Cth) (abstract public, paper behind a paywall)\nOral Argument 134: Crossover (with the hosts of First Mondays)\nThe oral argument in Naruto v. Slater (the monkey selfie case at 1:46:00 in the video)\nOral Argument 141: The Picard Meltdown Principle (guest Leah Litman)\nOral Argument 142: Normativity (guest Jeffrey Kaplan)\n","content_html":"More than the usual nonsense and sniffles as we try to empty the mailbag. Note: Because of a massive gap between time available and time required to edit out the gak, this episode contains many more than the average number of sniffles and echoes. We tried to fire the editor responsible but learned he was one of us, unpaid, and would either be able to release this episode as is or not at all. Religion and American policy (6:19), a chrono-completist suggests a show topic (10:51), on sex discrimination (14:08), incentives for creation (22:16), boilerplate and terms of service (27:04), antitrust and big data (28:50), boilerplate and the FyreFestival (36:59), boilerplate and arbitration and class actions and airline passengers (38:43), ye ole 1x vs. 2x debate and binge-watching/listening (45:35), Asher Steinberg on the major question exception to Chevron (51:21), self-promotion (52:30), “research” not equal to “to search again”(54:03), Grimmelman’s Property Course and IP and the bar exam (57:14), ethicists and the morality of expedited review (1:03:34), return to the place of the constitutional law course (1:06:22), the limited role of books on the web (1:11:47), cosplay (1:13:40), Joel’s article (1:14:22), the politicization of the U.S. Supreme Court and its appointments compared to other countries and more on the Crossover episode (1:15:01), argument in the monkey selfie case (1:23:15), Wonder Woman and Star Trek vs. Star Wars (1:25:06).
\n\nThis show’s links:
\n\nJeffrey 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.
\n\nThis show’s links:
\n\nLeah 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.
\n\nThis show’s links:
\n\nSpecial Guest: Leah Litman.
","summary":"On anti-novelty arguments in constitutional law, with Leah Litman.","date_published":"2017-07-09T10:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/988778b9-ddf4-4483-8c99-01887c2d204b.mp3","mime_type":"audio/mpeg","size_in_bytes":49550488,"duration_in_seconds":4834}]},{"id":"1e18f775-e187-4b10-9e4f-5829af71f442","title":"Episode 140: Decider","url":"https://oralargument.org/140","content_text":"If the president does it, is it automatically legal? Of course not, but why not? How is the president constrained by law? Daphna Renan joins us to talk about the structures within the Executive Branch and the attitudes toward them that define what the legal constraints presidents create for themselves. From the post-Watergate efforts to create independent and legalistic sources of Marbury-like trumps on presidential prerogative to today’s chaos, Daphna explores the many design choices between formality and informality, centralization and diffusion, and independence and control. Also the normal nonsense.\n\nThis show’s links:\n\n\nDaphna Renan’s faculty profile and writing\nDaphna Renan, The Law Presidents Make\nAbout the Office of Legal Counsel, the White House Counsel, and the Solicitor General\nJeremy Waldron, Separation of Powers in Thought and Practice?\nJack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration\nSpecial Guest: Daphna Renan.","content_html":"If the president does it, is it automatically legal? Of course not, but why not? How is the president constrained by law? Daphna Renan joins us to talk about the structures within the Executive Branch and the attitudes toward them that define what the legal constraints presidents create for themselves. From the post-Watergate efforts to create independent and legalistic sources of Marbury-like trumps on presidential prerogative to today’s chaos, Daphna explores the many design choices between formality and informality, centralization and diffusion, and independence and control. Also the normal nonsense.
\n\nThis show’s links:
\n\nSpecial Guest: Daphna Renan.
","summary":"On presidential legal decisionmaking, with Daphna Renan.","date_published":"2017-07-02T10:30:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/1e18f775-e187-4b10-9e4f-5829af71f442.mp3","mime_type":"audio/mpeg","size_in_bytes":46076096,"duration_in_seconds":4487}]},{"id":"829213bb-b338-41b2-a409-05ba4710c046","title":"Episode 139: It’s All the Stacey Show","url":"https://oralargument.org/139","content_text":"IP expert Stacey Dogan joins us to discuss: the merits and demerits of trademark law, values and stock characters of IP, non-interference and design choice, antitrust and IP optimists and skeptics, BU’s new clinics and collaborations with MIT for law and innovation.\n\nThis show’s links:\n\n\nStacey Dogan’s faculty profile and writing\nBarton Beebe, Intellectual Property Law and the Sumptuary Code\nSmith v. Chanel\nStacey Dogan and Mark Lemley, Parody as Brand\nStacey Dogan, The Role of Design Choice in Intellectual Property and Antitrust Law\nINS v. AP, Berkey Photo v. Eastman Kodak, Sony Corp. v. Universal City Studios, and MGM v. Grokster\nAbout the Microsoft Antitrust Litigation\nKim Zetter, Federal Judge Throws out Gag Order Against Boston Students in Subway Case\nPeter Dizikes, New Legal Program to Support Students\nAbout the BU School of Law’s Entrepreneurship and Intellectual Property Clinic\nAnd about the school’s Technology and Cyberlaw Clinic\nSpecial Guest: Stacey Dogan.","content_html":"IP expert Stacey Dogan joins us to discuss: the merits and demerits of trademark law, values and stock characters of IP, non-interference and design choice, antitrust and IP optimists and skeptics, BU’s new clinics and collaborations with MIT for law and innovation.
\n\nThis show’s links:
\n\nSpecial Guest: Stacey Dogan.
","summary":"On trademark, IP characters, and clinics, with Stacey Dogan.","date_published":"2017-06-25T11:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/829213bb-b338-41b2-a409-05ba4710c046.mp3","mime_type":"audio/mpeg","size_in_bytes":38692923,"duration_in_seconds":3748}]},{"id":"c682e3e6-bb1e-4804-90ca-9daa89f13710","title":"Episode 138: Crackdowns","url":"https://oralargument.org/138","content_text":"CRACKDOWN TIME, with Mila Sohoni! Whatever the law says in the books, it is felt by all of us when it is enforced. How should we think about a sudden change in enforcement priorities that cracks down on some allegedly bad thing? Mila helps us to understand the many reasons agents might have to crack down. From sudden, strict, money-raising speed-limit enforcement to rounding up minorities. We discuss connection with interpretation and “islands of simple literalism,” the role of judges in holding and rhetoric. And speed traps return!\n\nThis show’s links:\n\n\nMila Sohoni’s faculty profile and writing\nMila Sohoni, Crackdowns\nBond v. United States and Yates v. United States\nJudge Reinhardt’s concurrence in Ortiz v. Sessions\nJed Rakoff, The Financial Crisis: Why Have No High-Level Executives Been Prosecuted?\nEnquist v. Oregon Department of Agriculture\nAbout the Devil’s Advocate\nZachary Price, Reliance on Nonenforcement (see also his Washington Post op-ed Could the Trump Administration Entrap Dreamers?)\nSpecial Guest: Mila Sohoni.","content_html":"CRACKDOWN TIME, with Mila Sohoni! Whatever the law says in the books, it is felt by all of us when it is enforced. How should we think about a sudden change in enforcement priorities that cracks down on some allegedly bad thing? Mila helps us to understand the many reasons agents might have to crack down. From sudden, strict, money-raising speed-limit enforcement to rounding up minorities. We discuss connection with interpretation and “islands of simple literalism,” the role of judges in holding and rhetoric. And speed traps return!
\n\nThis show’s links:
\n\nSpecial Guest: Mila Sohoni.
","summary":"On crackdowns, with Mila Sohoni.","date_published":"2017-06-14T17:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/c682e3e6-bb1e-4804-90ca-9daa89f13710.mp3","mime_type":"audio/mpeg","size_in_bytes":41772122,"duration_in_seconds":4056}]},{"id":"0a581892-7993-4abb-bc44-dcce2facbeb7","title":"Episode 137: Steve Vladeck Pincer Move","url":"https://oralargument.org/137","content_text":"Where 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. \n\nThis show’s links:\n\n\nSteve Vladeck’s faculty profile, academic writing, and blogging on Lawfare\nThe National Security Law Podcast and in particular episode 21: A Military Commissions Deep Dive\nSteve Vladeck, An Unconventional Test Case for Civilian Control of the Military\nSCOTUSblog page for Dalmazzi v. United States (containing links to the opinion below and all briefing)\nEdmond v. United States\nIn re Al-Nashiri\nSteve Vladeck, The Misbegotten Court of Military Commission Review\nChristian Turner, Submarine Statutes\nWilliam Eskridge and John Ferejohn, Super-Statutes\nKathleen McInnis, Statutory Restrictions on the Position of Secretary of Defense: Issues for Congress (an excellent and highly readable Congressional Research Service report on civilian control of the military and civil-military relations)\nSteve Vladeck, [Calling it] Treason Doth Never Prosper…\nDiane Mazur, A More Perfect Military\nSpecial Guest: Steve Vladeck.","content_html":"Where 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.
\n\nThis show’s links:
\n\nSpecial Guest: Steve Vladeck.
","summary":"On the civilian-military divide, with Steve Vladeck.","date_published":"2017-06-02T11:45:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/0a581892-7993-4abb-bc44-dcce2facbeb7.mp3","mime_type":"audio/mpeg","size_in_bytes":49151036,"duration_in_seconds":4794}]},{"id":"5f7a14c2-9485-4ea7-941b-dec4f863b505","title":"Episode 136: The Coase of Copyright","url":"https://oralargument.org/136","content_text":"With 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.\n\nThis show’s links:\n\n\nZahr Said’s faculty profile and writing\nZahr Said, A Transactional Theory of the Reader in Copyright Law\nJoseph Miller, Hoisting Originality\nAbout Louise Rosenblatt\nOral Argument 132: The Soul of Music (guest Joe Fishman)\nJoseph Fishman, Music as a Matter of Law\nMark A. Lemley, Our Bizarre System for Proving Copyright Infringement\nShyamkrishna Balganesh, The Normativity of Copying in Copyright Law\nLaura Heymann, Reading Together and Apart: Juries, Courts, and Substantial Similarity in Copyright Law\nJacob Lawrence, The Studio\nRebecca Tushnet, Worth a Thousand Words: The Images of Copyright Law\nAdrienne Rich, Turbulence\nThe Big Sick\nSpecial Guest: Zahr Said.","content_html":"With 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.
\n\nThis show’s links:
\n\nSpecial Guest: Zahr Said.
","summary":"On reading and meaning in copyright law, with Zahr Said.","date_published":"2017-05-26T12:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/5f7a14c2-9485-4ea7-941b-dec4f863b505.mp3","mime_type":"audio/mpeg","size_in_bytes":48074256,"duration_in_seconds":4687}]},{"id":"32e20d9f-aff8-47f4-9d7f-0de20b151575","title":"Episode 135: Alexandria","url":"https://oralargument.org/135","content_text":"Internet, technology, and property scholar James Grimmelmann joins us to discuss, among other things, the fight over the Google Books settlement, modern Libraries of Alexandria, and the nature of the legal academic mission.\n\nThis show’s links:\n\n\nJames Grimmelmann’s wesbite (containing links to his scholarship, courses, blog, and more)\nCornell Tech\nJames Somers, Torching the Modern-Day Library of Alexandria\nJames Grimmelmann, Future Conduct and the Limits of Class-Action Settlements\nFor many resources on the Google Books case and settlement, visit the site James and his students created: thepublicindex.org\nAuthors Guild v. Google; Authors Guild v. HathiTrust\nSony Corp. v. Universal Studios\nAbout A&M Records, Inc. v. Napster, Inc.\nVideo from the panel discussion at UC Berkeley’s April 2012 Orphan Works and Mass Digitization Conference\ndiybookscanner.org\nInternet Archive Books\nVernor Vinge, Rainbow’s End\nAbout shotgun sequencing, the DNA sequencing method used by Celera Genomics to sequence the human genome in 2000\nJames Grimmelmann, Scholars, Teachers, and Servants\nNew York Law School’s In re Books Conference\nSpecial Guest: James Grimmelmann.","content_html":"Internet, technology, and property scholar James Grimmelmann joins us to discuss, among other things, the fight over the Google Books settlement, modern Libraries of Alexandria, and the nature of the legal academic mission.
\n\nThis show’s links:
\n\nSpecial Guest: James Grimmelmann.
","summary":"On the Google Books settlement, with James Grimmelmann.","date_published":"2017-05-13T12:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/32e20d9f-aff8-47f4-9d7f-0de20b151575.mp3","mime_type":"audio/mpeg","size_in_bytes":48831251,"duration_in_seconds":4762}]},{"id":"f20f306c-5aeb-412a-87c2-f12da49b5c08","title":"Episode 134: Crossover","url":"https://oralargument.org/134","content_text":"It’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).\n\nThis show’s links:\n\n\nFirst Mondays\nDan Epps’ faculty profile and writing\nIan Samuel’s faculty profile and writing\nFeynman on mirrors\nRandall Munroe, The Goddamn Airplane on the Goddamn Treadmill\nRandall Munroe, xkcd: 28-Hour Day\nChristian Turner, Podcasts (and somehow this post about Streamers is still online)\nThe Bernie Sanders Show\nChris Guthrie and Tracey George, Remaking the United States Supreme Court in the Courts' of Appeals Image\nWhole Woman’s Health v. Hellerstedt; Planned Parenthood v. Casey\nNina Martin, The Supreme Court Decision That Made a Mess of Abortion Rights\nBarry Friedman, The Will of the People\nDaniel Epps and William Ortman, The Lottery Docket\nJohn Duffy, The Federal Circuit in the Shadow of the Solicitor General\nWashington Energy Co. v. United States\nOral Argument 28: A Wonderful Catastrophe (background for Joe’s Erie question)\nExpression Hair Design v. Schneiderman; Guido Calabresi, Federal and State Courts: Restoring a Workable Balance\nThe First Mondays Patreon page\nSpecial Guests: Dan Epps and Ian Samuel.","content_html":"It’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).
\n\nThis show’s links:
\n\nSpecial Guests: Dan Epps and Ian Samuel.
","summary":"On the Supreme Court, with Dan Epps and Ian Samuel.","date_published":"2017-05-06T09:30:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/f20f306c-5aeb-412a-87c2-f12da49b5c08.mp3","mime_type":"audio/mpeg","size_in_bytes":56508902,"duration_in_seconds":5530}]},{"id":"f567dedd-dfdb-4124-b53b-50c5176f729f","title":"Episode 133: Too Many Darn Radio Buttons","url":"https://oralargument.org/133","content_text":"By listening to this podcast YOU AGREE to arbitrate all disputes in Florida and to forego class actions and consequential damages. This week: Jim Gibson on boilerplate terms in contracts. What to do with contract terms that aren’t read? \n\nThis show’s links:\n\n\nJim Gibson’s faculty profile and writing\nJames Gibson, Boilerplate's False Dichotomy\nLucian Bebchuk and Richard Posner, One-Sided Contracts in Competitive Consumer Markets\nKarl Llewellyn, Review: The Standardization of Commercial Contracts in English and Continental Law by O. Prausnitz\nProCD v. Zeidenberg\nMargaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law\nBoilerplate: Foundations of Market Contracts, a Michigan Law Review symposium that includes writing by Omri Ben-Shahar, Margaret Jane Radin, Todd Rakoff, Henry Smith, and many others\nSpecial Guest: Jim Gibson.","content_html":"By listening to this podcast YOU AGREE to arbitrate all disputes in Florida and to forego class actions and consequential damages. This week: Jim Gibson on boilerplate terms in contracts. What to do with contract terms that aren’t read?
\n\nThis show’s links:
\n\nSpecial Guest: Jim Gibson.
","summary":"On boilerplate contracts, with Jim Gibson.","date_published":"2017-04-28T11:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/f567dedd-dfdb-4124-b53b-50c5176f729f.mp3","mime_type":"audio/mpeg","size_in_bytes":45856716,"duration_in_seconds":4465}]},{"id":"c866a11b-6bfa-4f65-8140-b5034534eab2","title":"Episode 132: The Soul of Music","url":"https://oralargument.org/132","content_text":"What 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?\n\nThis show’s links:\n\n\nJoseph Fishman’s faculty profile and writing\nJoseph Fishman, Music as a Matter of Law\nAbout Alban Berg (unsurprising that Joe takes a strident and wrong position against both Christian and guest Joe (writing the show notes has fringe benefits))\nLisa Bernstein, Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry\nJustice Nelson’s opinions: Hotchkiss v. Greenwood and Jollie v. Jacques\nAbout “rhythm changes” in jazz\nJoseph Miller, Hoisting Originality\nAndres Guadamuz, Is It Time to Examine the Concept of Originality in Musical Works? (discussing cases like the “Blurred Lines” case, Williams v. Gaye (now before the Ninth Circuit), as illuminated by Emma Steel, Original Sin: Reconciling Originality in Copyright with Music as an Evolutionary Art Form (unavailable thanks to copyright law))\nSong Exploder (and the episode on the Moonlight soundtrack)\nSpecial Guest: Joseph Fishman.","content_html":"What 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?
\n\nThis show’s links:
\n\nSpecial Guest: Joseph Fishman.
","summary":"On copyright in music, with Joe Fishman.","date_published":"2017-04-21T11:15:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/c866a11b-6bfa-4f65-8140-b5034534eab2.mp3","mime_type":"audio/mpeg","size_in_bytes":43153577,"duration_in_seconds":4195}]},{"id":"2c8a7da3-4d11-478a-8b6f-3c0bca01d546","title":"Episode 131: Because of Sex","url":"https://oralargument.org/131","content_text":"Friend of the show and treasured guest Anthony Kreis returns to talk about important recent developments in legal protection of gay rights. We discuss the recent spate of appellate decisions finding discrimination against gay employees violates the Civil Rights Act, including a remarkable concurrence by Judge Posner. The interesting issue, though, is why.\n\nThis show’s links:\n\n\nAnthony Kreis’s faculty profile, his writing, and his twitter feed\nOral Argument 36: Firehose of Equality (Anthony’s last, historic guest appearance on the show)\nAnthony Kreis, Against Gay Potemkin Villages: Title VII and Sexual Orientation Discrimination\nSeventh Circuit, Hively v. Ivy Tech Community College (includes the concurrence of Judge Posner that occupies much of our discussion)\nSecond Circuit, Anonymous v. Omnicom Group\nEleventh Circuit, Evans v. Georgia Regional Hospital\nWilliam Eskridge and John Ferejohn, Super-Statutes\nSpecial Guest: Anthony Kreis.","content_html":"Friend of the show and treasured guest Anthony Kreis returns to talk about important recent developments in legal protection of gay rights. We discuss the recent spate of appellate decisions finding discrimination against gay employees violates the Civil Rights Act, including a remarkable concurrence by Judge Posner. The interesting issue, though, is why.
\n\nThis show’s links:
\n\nSpecial Guest: Anthony Kreis.
","summary":"On sexual orientation discrimination, with Anthony Kreis.","date_published":"2017-04-14T12:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/2c8a7da3-4d11-478a-8b6f-3c0bca01d546.mp3","mime_type":"audio/mpeg","size_in_bytes":47338162,"duration_in_seconds":4613}]},{"id":"4b8a01d9-f2fa-4de5-9488-31229dc301b5","title":"Episode 130: Simian Mentation","url":"https://oralargument.org/130","content_text":"Joe 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.\n\nThis show’s links:\n\n\nJessica Bulman-Pozen, Partisan Federalism; Jessica Bulman-Pozen, Unbundling Federalism: Colorado's Legalization of Marijuana and Federalism's Many Forms\nChristian Turner, Submarine Statutes\nHarlan F. Stone, The Common Law in the United States\nMarty Lederman, Why the Strikes Against Syria Probably Violate the U.N. Charter and (Therefore) the U.S. Constitution; Harold Koh, Not Illegal: But Now The Hard Part Begins; Marty Lederman, My Discrete but Important Disagreement with Harold Koh on the Lawfulness of the Strikes on Syria\n","content_html":"Joe 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.
\n\nThis show’s links:
\n\nWe dig into the mailbag and discuss legal foundations, grammar, the Establishment Clause, LaTex, OralArgCon, and Submarine Statutes, and more. No show notes this week.
","summary":"Into the mailbag.","date_published":"2017-03-31T12:15:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/3004412c-ce91-4b78-9d4e-899ce80fab2e.mp3","mime_type":"audio/mpeg","size_in_bytes":38980105,"duration_in_seconds":4722}]},{"id":"f7003650-ff58-4f04-a435-5953cd7b382f","title":"Episode 128: Federalism-palooza","url":"https://oralargument.org/128","content_text":"We talk with federalism scholar Jessica Bulman-Pozen about how things get done in an age of partisan polarization. Executive federalism, the negotiated implementation of policy between the executive branch and states, not only leads to state-differentiated refractions of national policy, but, Jessica argues, is the right form of governance in gridlocked times.\n\nThis show’s links:\n\n\nJessica Bulman-Pozen’s faculty profile and writing\nJessica Bulman-Pozen, Unbundling Federalism: Colorado's Legalization of Marijuana and Federalism's Many Forms\nErnest A. Young, Modern-Day Nullification: Marijuana and the Persistence of Federalism in an Age of Overlapping Regulatory Jurisdiction\nJessica Bulman-Pozen, Executive Federalism Comes to America\nJames M. Cole, DOJ Memorandum Guidance Regarding Marijuana Enforcement\nSpecial Guest: Jessica Bulman-Pozen.","content_html":"We talk with federalism scholar Jessica Bulman-Pozen about how things get done in an age of partisan polarization. Executive federalism, the negotiated implementation of policy between the executive branch and states, not only leads to state-differentiated refractions of national policy, but, Jessica argues, is the right form of governance in gridlocked times.
\n\nThis show’s links:
\n\nSpecial Guest: Jessica Bulman-Pozen.
","summary":"On polarization and executive federalism, with Jessica Bulman-Pozen.","date_published":"2017-03-17T11:15:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/f7003650-ff58-4f04-a435-5953cd7b382f.mp3","mime_type":"audio/mpeg","size_in_bytes":44915039,"duration_in_seconds":4371}]},{"id":"1466af8d-ecde-4caa-871b-b2b6ff09b11c","title":"Episode 127: I Own My Fist","url":"https://oralargument.org/127","content_text":"When 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.\n\nThis show’s links:\n\n\nChristopher Newman’s faculty profile and writing\nChristopher Newman, Vested Use-Privileges in Property and Copyright\nWesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning\nChristian Turner, Legal Theory 101, Reading 3: Hohfeld\nTom Bell and Chris Newman discussing Bell’s book, Intellectual Privilege\nTahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency\nLucas v. South Carolina Coastal Council\nEric Claeys, Labor, Exclusion, and Flourishing in Property Law\nFolsom v. Marsh and Sony Corp. v. Universal City Studios\nChristopher Newman, An Exclusive License Is Not an Assignment: Disentangling Divisibility and Transferability of Ownership in Copyright\nSpecial Guest: Christopher Newman.","content_html":"When 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.
\n\nThis show’s links:
\n\nSpecial Guest: Christopher Newman.
","summary":"On property and copyright, with Christopher Newman.","date_published":"2017-02-24T11:30:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/1466af8d-ecde-4caa-871b-b2b6ff09b11c.mp3","mime_type":"audio/mpeg","size_in_bytes":46917211,"duration_in_seconds":4571}]},{"id":"6a121d20-716e-4bef-9d68-8c383d6033e8","title":"Episode 126: Permanently Banned","url":"https://oralargument.org/126","content_text":"We continue our discussion of the rights of non-citizens, this time with immigration scholar and award-winning fiddle player Jason Cade. We discuss Jason’s latest research into the judicial and administrative responses to of deportation. (Note that we recorded this a few hours before the 9th Circuit released its decision in Washington v. Trump.)\n\nThis show’s links:\n\n\nJason Cade’s faculty profile and writing\nJason Cade, Judging Immigration Equity: Deportation and Proportionality in the Supreme Court\nAbout IIRIRA (the Illegal Immigration Reform and Immigrant Responsibility Act of 1996)\nAbout AEDPA (the Antiterrorism and Effective Death Penalty Act of 1996)\nJames Fallows, Washington and the Contract with America\nThe White House’s summary of the Constitution and Bill of Rights\nYamataya v. Fisher (The Japanese Immigrant Case)\nArizona v. United States\nFifth Circuit, Texas v. United States\nPadilla v. Kentucky\nFernanda Santos, She Showed Up Yearly to Meet Immigration Agents. Now They’ve Deported Her.\nMichael Wishnie, Immigration Law and the Proportionality Requirement\nOral Argument 125: The Elephant\nWashington v. Trump (released a few hours after this recording)\nHog-eyed Man\nSpecial Guest: Jason Cade.","content_html":"We continue our discussion of the rights of non-citizens, this time with immigration scholar and award-winning fiddle player Jason Cade. We discuss Jason’s latest research into the judicial and administrative responses to of deportation. (Note that we recorded this a few hours before the 9th Circuit released its decision in Washington v. Trump.)
\n\nThis show’s links:
\n\nSpecial Guest: Jason Cade.
","summary":"On immigration law, with Jason Cade.","date_published":"2017-02-10T12:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/6a121d20-716e-4bef-9d68-8c383d6033e8.mp3","mime_type":"audio/mpeg","size_in_bytes":45941474,"duration_in_seconds":4473}]},{"id":"3c3a089e-080b-43e4-a6e0-805cc84b1bd7","title":"Episode 125: The Elephant","url":"https://oralargument.org/125","content_text":"Steve Vladeck returns to the show to talk with us about Due Process and immigration, Trump’s Executive Order on Muslim immigration, and the role of courts in war and quasi-war.\n\nThis show’s links:\n\n\nSteve Vladeck’s faculty profile and writing\nThe National Security Law Podcast\nSteve Vladeck, The Supreme Court, the Trump Transition, and the Future of the Constitutional “Border” (a concise overview of the Supreme Court cases under discussion, also contains links to SCOTUSblog pages where you can find briefs)\nThe Immigration Executive Order with annotations by NPR reporters\nSteve Vladeck, The Airport Cases: What Happened, and What’s Next?\nBenjamin Wittes, Malevolence Tempered by Incompetence: Trump’s Horrifying Executive Order on Refugees and Visas\nACLU’s compendium of documents in Loughalam v. Trump (the Boston case)\nTuaua v. United States\nBoumediene v. Bush\nStephen Vladeck, The Suspension Clause as a Structural Right\nThe Obama White House Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations; see also commentary from Marty Lederman\nAl-Aulaqi v. Obama (against the targeting) and Al-Aulaqi v. Panetta (Bivens claim)\nIn re Territo\nLebron v. Rumsfeld (Wilkinson) and Al Shimari v. CACI Premier Tech. (the Abu Ghraib case)\nUnited States v. Verdugo-Urquidez\nDavid Frum, How to Build an Autocracy\nSpecial Guest: Steve Vladeck.","content_html":"Steve Vladeck returns to the show to talk with us about Due Process and immigration, Trump’s Executive Order on Muslim immigration, and the role of courts in war and quasi-war.
\n\nThis show’s links:
\n\nSpecial Guest: Steve Vladeck.
","summary":"On the rights of non-citizens, with Steve Vladeck.","date_published":"2017-02-03T11:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/3c3a089e-080b-43e4-a6e0-805cc84b1bd7.mp3","mime_type":"audio/mpeg","size_in_bytes":42658937,"duration_in_seconds":4145}]},{"id":"59fbc9a9-9678-45f5-8b96-0fd273a3ff4e","title":"Episode 124: Sung Hero","url":"https://oralargument.org/124","content_text":"Just 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!","content_html":"Just 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!
","summary":"Topics of the day and mailbag.","date_published":"2017-01-28T20:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/59fbc9a9-9678-45f5-8b96-0fd273a3ff4e.mp3","mime_type":"audio/mpeg","size_in_bytes":40422229,"duration_in_seconds":4902}]},{"id":"f034c9cf-03db-47dd-9178-9163d8f00067","title":"Episode 123: Cruising Altitude","url":"https://oralargument.org/123","content_text":"Mike Madison is back to talk with us about knowledge commons, institutions, open-source software, citizen science, and the the basic problem of understanding how we cooperate.\n\nThis show’s links:\n\n\nMike Madison’s website, writing, and blog\nOral Argument 90: We Are a Nation of Time-Shifters?\nMichael Madison, Information Abundance and Knowledge Commons\nAbout the institutional analysis and development framework\nElinor Ostrom, The Institutional Analysis and Development Framework and the Commons\nGoverning Knowledge Commons (Brett Frischmann, Michael Madison, and Katherine Strandburg, eds.)\nThe Knowlege Commons Research Framework\nWorkshop on Governing the Knowledge Commons\nChristine Borgman, Big Data, Little Data, No Data\nMatthys Levy, Why Buildings Fall Down: How Structures Fail\nSpecial Guest: Mike Madison.","content_html":"Mike Madison is back to talk with us about knowledge commons, institutions, open-source software, citizen science, and the the basic problem of understanding how we cooperate.
\n\nThis show’s links:
\n\nSpecial Guest: Mike Madison.
","summary":"On governing knowledge commons, with Mike Madison.","date_published":"2017-01-13T14:45:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/f034c9cf-03db-47dd-9178-9163d8f00067.mp3","mime_type":"audio/mpeg","size_in_bytes":37790663,"duration_in_seconds":4573}]},{"id":"a89ca2f2-ea69-4e7e-b902-891dc1d68797","title":"Episode 122: Choose Your Own Adventure","url":"https://oralargument.org/122","content_text":"Jeremy Sheff joins us to discuss a successful project to create a free and open Property Law casebook. Students of the world unite! You have only your restrictive licenses to lose. (Jeremy worked on this project with the incomparable Stephen Clowney, James Grimmelmann, Michael Grynberg, and Rebecca Tushnet.)\n\nThis show’s links:\n\n\nJeremy Sheff’s faculty profile, website, and writing\nOpen Source Property: A Free Casebook\nOral Argument 20: Twelve Billion Dollars (the one about casebooks)\nSpecial Guest: Jeremy Sheff.","content_html":"Jeremy Sheff joins us to discuss a successful project to create a free and open Property Law casebook. Students of the world unite! You have only your restrictive licenses to lose. (Jeremy worked on this project with the incomparable Stephen Clowney, James Grimmelmann, Michael Grynberg, and Rebecca Tushnet.)
\n\nThis show’s links:
\n\nSpecial Guest: Jeremy Sheff.
","summary":"On open-source casebooks, with Jeremy Sheff.","date_published":"2016-12-30T13:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/a89ca2f2-ea69-4e7e-b902-891dc1d68797.mp3","mime_type":"audio/mpeg","size_in_bytes":33317056,"duration_in_seconds":4014}]},{"id":"68939530-8a0f-4d9b-943a-3bcddc3f0971","title":"Episode 121: 90,000 Local Governments","url":"https://oralargument.org/121","content_text":"Home for the holidays, back in Oral Argument World Headquarters, with property, land use, and local government law scholar Nestor Davidson. We discuss the fascinating, important, and under-theorized world of the thousands of local “administrative states” that shape our everyday lives.\n\nThis show’s links:\n\n\nNestor Davidson’s faculty profile and writing\nOral Argument 23: Rex Sunstein (guest Ethan Leib) (discussing Nestor Davidson and Ethan Leib, Regleprudence – at OIRA and Beyond) \nNestor Davidson, Localist Administrative Law\nN.Y. Statewide Coalition of Hispanic Chambers of Commerce v. N.Y.C. Dep’t of Health & Mental Hygiene\nKosalka v. Town of Georgetown\nAaron Saiger, Local Government as a Choice of Agency Forum\nCarol Rose, Planning and Dealing: Piecemeal Land Controls as a Problem of Local Legitimacy\nSpecial Guest: Nestor Davidson.","content_html":"Home for the holidays, back in Oral Argument World Headquarters, with property, land use, and local government law scholar Nestor Davidson. We discuss the fascinating, important, and under-theorized world of the thousands of local “administrative states” that shape our everyday lives.
\n\nThis show’s links:
\n\nSpecial Guest: Nestor Davidson.
","summary":"On the local administrative state, with Nestor Davidson.","date_published":"2016-12-23T12:30:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/68939530-8a0f-4d9b-943a-3bcddc3f0971.mp3","mime_type":"audio/mpeg","size_in_bytes":35256676,"duration_in_seconds":3405}]},{"id":"d3852a41-ad2f-4a58-9a6a-90e8d3a655ce","title":"Episode 120: Unbound","url":"https://oralargument.org/120","content_text":"In our remote recording location and with returning election-law expert Lori Ringhand, we talk about the election. The electoral college, the moral and legal roles of electors, disputed elections in the House, crises, civil wars. Oh my. (Back in OA World Headquarters for next week’s show.)\n\nThis show’s links:\n\n\nLori Ringhand’s faculty profile and writing\nThe Twelfth Amendment to the U.S. Constitution (including a link to some superseding language of the Twentieth Amendment)\nAlexander Hamilton, Federalist No. 68\nRick Hasen’s link to California’s brief against unbinding California’s Electors\nGeoffrey Stone, Electors Against Trump Are Faithful Not Faithless\nLawrence Lessig, The Constitution lets the electoral college choose the winner. They should choose Clinton.; Orin Kerr, The Electoral College Shouldn’t Choose Clinton: A Response to Lessig; Lawrence Lessig, A Response to Professor Kerr; Orin Kerr, A Reply to Professor Lessig on the Electoral College\nRick Hasen, Lessig Urges Faithless Electors Vote for Clinton, Pointing to Popular Vote in a Contest Not Based on Popular Vote; Lawrence Lessig, Rick Hasen: “But Not to Ignore It…”: What Is “It”?; Mike Parsons, On “Hamilton Electors” and the Lessig/Hasen Debate\nLawrence Lessig, The Equal Protection Argument Against “Winner Take All” in the Electoral College; Lawrence Lessig, On the Equal Protect Clause Argument and the National Popular Vote Project\nDahlia Lithwick and David Cohen, Buck Up, Democrats, and Fight Like Republicans\nDavid Corn, A Veteran Spy Has Given the FBI Information Alleging a Russian Operation to Cultivate Donald Trump\nJohn Broich, How US Journalists Normalized the Rise of Hitler and Mussolini (citing Dorothy Thompson’s 1935 observation: “No people ever recognize their dictator in advance.”)\nSpecial Guest: Lori Ringhand.","content_html":"In our remote recording location and with returning election-law expert Lori Ringhand, we talk about the election. The electoral college, the moral and legal roles of electors, disputed elections in the House, crises, civil wars. Oh my. (Back in OA World Headquarters for next week’s show.)
\n\nThis show’s links:
\n\nSpecial Guest: Lori Ringhand.
","summary":"On the Electors, with Lori Ringhand.","date_published":"2016-12-16T15:30:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/d3852a41-ad2f-4a58-9a6a-90e8d3a655ce.mp3","mime_type":"audio/mpeg","size_in_bytes":52154179,"duration_in_seconds":5095}]},{"id":"1a57ae55-9dd2-4a11-94fd-cb332f8a5a74","title":"Episode 119: Consistently Inconsistent","url":"https://oralargument.org/119","content_text":"In an alternate studio, with alternate equipment and chairs, striving to get back in the groove, blowing out the rust, we make our return to the interweb-waves. (Please forgive some of the audio dips and quiet portions.) No particular agenda, but we wind up responding to some long-ago feedback about the stagecraft of judicial proceedings.\n\nThis show’s links:\n\n\nFirst Mondays\nOral Argument 79: He Said It Peabody Well\nThe Supreme Court of the UK\nJay Wexler’s SCOTUS Humor\nOral Argument 31: Knee Defender\nPlato, The Republic and, yep, r/plato\nTexas v. Johnson\n","content_html":"In an alternate studio, with alternate equipment and chairs, striving to get back in the groove, blowing out the rust, we make our return to the interweb-waves. (Please forgive some of the audio dips and quiet portions.) No particular agenda, but we wind up responding to some long-ago feedback about the stagecraft of judicial proceedings.
\n\nThis show’s links:
\n\nAnd now for something completely different. Not being up to talking again about current events, we have a great chat with David Ziff, who has bravely and beautifully written in defense of the Bluebook. Once again, we do battle over legal citation.
\n\nThis show’s links:
\n\nSpecial Guest: David Ziff.
","summary":"David Ziff defends the Bluebook.","date_published":"2016-11-19T12:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/dcb1e3cd-4923-4024-9b78-f6690a9c9447.mp3","mime_type":"audio/mpeg","size_in_bytes":41491030,"duration_in_seconds":4028}]},{"id":"27cae304-c97a-4c76-92fa-8daf27ad2e8e","title":"Episode 117: Coarsening","url":"https://oralargument.org/117","content_text":"The election. And then viewer mail on media for scholarship and ideas, suspense and emotional salience in judicial opinions, and a little more.\n\nThis show’s links:\n\n\nOral Argument 106: Legal Asteroid\nRobert Bolt, A Man for All Seasons\nDavid Souter on the Danger of America’s “pervasive civic ignorance” (video)\nOral Argument 105: Bismarck’s Raw Material (guest Tim Meyer)\nOral Argument 112: Quasi-Narrative (guest Simon Stern)\nPopov v. Hayashi\nOyez page for NFIB v. Sebelius (select Opinion Announcement, part 1, for the relevant portion of the hand-down)\nOral Argument 113: The Entrails of Fowl (guest Charles Barzun)\nPaul Horwitz, On “The Troublesome Use of Photographs . . . and Other Images” in Federal Court Opinions\nBlackmun’s dissent in DeShaney v. Winnebago County Department of Social Services\nJamal Greene, Pathetic Arguments in Constitutional Law\nThe Oral Argument Index\nDavid Ziff, The Worst System of Citation Except for All the Others\n","content_html":"The election. And then viewer mail on media for scholarship and ideas, suspense and emotional salience in judicial opinions, and a little more.
\n\nThis show’s links:
\n\nWe’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.
\n\nThis show’s links:
\n\nSpecial Guest: William Baude.
","summary":"On originalism, with Will Baude.","date_published":"2016-11-04T11:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/1aee15a1-3e15-44ce-b2e6-44666505c2b5.mp3","mime_type":"audio/mpeg","size_in_bytes":48404623,"duration_in_seconds":4720}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:5812c577ebbd1a7bb49f85ef","title":"Episode 115: Gonna Work? (Live at the Tech Law Institute)","url":"https://oralargument.org/115","content_text":"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.\n\nThis show’s links:\n\n\nOral Argument 80: We’ll Do It LIVE!\nNHTSA, Federal Automated Vehicles Policy\nRAND, Autonomous Vehicle Technology: A Guide for Policymakers\nDuncan Black, some posts on self-driving cars: Not Gonna Work, No One Will Listen to Me, Spot the Key Phrase, \"the revolutionary transportation technology”….\nChris Martin and Joe Ryan, Super-Cheap Driverless Cabs to Kick Mass Transit to the Curb\nTesla, All Tesla Cars Being Produced Now Have Full Self-Driving Hardware (announcement includes a vide demonstration)\nAbout Tesla’s Autopilot feature (also Tesla’s page on Autopilot)\nAlex Davies, Everyone Wants a Level 5 Self-Driving Car – Here’s What That Means\nOral Argument 102: Precautionary Federalism (guest Sarah Light)\nMichael Dorf, Should Self-Driving Cars Be Mandatory?\nOral Argument 41: Sense-Think-Act (guest Ryan Calo)\nOral Argument 70: No Drones in the Park (guest Frank Pasquale)\nAbout trolley problems\nMegan Barber, Who Should Driverless Cars Save: Pedestrians or Passengers?\nFrank Pasquale, Get off the Trolley Problem\nJules Coleman and William Holahan, Review of Guido Calabresi and Philip Bobbitt’s Tragic Choices\n","content_html":"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.
\n\nThis show’s links:
\n\nCausation 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.
\n\nThis show’s links:
\n\nSpecial Guest: Shahar Dillbary.
","summary":"Torts and causation, with Shahar Dillbary","date_published":"2016-10-20T14:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/5b4a2c06-2306-4aab-a3db-407f7564eb47.mp3","mime_type":"audio/mpeg","size_in_bytes":34305372,"duration_in_seconds":4137}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:57efd25120099ef24d1a37d5","title":"Episode 113: The Entrails of Fowl","url":"https://oralargument.org/113","content_text":"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.\n\nThis show’s links:\n\n\nCharles Barzun’s faculty profile and writing\nCharles Barzun, The Positive U-Turn\nWilliam Baude and Stephen Sachs, The Law of Interpretation\nWilliam Baude, Is Originalism Our Law?\nOral Argument 98: T3 Jedi (guests Jeremy Kessler and David Pozen)\nScott Shapiro, Legality (Amazon and Google Books)\nBrown v. Board of Education; Jack Balkin and Bruce Ackerman (eds.), What Brown v. Board of Education Should Have Said\nCharles Barzun, Inside/Out: Beyond the Internal/External Distinction in Legal Scholarship\nOral Argument 77: Jackasses Are People Too (guest Adam Kolber)\nSpecial Guest: Charles Barzun.","content_html":"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.
\n\nThis show’s links:
\n\nSpecial Guest: Charles Barzun.
","summary":"About positivism and originalism, with Charles Barzun.","date_published":"2016-10-01T11:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/c64a4912-980c-45b2-9747-df6353b958bc.mp3","mime_type":"audio/mpeg","size_in_bytes":42427193,"duration_in_seconds":5153}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:57e580cc15d5dbc132442cce","title":"Episode 112: Quasi-Narrative","url":"https://oralargument.org/112","content_text":"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.\n\nThis show’s links:\n\n\nSimon Stern’s faculty profile and writing\nSimon Stern, Narrative in the Legal Text: Judicial Opinions and Their Narratives\nWilliam Blackstone, Commentaries on the Laws of England, Book II: Of the Rights of Thing (Simon Stern, ed.); Simon’s introduction to the volume\nWilliam Brewer and Edward Lichtenstein, Event Schemas, Story Schemas, and Story Grammars\nAbout the Paradox of Suspense\nJonathan 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\nCircles Disturbed: The Interplay of Mathematics and Narrative (Apostolos Doxiadis and Barry Mazur, eds.) (Introduction to the book)\nMitchel Lasser, The European Pasteurization of French Law\nOwen Barfield, This Ever Diverse Pair\nWikipedia on epistolary novels\nJulie Schumacher, Dear Committee Members\nOral Argument 48: Legal Truth (guest Lisa Kern Griffin)\nSpecial Guest: Simon Stern.","content_html":"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.
\n\nThis show’s links:
\n\nSpecial Guest: Simon Stern.
","summary":"On narrative in law, with Simon Stern.","date_published":"2016-09-23T15:30:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/c3612b67-be0b-4cf3-9718-9d1ebc053268.mp3","mime_type":"audio/mpeg","size_in_bytes":36053482,"duration_in_seconds":4356}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:57dc42ee03596e8da9fee58d","title":"Episode 111: A Random Walk","url":"https://oralargument.org/111","content_text":"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.\n\nThis show’s links:\n\n\nInfo about the Technology Law Institute seminar at which we will record an episode in front of a live studio audience \nMichael 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”\nChristian Turner, Perceiving Law (ssrn or socarxiv)\nJoseph Miller, A Modest Proposal for Expediting Manuscript Selection at Less Prestigious Law Reviews (ssrn or digital commons)\n","content_html":"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.
\n\nThis show’s links:
\n\nAfter 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.
\n\nThis show’s links:
\n\nSpecial Guest: Emily Sherwin.
","summary":"On the vitality of law and equity, with Emily Sherwin.","date_published":"2016-09-02T12:30:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/4438d53e-d528-4d4a-96cb-0f7128a96ea3.mp3","mime_type":"audio/mpeg","size_in_bytes":31088141,"duration_in_seconds":3735}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:57c064d4e3df28de7498852d","title":"Episode 109: A Common Law for the Age of Regulation","url":"https://oralargument.org/109","content_text":"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.\n\nThis show’s links:\n\n\nCathy Sharkey’s faculty profile and writing\nCatherine Sharkey, The Administrative State and the Common Law: Regulatory Substitutes or Complements?\nSpecial Guest: Catherine Sharkey.","content_html":"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.
\n\nThis show’s links:
\n\nSpecial Guest: Catherine Sharkey.
","summary":"On administrative law, with Cathy Sharkey.","date_published":"2016-08-26T11:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/adfadba3-5f27-4b16-bd3d-cc2f9914da4d.mp3","mime_type":"audio/mpeg","size_in_bytes":43018617,"duration_in_seconds":5227}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:57b8550bb8a79bd395c3d171","title":"Episode 108: University, Court, and Slave","url":"https://oralargument.org/108","content_text":"Al Brophy returns to discuss, among other things, his new book on the connections between slavery, the academy, legal theory, and the judiciary.\n\nThis show’s links:\n\n\nAl Brophy’s faculty profile and writing\nAlfred Brophy, University, Court, and Slave: Pro-Slavery Thought in Southern Colleges and Courts and the Coming of Civil War; see also Al’s blog post about the book and Google books page where you can browse a bit\nOral Argument 76: Brutality (guest Al Brophy)\nBrooks Barnes and Cara Buckley, ‘The Birth of a Nation,’ Nate Parker’s Heralded Film, Is Now Cloaked in Controversy\nBirth of a Nation (2016) trailer\nState v. Mann\nSally Green, State v. Mann Exhumed\nAbout Thomas R.R. Cobb\nThomas Cobb, An Inquiry into the Law of Negro Slavery in the United States of America\nDaniel Victor, Bill O’Reilly Defends Comments About ‘Well Fed’ Slaves\nSarah Roth, Gender and Race in Antebellum Popular Culture (browse here on Google Books); see also Al’s blog post\nSlavery’s Capitalism (Sven Beckert and Seth Rockman, eds.); see also Al’s blog post about the book and containing links)\nState v. Negro Will, Slave of James S. Battle\nSpecial Guest: Al Brophy.","content_html":"Al Brophy returns to discuss, among other things, his new book on the connections between slavery, the academy, legal theory, and the judiciary.
\n\nThis show’s links:
\n\nSpecial Guest: Al Brophy.
","summary":"Al Brophy on slavery and the legal academy.","date_published":"2016-08-20T09:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/8540ad77-fead-4aeb-85f7-70eafa8fd56a.mp3","mime_type":"audio/mpeg","size_in_bytes":43841352,"duration_in_seconds":5329}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:57ae6270d482e9e1c4c227fe","title":"Episode 107: Unleash the Joe","url":"https://oralargument.org/107","content_text":"A special live-to-tape dig through the mailbag.\n\nThis show’s links:\n\n\nChristian’s Modern American Legal Theory audio downloads (paste this into your podcast app: http://www.hydratext.com/malt2016?format=rss)\nEpisodes relevant to driverless cars: No Drones in the Park (guest Frank Pasquale and Sense-Think-Act (guest Ryan Calo)\nJonathan Masur’s episode: All over the Gander\nSustainAtlanta\nOral Argument 74: Minimum Curiosity (guest Amanda Frost)\nMore Perfect (a side project of Radiolab)\nOral Argument 77: Jackasses Are People Too (guest Adama Kolber)\nOral Argument 44: Serial\nSarah Koenig, Judge Orderns New Trial for Adnan Syed (containing a link and embedded version of the opinion and order granting Syed a new trial)\nOral Argument 69: Contaminated Evidence (guest Brandon Garrett); Oral Argument 48: Legal Truth (guest Lisa Kern Griffin); Oral Argument 45: Sacrifice\nKathryn Rubino, Did Georgia Just Poison Bar Exam Test Takers?; Oral Argument 61: Minimum Competence (guest Derek Muller)\nOral Argument 21: Kind of a Hellscape (guest Brigham Daniels); Oral Argument 63: A Struggle with Every Single One (guest Jessica Owley)\n","content_html":"A special live-to-tape dig through the mailbag.
\n\nThis show’s links:
\n\nJoe and Christian talk about this fraught election, focusing on RBG’s Trump remarks. Joe makes a confession.
\n\nThis show’s links:
\n\nWith 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.
\n\nThis show’s links:
\n\nSpecial Guest: Tim Meyer.
","summary":"On Brexit, with Tim Meyer.","date_published":"2016-07-22T12:30:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/d86763b0-2c06-4926-90ad-928f1514b03c.mp3","mime_type":"audio/mpeg","size_in_bytes":53980998,"duration_in_seconds":6597}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:577fdc5437c581ee1a191eeb","title":"Episode 104: Drunk in a Dorm Room","url":"https://oralargument.org/104","content_text":"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.\n\nThis show’s links:\n\n\nSonja West’s faculty profile and writing\nOral Argument 1: Send Joe to Prison (guest Sonja West)\nJudge John Hodgman on flashing lights to warn of speed traps\nSlate: The Supreme Court Breakfast Table\nOral Argument 101: Tug of War\nOral Argument 100: A Few Minutes in the Rear-View Mirror\nOral Argument 96: Students as Means\nKedar Bhatia, Footnotes in Supreme Court Opinions\nDavid Foster Wallace, Tense Present (an earlier version of Authority and American Usage in Consider the Lobster and Other Essays)\nThe brief Christian helped with in Rasul v. Bush, making the Mathews v. Eldridge argument the Court wound up adopting in the simultaneously decided Hamdi v. Rumsfeld (see pp. 17-21)\nSonja West, The Second Amendment Is Not Absolute\nThe Protection of Lawful Commerce in Arms Act that confers immunity on gun manufacturers for most gun deaths; see also the wiki article on the act\nOral Argument 102: Precautionary Federalism (guest Sarah Light)\nDissent from denial of cert. in Stormans v. Wiesman\nMark Graber, Alito (Religion) v. Alito (Abortion)\nRichard Posner, Entry 9: The Academy Is out of Its Depth\nAkhil Amar, Entry 10: Who Judges the Judges\nRichard Posner, Entry 11: The Immigration Decision Won’t Do Much\nDawn Johnsen, Entry 12: How can a judge dismiss the importance of the Constitution?\nRichard Posner, Entry 27: Broad Interpretations\nSpecial Guest: Sonja West.","content_html":"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.
\n\nThis show’s links:
\n\nSpecial Guest: Sonja West.
","summary":"Feedback, with Sonja West.","date_published":"2016-07-08T13:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/1a61b62e-ddff-4413-8a10-54ffffdb6961.mp3","mime_type":"audio/mpeg","size_in_bytes":56423699,"duration_in_seconds":5522}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:5776ad4d37c581e3813adac8","title":"Episode 103: All over the Gander","url":"https://oralargument.org/103","content_text":"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.\n\nThis show’s links:\n\n\nJonathan Masur’s faculty profile and writing\nJonathan Masur, CBA at the PTO\nJonathan Masur and Eric Posner, Unquantified Benefits and the Problem of Regulation Under Uncertainty\nCuozzo Speed Technologies v. Lee\nPatent and Trademark Office, Changes to Implement Inter Partes Review Proceedings, Post-Grant Review Proceedings (at 48720-48722)\nPatent and Trademark Office, Setting and Adjusting Patent Fees in accordance with Section 10 of the Leahy-Smith America Invents Act\nPaul Heald, A Transaction Cost Theory of Patent Law\nSpecial Guest: Jonathan Masur.","content_html":"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.
\n\nThis show’s links:
\n\nSpecial Guest: Jonathan Masur.
","summary":"On cost-benefit in patent law, with Jonathan Masur.","date_published":"2016-07-01T13:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/35574882-d899-4e7e-9aeb-c680de63a086.mp3","mime_type":"audio/mpeg","size_in_bytes":40297880,"duration_in_seconds":4886}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:576d62d5e6f2e184be7e74c4","title":"Episode 102: Precautionary Federalism","url":"https://oralargument.org/102","content_text":"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.\n\nThis show’s links:\n\n\nSarah Light's faculty profile and writing\nSarah Light, Precautionary Federalism and the Sharing Economy\nLisa Rayle, Susan Shaheen, Nelson Chan, Danielle Dai, and Robert Cervero, App-Based, On-Demand Ride Services: Comparing Taxi and Ridesourcing Trips and Use\nShared-Use Mobility Center, Shared Mobility and the Transformation of Public TransitCass Sunstein, Beyond the Precautionary PrincipleCass Sunstein, Laws of Fear: Beyond the Precautionary PrincipleRobert Hahn and Cass Sunstein, The Precautionary Principle as a Basis for Decision Making\nSpecial Guest: Sarah Light.","content_html":"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.
\n\nThis show’s links:
\n\nSpecial Guest: Sarah Light.
","summary":"Uber and federalism, with Sarah Light.","date_published":"2016-06-24T12:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/72cffa63-421f-434a-a25a-111df6de46e0.mp3","mime_type":"audio/mpeg","size_in_bytes":29482961,"duration_in_seconds":3535}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:5760996f2b8ddee853d2d757","title":"Episode 101: Tug of War","url":"https://oralargument.org/101","content_text":"After the deadliest mass shooting in American history, we talk about the problem of gun violence and a possible way forward.\n\nThis show’s links:\n\n\nChristian Turner, The Freedom to Kill and Maim\nAbout guns and suicide (literature overview)\nHarvard Injury Control Research Center, Firearms Research (a collection of findings on gun ownership, use, injuries, risks, and more)\nDylan Matthews, What No Politician Wants to Admit about Gun Control\nGerman Lopez, America’s Gun Problem, Explained\nMark Follman, Gavin Aronson, and Deanna Pan, US Mass Shootings, 1982-2016: Data from Mother Jones' Investigation\n","content_html":"After the deadliest mass shooting in American history, we talk about the problem of gun violence and a possible way forward.
\n\nThis show’s links:
\n\nIn 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.
\n\nThis show’s links:
\n\nJoe 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?
\n\nThis show’s links:
\n\nSpecial Guest: Lisa Heinzerling.
","summary":"On the power canons, with Lisa Heinzerling.","date_published":"2016-05-27T13:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/588e12e5-cddd-4865-8dfc-1ad938b4285a.mp3","mime_type":"audio/mpeg","size_in_bytes":36175706,"duration_in_seconds":4371}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:573b565c555986b9fe1e0fa6","title":"Episode 98: T3 Jedi","url":"https://oralargument.org/98","content_text":"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).\n\nThis show’s links:\n\n\nJeremy Kessler’s faculty profile and writing\nDavid Pozen’s faculty profile and writing\nJeremy Kessler and David Pozen, Working Themselves Impure: A Life-Cycle Theory of Legal Theories\nOral Argument 97: Bonus\nLawrence Solum, Kessler and Pozen on the Development of Normative Legal Theories\nLawrence Solum, Legal Theory Lexicon: It Takes a Theory to Beat a Theory\nDaniel Carpenter, The Forging of Bureaucratic Autonomy:Reputations, Networks, and Policy Innovation in Executive Agencies, 1862-1928\nAbout Lévi-Strauss’s structuralism\nJavins v. First National Realty Corp.\nJeffrey Gordon, The Empty Call for Benefit-Cost Analysis in Financial Regulation\nGuido Calabresi and Philip Bobbitt, Tragic Choices\nOpen Science Collaboration, Estimating the Reproducibility of Psychological Science\nS.J. Gould and R.C. Lewontin, The Spandrels of San Marco and the Panglossian Paradigm: A Critique of the Adaptationist Programme\nLawrence Solum, Legal Theory Lexicon: Originalism and Legal Theory Lexicon: The New Originalism (each containing links and citations to many of the key works)\nStephen Smith, Saving Originalism from Originalists\nAn example of Larry Solum’s April Fools jokes\nSpecial Guests: David Pozen and Jeremy Kessler.","content_html":"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).
\n\nThis show’s links:
\n\nSpecial Guests: David Pozen and Jeremy Kessler.
","summary":"On theories, with Jeremy Kessler and David Pozen.","date_published":"2016-05-20T12:30:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/13136dd2-8642-4f4e-8715-057904618a6d.mp3","mime_type":"audio/mpeg","size_in_bytes":39811549,"duration_in_seconds":4826}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:5734984b2eeb81d4f66159e7","title":"Episode 97: Facty","url":"https://oralargument.org/97","content_text":"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).\n\nThis show’s links:\n\n\nAlli Larsen’s faculty profile and writing\nAlli on the Colbert Report discussing amicus briefs and factfinding\nBefore you write in, yes, the Dan Quayle story is false, but is that really the point?\nOral Argument 74: Minimum Curiosity (guest Amanda Frost)\nRowe v. Gibson\nAlli Orr Lasen, The Amicus Machine\nAlli Orr Larsen, The Trouble with Amicus Facts\nAlli Orr Larsen, Factual Precedents\nAmanda Frost, The Limits of Advocacy\nBrianne Gorod, The Adversarial Myth: Appellate Court Extra-Record Factfinding\nGlossip v. Gross (death penalty)\nBrown v. Entertainment Merchants Association (violent video games)\nAbout the Brandeis Brief\nGonzales v. Carhart\nReva Siegel, The Right’s Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument\nGregory Klass and Kathryn Zeiler, Against Endowment Theory: Experimental Economics and Legal Scholarship\nJoseph Kearney and Thomas Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court\nWilliam Eskridge Jr., Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation\nSpecial Guest: Alli Larsen.","content_html":"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).
\n\nThis show’s links:
\n\nSpecial Guest: Alli Larsen.
","summary":"Factiness, with Alli Larsen.","date_published":"2016-05-13T12:30:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/81123cc1-f909-45fe-b8df-b92141735b6f.mp3","mime_type":"audio/mpeg","size_in_bytes":32751964,"duration_in_seconds":3943}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:572cc17a3c44d89d17dada37","title":"Episode 96: Students as Means","url":"https://oralargument.org/96","content_text":"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).\n\nThis show’s links:\n\n\nJoseph Miller, The Immorality of Requesting Expedited Review\nSlack\nOral Argument 94: Bonus\nZoom \nAbout Burn the Witch\nAndrew Sullivan, Democracies End When They Are Too Democratic; Jedediah Purdy, What Trump’s Rise Means for Democracy\nRichard Cytowic, Why Ted Cruz’s Facial Expression Make Me Uneasy\nCarl Malamud on Twitter\nOral Argument 91: Baby Blue (guest Chris Sprigman)\nThe Indigo Book (also available as a PDF)\nChris Walker, Complete Junior Law Prawfs FAQs Series (and, particularly, What About Podcasts? and Rethinking Law Review Podcasts)\nNathan H. Saunders, Student-Edited Law Reviews: Reflections and Responses of an Inmate\nMark Twain, The War Prayer; a beautiful animated version\n","content_html":"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).
\n\nThis show’s links:
\n\nDo 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.
\n\nThis show’s links:
\n\nSpecial Guest: Jocelyn Simonson.
","summary":"Filming the police, with Jocelyn Simonson.","date_published":"2016-04-15T19:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/d64dd1d5-9cd3-4fa6-9c39-bcfa9c89578a.mp3","mime_type":"audio/mpeg","size_in_bytes":37137653,"duration_in_seconds":4491}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:570932715559863dc75cc0af","title":"Episode 94: Bonus","url":"https://oralargument.org/94","content_text":"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.\n\nThis show’s links:\n\n\nDuncan Kennedy, The Stages of the Decline of the Public/Private Distinction\nChristian Turner, Origins of the Public/Private Theory of Legal Systems\n","content_html":"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.
\n\nThis show’s links:
\n\nWe respond to accumulated listener feedback in one unedited take.
\n\nThis show’s links:
\n\nWe’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).
\n\nThis show’s links:
\n\nSpecial Guest: Daniel Hemel.
","summary":"The President's power to tax, with Daniel Hemel.","date_published":"2016-03-18T17:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/1c4edc62-a5ee-4ef2-b9a1-4d8eb88826e1.mp3","mime_type":"audio/mpeg","size_in_bytes":41324785,"duration_in_seconds":5015}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:56db0c0af699bb4be0ffd2f2","title":"Episode 91: Baby Blue","url":"https://oralargument.org/91","content_text":"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).\n\nThis show’s links:\n\n\nChris Sprigman’s faculty profile, twitter, and writing\nBaby Blue: web page and PDF\nOral Argument 88: The Blue Line\nThe Bluebook\nLinks to correspondence between lawyers for The Bluebook and others and the Baby Blue team\nZotero and Papers\nThe University of Chicago’s Citation Management for Law Students; Georgetown’s Bluebook Citation Resources and Detailed Feature Comparison\nCory Doctorow, Five Years of Being Intimidated by the Harvard Bluebook’s Copyright Policies; FGBR, The Bluebook: A Plot Summary\nThe Baby Blue public request for comments\nSubject matter of copyright: In general (s.102(b))\nLotus v. Borland\nThe University of Chicago Law Review, The Maroonbook\nMcNeil Nutritionals v. Heartland Sweeteners (3d Cir. 2007) and later proceedings\nAmerican Law Institute, Restatement of Copyright\nAbout secondary liability for copyright infringement\nCartoon Network v. CSC Holdings and Cablevision Systems (whether 1.2 seconds of buffering on a hard drive is a “fixation”)\nSpecial Guest: Christopher Sprigman.","content_html":"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).
\n\nThis show’s links:
\n\nSpecial Guest: Christopher Sprigman.
","summary":"Baby Blue, the Bluebook, and copyright, with Chris Sprigman.","date_published":"2016-03-05T11:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/3bcb6a52-8c90-41b3-ab3b-c7ad7adf461b.mp3","mime_type":"audio/mpeg","size_in_bytes":36823167,"duration_in_seconds":4452}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:56d1e2ccd210b8b23f162f02","title":"Episode 90: We Are a Nation of Time-Shifters","url":"https://oralargument.org/90","content_text":"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.\n\nThis show’s links:\n\n\nMike Madison’s website, writing, and blog\nFCC v. Pacifica Foundation\nFCC v. Fox (Fox II) (containing a link to Fox I)\nThis American Life 267: Propriety (It’s all good, but the discussion of the legal issue in Fox is at about 19:15.)\nAmy Davidson, The Dangerous All Writs Act Precedent in the Apple Encryption Case\nJohn Gruber, The Next Step in iPhone Impregnability\nOral Argument 80: We’ll Do It LIVE!\nOral Argument 42: Shotgun Aphasia (guest Orin Kerr)\nOrin Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment\nApple’s motion to vacate the order to assist the FBI\nRiley v. California (and see Orin Kerr’s post about the case shortly after it was decided\nAbout Fair Use Week\nTy v. Publications Int’l (Judge Posner, giving an explanation of market substitution and fair use); see also Richard Posner, When Is Parody Fair Use?\nSuntrust Bank v. Houghton Mifflin Co.\nKey, lower-court cases deciding whether university course packets qualify for fair use protection: Basic Books Inc. v. Kinko’s Graphics Corp., Princeton Univ. v. Michigan Document Services, and, most recently, Cambridge University Press v. Patton\nDavid Fagundes, Market Harm, Market Help, and Fair Use\nKickstarter page for Star Trek: Axanar, an independent Star Trek film (includes the twenty-minute video Prelude to Axanar)\nRyan Reed, Crowdfunded 'Star Trek' Movie Facing Copyright Infringement Lawsuit; Eriq Gardner, 'Star Trek' Fans Want Paramount, CBS to Do Better Job Explaining Franchise to Court\nSee also the unrelated and rather amazing Star Trek New Voyages, a nonprofit web series; and Paul Post, A ‘Star Trek’ Dream, Spread From Upstate New York\nA googol\nStatement of the Librarian of Congress Relating to Section 1201 Rulemaking; about anti-circumvention exemptions\nElectronic Frontier Foundation, Victory for Users: Librarian of Congress Renews and Expands Protections for Fair Uses\nMichael Madison, A Pattern-Oriented Approach to Fair Use\nSony Corp. v. Universal City Studios\nJoel Hruska, How Sony’s Betamax Made YouTube and Twitch Possible\nSega v. Accolade\nFrank Pasquale, Toward an Ecology of Intellectual Property: Lessons from Environmental Ecology for Valuing Copyright’s Commons\nRandy Picker, Closing the Xbox\nSony Computer Entertainment v. Connectix Corp.\nMGM v. Grokster\nJonathan Zittrain, The Generative Internet\nHorace Dediu, Seeing What’s Next (featuring a wonderful graph showing the adoption rates of various technologies, including the VCR); see also Derek Thompson, The 100-Year March of Technology in One Graph\nEduardo Peñalver and Sonia Katyal, Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership (see also this article-length treatment)\nEben Moglen, Freeing the Mind: Free Software and the Death of Proprietary Culture (“It is wrong to ask, ‘What is the incentive for people to create?’ It's an emergent property of connected human minds that they do create.”)\nJennifer Rothman, The Questionable Use of Custom in Intellectual Property\nMichael Madison, Madisonian Fair Use\nSpecial Guest: Mike Madison.","content_html":"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.
\n\nThis show’s links:
\n\nSpecial Guest: Mike Madison.
","summary":"On fair use, with Mike Madison.","date_published":"2016-02-27T13:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/6d1b2c18-1e55-4e01-b83c-58cade8893b6.mp3","mime_type":"audio/mpeg","size_in_bytes":44771276,"duration_in_seconds":5446}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:56c7c1780442626b25924980","title":"Episode 89: Adequacy","url":"https://oralargument.org/89","content_text":"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.\n\nThis show’s links:\n\n\nJosh Weishart’s faculty profile and writing\nAmy Piller, I’m a New York City school administrator. Here’s how segregation lives on.\nJoshua Weishart, Transcending Equality Versus Adequacy\nSan Antonio Independent School District v. Rodriguez\nAbout John Rawls’ Difference Principle\nElizabeth Anderson, What Is the Point of Equality?\nDebra Satz, Equality, Adequacy, and Educational Policy\nGannon v. State; and a summary of school finance litigation in New Jersey\nMark Kelman and Gillian Lester, Jumping the Queue\nJoshua Weishart, Reconstituting the Right to Education\nChristian Turner, Origins of the Public/Private Theory of Legal Systems\nAbout Hohfeld\nScott Bauries, State Constitutions and Individual Rights: Conceptual Convergence in School Finance Litigation; Scott Bauries, Is There an Elephant in the Room?: Judicial Review of Educational Adequacy and the Separation of Powers in State Constitutions\nSpecial Guest: Joshua Weishart.","content_html":"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.
\n\nThis show’s links:
\n\nSpecial Guest: Joshua Weishart.
","summary":"Education battles, with Josh Weishart.","date_published":"2016-02-19T20:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/da47d89c-e86a-4bac-81c2-2f88c40d88d6.mp3","mime_type":"audio/mpeg","size_in_bytes":37375036,"duration_in_seconds":4521}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:56bf2440c6fc0810908a04fb","title":"Episode 88: The Blue Line","url":"https://oralargument.org/88","content_text":"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.\n\nThis show’s links:\n\n\nBaby Blue: web page and PDF\nThe Bluebook\nDavid Post, The New (and Much Improved) ‘Bluebook’ Caught in the Copyright Cross-Hairs\nLinks to correspondence between lawyers for The Bluebook and others and the Baby Blue team\nOral Argument 73: Looking for the Splines\nB.P. Abbott et al. (LIGO Scientific Collaboration and Virgo Collaboration), Observation of Gravitational Waves from a Binary Black Hole Merger (and see the article and video at the Times: Dennis Overbye, Gravitational Waves Detected, Confirming Einstein’s Theory)\nDavid Foster Wallace, Tense Present (an earlier version of Authority and American Usage in Consider the Lobster and Other Essays)\nRobot or Not\nThe Oyez podcast feed for 2015 Supreme Court oral argument and the collection of Oyez feeds in iTunes\n","content_html":"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.
\n\nThis show’s links:
\n\nJoined 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).
\n\nThis show’s links:
\n\nSpecial Guest: Mark McKenna.
","summary":"Trademark and speech, with Mark McKenna.","date_published":"2016-01-31T16:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/75dbefc9-8d06-4ff7-9de1-1a6d4d2aa230.mp3","mime_type":"audio/mpeg","size_in_bytes":40926879,"duration_in_seconds":4965}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:56a185294bf1182dd44db2d7","title":"Episode 86: The Further Freedoming","url":"https://oralargument.org/86","content_text":"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.\n\nThis show’s links:\n\n\nGregory Klass and Kathryn Zeiler, Against Endowment Theory: Experimental Economics and Legal Scholarship\nOral Argument Hymn 1 and Hymn 2\nRegina v. Dudley and Stephens (and more about the case)\nRobot or Not burritos\nChristian List, Social Choice Theory (in the Stanford Encyclopedia of Philosophy)\nVox’s The Weeds podcast\nGannon v. State (and Trevor Graff and John Eligon, Court Orders Kansas Legislature to Spend More on Schools)\nSan Antonio Independent School District v. Rodriguez\nAbout bro country\nOral Argument 84: Felker’s Chickens (guest Steve Vladeck)\nSteve Vladeck, Vehicle Problems vs. Unusual Vehicles: The Supreme Court’s Bizarre Cert. Grant in Welch\nThe Oyez podcast feed for 2015 Supreme Court oral argument and the collection of Oyez feeds in iTunes\nJosh Blackman and Howard Wasserman, The Process of Marriage Equality\n","content_html":"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.
\n\nThis show’s links:
\n\nIt’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:
\n\nThis show’s links:
\n\nSpecial Guests: Dave Fagundes and Sonja West.
","summary":"Second annual call-out show with listeners.","date_published":"2016-01-01T12:30:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/a5ef59cf-50bc-466c-bd89-8ba883bcbf2a.mp3","mime_type":"audio/mpeg","size_in_bytes":66089337,"duration_in_seconds":8110}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:567c6d05c647adf832e95547","title":"Episode 84: Felker’s Chickens","url":"https://oralargument.org/84","content_text":"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!\n\nThis show’s links:\n\n\nSteve Vladeck’s faculty profile and writing\nSteve Vladeck, How an Obscure SCOTUS Procedure Can Solve AEDPA's Retroactivity Catch-22 (and a Growing Circuit Split)\nTeague v. Lane\nAbout the AEDPA\nBrown 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.”)\nIt was 100,000 cops on the beat, not 1 million. We regret the error. (1 million? Really?)\nAbout the Contract with America\nTyler v. Cain\nFelker v. Turpin\nJohnson v. United States\nSteve Vladeck, The Johnson Retroactivity Circuit Split Plot Thickens…\nSteve Vladeck, Is the Solicitor General Playing a Shell Game With the Supreme Court Over Johnson Retroactivity?\nSteve’s (and others’) amicus brief in In re Butler on behalf of law professors\nSpecial Guest: Steve Vladeck.","content_html":"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!
\n\nThis show’s links:
\n\nSpecial Guest: Steve Vladeck.
","summary":"With Steve Vladeck, a holiday-themed episode about unconstitutional imprisonment.","date_published":"2015-12-25T12:30:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/52637b95-8b58-4ef6-9691-19fa3722774e.mp3","mime_type":"audio/mpeg","size_in_bytes":43616734,"duration_in_seconds":5301}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:56745ee7b204d55fb335f6ca","title":"Episode 83: Embodied Joe","url":"https://oralargument.org/83","content_text":"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.\n\nThis show’s links:\n\n\nIn Tribute to Marcia Lucas from The Secret History of Star Wars\nOriginal Trilogy (a fan website containing, among other things, information about fan edits)\nJonathan Soble, Japan’s Top Court Upholds Law Requiring Spouses to Share Surname\nMy Cousin Vinny\nSerial\nMiracle on 34th Street (1994)\nA.I.\nBattlestar Galactica\n","content_html":"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.
\n\nThis show’s links:
\n\nThe 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?
\n\nThis show’s links:
\n\nFirst: 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.
\n\nThis show’s links:
\n\nWe 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.
\n\nThis show’s links:
\n\nWhen 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.
\n\nThis show’s links:
\n\nSpecial Guest: Dahlia Lithwick.
","summary":"Talking Supreme Court, with Dahlia Lithwick.","date_published":"2015-10-18T17:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/18962faf-7270-4437-9f9e-6dd10a109099.mp3","mime_type":"audio/mpeg","size_in_bytes":36793279,"duration_in_seconds":4448}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:561bd334e4b08dfc7222b774","title":"Episode 78: Listener Fuller","url":"https://oralargument.org/78","content_text":"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.\n\nThis show’s links:\n\n\nOral Argument 0: Who Is Your Hero?\nAmicus podcast: 2015 Term Preview\nSCOTUSblog’s page for Fisher v. UT Austin\nOral Argument 27: My Favorite Case\nThe Oyez page for Glossip v. Gross, containing Breyer’s announcement and Scalia’s response (linked at Part 4)\nOvercast\nOral Argument 56: Cracking and Packing (guest Lori Ringhand)\nMehrsa Baradaran, How the Other Half Banks; Nancy Folbre’s review for the NY Times; Oral Argument 9: Torches and Pitchforks\nOral Argument 75: Air Gap (guest Mary Ellen O’Connell)\nOral Argument 76: Brutality (guest Al Brophy)\nOral Argument 77: Jackasses Are People Too (guest Adam Kolber)\n","content_html":"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.
\n\nThis show’s links:
\n\nWhy 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.
\n\nThis show’s links:
\n\nSpecial Guest: Adam Kolber.
","summary":"On determinism, with Adam Kolber.","date_published":"2015-10-03T11:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/1ed2f198-6428-48e0-b2ea-2c040b0eb14d.mp3","mime_type":"audio/mpeg","size_in_bytes":35104704,"duration_in_seconds":4237}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:5605c67fe4b0cf5d6b49c308","title":"Episode 76: Brutality","url":"https://oralargument.org/76","content_text":"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.\n\nThis show’s links:\n\n\nAl Brophy’s faculty profile and writing\nJack Ewing, Volkswagen Says 11 Million Cars Worldwide Are Affected in Diesel Deception\nOral Argument 41: Sense-Think-Act (guest Ryan Calo)\nThe 30th Annual Technology Law Institute, at which we will be recording an episode as part of the program\nMarco Arment, Just Doesn’t Feel Good, about pulling his top-ranked ad-blocking app from the App Store\nOral Argument 74: Minimum Curiosity (guest Amanda Frost)\nRick Hasen’s ELB Podcast and UCI Law Talks, a show featuring UC Irvine law professors\nRobert Cover, Justice Accused\nState v. Mann\nHarriet Beecher Stowe, Dred: A Tale of the Great Dismal Swamp\nAlfred Brophy, Thomas Ruffin: Of Moral Philosophy and Monuments\nShawn Regan, DeChristopher Case Begs Question [sic]: What If Enviros Were Allowed to Bid on Oil Leases?\nAbout Thomas R.R. Cobb\nThomas Cobb, An Inquiry into the Law of Negro Slavery in the United States of America\nAlfred Brophy, The Nat Turner Trials\nBlackhead Signpost Road (Google Maps); see also Al’s post with his own pictures and those of Henry Louis Gates Jr.\nSean Wilentz, Constitutionally, Slavery Is No National Institution; see also David Waldstreicher, How the Constitution Was Indeed Pro-Slavery\nNFIB v. Sibelius (the Obamacare I case)\nAlfred Brophy, Is the Confederate Flag Unconstitutional?\nTyler Hill, University to Retire “Racist” Portrait\nSpecial Guest: Al Brophy.","content_html":"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.
\n\nThis show’s links:
\n\nSpecial Guest: Al Brophy.
","summary":"On slavery and Nat Turner, with Al Brophy.","date_published":"2015-09-25T18:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/04f5a895-aac7-4b8f-a878-5dadadd5f1ab.mp3","mime_type":"audio/mpeg","size_in_bytes":51293714,"duration_in_seconds":6261}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:55fc7ab8e4b0d8d207e1a745","title":"Episode 75: Air Gap","url":"https://oralargument.org/75","content_text":"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.\n\nThis show’s links:\n\n\nMary Ellen O’Connell’s faculty profile and writing\nDanielle Allen, Our Declaration\nThe Declaration of Independence\nUpstream Color\nDan Goodin, Meet “badBIOS,” the Mysterious Mac and PC Malware that Jumps Airgaps\nOral Argument 70: No Drones in the Park (guest Frank Pasquale)\nMary Ellen O’Connell, 21st Century Arms Control Challenges: Drones, Cyber Weapons, Killer Robots, and WMDs\nAbout Stuxnet\nChapter VII of the Charter of the United Nations, including Article 51, which Mary Ellen references\nMary Ellen O’Connell, Banning Autonomous Killing\nSpecial Guest: Mary Ellen O'Connell.","content_html":"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.
\n\nThis show’s links:
\n\nSpecial Guest: Mary Ellen O'Connell.
","summary":"Law, war, and killer robots, with Mary Ellen O'Connell.","date_published":"2015-09-18T17:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/3112ee70-b748-4d46-a98f-85531cd8c6b5.mp3","mime_type":"audio/mpeg","size_in_bytes":42916789,"duration_in_seconds":5214}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:55f32aeee4b01e51d6e39d3a","title":"Episode 74: Minimum Curiosity","url":"https://oralargument.org/74","content_text":"Should 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.\n\nThis show’s links:\n\n\nAmanda Frost’s faculty profile and writing\nRowe v. Gibson\nColeen Barger, On the Internet Nobody Knows You’re a Judge\nAlli Orr Larsen, The Trouble with Amicus Facts; see also Alli Orr Larsen, Factual Precedents, which Christian must have had rolling around in his head somewhere\nAlli Orr Larsen on the Colbert Report discussing amicus briefs and factfinding \nAmanda Frost, The Limits of Advocacy\nBrianne Gorod, The Adversarial Myth: Appellate Court Extra-Record Factfinding\nZantac’s Comparison of OTC Heartburn Treatment Options\nMitchell v. JCG Industries (dissent and concurrence in the denial of a rehearing and Posner’s defense of the court’s staff’s trying on protective gear to gauge the plausibility of the claim that it took more than fifteen minutes)\nSpecial Guest: Amanda Frost.","content_html":"Should 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.
\n\nThis show’s links:
\n\nSpecial Guest: Amanda Frost.
","summary":"Judicial web-surfing for facts, with Amanda Frost.","date_published":"2015-09-11T15:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/fe40c786-6af5-4be3-a742-0b3704dae72d.mp3","mime_type":"audio/mpeg","size_in_bytes":38462399,"duration_in_seconds":4657}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:55ea07d1e4b0d0f3181dcc0d","title":"Episode 73: Looking for the Splines","url":"https://oralargument.org/73","content_text":"We open the burgeoning mailbag. And oh what a bounty! Side A: 1. Georgia’s assertion of copyright over its annotated statutes. 2. Law school application, rankings, and preparation. 3. The utility for law of having a Ph.D. 4. Substantive due process and Lochner. 5. Would law school be better without the study of the Supreme Court or constitutional law? Side B: 6. Voting rights and proportional representation. 7. Whether we’ve had a fair discussion of the death penalty. 8. What makes legal writing good or bad? 9. Other podcasts. 10. Race and the law. 11. The utilitarian case for manual override of driverless cars. 12. Facebook’s ability to create “bad” desires and preferences. Drugs and entertainment. 13. The rogue Kentucky clerk and the difference between civil disobedience and sabotage or revolution.\n\nThis show’s links:\n\n\nOral Argument on Twitter and on Facebook\nAbout Carl Malamud\nGeorgia Accuses Public Records Activist of Information “Terrorism”\nEpisode 68: Listen to My Full Point and Episode 12: Heart of Darkness\nEpisode 62: Viewer Mail\nEpisode 30: A Filled Milk Caste\nEpisode 66: You’re Never Going to Get It All Done (guest Kareem Creighton) and Kareem Creighton’s tweet to us about this question\nChris Elmendorf, Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes\nEpisode 56: Cracking and Packing (guest Lori Ringhand)\nEpisode 67: Monstrous Acts (guest Josh Lee)\nCallins v. Collins (Scalia’s concurrence citing the brutality of a murder in a case in which the defendant was later proved innocent)\nDanielle Allen, Our Declaration; Robert Cover, Violence and the Word ; Jedediah Purdy, After Nature: A Politics for the Anthropocene\nUndisclosed: The State v. Adnan Syed, a podcast recommended to us\nEpisode 69: Contaminated Evidence (guest Brandon Garrett); see also Episode 45: Sacrifice, Episode 64: Protect and Serve (guest Seth Stoughton)\nThe Our National Conversation about Conversations about Race podcast\nEpisode 70: No Drones in the Park (guest Frank Pasquale)\nEpisode 72: The Guinea Pig Problem (guest Michelle Meyer)\nA youtube of David Foster Wallace talking about drugs and entertainment in Infinite Jest (2m23s)\nAnthony Kreis’s tweet about civil disobedience\n","content_html":"We open the burgeoning mailbag. And oh what a bounty! Side A: 1. Georgia’s assertion of copyright over its annotated statutes. 2. Law school application, rankings, and preparation. 3. The utility for law of having a Ph.D. 4. Substantive due process and Lochner. 5. Would law school be better without the study of the Supreme Court or constitutional law? Side B: 6. Voting rights and proportional representation. 7. Whether we’ve had a fair discussion of the death penalty. 8. What makes legal writing good or bad? 9. Other podcasts. 10. Race and the law. 11. The utilitarian case for manual override of driverless cars. 12. Facebook’s ability to create “bad” desires and preferences. Drugs and entertainment. 13. The rogue Kentucky clerk and the difference between civil disobedience and sabotage or revolution.
\n\nThis show’s links:
\n\nWith 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 and employees without their consent? Don’t they all do that, and haven’t they always? Don’t we all do that? Does it matter whether Facebook is more like a burrito stand or a utility? Mmmm… burritos.
\n\nThis show’s links:
\n\nSpecial Guest: Michelle Meyer.
","summary":"Facebook and human experiments, with guest Michelle Meyer.","date_published":"2015-08-28T14:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/b125d794-9758-4420-9ef7-5dc5903cccf6.mp3","mime_type":"audio/mpeg","size_in_bytes":56807699,"duration_in_seconds":6950}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:55d7a92be4b0b96663bc265e","title":"Episode 71: Rolex Tube Socks","url":"https://oralargument.org/71","content_text":"With 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.\n\nThis show’s links:\n\n\nMark McKenna’s faculty profile and writing\nAbout the escutcheon\nAbout Joe Miller, the Alaskan politician\nThe A.V. Club’s Podmass, featuring a write-up about our show by Dan Jakes!\nMark McKenna, Trademark Year in Review\nQualitex Co. v. Jacobson Prods. Co.\nWal-Mart Stores v. Samara Brothers\nTraffix Devices v. Marketing Displays\nMark McKenna, Confusion Isn’t Everything\nApple v. Samsung (order denying attorneys’ fees but reviewing the substance of the trade dress claims)\nSears, Roebuck and Co. v. Stiffel Company\nCompco Corp. v. Day-Brite Lighting, Inc.\nIn re Webb (reversing a ruling that a prosthesis, unobservable once implanted, could not be the subject of a design patent)\nChristopher Jobson, Welcome to Dismaland: A First Look at Banksy’s New Art Exhibition Housed Inside a Dystopian Theme Park\nMark McKenna and Katherine Strandburg, Progress and Competition in Design\nSteve Jobs’ slide containing smartphones as they existed at the moment (source article)\nSpecial Guest: Mark McKenna.","content_html":"With 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.
\n\nThis show’s links:
\n\nSpecial Guest: Mark McKenna.
","summary":"On trademark and innovation, with Mark McKenna.","date_published":"2015-08-21T19:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/0f8820ae-da7d-4aba-89d2-53b9eec0cbf4.mp3","mime_type":"audio/mpeg","size_in_bytes":37269327,"duration_in_seconds":4508}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:55bd3e24e4b06da83f631e27","title":"Episode 70: No Drones in the Park","url":"https://oralargument.org/70","content_text":"Drones 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 Pasquale.\n\nThis show’s links:\n\n\nFrank Pasquale’s faculty profile and writing\nFrank Pasquale, The Black Box Society\nOral Argument 41: Sense-Think-Act (guest Ryan Calo)\nRobot or Not?, a podcast of one to two-minute episodes\nJeff John Roberts, Man Arrested for Shooting $1,800 Drone Won’t Apologize, Cites Privacy\nDJI, drone purveyor, which company’s name Christian managed to mangle, Joe-style\nMichael Froomkin and Zak Colangelo, Self-Defense Against Robots and Drones\nFrank Pasquale, Air Traffic Control for Drones\nJacque v. Sternberg Homes, Inc.\nDesnick v. ABC\nUnited States v. Causby\nHinman v. Pacific Air Transport\nSee, e.g., Field v. Google (on copyright claims against Google for search results)\nMargot Kaminsky, Drone Federalism: Civilian Drones and the Things They Carry\nThomas Frey, 55 Jobs of the Future\nTimothy Lee, Amazon Has a Plan for Thousands of Drones to Fill the Sky\nYoko Kubota, Google Reshoots Japan Views after Privacy Complaints\nThe FAA’s interpretive rules for recreational drones (line-of-sight and less than 400 feet, among other restrictions) and proposed rules for commercial drones (including weight limitations, line-of-sight, daylight-only, less than 500 feet, and more)\nFoster v. Svenson (finding no statutory privacy right to prevent artistic show of photographs taken unsuspecting through open windows via telephoto lens)\nAP, Enrique Iglesias Recovering After Fingers Sliced at Concert, video\nPatrick Hubbard, 'Sophisticated Robots': Balancing Liability, Regulation, and Innovation\n99% Invisible 170: Children of the Magenta (Automation Paradox, pt. 1); see also part 2\nTurn Your Key, Sir!\nGrégoire Chamayou, A Theory of the Drone\nFrank Pasquale, Do Corporations Enjoy a 2nd Amendment Right to Drones?\nJathan Sadowski and Frank Pasquale, The Spectrum of Control: A Social Theory of the Smart City\nJathan Sadowski and Frank Pasquale, Creditors Use New Devices to Put Squeeze on Debtors\nDale Carrico, We Are the Killer Robots; see also Dale Carrico, Natality, Tech “Disruption,” and Killer Robots\nMary Ellen O’Connell, 21st Century Arms Control Challenges: Drones, Cyber Weapons, Killer Robots, and WMDs\nSamuel Bowles and Arjun Jayadev, One Nation Under Guard; see also Samuel Bowles and Arjun Jayadev, Garrison America\nFrank Pasquale and Glyn Cashwell, Four Futures of Legal Automation\nSpecial Guest: Frank Pasquale.","content_html":"Drones 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 Pasquale.
\n\nThis show’s links:
\n\nSpecial Guest: Frank Pasquale.
","summary":"Drones, with Frank Pasquale.","date_published":"2015-08-07T12:30:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/591a97c3-d8c1-4e81-9ad4-ac9786361f33.mp3","mime_type":"audio/mpeg","size_in_bytes":48394952,"duration_in_seconds":4719}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:55bb90fde4b055ec9ce6e4b5","title":"Episode 69: Contaminated Evidence","url":"https://oralargument.org/69","content_text":"Brandon Garrett is one of the leading scholars on the problem of getting it wrong in criminal cases. Eyewitnesses who believe they know what they do not know, suspects who confess to crimes they did not commit, and the actually guilty parties who go free when convict the innocent: why and how does this happen?\n\nThis show’s links:\n\n\nBrandon Garrett’s faculty profile, author page, and writing\nHold Up!, the (probably) one-off movie podcast we recorded\nOral Argument 44: Serial\nBrandon Garrett, The Banality of Wrongful Executions\nBrandon Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong\nBrandon Garrett, Contaminated Confessions Revisited\nAbout Elizabeth Loftus\nOral Argument 48: Legal Truth (guest Lisa Kern Griffin), discussing Lisa Kern Griffin, Narrative, Truth, and Trial; see also links and discussion from Oral Argument 45: Sacrifice\nJames Liebman et al., The Wrong Carlos, a fascinating website collecting photos, interviews, and other evidence concerning the conviction and execution of Carlos DeLuna, who was likely innocent\nThis American Life, Confessions, Act One, an interview with Jim Trainum about botched confessions\nBenjamin Weiser, Settlement Is Approved in Central Park Jogger Case, but New York Deflects Blame\nNational Research Council, Identifying the Culprit\nAlex Kozinski, Criminal Law 2.0\nAbout the Criminal Cases Review Commission\nInnocence Project at the UVA School of Law\nSpecial Guest: Brandon Garrett.","content_html":"Brandon Garrett is one of the leading scholars on the problem of getting it wrong in criminal cases. Eyewitnesses who believe they know what they do not know, suspects who confess to crimes they did not commit, and the actually guilty parties who go free when convict the innocent: why and how does this happen?
\n\nThis show’s links:
\n\nSpecial Guest: Brandon Garrett.
","summary":"On wrongful convictions, with Brandon Garrett.","date_published":"2015-07-31T11:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/dd4270bb-7447-4802-ab02-adcc0b25ad8e.mp3","mime_type":"audio/mpeg","size_in_bytes":32776273,"duration_in_seconds":3946}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:55aaa180e4b03f43f2a33cab","title":"Episode 68: Listen to My Full Point","url":"https://oralargument.org/68","content_text":"Just 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.\n\nThis show’s links:\n\n\nOral Argument 51: The Faucet (guest John Pfaff)\nGerman Lopez, Mass Incarceration in America, Explained in 28 Maps and Charts (vox.com)\nOliver Roeder, Releasing Drug Offenders Won’t End Mass Incarceration (538.com)\nOral Argument 6: Productive Thoughtlessness\nEmily Lakdawalla, First Look at New Horizons' Pluto and Charon images: “Baffling in a Very Interesting and Wonderful Way\"\nThe picture of the comet\nAbout Leviathan\nMonica Davey, A Church of Cannabis Tests Limits of Religious Law in Indiana\nOral Argument 66: You’re Never Going to Get It All Done (guest Kareem Crayton)\nOral Argument 12: Heart of Darkness (about the US News rankings)\nAlexia Brunet Marks and Scott Moss, What Makes a Law Student Succeed or Fail? A Longitudinal Study Correlating Law Student Applicant Data and Law School Outcomes\nStanford Encyclopedia of Philosophy on Free Will and on Retributive Justice\n","content_html":"Just 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.
\n\nThis show’s links:
\n\nWe’re joined by long-time listener and federal public defender Josh Lee to discuss the death penalty. We talk about Josh’s practice, death row, the latest death penalty decision’s substance and tone, and whether the death penalty will last much longer.
\n\nThis show’s links:
\n\nSpecial Guest: Josh Lee.
","summary":"On the death penalty, with Josh Lee.","date_published":"2015-07-10T19:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/af1c6470-80dc-4cba-98d7-538d8c4fa1d3.mp3","mime_type":"audio/mpeg","size_in_bytes":49132863,"duration_in_seconds":5991}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:559584a6e4b02af487814872","title":"Episode 66: You’re Never Going to Get It All Done","url":"https://oralargument.org/66","content_text":"We talk this week about elections and markets for votes with election-law scholar Kareem Crayton. Calling in from Hong Kong, where the design of elections looms large, Kareem chats with us about what elections are meant to do, the private and public nature of the voting booth, the practical legal immunity of decisions made for illegitimate reasons, comparisons of elections and other markets for products, racism, the Voting Rights Act, and more. Is racism more like polio or high blood pressure?\n\nThis show’s links:\n\n\nKareem Crayton’s writing\nGlossip v. Gross\nMichael Dorf, Evolving Standards of Decency that Mark the Progress of Maturing Justices\nOrin Kerr, Why the Late-Career Conversions at the Supreme Court on the Death Penalty?\nUnited States v. Quinones (Judge Rakoff’s district court opinion striking down the death penalty in 2002, later reversed)\nJosh Lee, Dignity Kennedy, Burkean Kennedy, and Libertarian Kennedy\nJosh Lee, Determinism and the Death Penalty\nJosh Lee, Judicial Abolition from Below\nBBC, Hong Kong’s Democracy Debate (an explainer)\nArizona State Legislature v. Arizona Independent Redistricting Comm’n\nGiles v. Harris\nRomer v. Evans\nBusbee v. Smith (a 1982 decision containing finding of fact 17, that a Georgia representative was a racist)\nShelby County v. Holder\nBrief of Political Science and Law Professors as Amici Curiae in Shelby County\nKareem Crayton, Five Justices, Section 4, and Three Ways Forward in Voting Rights\nKareem Crayton, Sword, Shield, and Compass: The Uses and Misuses of Racially Polarized Voting Studies in Voting Rights Enforcement\nKareem Crayton, Take Down the Confederate Flag\nSpecial Guest: Kareem Crayton.","content_html":"We talk this week about elections and markets for votes with election-law scholar Kareem Crayton. Calling in from Hong Kong, where the design of elections looms large, Kareem chats with us about what elections are meant to do, the private and public nature of the voting booth, the practical legal immunity of decisions made for illegitimate reasons, comparisons of elections and other markets for products, racism, the Voting Rights Act, and more. Is racism more like polio or high blood pressure?
\n\nThis show’s links:
\n\nSpecial Guest: Kareem Crayton.
","summary":"Voting and elections, with Kareem Crayton.","date_published":"2015-07-03T08:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/63c08df2-8431-4465-ba72-4cdceae76376.mp3","mime_type":"audio/mpeg","size_in_bytes":43922642,"duration_in_seconds":5340}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:558dd623e4b042843bc8818c","title":"Episode 65: We Can Call It Awesome","url":"https://oralargument.org/65","content_text":"Big week. Let’s just call this one our second annual Supreme Court round-up, where, naturally, we focus on only two cases: gay marriage and Obamacare II. It’s made awesome by our special guest, Steve Vladeck.\n\nThis show’s links:\n\n\nSteve Vladeck’s faculty profile and writing\nOral Argument 22: Nine Brains in a Vat (guest Dahlia Lithwick)\nObergefell v. Hodges\nOral Argument 40: The Split Has Occurred (about Judge Sutton’s gay marriage opinion) and Oral Argument 32: Go Figure (guest Lori Ringhand) (about Judge Posner’s gay marriage opinion), both episodes containing ample links concerning the issue\nSan Antonio Independent School District v. Rodriguez\nOral Argument 30: A Filled Milk Caste, containing discussion and links concerning United States v. Carolene Products Co.\nBrown v. Board of Education; see also What Brown v. Board of Education Should Have Said (Jack Balkin, ed.)\nTown of Greece v. Galloway; Kimble v. Marvel Entertainment\nReed v. Reed\nBoumediene v. Bush\nLochner v. New York; Dred Scott v. Sanford\nKing v. Burwell\nCity of Arlington v. FCC, Roberts’ dissenting regarding the application of Chevron v. NRDC\nAmalgamated Transit Union Local 1309 v. Laidlaw Transit Services, one of the cases about “not less than seven days”\nAdam Zimmerman, Chevron after King v. Burwell (the comments to which feature thoughts from listener Asher)\nShelby County v. Holder\nSteward Machine Co. v. Davis\nSpecial Guest: Steve Vladeck.","content_html":"Big week. Let’s just call this one our second annual Supreme Court round-up, where, naturally, we focus on only two cases: gay marriage and Obamacare II. It’s made awesome by our special guest, Steve Vladeck.
\n\nThis show’s links:
\n\nSpecial Guest: Steve Vladeck.
","summary":"Gay marriage and Obamacare II, with Steve Vladeck.","date_published":"2015-06-26T19:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/c7b28a9b-ea31-41e8-ab9b-ff2d0710ca78.mp3","mime_type":"audio/mpeg","size_in_bytes":44300045,"duration_in_seconds":5387}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:55844018e4b067ca8aac88ca","title":"Episode 64: Protect and Serve","url":"https://oralargument.org/64","content_text":"We’re back. After an introductory, warm-up conversation about swearing (in which we do not swear) and travels, we talk with Seth Stoughton about policing in America. What should a police officer and a police force be? Warriors or guardians? Seth teaches us some history and shares his own experiences as a former police officer. Also how to pronounce Stoughton.\n\nThis show’s links:\n\n\nSeth Stoughton’s faculty profile and writing\nSeth Stoughton, Law Enforcement’s ‘Warrior’ Problem (read online here if you don’t want the PDF)\nSeth Stoughton, A Former Cop on What Went Wrong in McKinney\nSeth Stoughton, What a Police Expert Calls the Most Ignored Cause of Cop Violence\nKlein et al., The Good Stranger Frame for Police and Military Activities\nFinal Report of the President’s Task Force on 21st Century Policing\nAll Thing Considered, Police-Involved Shootings Highlight Problem With Law Enforcement 'Culture'\nSeth Stoughton, What Would a Better Ferguson Response Have Looked Like?\nU.S. Department of Justice, Investigation of the Ferguson Police Department\nThis American Life, Right to Remain Silent; see also Graham Rayman, The NYPD Tapes: Inside Bed-Stuy’s 81st Precinct\nJamelle Bouie, Criminal Neglect\nSpecial Guest: Seth Stoughton.","content_html":"We’re back. After an introductory, warm-up conversation about swearing (in which we do not swear) and travels, we talk with Seth Stoughton about policing in America. What should a police officer and a police force be? Warriors or guardians? Seth teaches us some history and shares his own experiences as a former police officer. Also how to pronounce Stoughton.
\n\nThis show’s links:
\n\nSpecial Guest: Seth Stoughton.
","summary":"On policing, with Seth Stoughton.","date_published":"2015-06-19T12:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/c5cc186c-deba-47b0-8c66-e8da31e1ae0e.mp3","mime_type":"audio/mpeg","size_in_bytes":42797020,"duration_in_seconds":5199}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:55699e27e4b07ec484fb155f","title":"Episode 63: A Struggle with Every Single One","url":"https://oralargument.org/63","content_text":"Suppose you wanted to check out how our efforts to save endangered species are going. Our guest, Jessica Owley, tried to do that and to observe what is happening where habitat conservation plans have been put in place. Things didn’t go so well. We discuss the structure of the Endangered Species Act, snails, dams, the God Squad, “incidental take permits,” how it’s all supposed to work, and, mainly, how Jessica was stymied in her efforts to figure out how it actually is working. (Brought to you by coffee sent by listener Adam.)\n\nThis show’s links:\n\n\nJessica Owley’s faculty profile and writing\nJessica Owley, Keeping Track of Conservation\nAbout the Endangered Species Act, with links to the text of the act, other documents, and a video about the act; see also Wikipedia on the ESA\nBabbitt v. Sweet Home Chapter, Communities for Great Ore.\nTennesse Valley Authority v. Hill\nMore about the snail darter controversy\nAbout Habitat Conservation Plans (USFWS); see also Wikipedia on HCPs\nAn example Habitat Conservation Plan at Stanford University\nAbout conservation easements\nJessica Owley, Exacted Conservation Easements: Emerging Concerns with Enforcement\nThe San Bruno Mountain Habitat Conservation Plan and related documents\nLujan v. Defenders of Wildlife\nSpecial Guest: Jessica Owley.","content_html":"Suppose you wanted to check out how our efforts to save endangered species are going. Our guest, Jessica Owley, tried to do that and to observe what is happening where habitat conservation plans have been put in place. Things didn’t go so well. We discuss the structure of the Endangered Species Act, snails, dams, the God Squad, “incidental take permits,” how it’s all supposed to work, and, mainly, how Jessica was stymied in her efforts to figure out how it actually is working. (Brought to you by coffee sent by listener Adam.)
\n\nThis show’s links:
\n\nSpecial Guest: Jessica Owley.
","summary":"On endangered species, with Jessica Owley.","date_published":"2015-05-30T07:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/61bbefe9-38e0-4e86-8a16-e5fb5301d603.mp3","mime_type":"audio/mpeg","size_in_bytes":40836212,"duration_in_seconds":4954}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:555f762ee4b09cfed9896234","title":"Episode 62: Viewer Mail","url":"https://oralargument.org/62","content_text":"It’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.\n\nThis show’s links:\n\n\nKerbal Space Program (and see, e.g., this video tutorial by the Scott Manley)\nTemma Ehrenfeld, Should You Knit?\nRandall Munroe, Orbital Mechanics on xkcd.com\nDavid Letterman’s Viewer Mail and the Pyramid of Comedy\nOral Argument 61: Minimum Competence\nDaniel Solove, The Multistate Bar Exam as a Theory of Law\nVirginia Board of Bar Examiners, Mandatory Dress Code (compare with the Georgia bar exam’s Dress Code)\nNicholas L. Georgakopoulos, Visualizing Trials with Large DNA Databases\nOral Argument 45: Sacrifice\nAbout the Monty Hall problem\n","content_html":"It’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.
\n\nThis show’s links:
\n\nLongtime listener, first time Oral Arguer Derek Muller joins us to talk about the bar exam, through issues particular (the great ExamSoft meltdown of 2014), large (the purpose and utility of the exam overall), and sartorial (Virginia). Joe makes a shocking confession.
\n\nThis show’s links:
\n\nSpecial Guest: Derek Muller.
","summary":"Talking about the bar exam, with Derek Muller.","date_published":"2015-05-15T14:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/c47af55e-b792-4dab-a70a-bff8ac11eada.mp3","mime_type":"audio/mpeg","size_in_bytes":47605251,"duration_in_seconds":5800}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:554d0009e4b0c5a0d53e39e1","title":"Episode 60: The Wisdom of the Bartow","url":"https://oralargument.org/60","content_text":"After fighting with Skype, Ann Bartow joins us to discuss her experience living, teaching, and researching law and especially IP law in China. Also: feedback, Kerbal Space Program, existential angst, and more.\n\nThis show’s links:\n\n\nAnn Bartow’s faculty profile and writing\nKerbal Space Program\nThe Philosophy Bites podcast\nOpen Yale Courses, Phil 176: Death\nRenowned IP Scholar Ann Bartow to Lead Franklin Pierce Center for Intellectual Property at UNH Law\nAnn Bartow, Privacy Laws and Privacy Levers: Online Surveillance versus Economic Development in the People's Republic of China\nLijia Zhang, China’s Death-Penalty Debate (noting the changing approach to the death penalty in China and the 2007 move by China’s Supreme Court to assert jurisdiction over death penalty appeals); see also Wikipedia on capital punishment in China (noting more details of the post-2007 appellate procedure)\nAbout Chinese patent law\nChina’s IP-related laws and other information as collected by the World Intellectual Property Organization\nJeffrey Podoshen, Materialism and Conspicuous Consumption in China\nChina Economic Review, Chinese Shoppers Begin to Master the Art of Subtlety\nAbout WeChat\nChina Law and Practice, Copyright Administration Gives in to Musicians\nChina Retains on Foreign Film Quota (noting that, as of February 2014, the foreign film quota was thirty-four films per year)\nEric Priest, Copyright Extremophiles: Do Creative Industries Thrive or Just Survive in China's High Piracy Environment?\nSpecial Guest: Ann Bartow.","content_html":"After fighting with Skype, Ann Bartow joins us to discuss her experience living, teaching, and researching law and especially IP law in China. Also: feedback, Kerbal Space Program, existential angst, and more.
\n\nThis show’s links:
\n\nSpecial Guest: Ann Bartow.
","summary":"IP in China, with Ann Bartow.","date_published":"2015-05-08T14:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/e659b0b1-d2de-4ce3-bf04-8612c5e1acb9.mp3","mime_type":"audio/mpeg","size_in_bytes":40073186,"duration_in_seconds":4858}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:554578e4e4b0ca8061e308cd","title":"Episode 59: Folly Bridges","url":"https://oralargument.org/59","content_text":"Friend of the show and “Freaks and Geeks” extra Sarah Schindler returns to join us live at Oral Argument World Headquarters to talk about the exclusion we impose not through law but through building and architecture. We make an outdoor party of it with very special guests Paul Heald, Jessica Owley, and Justin Steil. (With so many of us gathered around three microphones, forgive us for a little more unevenness in levels than usual.)\n\nThis show’s links:\n\n\nSarah Schindler’s faculty profile and writing\nOral Argument 4: Grow a Pear\nSarah Schindler, Architectural Exclusion\nOur guest hosts: Paul Heald (Paul’s writing), Jessica Owley (Jesse’s writing), and Justin Steil (Justin’s writing)\nAbout Robert Moses and his low bridges\nNicholas Blomley, Traffic Logic and Political Logic\nAbout NEPA and environmental impact statements\nRobin Malloy, Inclusion by Design, Thinking Beyond a Civil Rights Paradigm\nWashington v. Davis\nBenjamin Mueller, In Connecticut, Breaking a Barrier Between a Suburb and Public Housing\nBarton Hinkle, Zoning’s Racist Roots Still Bear Fruit (referencing, like Sarah’s article, the 1910 mayor of Baltimore’s support for zoning that would “quarantine” black residents in “isolated slums”)\nAbout the Edmund Pettus Bridge\nAbout public choice\nLinks to audio and text of David Foster Wallace’s This Is Water\nSpecial Guests: Jessica Owley, Paul Heald, and Sarah Schindler.","content_html":"Friend of the show and “Freaks and Geeks” extra Sarah Schindler returns to join us live at Oral Argument World Headquarters to talk about the exclusion we impose not through law but through building and architecture. We make an outdoor party of it with very special guests Paul Heald, Jessica Owley, and Justin Steil. (With so many of us gathered around three microphones, forgive us for a little more unevenness in levels than usual.)
\n\nThis show’s links:
\n\nSpecial Guests: Jessica Owley, Paul Heald, and Sarah Schindler.
","summary":"On architectural exclusion, with Sarah Schindler and friends.","date_published":"2015-05-02T21:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/b779e5f2-5951-442d-84c0-e7fab4e4a726.mp3","mime_type":"audio/mpeg","size_in_bytes":37036545,"duration_in_seconds":4479}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:553a9505e4b0d55187a2b596","title":"Episode 58: Obscurity Settings","url":"https://oralargument.org/58","content_text":"What kind of privacy do we want to have? What makes others’ knowledge about us turn from everyday acceptable to weird and creepy? Woody Hartzog talks with us about the difficulties of maintaining privacy, whatever it should be, online and in social networks. We’re used to the cheap obscurity and fleetingness of our physical lives, but it’s cheap and tempting to know more about others online than they’d like. Can we design platforms to deliver the individual obscurity we’ve enjoyed in the past? Conversation ranges between celebrities and privacy, searchability, giving up on hiding that we’re all gross and weird, our many identities, the problem of dumb teenagers, protected Twitter accounts, internet bad guys, and naked, dancing Buddhist monks.\n\nThis show’s links:\n\n\nWoody Hartzog’s faculty profile and writing\nPhilosophy Bites, Shaun Nichols on Death and the Self\nWoodrow Hartzog, Chain-Link Confidentiality\nJoshua Fairfield, BitProperty\nAbout security through obscurity\nWoodrow Hartzog and Frederic Stutzman, Obscurity by Design\nDaniel Solve, A Taxonomy of Privacy\nDavid Brin, The Transparent Society\nCass Sunstein, Republic.com\nAbout the narcissism of small differences\nRichard Posner, The Right of Privacy\nNeil Richards, Intellectual Privacy (the article) and Intellectual Privacy (the book)\nLibrary of Congress, Update on the Twitter Archive at the Library of Congress\nTwitter, About Public and Protected Tweets; see also Greg Kumparak, Twitter Bug Allowed Some Protected Accounts to Be Read by Unapproved Followers\nAbout Yik Yak\nMike Isaac, A Look Behind the Snapchat Photo Leak Claims\nIn the Matter of Red Zone Investment Group, Inc., an FTC case involving, among other things, a fake windows registration window\nWoodrow Hartzog, Website Design as Contract\nAbout the Whisper app\nAbout the Sears Holdings Management Corp. case before the FTC\nSpecial Guest: Woodrow Hartzog.","content_html":"What kind of privacy do we want to have? What makes others’ knowledge about us turn from everyday acceptable to weird and creepy? Woody Hartzog talks with us about the difficulties of maintaining privacy, whatever it should be, online and in social networks. We’re used to the cheap obscurity and fleetingness of our physical lives, but it’s cheap and tempting to know more about others online than they’d like. Can we design platforms to deliver the individual obscurity we’ve enjoyed in the past? Conversation ranges between celebrities and privacy, searchability, giving up on hiding that we’re all gross and weird, our many identities, the problem of dumb teenagers, protected Twitter accounts, internet bad guys, and naked, dancing Buddhist monks.
\n\nThis show’s links:
\n\nSpecial Guest: Woodrow Hartzog.
","summary":"Privacy through obscurity, with Woodrow Hartzog.","date_published":"2015-04-24T15:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/fb3d72aa-0627-4182-ba24-3f0ee2ca47bd.mp3","mime_type":"audio/mpeg","size_in_bytes":48379315,"duration_in_seconds":5897}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:55310ecbe4b0389cde747ba2","title":"Episode 57: Light It on Fire and Shove It into the Atlantic","url":"https://oralargument.org/57","content_text":"We 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.\n\nThis show’s links:\n\n\nThe Wirecutter and the Sweet Home\nOral Argument 55: Cronut Lines\nThe documentary about people competing to win a truck, Hands on a Hardbody\nOral Argument 51: The Faucet (guest John Pfaff)\nEuclid’s Elements\nAbout Paul Erdős\nMark Lemley, Faith-Based Intellectual Property\nFrank Michelman, Takings\nMark Lemley, The Surprising Virtues of Treating Trade Secrets as IP Rights\nInternational News Service v. Associated Press\nSCOTUSblog on Glossip v. Gross\nAssociated Press, Utah Brings Back Firing Squads as Lethal Injection Drugs Remain Scarce\nAbout Cameron Todd Willingham\nOral Argument 45: Sacrifice\nAbout “death-qualified” juries\n","content_html":"We 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.
\n\nThis show’s links:
\n\nWhen 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 make fair amirite?
\n\nThis show’s links:
\n\nSpecial Guest: Lori Ringhand.
","summary":"On voting and race, with Lori Ringhand.","date_published":"2015-04-10T16:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/941a803e-ea09-49e2-9ff8-265c8a9c5b10.mp3","mime_type":"audio/mpeg","size_in_bytes":48088819,"duration_in_seconds":5860}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:551eae50e4b0ab145384810c","title":"Episode 55: Cronut Lines","url":"https://oralargument.org/55","content_text":"Why do people stand in line? Or is it “on line”? Of course it isn’t. But the question remains. We talk with Dave Fagundes, scholar of, among many other things, roller derby, who has written the cutting edge article on why we form lines even without laws requiring them. Discussion ranges from cronuts to rock bands to carpool lanes to phone apps.\n\nThis show’s links:\n\n\nDave Fagundes’s faculty profile and writing\nThe decision in Armstrong v. Exceptional Child Center and Steve Vladeck’s reaction, Steve’s having discussed this case in episode 38\nDavid Fagundes, Waiting in Line: Norms, Markets, and the Law\nEpisodes 31 and 32, in which there are links and discussion concerning the “knee defender” controversy and airline seat reclining\nDavid Fagundes, Talk Derby to Me: Intellectual Property Norms Governing Roller Derby Pseudonyms\nA stachexchange thread about standing “in line” vs. “on line”\nThe word “spendy” dates from 1911 at the latest\nHow Y’all, Youse and You Guys Talk, a quiz to see your personal dialect map\nHella Blitzgeral, roller derbyist\nLisa Bernstein, Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry\nRobert Ellickson, Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County (and more in his book, Order Without Law)\nPhilosophy Bites: Lisa Bortolotti on Irrationality\nLouis Kaplow and Steven Shavell, Fairness versus Welfare: Notes on the Pareto Principle, Preferences, and Distributive Justice\nLeon Mann, Queue Culture: The Waiting Line as a Social System\nAbout cronuts\nCarol Rose, Possession as the Origin of Property\nThomas Merrill and Henry Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle\nAn example of a “queuing app”\nAbout the “tit for tat” strategy and its connection to human nature in Robert Axelrod, The Evolution of Cooperation\nAn excerpt on social norms from Dan Ariely’s Predictably Irrational\nThe excerpt on videphones from David Foster Wallace’s Infinite Jest; see also Infinite Summer\nMichael Sandel, What Money Can’t Buy: The Moral Limits of Markets (his Tanner Lecture)\nLior Strahilevitz, How Changes in Property Regimes Influence Social Norms: Commodifying California's Carpool Lanes\nDavid Fagundes, The Pink’s Paradox: Excessively Long Food Lines as Overly Strong Signals of Quality, referring to Pink’s Hot Dogs; see also Sally’s Apizza\nThe set of policies for “Krzyzewskiville,” the grassy lawn at Duke where students line up for days to get basketball tickets\nCatherine Eade, Diplomatic (Snow) Storm Erupts After American Ambassador to Switzerland Criticises Its Ski Lift Queues\nAbout power distance index\nJohn Wiseman, Aspects of Social Organisation in a Nigerian Petrol Queue\nLior Strahilevitz, Charismatic Code, Social Norms, and the Emergence of Cooperation on the File-Swapping Networks (discussing reciprocity cascades)\nDan Kahan, The Logic of Reciprocity: Trust, Collective Action, and Law\nFelix Oberholzer-Gee, A Market for Time: Fairness and Efficiency in Waiting Lines\nStanley Milgram, Response to Intrusion into Waiting Lines\nSpecial Guest: Dave Fagundes.","content_html":"Why do people stand in line? Or is it “on line”? Of course it isn’t. But the question remains. We talk with Dave Fagundes, scholar of, among many other things, roller derby, who has written the cutting edge article on why we form lines even without laws requiring them. Discussion ranges from cronuts to rock bands to carpool lanes to phone apps.
\n\nThis show’s links:
\n\nSpecial Guest: Dave Fagundes.
","summary":"The one about standing in line, with Dave Fagundes.","date_published":"2015-04-03T11:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/12f66b87-f4d5-4694-a717-dc86ff98105c.mp3","mime_type":"audio/mpeg","size_in_bytes":49490453,"duration_in_seconds":6036}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:5515d5e7e4b0d9aaa8be0241","title":"Episode 54: No Throttling","url":"https://oralargument.org/54","content_text":"Christian 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.\n\nThis show’s links:\n\n\nAaron Perzanowski’s faculty profile and writing\nEpisode 52 and Episode 53 on King v. Burwell \nWilliam Baude, Could Obama Bypass the Supreme Court?, and Michael Dorf, Obama Wouldn’t Circumvent SCOTUS on Subsidies\nWe’ve reached North Dakota!\nOur earlier shows on net neutrality: Episode 49, Episode 16 (with Jim Speta), and Episode 10 (with Christina Mulligan)\nAbout the FCC’s Open Internet Order\nDownload page for the Open Internet Order and Commissioner statements\nAbout the FCC Computer Inquiries of the 1960s and 1970s\nAT&T v. City of Portland\nNational Cable & Telecommunications Assn. v. Brand X Internet Services\nVerizon v. FCC\nAbout the FCC’s Incentive Auction for the 600MHz band\nSpecial Guest: Aaron Perzanowski.","content_html":"Christian 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.
\n\nThis show’s links:
\n\nSpecial Guest: Aaron Perzanowski.
","summary":"On the FCC's net neutrality regs, with Aaron Perzanowski.","date_published":"2015-03-27T18:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/83f0ed5b-652a-4070-a556-01ac8d4101d6.mp3","mime_type":"audio/mpeg","size_in_bytes":50722193,"duration_in_seconds":6190}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:5505ffa7e4b07d153dd2154e","title":"Episode 53: A Satanic Level of Entropy","url":"https://oralargument.org/53","content_text":"We start with developments in an area at the core of expertise: speed traps. We continue with policing and, mainly, more on the Obamacare II case. We also have been told to expect an emolument.\n\nThis show’s links:\n\n\nMichelle Wirth, Bill To Reduce ‘Speed Traps’ Gains Senate Approval\nDOJ Civil Rights Division, Investigation of the Ferguson Police Department; AG Holder’s prepared remarks on the report\nOral Argument 52: Nihilism\nThe SCOTUSblog page for King v. Burwell, containing the briefs, commentary, and links to the argument\nDavid Ziff, Halbig and the “Isolationist” Theory of Statutory Interpretation\nDavid Ziff, Halbig and the Problem of Creeping Constitutionalism\nSimon Maloy, GOP’s George Costanza Moment: The “Moops” Doctrine and the War on Obamacare\ncoffeegeek.com’s review of the Gene Cafe Roaster\n","content_html":"We start with developments in an area at the core of expertise: speed traps. We continue with policing and, mainly, more on the Obamacare II case. We also have been told to expect an emolument.
\n\nThis show’s links:
\n\nJoe and Christian try to understand King v. Burwell, or Obamacare II, in light of the oral argument last week.
\n\nThis show’s links:
\n\nWhy have prison populations exploded? Yeah, we bet you have an opinion on this. But we’ve got someone on the show with the math: Fordham law prof and empiricist extraordinaire John Pfaff. Everything you think you know about our staggering levels of imprisonment are probably wrong. Also, we offer to set up the Supreme Court audio live stream. Also we report on one listener’s Oral Argument power rankings.
\n\nThis show’s links:
\n\nSpecial Guest: John Pfaff.
","summary":"Prison populations, with John Pfaff.","date_published":"2015-02-27T18:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/d5d4cc0c-cad1-449b-844c-f1f0a4a03a0c.mp3","mime_type":"audio/mpeg","size_in_bytes":44603641,"duration_in_seconds":5425}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:54e76dd5e4b0f761f47abecf","title":"Episode 50: We Have Fully Exhausted the Topic","url":"https://oralargument.org/50","content_text":"Last 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 kind of cliffhanger is how we roll around here. Also, North Dakota and the permissibility of “funny business” in our email address.\n\nThis show’s links:\n\n\nAmanda Frost’s faculty profile and writing\nA helpful list of North Dakota landmarks\n2 Hidden Ways to Get More from Your Gmail Address\nThe Georgia Law Summer Program in China, where you can be misinformed by Christian in person and in China\nAmanda Frost, Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?\nOur trilogy of prior episodes on this issue: with Anthony Kreis, with Michael Dorf, and with Steve Vladeck\nThe series of blog posts coinciding with those episodes: from Michael Dorf here and here, Steve Vladeck, and Christian Turner\nMichael Dorf, Even More Thoughts on State Court (Non)Obligation to Follow Federal Appeals Court Precedents (Wherein I Respond to Professor Frost)\nAmanda Frost, The “Inferior” Federal Courts\nChief Justice Roy Moore’s Administrative Order\nEric Eckholm, Supreme Court Undercuts Alabama Chief Justice’s Argument to Delay Same-Sex Marriages\nLockhart v. Fretwell, in which Justice Thomas concurred and briefly argued that the “Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation”\nCooper v. Aaron\nMartin v. Hunter’ Lessee\nAmanda Frost, Overvaluing Uniformity\nErie Railroad Co. v. Tompkins; see also our episode all about Erie\nAbout the adequate and independent state grounds doctrine\nJames Pfander, One Supreme Court: Supremacy, Inferiority, and the Judicial Power of the United States (see also this very brief book review)\nDice v. Akron, Canton and Youngstown Railroad Co.\nBush v. Gore (Rehnquist’s concurring opinion arguing that state courts may not interfere, even through state constitutional judgments, with certain legislatively enacted election laws that interact in advantageous ways with federal law)\nAbout Chevron deference\nAbbe Gluck, The States as Laboratories of Statutory Interpretation\nUnited States Telecom Association v. FCC\nPeter Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action\nSpecial Guest: Amanda Frost.","content_html":"Last 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 kind of cliffhanger is how we roll around here. Also, North Dakota and the permissibility of “funny business” in our email address.
\n\nThis show’s links:
\n\nSpecial Guest: Amanda Frost.
","summary":"On federal courts, with Amanda Frost.","date_published":"2015-02-20T12:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/40b707ae-370f-4ade-b152-b75618170276.mp3","mime_type":"audio/mpeg","size_in_bytes":45251734,"duration_in_seconds":5506}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:54d64f1de4b0810ff74e4559","title":"Episode 49: The Pot Calling the Kettle Beige","url":"https://oralargument.org/49","content_text":"From an undisclosed location, Joe phones in to talk Arsenal, cigarettes, IQ, marijuana, transcendence, IP law, the regulation of the internet, a look back at taxing eggs, getting rid of Groundhog Day, and nonsense (but I repeat myself).\n\nThis show’s links:\n\n\nEpisode 7: Speed Trap\nFresh Air, Why Teens Are Impulsive, Addiction-Prone and Should Protect Their Brains (text from and a link to the audio of a Fresh Air interview with neurologist Frances Jensen)\nFlowers for Algernon and Lucy\nINS v. AP, Traffix Devices v. Marketing Displays, and Bonito Boats v. Thunder Craft Boats\nTom Wheeler (FCC Chairman), This Is How We Will Ensure Net Neutrality\nEpisode 10: My Beard Is Not a Common Carrier (guest Christina Mulligan)\nEpisode 16: The Whole Spectrum (guest Jim Speta)\nHayley Tsukayama, AOL Still Makes Most of Its Money Off Millions of Dial-Up Subscribers\nJoe Brodkin, Verizon Nears “the End” of FiOS Builds (Joe was right.)\nFCC, Chairman Wheeler Proposes New Rules for Protecting the Open Internet\nAbout municipal broadband\nEpisode 47: Making Lisa So Mad (featuring our discussion of the opinion in Perez v. Commissioner of Internal Revenue finding compensation for egg donations to be taxable)\nEpisode 33: Other Minds (guest Matthew Liebman)\nAbout Groundhog Day\nEyder Peralta, Groundhog in Wisconsin Bites Mayor’s Ear\n","content_html":"From an undisclosed location, Joe phones in to talk Arsenal, cigarettes, IQ, marijuana, transcendence, IP law, the regulation of the internet, a look back at taxing eggs, getting rid of Groundhog Day, and nonsense (but I repeat myself).
\n\nThis show’s links:
\n\nWith 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.
\n\nThis show’s links:
\n\nSpecial Guest: Lisa Kern Griffin.
","summary":"On ascertaining guilt and innocence, with Lisa Kern Griffin.","date_published":"2015-01-30T14:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/2f446f06-2d53-4f57-8491-ad30c6782620.mp3","mime_type":"audio/mpeg","size_in_bytes":41379344,"duration_in_seconds":5022}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:54c2be5ae4b0a642bb3c1564","title":"Episode 47: Making Lisa So Mad","url":"https://oralargument.org/47","content_text":"We 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.\n\nThis show’s links:\n\n\nTwo Story Coffeehouse\nRene Stutzman, Lawsuits by Drivers Ticketed for Flashing Headlights Produce Change, No Money\nThe Madigan Memorial Hospital, Houlton, Maine (jpeg)\nOral Argument on Twitter and on Facebook\nOral Argument 45: Sacrifice, on which we discussed Nicholas Georgakopoulos’s email on reasonable doubt\nDerek Muller’s invitation to make a stop at Pepperdine Law on the Oral Argument road show, which stop is imagined in this photo: \nOral Argument 14: The Astronaut’s Hair (guest Lisa Milot) and Oral Argument 17: Flesh List (guest Kim Krawiec)\nPerez v. Commissioner of Internal Revenue\nLisa Milot, What Are We - Laborers, Factories, or Spare Parts? The Tax Treatment of Transfers of Human Body Materials\nTaxing Eggs, a mini-symposium on the Faculty Lounge blog\nMargaret Jane Radin, Property and Personhood\nKimberly Krawiec, Sunny Samaritans and Egomaniacs: Price-Fixing in the Gamete Market\nThe Georgia Law Summer Program in China, where you can be misinformed by Christian in person and in China\n","content_html":"We 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.
\n\nThis show’s links:
\n\nLeave your company, take your ideas, and go to jail. Ok, maybe it’s not always that extreme, but we talk with Orly Lobel, author of Talent Wants to Be Free, about the laws that govern the minds and ideas of employees. From noncompete agreements, to trade secrets, to the illegal talent cartels of Silicon Valley, Orly helps us understand the field she calls “human capital law.” But we start, of course, with woodchippers, North Dakota, and seat recliners.
\n\nThis show’s links:
\n\nSpecial Guest: Orly Lobel.
","summary":"On human capital, with Orly Lobel.","date_published":"2015-01-16T17:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/5d57aeef-7e05-41e8-aad4-18522834ad95.mp3","mime_type":"audio/mpeg","size_in_bytes":42556498,"duration_in_seconds":5169}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:54b451bce4b0cd212f8e14ae","title":"Episode 45: Sacrifice","url":"https://oralargument.org/45","content_text":"After 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).\n\nThis show’s links:\n\n\nJudge John Hodgman\nEpisode 18: Oral Argument (with Tom Goldstein), featuring Josh Stein’s paper\nRichard Stallman’s info packet\nEpisode 44: Serial\nNatasha Vargas-Cooper, Jay, Key Witness from “Serial” Tells His Story for First Time, parts one, two, and three\nSlate’s Serial Spoiler Special podcast discussing the Jay interviews \nEzra Klein, Serial Revisited\nSusan Simpson’s The View from LL2 blog\nRene Stutzman, Lawsuits by Drivers Ticketed for Flashing Headlights Produce Change, No Money\nEpisode 43: Some Stuff I Like and Some Stuff I Don’t, featuring some speed trap discussion and our discussion of Judge Edwards’ critique of legal scholarship\nGross, O’Brien, Hu, and Kennedy, Rate of False Conviction of Criminal Defendants Who are Sentenced to Death\nChristian’s silly wrongful conviction calculator, which you can copy and paste into the wonderful Calca app\nAll about the Innocence Project\nKevin Drum, America’s Real Criminal Element: Lead\nDragonslayer, the 1981 film\nThe Flynn effect\nPhilosophy Bites: Hugh Mellor on Probability, a fascinating episode of a great series of brief discussions on philosophy\n","content_html":"After 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).
\n\nThis show’s links:
\n\nThe 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, Mehrsa Baradaran, and Dahlia Lithwick. (Several of our guests responded to a call to listeners that we posted on our Facebook and Twitter feeds. Follow us to be in on such things in the future.)
\n\nThis show’s links:
\n\nSpecial Guests: Anthony Kreis, Dahlia Lithwick, and Mehrsa Baradaran.
","summary":"We call multiple listeners and past guests to discuss the Serial podcast.","date_published":"2014-12-23T09:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/257e973f-5349-4e16-b4af-ee22df758790.mp3","mime_type":"audio/mpeg","size_in_bytes":71878679,"duration_in_seconds":8834}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:548fa865e4b010469cd809e6","title":"Episode 43: Some Stuff I Like and Some Stuff I Don’t","url":"https://oralargument.org/43","content_text":"We’re back. Speed traps, the police, and Judge Edwards’ renewed attack on modern legal scholarship.\n\nThis show’s links:\n\n\nComplaint in Jarman v. City of Grain Valley\nElli v. City of Ellisville\nOral Argument 7: Speed Trap and Oral Argument 8: Party All over the World\nCity of Warrensville Hts. v. Wason (the speed trap case in which the dissent cites Kant’s categorical imperative and which we mentioned at the end of episode 9)\nAbout “contempt of cop”\nRaizel Liebler and Keidra Chaney, TLF Recommended Podcasts by and for Best Friends (recommending us (thanks!) alongside Denzel Washington Is the Greatest Actor of All Time, Period.)\nMichael Dorf, Judge Harry Edwards Is Still Unimpressed With Legal Scholarship\nHarry Edwards, Another Look at Professor Rodell’s Goodbye to Law Reviews\n","content_html":"We’re back. Speed traps, the police, and Judge Edwards’ renewed attack on modern legal scholarship.
\n\nThis show’s links:
\n\nWhen should the police be able to search your phone, your computer, your email, or your dropbox? Orin Kerr thinks that over time, and in the face of changing technology and social practices, courts maintain a relatively consistent balance between privacy and the state’s interest in criminal investigation. The legal changes that maintain that consistency seem to be acceptable to originalists, pragmatists, and living constitutionalists alike. From cell phones to horses and buggies to automobiles and confidential informants. It’s the search episode. And then … yep, speed traps. Joe and Orin make a spiritual connection as non-warners.
\n\nThis show’s links:
\n\nSpecial Guest: Orin Kerr.
","summary":"Digital searches, with Orin Kerr.","date_published":"2014-11-20T20:15:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/ebcf6fe6-daff-403f-baae-f526adea8b4e.mp3","mime_type":"audio/mpeg","size_in_bytes":46120836,"duration_in_seconds":5614}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:546789abe4b07084eb8c5be0","title":"Episode 41: Sense-Think-Act","url":"https://oralargument.org/41","content_text":"Robots. What are they? Just a new sort of tool, qualitatively different kinds of tools that do things we neither expect nor intend, new kinds of beings? With the incipient explosion of complex robots, we may need to re-examine the way law uses and understands intention, responsibility, causation, and other basic concepts. We’re joined by Ryan Calo, who has achieved the outrageously awesome feat of earning a living thinking about robots. (It’s pronounced Kay-low. So Joe got this one right.) We discuss flying drones, chess computers, driverless cars, antilock brakes, and computer-conceived barbecue sauce.\n\nThis show’s links:\n\n\nRyan Calo’s faculty profile and writing\nFollow-up from listener David on Episode 40: The Split Has Occurred, Shelley v. Kraemer, and Buchanan v. Warley\nLego Mindstorms\nRyan Calo, Robots and Privacy\nFIRST Lego League robotics competition for ages nine to fourteen\nDJI Phantom Vision 2+ flying drone camera thing capable of making like this one and this one\nMark Berman, National Park Service Bans Drone Use in All National Parks and Chris Vanderveen, Man Banned from Yellowstone after Drone Crash\nFAA’s Key Initiatives page on drones\nJoan Lowy, Drone Sightings Up Dramatically\nRyan Calo, Robotics and the Lessons of Cyberlaw (including a discussion of the concepts of embodiment, emergence, and social meaning as the core of the legal challenge posed by robotics)\nStephen Johnson, Emergence: The Connected Lives of Ants, Brains, Cities, and Software\nRadiolab, Emergence\nFrank Easterbrook, Cyberspace and the Law of the Horse\nCory Doctorow, Why It Is Not Possible to Regulate Robots\nNeil Richards and William Smart, How Should the Law Think About Robotics?\nRyan Calo, A Horse of a Different Color: What Robotics Law Can Learn from Cyberlaw\nAbout IBM’s Watson and Deep Blue (the chess machine)\nDaniel Suarez, Daemon\nRichard Fisher, Is It OK to Torture or Murder a Robot?\nRadiolab, Furbidden Knowledge\nNicholas Bakalar, Robotic Surgery Report Card\nStuddert, Mello, and Brennan, Medical Malpractice\nRyan Calo, The Case for a Federal Robotics Commission\nExcerpt from In re Polemis, the case we forgot the name of\nAbout Amazon’s Kiva Systems, the subsidiary that supplies Amazon with robotic warehouse workers\nRochelle Bilow, We Put a Computer in Charge of Our Test Kitchen for a Day, and Here’s What Happened, and Mark Wilson, I Tasted BBQ Sauce Made By IBM’s Watson, And Loved It\nE.M. Forster, The Machine Stops\nAbout the Future Tense event, Can We Imagine Our Way to a Better Future?, including descriptions and video, in which Ryan participated\nAbout cognitive radio\nDaria Roithmayr, Complexity Law and Economics\nWe Robot 2015, meeting April 10-11, 2015 in Seattle\nSpecial Guest: Ryan Calo.","content_html":"Robots. What are they? Just a new sort of tool, qualitatively different kinds of tools that do things we neither expect nor intend, new kinds of beings? With the incipient explosion of complex robots, we may need to re-examine the way law uses and understands intention, responsibility, causation, and other basic concepts. We’re joined by Ryan Calo, who has achieved the outrageously awesome feat of earning a living thinking about robots. (It’s pronounced Kay-low. So Joe got this one right.) We discuss flying drones, chess computers, driverless cars, antilock brakes, and computer-conceived barbecue sauce.
\n\nThis show’s links:
\n\nSpecial Guest: Ryan Calo.
","summary":"The one about robots, with Ryan Calo.","date_published":"2014-11-15T12:00:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/704d5e52-9345-4109-a28e-772e0cd1e978.mp3","mime_type":"audio/mpeg","size_in_bytes":48818577,"duration_in_seconds":5952}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:545e8079e4b03a44d115bab3","title":"Episode 40: The Split Has Occurred","url":"https://oralargument.org/40","content_text":"This 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.\n\nThis show’s links:\n\n\nMichael Dorf, Why Danforth v. Minnesota Does Not Undermine My View About State Court Decisions to Follow Lower Federal Court Precedent\nOur episode with Peabody award winner, Tom Goldstein\nAbout typefaces (and the difference between typefaces and fonts)\nAbout King v. Burwell, the case the Supreme Court has taken up challenging subsidies on federally run exchanges; see also Christian’s take and Abbe Gluck’s\nThe Unrecorded Podcast\nMichelle Meyer, Will the Real Evidence-Based Ebola Policy Please Stand Up? Seven Takeaways from Maine DHHS v. Hickox (which Christian wrongly attributed to Hank Greely, who has also written on Ebola, but is in fact from fantastic friend of the show Michelle Meyer - sorry Michelle), further to our last episode on the domestic side of the Ebola\nDeBoer v. Hodges, the Sixth Circuit decision by Judge Sutton upholding various state marriage bans\nOral Argument 36: Firehose of Inequality (guest Anthony Kreis)\nBaskin v. Bogan, Judge Posner’s decision striking down state marriage bans and Christian’s post about the Seventh Circuit’s oral arguments in that case\nAbout Baker v. Nelson\nHicks v. Miranda\nLoving v. Virginia\nPlessy v. Ferguson\nRomer v. Evans\nBalkinization Symposium on Unconstitutional Animus (We’d apologize for the error of attributing this to SCOTUSblog, but we don’t have time to apologize for all of our errors.)\nWilliam Eskridge, Jr. A History fo Same Sex Marriage\n","content_html":"This 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.
\n\nThis show’s links:
\n\nIt’s our ebola episode. You know, I think that’s description enough.
\n\nThis show’s links:
\n\nSpecial Guest: Fazal Khan.
","summary":"The one about ebola, with Fazal Khan.","date_published":"2014-10-31T11:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/1b26079c-bf29-4c3e-b375-47c5249a368a.mp3","mime_type":"audio/mpeg","size_in_bytes":48959018,"duration_in_seconds":5969}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:544ab58ee4b0d70e82444ac3","title":"Episode 38: You're Going to Hate This Answer","url":"https://oralargument.org/38","content_text":"Steve Vladeck joins us to dive further into federal courts and federal rights. After getting Steve’s take on our discussion concerning federal courts of appeals and gay marriage last week with Michael Dorf, we discuss the issues raised by what Steve thinks could be a major new case in the Supreme Court this term: Armstrong v. Exceptional Child Center. How and when can you enforce a federal statute or the Constitution against state officials? Simple question, right?\n\nThis show’s links:\n\n\nSteve Vladeck’s profile, his writing, his info and posts on the Just Security blog, and his Twitter feed\nOral Argument 34: There’s Not Really a Best Font with Matthew Butterick and Oral Argument 11: Big Red Diesel (when Butterick’s Practical Typography was first brought up on the show)\nOral Argument 37: Hammer Blow, in which Michael Dorf delivered many lessons in the relationship between state courts and lower federal courts, an issue critical for the current state of gay marriage in the United States\nDanforth v. Minnesota (deciding that states, as a matter of state law, may apply retroactively new constitutional rules announced by the Supreme Court, even if federal law does not require retroactive application)\nBush v. Gore (Rehnquist’s concurring opinion arguing that state courts may not interfere, even through state constitutional judgments, with certain legislatively enacted election laws that interact in advantageous ways with federal law)\nVOPA v. Stewart\nStephen Vladeck, Douglas and the Fate of Ex Parte Young\nDouglas v. Independent Living Center\nThe Eleventh Amendment: “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”\nEx part Young (And note in dissent we find Justice Harlan, the heroic dissenter in Plessy v. Ferguson, sounding the federalist alarm: Allowing private suits in federal courts against state officers for their official actions “would inaugurate a new era in the American judicial system and in the relations of the National and state governments. It would enable the subordinate Federal courts to supervise and control the official action of the States as if they were \"dependencies\" or provinces.”)\nThe cases Steve cites as leading up to Ex parte Young: Hans v. Louisiana (interpreting the Eleventh Amendment to bar suits arising under federal law against a state not only by citizens of “another state” but also by its own citizens) and Lochner v. New York\nAdar v. Smith (the Fifth Circuit case to which Steve referred that permitted Louisiana to refuse to add a gay adoptive parent’s name to a birth certificate)\nAlexander v. Sandoval (marking the end of inferring private causes of action in federal statutes)\nGonzaga University v. Doe\nLyle Deniston, Opinion Analysis: A Right to Sue Under Medicaid – Maybe\nPennsylvania Pharmacists Association v. Houstoun (in which then-Judge Alito notes that while providers may not sue under the Medicaid access requirements “Medicaid recipients plainly satisfy the intended-to-benefit requirement and are thus potential private plaintiffs” under section 1983)\nSCOTUSblog page for Armstrong v. Exceptional Child Center, which will be updated with briefs, arguments, and, ultimately, the Court’s decision\nSeminole Tribe of Florida v. Florida\nSteve’s amicus brief in Douglas\nJonathan Freiman, to whom both Steve and Christian trace experience with detainee cases\nSpecial Guest: Steve Vladeck.","content_html":"Steve Vladeck joins us to dive further into federal courts and federal rights. After getting Steve’s take on our discussion concerning federal courts of appeals and gay marriage last week with Michael Dorf, we discuss the issues raised by what Steve thinks could be a major new case in the Supreme Court this term: Armstrong v. Exceptional Child Center. How and when can you enforce a federal statute or the Constitution against state officials? Simple question, right?
\n\nThis show’s links:
\n\nSpecial Guest: Steve Vladeck.
","summary":"Federal rights, with Steve Vladeck.","date_published":"2014-10-24T16:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/98eb60fd-2d88-4c50-8b22-2abf31eed01c.mp3","mime_type":"audio/mpeg","size_in_bytes":46521914,"duration_in_seconds":5664}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:54426bcee4b0f9a2742f63c8","title":"Episode 37: Hammer Blow","url":"https://oralargument.org/37","content_text":"What 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.\n\nThis show’s links:\n\n\nMichael Dorf’s profile, his writing, and his world-famous blog Dorf on Law\nAmicus, the new Slate podcast by Dahlia Lithwick\nOral Argument 36: Firehose of Equality, the last episode in which Anthony Kreis was terrific and Christian made an error that led to this show\nMichael Dorf, No Massive Resistance to Same-Sex Marriage from South Carolina\nMichael Dorf, The Relative Importance of Inter-Circuit Conflict and State-Circuit Conflict as Cert Criteria\nAbout claim preclusion and nonmutual issue preclusion; United States v. Mendoza (holding that issue preclusion does not apply against the federal government)\nColin Wrabley, Applying Federal Courts of Appeals’ Precedent\nThe Supremacy Clause of the U.S. Constitution\nLochart v. Fretwell, in which Justice Thomas concurred and briefly argued that the “Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation”\nMartin v. Hunter’ Lessee\nAbout the grimly named Antiterrorism and Effective Death Penalty Act, which everyone calls “the AEDPA,” and pronounces ED-puh\nThe federal habeas statute, reflecting in subsection (d) the deference required by the AEDPA to state court judgments on issues of federal law in habeas, which federal law must be “clearly established . . . by the Supreme Court” to be a constraint in habeas on states at all\nTeague v. Lane\nAbout the removal jurisdiction of federal courts, the ability of a defendant to move a state court action to a federal court under certain circumstances\nGuido Calabresi, Federal and State Courts: Restoring a Workable Balance\nHenry Friendly, In Praise of Erie — And of the New Federal Common Law (unfortunately only available for a fee on Hein Online)\nState v. Dukes (an intermediate South Carolina appellate ruling citing State v. Ford Motor Co. for the proposition that South Carolina courts are bound by the constitutional rulings of the Fourth Circuit)\nKevin Walsh, Re: SSM Cert Denials (suggesting South Carolina should review and change its apparent approach to Fourth Circuit precedent)\nMichael Dorf, Should Anti-SSM Appeals Court Judges Rule For Same-Sex Marriage Based On The Cert Denials?\nMichael Dorf, Prediction and the Rule of Law (an article analyzing the general point applied in the above-linked blog post)\nOral Argument 28: A Wonderful Catastrophe, which is all about and contains links for the famous Erie case\nMichael Dorf, How the Supreme Court’s Inaction on Same-Sex Marriage Echoes Its Conduct in the Civil Rights Era\nUnited States v. Windsor\nMichael Dorf, Cert Denied Is Justice Delayed: SCOTUS Kremlinology in the SSM Cases\nStuart v. Laird and some background\nSpecial Guest: Michael Dorf.","content_html":"What 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.
\n\nThis show’s links:
\n\nSpecial Guest: Michael Dorf.
","summary":"Same-sex marriage in the courts, with Michael Dorf.","date_published":"2014-10-18T09:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/cda47355-bcce-4e17-afa6-0b7dec241e53.mp3","mime_type":"audio/mpeg","size_in_bytes":37938276,"duration_in_seconds":4592}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:5439432de4b0fb896b1fa4f7","title":"Episode 36: Firehose of Equality","url":"https://oralargument.org/36","content_text":"The Supreme Court this week handed down a series of landmark non-decisions. We talk with PhD candidate and commentator Anthony Kreis about the confusing, hopeful, exciting, promising, uncertain, and evolving state of marriage equality. In the wake of a (so far) uniform wave of appellate court decisions striking down gay-marriage bans, the Supreme Court steps in and … lets them stand without taking them up for decision. Why? And what is the state of law? What is likely to happen, and what are local officials to do? (And if you’re in a position to hire a Visiting Assistant Professor or Fellow, you’d be crazy not to try to hire Anthony.)\n\nThis show’s links:\n\n\nAbout Anthony Kreis, his CV, and his twitter feed\nAnthony Kreis, Marriage Equality in State and Nation\nAmy Howe, Today’s Orders: Same-Sex Marriage Petitions Denied (summarizing the cert denials and containing links to the SCOTUSblog pages for the decisions striking down marriage bans in the Seventh (Posner’s “Go figure” decision), Tenth (also here), and Fourth Circuit Courts of Appeals)\nLatta v. Otter, the Ninth Circuit case handed down on Tuesday of this week and striking down marriage bans in Nevada and Idaho\nLoving v. Virginia and amazing audio of the oral argument\nMcLaughlin v. Florida\nLast term’s gay marriage decisions: United States v. Windsor and Hollingsworth v. Perry\nDescription of and links to audio of oral arguments in the several Sixth Circuit cases challenging marriage bans in Kentucky, Michigan, Ohio, and Tennessee\nLinda Greenhouse and Reva Siegel, Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court’s Ruling (see especially beginning at p.303 about whether Roe is to blame for the ensuing political conflict over abortion and what that might say about how courts should approach gay marriage)\nA recent Pew survey on, among other things, whether homosexuality is sinful\nHeather Hollingsworth, Koster Won’t Appeal Same-Sex Marriage Ruling, reporting that the Missouri AG won’t appeal a state trial court ruling requiring recognition of same-sex marriages performed in other states\nGeoff Pender, State’s Gay Marriage Ban’s Days Appear Numbered (about Mississippi)\nSome background on homosexuality and Catholicism\nMargaret Fosmoe, Notre Dame, Saint Mary’s Extend Benefits to Same-Sex Spouses\nDoug Richards, Handel: Gay Parents “Not in the Best Interest of the Child” (interview transcript showing the rhetoric around the 2010 Georgia gubernatorial primary, including this gem: “Why is marriage between one man and one woman? (Laughs). Are you serious?”)\nJames Oleske, Jr., The Evolution of Accommodation: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriages\nDahlia Lithwick and Sonja West, Stop Draggin’ My Heart Around: The Supreme Court Is Harming people with Its Inscrutable Gay Marriage Actions.\nSouth Carolina v. Condon, order of the South Carolina Supreme Court barring probate judges from issuing marriage license, notwithstanding the Fourth Circuit’s decision in Bostic, until the federal district court in South Carolina takes action (in response to AG Alan Wilson’s petition)\nSaikrishna Pakrash, The Executive’s Duty to Disregard Unconstitutional Laws\nKansas Supreme Court’s temporary injunction blocking issuance of same-sex marriage licenses\nLyle Denniston, Gay Marriage and Baker v. Nelson\nCatherine Thompson, GOP Nominee for Wisconsin AG Says He Would Defend Interracial Marriage Ban\nCenter for Reproductive Rights, What if Roe Fell? (see especially pages 8-9 on the repeal implications of a federal finding of unconstitutionality)\nChristian Turner, Roles\nSpecial Guest: Anthony Kreis.","content_html":"The Supreme Court this week handed down a series of landmark non-decisions. We talk with PhD candidate and commentator Anthony Kreis about the confusing, hopeful, exciting, promising, uncertain, and evolving state of marriage equality. In the wake of a (so far) uniform wave of appellate court decisions striking down gay-marriage bans, the Supreme Court steps in and … lets them stand without taking them up for decision. Why? And what is the state of law? What is likely to happen, and what are local officials to do? (And if you’re in a position to hire a Visiting Assistant Professor or Fellow, you’d be crazy not to try to hire Anthony.)
\n\nThis show’s links:
\n\nSpecial Guest: Anthony Kreis.
","summary":"The landmark non-decisions on gay marriage, with Anthony Kreis","date_published":"2014-10-11T11:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/349a84d1-8c95-4e83-8eb7-d3ae21d75dfb.mp3","mime_type":"audio/mpeg","size_in_bytes":48733221,"duration_in_seconds":5941}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:542ef69ae4b0b24d535e3492","title":"Episode 35: Multitudes","url":"https://oralargument.org/35","content_text":"We discuss the common law and originalism with law, literature, and history scholar Bernadette Meyler. Some of today’s most intense constitutional controversies revolve around the proper sources of interpretive tools. Some forms of originalism, believing judging is legitimate only if it foregoes political choice and instead adopts the choices made by democratically accountable institutions, attempt to locate the sole meanings that constitutional text, whether “natural born citizen,” “habeas corpus,” or “ex post facto,” had in the common law at the time of its adoption. Bernie’s research reveals that the common law itself, rather than speaking with one voice, exhibited some of the same diversity of interpretation and opinion that we see in debates about meaning today. Nonetheless, she believes that interpretation that gives weight to those original debates, rather than non-existent singular meanings, is better justified than unmoored living constitutionalism. She calls this method “common law originalism.”\n\nThis show’s links:\n\n\nAbout Bernadette Meyler and her writing\nFollow-up from Matthew Butterick, in which he reminds us that the podcast app we mentioned last week, Overcast, uses his typeface, Concourse\nEd Mazza, Nearly 1,000 Chickens Killed (a story of animal victimization related to our conversation with Matthew Liebman)\nBackground on the common law\nAbout Sir Edward Coke and his Law Reports, which can be browsed here\nCalvin’s Case as reported by Coke\nAbout Dr. Bonham’s Case\nBackground on originalism; see also here\nAntonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws (upon which he expands in A Matter of Interpretation\nLawrence Solum, Semantic Originalism (an originalist theory that includes “the idea of the division of linguistic labor”)\nBernadette Meyler, Accepting Contested Meanings\nBernadette Meyler, Defoe and the Written Constitution (compare with Andrew Coan, The Irrelevance of Writtenness in Constitutional Interpretation)\nWalt Whitman, Song of Myself\nOliver Wendell Holmes: “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner (1918)\nSanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It\nSpecial Guest: Bernadette Meyler.","content_html":"We discuss the common law and originalism with law, literature, and history scholar Bernadette Meyler. Some of today’s most intense constitutional controversies revolve around the proper sources of interpretive tools. Some forms of originalism, believing judging is legitimate only if it foregoes political choice and instead adopts the choices made by democratically accountable institutions, attempt to locate the sole meanings that constitutional text, whether “natural born citizen,” “habeas corpus,” or “ex post facto,” had in the common law at the time of its adoption. Bernie’s research reveals that the common law itself, rather than speaking with one voice, exhibited some of the same diversity of interpretation and opinion that we see in debates about meaning today. Nonetheless, she believes that interpretation that gives weight to those original debates, rather than non-existent singular meanings, is better justified than unmoored living constitutionalism. She calls this method “common law originalism.”
\n\nThis show’s links:
\n\nSpecial Guest: Bernadette Meyler.
","summary":"Common law originalism, with Bernadette Meyler.","date_published":"2014-10-03T15:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/fd451481-b055-47bf-ba6c-e2a523732419.mp3","mime_type":"audio/mpeg","size_in_bytes":40256492,"duration_in_seconds":4881}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:54263a5de4b043f786c93ec1","title":"Episode 34: There’s Not Really a Best Font","url":"https://oralargument.org/34","content_text":"We 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.\n\nThis show’s links:\n\n\nAbout Matthew Butterick, also here and @mbutterick on Twitter\nNicholas Georgakopoulos, Knee Defender, Barro’s Error, and Surprise Norms\nChristopher Buccafusco and Chris Sprigman, Who Deserves Those 4 Inches of Airplane Seat Space?\nKeith O’Brien, America’s Chimp Problem\nThe pronunciation of “chimpanzee”\nCecilia Kang, Podcasts Are Back - And Making Money (sadly, not ours, but here’s Christian’s post on Podcasts and some of the reasons we started this show)\nOvercast, our preferred podcast app\nEpisode 11: Big Red Diesel, in which we discussed typography, text editing, and the worst breaches of email etiquette\nButterick’s Practical Typography (and how to pay for it if you choose!)\nFrom the book: Typography in Ten Minutes and Summary of Key Rules\nMatthew Butterick, Typography for Lawyers (and how to purchase physical and Kindle editions)\nBen Carter, Typography for Lawyers: One Space, Double Spacing, and Other Good Ideas\nAn example of a Supreme Court opinion, notable for its design\nRobin Williams, The Mac is Not a Typewriter\nMatthew Butterick, The Bomb in the Garden, text and images from a talk Matthew gave at TYPO San Francisco in 2013\nRob Walker, The Guts of a New Machine, reporting on the iPod’s first two years and including the quote from Steve Jobs that “design is how it works” (Note too the uncertainty in 2003 whether the iPod would go on to sell like the breakthrough Sony Walkman, which sold 186 million in twenty years. As of this article, the iPod had sold 1.4 million. It went on to sell 350 million in eleven years.)\nDan Barry, A Writing Coach Becomes a Listener, a profile of William Zinsser, author of On Writing Well\nMike Monteiro, Design Is a Job\nLawrence Solum, Legal Theory Lexicon: Fit and Justification\nPatrick Kingsley, Higgs Boson and Comic Sans: The Perfect Fusion\nMatthew Butterick, Pollen, “a publishing system that helps authors create beautiful and functional web-based books” and that “includes tools for writing, designing, programming, testing, and publishing”\nMatthew’s Equity and Concourse typefaces\nMatthew Butterick, The Economics of a Web-Based Book: Year One\nSpecial Guest: Matthew Butterick.","content_html":"We 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.
\n\nThis show’s links:
\n\nSpecial Guest: Matthew Butterick.
","summary":"The one with typographer-lawyer Matthew Butterick.","date_published":"2014-09-27T00:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/3e2f82e9-af0d-4268-9a20-2be557ac3e6b.mp3","mime_type":"audio/mpeg","size_in_bytes":42039970,"duration_in_seconds":5104}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:541d8528e4b0c6a70bbcf9fd","title":"Episode 33: Other Minds","url":"https://oralargument.org/33","content_text":"Can 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 habeas corpus. And, come to think of it, why does Joe pronounce chimpanzee incorrectly, and how did he get Christian to start doing the same? This is the one about the role of animals in a system of human cooperation, and it features an all to brief return of the monkey selfie. (And we finally get to some of the excellent listener feedback we’ve gotten. Keep it coming: oralargumentpodcast@gmail.com.)\n\nThis show’s links:\n\n\nAbout Matthew Liebman, senior attorney for the Animal Legal Defense Fund\nBruce Wagman and Matthew Liebman, A Worldview of Animal Law\nOregon v. Nix, the case about animals as “victims”\nDavid Favre and Vivien Tsang, The Development of Anti-Cruelty Laws During the 1800s (PDF and HTML)\nAbout Henry Bergh, founder of the American Society for the Prevention of Cruelty to Animals\nThe Moral Status of Animals, an overview that includes a description of Immanuel Kant’s views on the moral status of animals\nAndrew Ireland Moore, Defining Animals as Crime Victims (note, Joe referred to this article, but the one by my classmate, Adam Kolber, is here)\nCurrent cases in which ALDF is involved\nLeanne Louie, Toothed Whales: Are They People Too\nThomas Martin, Whaling Rights of the Makah (see also, via HeinOnline, Lawrence Watters and Connie Dugger, Hunt for Gray Whales: The Dilemma of Native American Treaty Rights and the International Moratorium on Whaling\nManeesha Deckha, Animal Justice, Cultural Justice: A Posthumanist Response to Cultural Rights in Animals (Hein only) and Initiating a Non-Anthropocentric Jurisprudence\nSteven Wise’s Nonhuman Rights Project\nMichael Mountain, Appeals Court Sets Date for First Chimpanzee Lawsuit\nSierra Club v. Morton, in which Justice Douglas would find legal standing in the natural world itself (and citing Christopher Stone, Should Trees Have Standing? Toward Legal Rights for Natural Objects)\nSue Donaldson and Will Kymlicka, Zoopolis: A Political Theory of Animal Rights (also see an overview by the authors)\nAbout the other mind problem\nAbout cognitive ethology and animal cognition\nBen Beaumont-Thomas, SeaWorld shares tumble 33% following Blackfish documentary\nTilikum v. Sea World Parks and Entertainment, the 13th Amendment case brought on behalf of Sea World’s orcas\nAmerican Meat Institute v. USDA\nSpecial Guest: Matthew Liebman.","content_html":"Can 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 habeas corpus. And, come to think of it, why does Joe pronounce chimpanzee incorrectly, and how did he get Christian to start doing the same? This is the one about the role of animals in a system of human cooperation, and it features an all to brief return of the monkey selfie. (And we finally get to some of the excellent listener feedback we’ve gotten. Keep it coming: oralargumentpodcast@gmail.com.)
\n\nThis show’s links:
\n\nSpecial Guest: Matthew Liebman.
","summary":"On animal law, with Matthew Liebman.","date_published":"2014-09-20T10:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/deef44fe-7993-44ca-a999-215bdc4e4517.mp3","mime_type":"audio/mpeg","size_in_bytes":49612932,"duration_in_seconds":6051}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:5413bf1ee4b077167a51efd6","title":"Episode 32: Go Figure","url":"https://oralargument.org/32","content_text":"We’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.\n\nThis show’s links:\n\n\nLori Ringhand’s faculty profile, books, and articles\nEpisode 31: Knee Defender, in which we first spoke of the airplane seat reclining controversy\nNeil Buchanan, Airplane Seatbacks, the Coase Theorem, and Simplistic Solutions to Difficult Questions\nJosh Barro, Don’t Want Me to Recline My Airline Seat? You Can Pay Me\nKatia Hetter, Seat Recline Fight Diverts Another Flight\nBaskin v. Bogan, Judge Posner’s opinion for the Seventh Circuit striking down marriage bans in Indiana and Wisconsin\nRobicheaux v. Caldwell, Judge Feldman’s opinion upholding Louisiana’s marriage ban\nMark Joseph Stern, Judge Posner’s Gay Marriage Opinion Is a Witty, Deeply Moral Masterpiece\nChristian Turner, 404: Argument Not Found\nBrown v. Board of Education\nWhat Brown v. Board of Education Should Have Said, Jack Balkin ed.\nEpisode 30: A Filled Milk Caste, in which we discuss United States v. Carolene Products\nWindsor v. United States (the Second Circuit opinion that led to the Supreme Court case) and SmithKline Beecham Corp. v. Abbott Laboratories (a Ninth Circuit case), each deciding to apply heightened scrutiny to discrimination on the basis of sexual orientation\nRomer v. Evans, nominally using the deferential rational basis standard to strike down a state’s constitutional prohibition on any governmental efforts to protect gays from discrimination \nSpecial Guest: Lori Ringhand.","content_html":"We’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.
\n\nThis show’s links:
\n\nSpecial Guest: Lori Ringhand.
","summary":"The one with Lori Ringhand.","date_published":"2014-09-13T00:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/8ef508a9-f63e-462b-9dfa-954bd7d5e884.mp3","mime_type":"audio/mpeg","size_in_bytes":44358078,"duration_in_seconds":5394}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:54007e81e4b0c1979a264c18","title":"Episode 31: Knee Defender","url":"https://oralargument.org/31","content_text":"Our 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.\n\nThis show’s links:\n\n\nSeventh Circuit arguments in Baskin v. Bogan and Wolf v. Walker\nChristian Turner, 404: Argument Not Found\nPaul Ford, How to Be Polite\nAbout the duty to rescue\nPaul Bloom, Against Empathy in the Boston Review, with respondents\nRichard Greenstein, Against Professionalism\nThe Knee Defender \nAP, Plane Diverted as Passengers Fight over Seat Reclining\nCBC News, Fired RIM Execs “Chewed Through Restraints” on Flight\nJosh Barro, Don’t Want Me to Recline My Airline Seat? You Can Pay Me\nAbout the so-called Coase Theorem\nStanley Coren, Is It Safe to Ship Dogs or Cats by Air?\nAbout boarding patterns on airplanes\nDahlia Lithwick, Checking In on the Town of Greece\nEpisode 19: The Prayer Abides (guest Nathan Chapman), discussing the Town of Greece case\nAbout the Streisand effect\nJack Jenkins, How Satanists Are Testing The Limits Of Religious Freedom In Oklahoma\nSwartz v. Insogna\nAbout contempt of cop\n","content_html":"Our 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.
\n\nThis show’s links:
\n\n![\"Image\"](\"http://graphics8.nytimes.com/images/2006/02/07/business/flier.184.jpg\" "\\"\\"")
Joe’s favorites case(s) part deux, Carolene Products, the filled milk case to end all filled milk cases. We talk about a case most famous for its fourth footnote. That’s right. This episode, alongside volumes upon volumes of legal scholarship, is almost entirely concerned with a footnote. But this one almost casually suggests a principle to divide the power of the federal government between courts and the political branches. Bonus content: an idea about returning to school later in life and follow-up on the monkey selfie.
\n\nThis show’s links:
\n\nIt’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 General and Joe’s to be, somehow, a “Lord High Chancellor.\"
\n\nThis show’s links:
\n\n![\"monocle-wearer,](\"http://upload.wikimedia.org/wikipedia/commons/thumb/9/90/Chamberlain.jpg/220px-Chamberlain.jpg\" "\\"\\"")
Special Guest: Mehrsa Baradaran.
","summary":"Back to school, with Mehrsa Baradaran.","date_published":"2014-08-15T09:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/dc5aa1e8-e7e9-4b08-8433-745c380cd309.mp3","mime_type":"audio/mpeg","size_in_bytes":37831249,"duration_in_seconds":4578}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:53e53e68e4b021a99e4dd657","title":"Episode 28: A Wonderful Catastrophe","url":"https://oralargument.org/28","content_text":"Now 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 Washington declining to seek a third term. We close with a discussion of why no one “owns” the now-famous and delightful monkey selfie.\n\nThis show’s links:\n\n\nOvercast, the newest podcast app on the block\nEpisode 8: Party All over the World\nChristian Turner, Leveling Up\nEd Cray, Chief Justice: A Biography of Earl Warren (and here’s a review)\nEpisode 27: My Favorite Case\nAbout the Canadian Charter of Rights and Freedoms\nErie Railroad Co. v. Tompkins\nUnited States v. Carolene Products\nSwift v. Tyson\nBlack and White Taxicab and Transfer Co. v. Brown and Yellow Taxicab and Transfer Co. (Holmes: “The fallacy and illusion that I think exist consist in supposing that there is this outside thing to be found. Law is a word used with different meanings, but law in the sense in which courts speak of it today does not exist without some definite authority behind it.”)\nThe monkey selfie: (go here to see the image if it doesn’t appear in your podcast client)\nMike Masonic, How That Monkey Selfie Reveals The Dangerous Belief That Every Bit Of Culture Must Be 'Owned'\nAnnemarie Bridy, Coding Creativity: Copyright and the Artificially Intelligent Author\n","content_html":"Now 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 Washington declining to seek a third term. We close with a discussion of why no one “owns” the now-famous and delightful monkey selfie.
\n\nThis show’s links:
\n\n![\"The](\"https://upload.wikimedia.org/wikipedia/commons/thumb/3/34/Macaca_nigra_self-portrait_%28rotated_and_cropped%29.jpg/160px-Macaca_nigra_self-portrait_%28rotated_and_cropped%29.jpg\" "\\"\\"")
(go here to see the image if it doesn’t appear in your podcast client)What’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.
\n\nThis show’s links:
\n\nWe are joined by budding media celebrity, Sonja West, who got her start on Episode 1 of Oral Argument. We again turn to the Hobby Lobby decision and the Supreme Court’s odd epilogue. With Sonja’s expert guidance we try to make sense of the web of religious liberty. Also, war on women or the century of gender equality?
\n\nThis show’s links:
\n\nSpecial Guest: Sonja West.
","summary":"Sonja West and Hobby Lobby return.","date_published":"2014-07-11T07:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/f21a0ca7-834c-4da1-93e4-9ee664fc27c0.mp3","mime_type":"audio/mpeg","size_in_bytes":41100744,"duration_in_seconds":4987}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:53b6adb9e4b08ad83703dfad","title":"Episode 25: Normal Religions","url":"https://oralargument.org/25","content_text":"This is our first annual Supreme Court term roundup. And in our first effort, we manage to discuss, more or less, a single case: Hobby Lobby.\n\nThis show’s links:\n\n\nBurwell v. Hobby Lobby Stores\n","content_html":"This is our first annual Supreme Court term roundup. And in our first effort, we manage to discuss, more or less, a single case: Hobby Lobby.
\n\nThis show’s links:
\n\n","summary":"The Hobby Lobby case.","date_published":"2014-07-04T10:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/4a184f79-dc3c-4083-9e7d-03470215e846.mp3","mime_type":"audio/mpeg","size_in_bytes":56020813,"duration_in_seconds":6852}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:53ade75be4b0ef701ed7fb6d","title":"Episode 24: Vacation from Competition","url":"https://oralargument.org/24","content_text":"We 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.\n\nThis show’s links:\n\n\nKevin Collins’ faculty profile and writing\nEdinburgh’s statue of Adam Smith, though not the photo taken by listener Barbara: \nRiley v. California, the cell phone search case, PDF and HTML\nFrank Easterbrook, Cyberspace and the Law of the Horse\nLawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach\nChristian Turner, The Information Law Crisis\nSony Corp. v. Universal City Studios, Inc., the VCR case\nAmerican Broadcasting Cos. v. Aereo, PDF and HTML\nMike Masnick, Aereo Fallout Begins: Fox Uses Ruling To Attack Dish's Mobile Streaming Service\nSummary of the history of cable television in the U.S.\nAlice Corp. v. CLS Bank, PDF and HTML\nEpisode 3: Cut It Off (guest Paul Heald)\nO’Reilly v. Morse, the telegraph case\nNautilus v. Biosig Instruments, PDF and HTML\nAssociation for Molecular Pathology v. Myriad Genetics\nKevin Collins, The Knowledge/Embodiment Dichotomy\nKevin Collins, Bilski and the Ambiguity of 'An Unpatentable Abstract Idea’\nMichele Boldrin and David Levine, Against Intellectual Monopoly\nMichele Boldrin and David Levine, The Case Against Patents\nSpecial Guest: Kevin Collins.","content_html":"We 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.
\n\nThis show’s links:
\n\n![\"image](\"http://upload.wikimedia.org/wikipedia/commons/6/68/Adam_Smith_statue.jpg\" "\\"\\"")
Special Guest: Kevin Collins.
","summary":"On the Supreme Court's latest IP cases, with Kevin Collins.","date_published":"2014-06-27T18:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/d3b777d5-d44d-4a84-ba83-1b77bcc32090.mp3","mime_type":"audio/mpeg","size_in_bytes":49077873,"duration_in_seconds":5984}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:53a3a2f9e4b01ac00fa6c263","title":"Episode 23: Rex Sunstein","url":"https://oralargument.org/23","content_text":"We 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.\n\nThis show’s links:\n\n\nEthan Leib’s faculty profile and articles\nThis Week in Law 263: More Bodies on Blackacre, on which Joe and Christian were guests\nNestor Davidson and Ethan Leib, Regleprudence - at OIRA and Beyond\nMark Tushnet, Legislative and Executive Stare Decisis\nThe nuclear option\nAbout OIRA, the Office of Information and Regulatory Affairs, and its resource page\nThe major executive orders concerning federal regulation and the role of OIRA\nThe repository of OIRA return letters\nCass Sunstein, The Office of Information and Regulatory Affairs: Myths and Realities\nCatherine Sharkey, State Farm 'with Teeth': Heightened Judicial Review in the Absence of Executive Oversight\nJulius Cohen, Towards Realism in Legisprudence and Legisprudence: Problems and Agenda\nLon Fuller, The Morality of Law\nCarol Rose, New Models for Local Land Use Decisions\nCass Sunstein’s memorandum for agency heads, Disclosure and Simplification as Regulatory Tools\nOffice of Management and Budget, Circular A-4\nPublic comments on the Obama administration’s proposal to revise the basic regulatory executive order (including comments from Martha Nussbaum, Eric Posner, Gillian Metzler, Richard Revesz, Michael Livermore, and Peter Strauss)\nEthan Leib and David Ponet, Fiduciary Representation and Deliberative Engagement with Children\nEvan Criddle, Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking\nSpecial Guest: Ethan Leib.","content_html":"We 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.
\n\nThis show’s links:
\n\nSpecial Guest: Ethan Leib.
","summary":"On \"regleprudence,\" with Ethan Leib.","date_published":"2014-06-19T23:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/7b359520-6869-4f5f-a299-da92bb8d65ac.mp3","mime_type":"audio/mpeg","size_in_bytes":40482261,"duration_in_seconds":4910}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:539a4ab1e4b0821f813c74d7","title":"Episode 22: Nine Brains in a Vat","url":"https://oralargument.org/22","content_text":"We talk about the Supreme Court with writer and reporter, Dahlia Lithwick. How should one report on the Court, at a time when analysis of opinions is expected within hours or even minutes? What is the role of the Court press: middle men, translators, or something else? And come to think of it, what’s the role of the Supreme Court? Oracles, politicians, teachers? Should judges give speeches like politicians do? Politics, policy, religion, guns. And, of course, speed traps.\n\nThis show’s links:\n\n\nDahlia Lithwick’s latest articles on Slate\nAdam Smith, The Theory of Moral Sentiments (pdf) and wikipedia summary\nSlate Plus\nDerek Muller, The Five Law-Related Podcasts You Should Listen To\nJack Shafer, Serving up the Supreme Court Dough Before It’s Baked\nTom Goldstein, We’re Getting Wildly Different Assessments (a deep look into what went wrong with the reporting on the Obamacare decision)\nRonNell Andersen Jones, U.S. Supreme Court Justices and Press Access\nJesse Wegman, (Supreme) Court TV and the Magically Disappearing Protest\nKenneth Vogel, Defiant Clarence Thomas Fires Back\nVikram Amar, Why Did Justice Scalia Decline to Participate in the \"One Nation Under God\" Case?\nJack Balkin, ”High” Politics and Judicial Decisionmaking\nJustice Scalia’s memo on a recusal motion in Cheney v. United States District Court for the District of Columbia\nOral Argument Episode 6: Productive Thoughtlessness, in which we previously discussed Dahlia Lithwick\nPew Research Center, Political Polarization in the American Public\nEduardo Peñalver, Property as Entrance\nTown of Greece v. Galloway\nDahlia Lithwick, You Don’t See What I See\nOral Argument Episode 8: Party All Over the World, for some of our discussion on speed traps\nWaze app\nArtist Aaron Fein\nStatler and Waldorf: \nSpecial Guest: Dahlia Lithwick.","content_html":"We talk about the Supreme Court with writer and reporter, Dahlia Lithwick. How should one report on the Court, at a time when analysis of opinions is expected within hours or even minutes? What is the role of the Court press: middle men, translators, or something else? And come to think of it, what’s the role of the Supreme Court? Oracles, politicians, teachers? Should judges give speeches like politicians do? Politics, policy, religion, guns. And, of course, speed traps.
\n\nThis show’s links:
\n\n![\"Statler](\"http://img1.wikia.nocookie.net/__cb20110325180958/muppet/images/thumb/3/3d/TMS-Statler%26Waldorf-BalconyBox.jpg/300px-TMS-Statler%26Waldorf-BalconyBox.jpg\" "\\"\\"")
Special Guest: Dahlia Lithwick.
","summary":"On the Supreme Court, with Dahlia Lithwick.","date_published":"2014-06-12T21:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/0a508714-83b6-475e-877b-6805e7c1ff03.mp3","mime_type":"audio/mpeg","size_in_bytes":45772818,"duration_in_seconds":5571}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:53923853e4b045b0b0435916","title":"Episode 21: Kind of a Hellscape","url":"https://oralargument.org/21","content_text":"We talk about the relatively simple problem of global climate change with Brigham Daniels. Starting with EPA’s just-proposed regulations, we discuss the very odd way that U.S. law has confronted the problem. Why has it become a partisan issue and how do we overcome that? Are economic signals enough or must ethics change and tribal alliances break down? How might that happen? Darcy and a special canine guest make brief appearances.\n\nThis show’s links:\n\n\nBrigham Daniels’ faculty profile and writing\nBrigham Daniels, Addressing Global Climate Change in an Age of Political Climate Change\nEPA, Carbon Pollution Standards\nEPA, Carbon Power Plan Proposed Rule, including links to the proposed rule and numerous fact sheets concerning the EPA’s proposed rule for existing power plants\nVox’s Guide to Obama's New Rules to Cut Carbon Emissions from Power Plants\nJonathan Cohn, Obama's New Rules for Coal Plants Are a B.F.D. The Ensuing Political Fight May Be Even Bigger\nThe United Nations Framework Convention on Climate Change, website and wikipedia\nExplanation of the Kyoto Protocol\nU.S. Global Change Research Program, 2014 National Climate Assessment\nUSGCPR, Appendix: Climate Science Supplement\nAbout the Intergovernmental Panel on Climate Change or IPCC\nIPCC Assessments\nMassachusetts v. EPA, holding (among other things) that EPA has authority under some parts of the Clean Air Act to regulate greenhouse gas emissions\nEPA, Section 111(d) Plans mandated after an endangerment finding\nIn re Polar Bear Endangered Species Act Listing, in which the D.C. Circuit upholds U.S. Fish and Wildlife’s listing of the polar bear as “threatened” under the Endangered Species Act\nJustin Gillis and Kenneth Chang, Scientists Warn of Rising Oceans From Polar Melt\nEzra Klein, How Politics Makes Us Stupid\nLast Week Tonight with John Oliver, Climate Change Debate on YouTube\nLetter from Moynihan to Ehrlichman in the Nixon White House warning that rising carbon dioxide levels were “very clearly” a “problem,” potentially destroying New York and Washington\nCompetitive Enterprise Institute, Energy, YouTube video (“They call it pollution. We call it life.”)\nKevin Drum, Sorry, \"Daily Show\": Anti-Vax Nuts Come From Both Sides of the Aisle\nJedediah Purdy, Climate Change Needs the Politics of the Impossible\nEzra Klein, 7 Reasons America Will Fail on Climate Change\nSpecial Guest: Brigham Daniels.","content_html":"We talk about the relatively simple problem of global climate change with Brigham Daniels. Starting with EPA’s just-proposed regulations, we discuss the very odd way that U.S. law has confronted the problem. Why has it become a partisan issue and how do we overcome that? Are economic signals enough or must ethics change and tribal alliances break down? How might that happen? Darcy and a special canine guest make brief appearances.
\n\nThis show’s links:
\n\nSpecial Guest: Brigham Daniels.
","summary":"The simple problem of climate change, with Brigham Daniels.","date_published":"2014-06-06T20:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/09802769-5547-4172-957c-52fe92f6be9d.mp3","mime_type":"audio/mpeg","size_in_bytes":40898399,"duration_in_seconds":4962}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:537fa91be4b03c02ffcb7ba7","title":"Episode 20: Twelve Billion Dollars","url":"https://oralargument.org/20","content_text":"We 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 and how much students pay, the weird market for textbooks, Joe’s collaboration with Lydia Loren to become the Radiohead of textbook publishers, and one publisher’s attempt essentially to lease rather than sell textbooks. We close by noting that it’s hot here now (the slight hiss when Joe speaks is the air conditioning) and Christian’s related parenting woes.\n\nThis show’s links:\n\n\nAtlanta’s News Radio 106.7 FM and, in particular, The Michael Graham Show\nEpisode 7: Speed Trap and follow-up on speed-trap law on Episode 8: Party All Over the World\nChristian Turner, This Thing I Made, describing HydraText\nYochai Benkler, The Wealth of Networks, from which you can download the book or read it in a browser\nThe Berkman Center’s H2O Project at Harvard University\neLangdell, CALI’s casebook project\nSemaphore Press, Joe’s and Lydia Loren’s casebook company\nJames Grimmelman, Internet Law: Cases and Materials\nDaniel Nazer, Aspen to Students: Your Property Book is Not Your Property\nMike Masnick, Publisher 'DRMs' Physical Legal Textbook About 'Property,' Undermines Property And First Sale Concepts\nJosh Blackman, Aspen Casebook Connect Textbooks Must Be Returned At End Of Class, Cannot Be Resold\nJosh Blackman, Aspen Issues Revised “Connected Casebook” – Now You Can Choose To Keep Your Book\nIan Chant, Law Profs Revolt after Aspen Casebook Tries to Get Around First Sale Doctrine\n","content_html":"We 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 and how much students pay, the weird market for textbooks, Joe’s collaboration with Lydia Loren to become the Radiohead of textbook publishers, and one publisher’s attempt essentially to lease rather than sell textbooks. We close by noting that it’s hot here now (the slight hiss when Joe speaks is the air conditioning) and Christian’s related parenting woes.
\n\nThis show’s links:
\n\nShaking 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.
\n\nThis show’s links:
\n\nSpecial Guest: Nathan Chapman.
","summary":"Government prayer, with Nathan Chapman.","date_published":"2014-05-17T16:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/50cc9888-d42d-444b-8b13-50d091208ffc.mp3","mime_type":"audio/mpeg","size_in_bytes":50171616,"duration_in_seconds":6121}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:535abd13e4b0a24faf6b3f3f","title":"Episode 18: Oral Argument","url":"https://oralargument.org/18","content_text":"We 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.\n\nThis show’s links:\n\n\nTom Goldstein’s profile and law firm\nSCOTUSblog and its About page\nOral Argument Episode 17: Flesh List, with Kim Krawiec\nKim’s posts here and here about her appearance and with some follow-up information\nSubsume\nOyez, a resource for, among other things, audio of Supreme Court oral arguments dating back at least to the 1950s\nThe U.S. Supreme Court’s own pages for oral argument transcripts and audio\nBarry Sullivan, Other Minds: The Use and Uses of Oral Argument\nEpstein, Landes, and Posner, Inferring the Winning Party in the Supreme Court from the Pattern of Questioning at Oral Argument\nWikipedia, collecting sources, on Justice Thomas’ approach to oral argument\nThe Oyez page for Loving v. Virginia, which links to the audio of the oral argument in the historic case striking down state bans on interracial marriage\nRonald Collins, Hypothetically Speaking: Justice Breyer’s Dialectical Propensities\nJoshua Stein, Tentative Oral Opinions: Improving Oral Argument Without Spending a Dime\nOyez page for Kelo v. City of New London\nOral argument transcript in Alice Corp. v. CLS Bank Int’l, just search for “King Tut” within this document\nAdam Liptak, A Taxonomy of Supreme Court Humor\nJay Wexler, Laugh Track II - Still Laughin’!\nSpecial Guest: Tom Goldtsein.","content_html":"We 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.
\n\nThis show’s links:
\n\nSpecial Guest: Tom Goldtsein.
","summary":"The one about actual oral arguments, with Tom Goldstein.","date_published":"2014-04-25T16:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/21614b14-3947-4230-b859-817a4e4c6a8f.mp3","mime_type":"audio/mpeg","size_in_bytes":33123295,"duration_in_seconds":3990}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:535143d5e4b0bf8f55254fbf","title":"Episode 17: Flesh List","url":"https://oralargument.org/17","content_text":"Psst, do you want to buy a kidney? How about a human egg, or a baby? We talk about taboo markets and tragic choice with Kim Krawiec. Topics range from egg “donation” to kidney transplants, altruism, reference transactions, military service, sex, and more. How do we allocate scarce goods when enough of us just don’t believe the goods should be traded like loaves of bread? Program note: We failed to ask Kim whether Joe is monstrous on account of his views on speed trap norms. Our apologies to the listeners and to Kim.\n\nThis show’s links:\n\n\nKim Krawiec’s faculty profile and writing\nOral Argument Episode 14: The Astronaut’s Hair, with Lisa Milot\nThe Faculty Lounge blog\nTaxing Eggs, a mini-symposium on the Faculty Lounge blog\nViviana A. Rotman Zelizer, Morals and Markets: The Development of Life Insurance in the United States\nViviana A. Zelizer, Pricing the Priceless Child\nViviana A. Zelizer, The Price and Value of Children: The Case of Children’s Insurance\nKimberly Krawiec, Price and Pretense in the Baby Market\nKimberly Krawiec, A Woman’s Worth\nMargaret Jane Radin, Contested Commodities\nRichard Posner, The Regulation of the Market in Adoptions\nKimberly Krawiec, Kamakahi v. ASRM: The Egg Donor Price Fixing Litigation\nPhilip Cook and Kimberly Krawiec, A Primer on Kidney Transplantation: Anatomy of the Shortage\nWikipedia on the National Organ Transplant Act of 1984\nKieran Healy and Kimberly Krawiec, Custom, Contract, and Kidney Exchange\nShow Me the Money: Making Markets in Forbidden Exchange, an issue of Law and Contemporary Problems\nKimberly Krawiec, Foreword to Show Me the Money: Making Markets in Forbidden Exchange\nGuido Calabresi and Philip Bobbitt, Tragic Choices\nSpecial Guest: Kimberly Krawiec.","content_html":"Psst, do you want to buy a kidney? How about a human egg, or a baby? We talk about taboo markets and tragic choice with Kim Krawiec. Topics range from egg “donation” to kidney transplants, altruism, reference transactions, military service, sex, and more. How do we allocate scarce goods when enough of us just don’t believe the goods should be traded like loaves of bread? Program note: We failed to ask Kim whether Joe is monstrous on account of his views on speed trap norms. Our apologies to the listeners and to Kim.
\n\nThis show’s links:
\n\nSpecial Guest: Kimberly Krawiec.
","summary":"Taboo transactions, with Kim Krawiec.","date_published":"2014-04-18T23:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/19bd6f5d-a216-4d9f-9ccc-c2cbb55e3cd6.mp3","mime_type":"audio/mpeg","size_in_bytes":39840274,"duration_in_seconds":4829}]},{"id":"50085028e4b0c6fedbcad981:50dc821be4b0a05702a6868c:5346ee63e4b0dd40982c8fa7","title":"Episode 16: The Whole Spectrum","url":"https://oralargument.org/16","content_text":"When you think of giant cable companies, do you find yourself wishing they could be bigger? Do you even find yourself thinking of giant cable companies? Whether you do or do not, you might learn something from our discussion with James Speta, who attempts to shows us the middle way on the issues facing broadband internet. Vertical and horizontal integration, bundling, packets, spectrum, and monopoly. We return to the law and policy of the network.\n\nThis show’s links:\n\n\nJim Speta’s faculty profile and writing\nJames B. Speta, Supervising Managed Services\nOral Argument Episode 10 with Christina Mulligan, with discussion and links on many of the topics we discuss, including the Comcast-Time Warner merger, net neutrality, Verizon v. FCC, content delivery networks, the Comcast-Netflix deal, pCell technology, and common carrier regulations\nComcast, Press Release about its FCC filing on its proposed merger with Time Warner\nEdward Wyatt, Internet Choice Will Be Crucial Battlefield in Big Cable Merger\nEdward Wyatt, Senate Panel Expresses Caution on Merger of Cable Giants\nSusan Crawford, Comcast Pretends to Be on Your Side\nWikipedia on the Telecommunications Act of 1996\nThe National Broadband Plan, executive summary\nSusan Crawford, The Looming Cable Monopoly\nCecilia Kang, Comcast the little guy? There’s competition everywhere, the company argues\nBae, Beigman, Berry, Honig, Shen, Vohra, and Zhou, Spectrum Markets for Wireless Services\nReed Hastings, Internet Tolls And The Case For Strong Net Neutrality\nJon Brodkin, Netflix says it will pay “tolls” to more ISPs, not just Comcast\nBenjamin, Shelnski, Speta, and Weiser, Telecommunications Law and Policy: Third Edition\nSpecial Guest: James Speta.","content_html":"When you think of giant cable companies, do you find yourself wishing they could be bigger? Do you even find yourself thinking of giant cable companies? Whether you do or do not, you might learn something from our discussion with James Speta, who attempts to shows us the middle way on the issues facing broadband internet. Vertical and horizontal integration, bundling, packets, spectrum, and monopoly. We return to the law and policy of the network.
\n\nThis show’s links:
\n\nSpecial Guest: James Speta.
","summary":"Big cable companies, with Jim Speta.","date_published":"2014-04-11T07:00:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/6985ec87-d9cc-4a73-b5f4-2e461808a254.mp3","mime_type":"audio/mpeg","size_in_bytes":36725447,"duration_in_seconds":4440}]},{"id":"d5f3c8db-a3ae-4cca-89ae-d3073e9e6b4d","title":"Episode 15: In the Weeds","url":"https://oralargument.org/15","content_text":"It’s Reefer Madness week on Oral Argument. We talk with Douglas Berman about marijuana decriminalization and lots more. We discuss blogs and scholarship, LSD, why minds might be changing and how they change on drug use, parental paternalism and state paternalism, what we mean by “good drugs” and “bad drugs,” the productivity of intoxication, why law students take an interest in philosophy and sociology when it comes to drug laws. What levers should we use to minimize the dangers drugs pose, and what levers are available to us? We talk a bit about Portugal, the Netherlands, Sweden, and North Korea. Yes, North Korea. Is part of the right answer to restrict the market to Mom and Pop Pot? How do we do that in a maelstrom of conflicting federal and state laws?\n\nThis show’s links:\n\n\nDouglas Berman’s faculty profile and writing\nKimberly Krawiec, Taxing Eggs on Oral Argument on The Faculty Lounge blog\nThe best way to listen to Oral Argument: Podcast apps, such as Castro, instacast, Downcast, and Pocket Casts\nDoug’s world-famous sentencing blog, Sentencing Law and Policy\nMarijuana Law, Policy and Reform, Doug Berman’s latest world-famous blog\nUnited States v. Marshall (Easterbrook vs. Posner on the interpretation of statutory LSD punishments)\nMatt Ferner, Lawmaker Predicts Marijuana Will Be Legal Within 5 Years\nSeanna Adcox (AP), South Carolina House Allows Cannabis-Derived Oil for Epilepsy\nAlex Kreit, Controlled Substances: Crime, Regulation, and Policy\nAlex Kreit, Controlled Substances blog posts on Doug’s Sentencing Law and Policy (this is the fourth, with earlier posts linked at the bottom of this one)\nBen Tool, North Korea Smokes Weed Every Day, Explaining a Lot\nJosh Harkinson, Brett Bownell, and Julia Lurie, 24 Mind-Blowing Facts About Marijuana Production in America\nJosh Harkinson, The Landscape-Scarring, Energy-Sucking, Wildlife-Killing Reality of Pot Farming\nWikipedia on Drug Policy of Sweden\nThe Dutch government’s Toleration policy regarding soft drugs and coffee shops\nFrida Ghitis, Amsterdam for tourists: What's legal?\nGlenn Greenwald, Drug Decriminalization in Portugal\nJonathan Hiskes, Tell me again why we mandate parking at bars?\nErik Ortiz, 8 things to know about buying and smoking pot in Colorado\nMelissa Schettini Kearney, The Economic Winners and Losers of Legalized Gambling\nAshley Southall, Answers Sought for When Marijuana Laws Collide\nSerge F. Kovalesi, U.S. Issues Marijuana Guidelines for Banks\nTrevor Curwin, Small Growers or Corporate Cash Crop?\nJake Ellison, Washington State Just Shifted Marijuana Market from ‘Big Weed’ to ‘Ma and Pa Weed’\nAbby Haglage, Meet Mark Kleiman, the Man Who Will Be Washington State’s Pot Czar\nGonzales v. Raich\nFrontline interview with Mark Kleiman\nSpecial Guest: Douglas Berman.","content_html":"It’s Reefer Madness week on Oral Argument. We talk with Douglas Berman about marijuana decriminalization and lots more. We discuss blogs and scholarship, LSD, why minds might be changing and how they change on drug use, parental paternalism and state paternalism, what we mean by “good drugs” and “bad drugs,” the productivity of intoxication, why law students take an interest in philosophy and sociology when it comes to drug laws. What levers should we use to minimize the dangers drugs pose, and what levers are available to us? We talk a bit about Portugal, the Netherlands, Sweden, and North Korea. Yes, North Korea. Is part of the right answer to restrict the market to Mom and Pop Pot? How do we do that in a maelstrom of conflicting federal and state laws?
\n\nThis show’s links:
\n\nSpecial Guest: Douglas Berman.
","summary":"Law and marijuana, with Doug Berman.","date_published":"2014-04-04T18:15:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/d5f3c8db-a3ae-4cca-89ae-d3073e9e6b4d.mp3","mime_type":"audio/mpeg","size_in_bytes":54559281,"duration_in_seconds":6669}]},{"id":"9745e20f-0aec-49c6-8d6d-32d5d2592ce2","title":"Episode 14: The Astronaut's Hair","url":"https://oralargument.org/14","content_text":"This 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.\n\nThis show’s links:\n\n\nEpisode 12: Heart of Darkness, the episode about the U.S. News Law School Rankings\nThe Ranking Game, Jeffrey Stake’s do-it-yourself rankings website\nJeffrey Stake and Michael Alexeev, Who Responds to U.S. News & World Report’s Law School Rankings?, forthcoming study of U.S. News rankings’ influence on student, administrators, and employers\nLisa Milot’s bio and writing\nLisa Milot, What Are We - Laborers, Factories, or Spare Parts? The Tax Treatment of Transfers of Human Body Materials\nTaxing Eggs: A Mini-Symposium on The Faculty Lounge blog\nLisa Milot, Taxing Eggs\nCory Doctorow, Life on the Frozen-Food-Tasting Line\nSmelling armpits\nRichard Rubin, Egg Donor IRS Challenge Offers Future Sperm Tax Certainty\nAbout egg retrieval from The Donor Source, an egg donor agency\nAlissa Fleck, Inside the Industry of Egg Donation\nKimberly Krawiec, Sunny Samaritans and Egomaniacs: Price-Fixing in the Gamete Market\nKimberly Krawiec, A Woman’s Worth\nSpecial Guest: Lisa Milot.","content_html":"This 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.
\n\nThis show’s links:
\n\nSpecial Guest: Lisa Milot.
","summary":"Selling and taxing human eggs, with Lisa Milot.","date_published":"2014-03-28T17:45:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/9745e20f-0aec-49c6-8d6d-32d5d2592ce2.mp3","mime_type":"audio/mpeg","size_in_bytes":45048505,"duration_in_seconds":5480}]},{"id":"867bea34-a71a-4da1-8e43-3f04231e15ec","title":"Episode 13: A Special Place in Hell for Joe","url":"https://oralargument.org/13","content_text":"Our guest, Dave Hoffman, writes about everything and helped to found one of the premier legal blogs, Concurring Opinions. We talk about the role of legal blogs in the public sphere and for the academy. And speaking of writing, what’s wrong with legal scholarship? What should we be doing, and how can the forms of writing, the fora for writing, and the expectations for scholars help or hinder that? Also, too, the return to the show of speed trap law and whether Joe satisfies the basic norms of civility.\n\nThis show’s links:\n\n\nDavid Hoffman’s bio and writing\nConcurring Opinions\nPrawfsblawg\nCultural Cognition Project\nDave Hoffman, The Death of Fact-finding and the Birth of Truth\nDuncan Black (Atrios) on law profs here, here, and here\nMatt Bodie for Prawfsblawg, The “Research Canons” Project\nDavid Freeman Engstrom, The 'Twiqbal' Puzzle and Empirical Study of Civil Procedure\nAbout SSRN, the Social Science Research Network\nAbout B.E. Press, the Berkeley Electronic Press\nResearchGate\nThe Murder of Kitty Genovese\nThe Montana Speed Non-Limit\nSpecial Guest: David Hoffman.","content_html":"Our guest, Dave Hoffman, writes about everything and helped to found one of the premier legal blogs, Concurring Opinions. We talk about the role of legal blogs in the public sphere and for the academy. And speaking of writing, what’s wrong with legal scholarship? What should we be doing, and how can the forms of writing, the fora for writing, and the expectations for scholars help or hinder that? Also, too, the return to the show of speed trap law and whether Joe satisfies the basic norms of civility.
\n\nThis show’s links:
\n\nSpecial Guest: David Hoffman.
","summary":"Legal blogging and scholarship, with Dave Hoffman.","date_published":"2014-03-21T17:45:00.000-04:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/867bea34-a71a-4da1-8e43-3f04231e15ec.mp3","mime_type":"audio/mpeg","size_in_bytes":37809658,"duration_in_seconds":3660}]},{"id":"f66975be-979a-4f57-bf48-28360c232f5c","title":"Episode 12: Heart of Darkness","url":"https://oralargument.org/12","content_text":"The U.S. News rankings of law schools are out! We wish they would go away. After follow-up on last week’s episode and a dip into viewer mail, we discuss what problems the rankings might be attempts to solve, how they are calculated, and the obvious problems with them. Joe reports that after the conversation, as after other discussions of the rankings, he felt like he needed a shower.\n\nThis show’s links:\n\n\nEpisode 11: Big Red Diesel\nTypography in ten minutes from Butterick’s Practical Typography, see also his Summary of Key Rules\nBen Carter, Typography for Lawyers: One Space, Double Spacing, and Other Good Ideas\nThe 2015 U.S. News and World Report Law School Rankings\nLSAC, Choosing a Law School\nThe official U.S. News Rankings Methodology\nBrian Leiter, An Open Letter to Bob Morse of U.S. News\nBrian Leiter, The U.S. News Law School Rankings: A Guide for the Perplexed\nTheodore P. Seto, Understanding the U.S. News Law School Rankings, in which Prof. Seto describes an attempt to reproduce the U.S. News model and conclusions about the rankings’ reliability, accuracy, and shortcomings\nPaul Caron, 2015 U.S. News Peer Reputation Rankings vs. Overall Rankings\nRobert L. Jones, A Longitudinal Analysis of the U.S. News. Law School Academic Reputation Scores Between 1998 and 2013\nJeffrey Evans Stake, The Interplay Between Law School Rankings, Reputations, and Resource Allocation: Ways Rankings Mislead\nBill Henderson, Can Stanford Be No. 1 in the U.S. New Rankings? \n","content_html":"The U.S. News rankings of law schools are out! We wish they would go away. After follow-up on last week’s episode and a dip into viewer mail, we discuss what problems the rankings might be attempts to solve, how they are calculated, and the obvious problems with them. Joe reports that after the conversation, as after other discussions of the rankings, he felt like he needed a shower.
\n\nThis show’s links:
\n\nThe 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 close with Memphis. Christian's spouse conducts various noisy activities in the background. And Darcy barks. Never fear: we'll get back to the law stuff next week.
\n\nThis show’s links:
\n\nThis 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 improve our Google search position, packets spewing from unicorn horns, and the pronunciation of Smaug. Christian announces the sale of his body parts.
\n\nThis show’s links:
\n\nSpecial Guest: Christina Mulligan.
","summary":"The one about the internet, with Christina Mulligan.","date_published":"2014-03-01T19:30:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/39b8704c-8160-40b8-b76f-2e9d4e56f2cf.mp3","mime_type":"audio/mpeg","size_in_bytes":57329436,"duration_in_seconds":7015}]},{"id":"99a8751d-64de-41fd-ac0f-51f95818acaf","title":"Episode 9: Torches and Pitchforks","url":"https://oralargument.org/9","content_text":"Law 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 Ford Edsel”). From the bank bailouts to moral hazard to the the precarious financial position of the working poor, we cover a lot of ground. And, naturally, speed traps. (Update 11/24/2018: Christian here. A listener got in touch with some very thoughtful criticism of our discussion during the intro. Talking about a gendered list, I casually raised switching genders to get on this list, in a way that the listener perceived as making a joke of transgender people. It pains me that this discussion would hurt anyone. I’m very sorry. Although it has been a long time since this conversation, I know my intent was to poke a little fun at the gendered nature of the list, though I winced at my ham-fisted mention of reassignment surgery. I hope it’s a sign of progress that I don’t believe the conversation would be the same today as it was then. But we feel strongly that retroactively editing the show should be reserved for truly exceptional situations, not to save face.)\n\nThis show’s links:\n\n\nMehrsa Baradaran's faculty profile and writings\nThe 100 Coolest Mormon Women Alive Today\nMehrsa Baradaran, The Post Office Banks on the Poor (New York Times Op-Ed)\nMehrsa Baradaran, Banking and the Social Contract\nThe bank run in It’s a Wonderful Life\nAbout the FDIC\nAngelo Young, It’s Bankers vs. Wal-Mart in Push to Force Financial Regulation upon the World’s Largest Retailer\nJefferson and Madison’s opposition to centralized banking\nLouis Brandeis, Other People’s Money\nAndrew G Haldane, The Dog and the Frisbee\nMehrsa Baradaran, It's Time for Postal Banking\nStephen Wexler, Practicing Law for Poor People \nOral Argument Episode 8: Party All Over the World\nCity of Warrensville Heights v. Wason\nSpecial Guest: Mehrsa Baradaran.","content_html":"Law 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 Ford Edsel”). From the bank bailouts to moral hazard to the the precarious financial position of the working poor, we cover a lot of ground. And, naturally, speed traps. (Update 11/24/2018: Christian here. A listener got in touch with some very thoughtful criticism of our discussion during the intro. Talking about a gendered list, I casually raised switching genders to get on this list, in a way that the listener perceived as making a joke of transgender people. It pains me that this discussion would hurt anyone. I’m very sorry. Although it has been a long time since this conversation, I know my intent was to poke a little fun at the gendered nature of the list, though I winced at my ham-fisted mention of reassignment surgery. I hope it’s a sign of progress that I don’t believe the conversation would be the same today as it was then. But we feel strongly that retroactively editing the show should be reserved for truly exceptional situations, not to save face.)
\n\nThis show’s links:
\n\nSpecial Guest: Mehrsa Baradaran.
","summary":"Banking, the under-banked, and postal banking, with Mehrsa Baradaran.","date_published":"2014-02-21T22:15:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/99a8751d-64de-41fd-ac0f-51f95818acaf.mp3","mime_type":"audio/mpeg","size_in_bytes":37035667,"duration_in_seconds":4479}]},{"id":"ce7846f0-28f9-4284-9569-6ec0155ca0e8","title":"Episode 8: Party All Over the World","url":"https://oralargument.org/8","content_text":"Fresh 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.\n\nThis show’s links:\n\n\nElectric Light Orchestra, Party All Over the World\nRobbie Robertson’s mash-up masterpiece: On the nature of daylight / This Bitter Earth\nEmail us at oralargumentpodcast@gmail.com\nOral Argument Episode 7: Speed Trap\nUnited States v. O’Brien\nDiPino v. Davis\nWikipedia on Liebeck v. McDonald’s (the hot coffee case)\nINS v. AP\n","content_html":"Fresh 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.
\n\nThis show’s links:
\n\nJoe calls in from an undisclosed location(Santa Clara, CA) for a short show. We begin by discussing listener Alan’s demand for more conflict, an Idaho listener’s request for more Darcy, and listener Amy’s request to discuss her parking ticket. The conversation turns to a federal court’s preliminary injunction in favor of a man who was charged for warning drivers of a speed trap by flashing his lights.
\n\nThis show’s links:
\n\nJoe, 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.
\n\nThis show’s links:
\n\nLogan Sawyer, certified historian and lawyer, joins us to talk about what historians do and how they differ from the crazy uncle who fancies himself a history buff on Twitter. We learn why history is radical, not conservative, whatever political movement it is employed to serve. We discuss the methods of history and science and their abuses. Logan tells us that history is often at war with theory and that historians prey on other fields. He unravels the received wisdom of the New Deal switch in time and the conventional story of Lochner v. New York. As if to make a case in point, we keep distracting him with theory.
\n\nThis show’s links:
\n\nSpecial Guest: Logan Sawyer.
","summary":"On legal history, with Logan Sawyer.","date_published":"2014-01-25T11:30:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/4cc66f16-b0dc-4d9d-8ed0-df6ac56f5048.mp3","mime_type":"audio/mpeg","size_in_bytes":34978747,"duration_in_seconds":4221}]},{"id":"dbbda840-3bdf-4e46-aa84-0d97f914de1d","title":"Episode 4: Grow a Pear","url":"https://oralargument.org/4","content_text":"From far northern climes, we are joined by Sarah Schindler, land use and property expert, hipster scholar, and lawn destroyer. In this episode we discuss Maine, backyard chicken raising, zoning, Brasília, the virtues and pleasures of law-breaking, and banning lawns. Sponsored this week by the Monsanto Corporation. Not really.\n\nThis show’s links:\n\n\nSarah Schindler’s faculty profile and writing\nErrata! Jukkasjärvi and its ice hotel are in Sweden, not Finland. Apologies to our Swedish listeners.\nAaron Perzanowski, Tattoos and IP Norms\nDavid Fagundes, Talk Derby to Me: Intellectual Property Norms Governing Roller Derby Pseudonyms\nHella Blitzgerald\nSarah Schindler, Of Backyard Chickens and Front Yard Gardens: The Conflict Between Local Governments and Locavores\nbackyardchickens.com; City of Longmont Backyward Chicken Hen Permit\nSome articles on local food and energy: USDA Economic Research Service, Energy Use in the U.S. Food System; Stephen Budiansky, Math Lessons for Locavores; Wikipedia on Local Food\nVillage of Euclid v. Ambler Realty Co.\nBrasília\nUS PIRG, Transportation and the New Generation\nNicole Stelle Garnett, Redeeming Transect Zoning?\nTiebout Model\nPaula Franzese, Privatization and its Discontents: Common Interest Communities and the Rise of Government for the Nice\nSt. Augustine Confessions, Book 2, Chapter 6 (“I stole those simply that I might steal, for, having stolen them, I threw them away. My sole gratification in them was my own sin, which I was pleased to enjoy; for, if any one of these pears entered my mouth, the only good flavor it had was my sin in eating it.”)\nScott James on illegal pop-Up restaurants\nEduardo M. Peñalver and Sonia Katyal, Property Outlaws\nAdverse Possession: trespassing until it’s yours\nGuerrilla bike lanes in Cleveland, New York, New York again, and Seattle, and everywhere\nSarah Schindler, Banning Lawns\nSpecial Guest: Sarah Schindler.","content_html":"From far northern climes, we are joined by Sarah Schindler, land use and property expert, hipster scholar, and lawn destroyer. In this episode we discuss Maine, backyard chicken raising, zoning, Brasília, the virtues and pleasures of law-breaking, and banning lawns. Sponsored this week by the Monsanto Corporation. Not really.
\n\nThis show’s links:
\n\nSpecial Guest: Sarah Schindler.
","summary":"Hipster land use law, with Sarah Schindler.","date_published":"2014-01-17T20:30:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/dbbda840-3bdf-4e46-aa84-0d97f914de1d.mp3","mime_type":"audio/mpeg","size_in_bytes":35168917,"duration_in_seconds":4245}]},{"id":"aa828839-57ed-47aa-8582-16bde549cdfe","title":"Episode 3: Cut It Off","url":"https://oralargument.org/3","content_text":"Should 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 the disastrously decided Eldred v. Ashcroft. We talk about Paul’s studies of bad audiobooks, the public domain, the copyrighting of the bible, and a long-forgotten playwright named Shakespeare. Could the public domain, if copyright were sensibly limited, compete substantially with new works? Christian says “more and more” a lot. Paul previews his new study, which involves adult films.\n\nThis show’s links:\n\n\nPaul Heald’s faculty profile and writing\nPaul Heald, A Transaction Cost Theory of Patent Law\nThis American Life, When Patents Attack, Part 1 and Part 2\nRonald J. Mann, Do Patents Facilitate Financing in the Software Industry\nPaul Heald, Optimal Remedies for Patent Infringement\nLawrence Solum, Legal Theory Lexicon: Property Rules and Liability Rules\nStackExchange\nMark A. Lemley, The Surprising Virtues of Treating Trade Secrets as IP Rights\nCharlotte Hess and Elinor Ostrom, _Understanding Knowledge as a Commons — From Theory to Practice. Cambridge: Massachusetts Institute of Technology. Introduction\nThe Wright brothers patent war\nEldred v. Ashcroft\nLawrence Lessig, How I Lost the Big One\nPaul Heald, How Copyright Makes Books and Music Disappear\nPaul Heald, The Public Domain\nRufus Pollock, Forever Minus a Day? Calculating Optimal Copyright Term\nMichael W. Carroll, One Size Does Not Fit All: A Framework for Tailoring Intellectual Property Rights\nSpecial Guest: Paul Heald.","content_html":"Should 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 the disastrously decided Eldred v. Ashcroft. We talk about Paul’s studies of bad audiobooks, the public domain, the copyrighting of the bible, and a long-forgotten playwright named Shakespeare. Could the public domain, if copyright were sensibly limited, compete substantially with new works? Christian says “more and more” a lot. Paul previews his new study, which involves adult films.
\n\nThis show’s links:
\n\nSpecial Guest: Paul Heald.
","summary":"Patent and copyright, with Paul Heald.","date_published":"2014-01-10T19:15:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/aa828839-57ed-47aa-8582-16bde549cdfe.mp3","mime_type":"audio/mpeg","size_in_bytes":31447792,"duration_in_seconds":3780}]},{"id":"3f2eda54-c5c0-49eb-84ab-39d14c2882f6","title":"Episode 2: Bust a Deal, Face the Wheel","url":"https://oralargument.org/2","content_text":"Three episodes means we’ve got a show. This week we talk with coffee guzzler and international law expert Tim Meyer. We start with odd coffee habits. Then we ask what international law is. Is it even law? What is law? From there we cover commands and threats, the WTO, the modern framework of international law, and the difference between hard law and soft law. Tim proposes ditching a dinner with Joe. Did you know the London Group doesn’t meet in London? And why would anyone make an agreement they couldn’t hold you to?\n\nThis show’s links:\n\n\nTim Meyer’s faculty profile and writing\nThe World Trade Organization\nJohn Austin (and the command theory)\nYoungstown Sheet and Tube v. Sawyer\nCooter, Marks, and Mnoonkin, Bargaining in the Shadow of the Law, 11 J. L. Stud. 225 (1982)\nThe Vienna Convention on the Law of Treaties\nWikipedia page on the UN Convention on Climate Change (includes a link to the text)\nThe Kyoto Protocol\nAndrew T. Guzman and Timothy Meyer, International Soft Law, 2 Journal of Legal Analysis (2011)\nMaster Blaster runs Bartertown (youtube) and Bust a Deal and Face the Wheel (sound clip)\nJean d’Aspremont, Formalism and the Sources of International Law, Oxford Univ. Press (2011)\nThe London Club\nGoldilocks Globalism (Guzman and Meyer, 2015)\nTim’s book suggestions: Robert Keohane, After Hegemony; Lloyd Gruber, Ruling the World; Pollack and Shaffer, When Cooperation Fails; Andrew Guzman, How International Law Works; Posner and Sykes, Economic Foundations of International Law\nSpecial Guest: Tim Meyer.","content_html":"Three episodes means we’ve got a show. This week we talk with coffee guzzler and international law expert Tim Meyer. We start with odd coffee habits. Then we ask what international law is. Is it even law? What is law? From there we cover commands and threats, the WTO, the modern framework of international law, and the difference between hard law and soft law. Tim proposes ditching a dinner with Joe. Did you know the London Group doesn’t meet in London? And why would anyone make an agreement they couldn’t hold you to?
\n\nThis show’s links:
\n\nSpecial Guest: Tim Meyer.
","summary":"The law in international law, with Tim Meyer.","date_published":"2014-01-04T12:45:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/3f2eda54-c5c0-49eb-84ab-39d14c2882f6.mp3","mime_type":"audio/mpeg","size_in_bytes":34229806,"duration_in_seconds":4128}]},{"id":"a038150c-fb17-48b0-bbb0-0e26ce85b771","title":"Episode 1: Send Joe to Prison","url":"https://oralargument.org/1","content_text":"The 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 Washington football team, and Christian’s “profoundly stupid” proposal.\n\nThis show’s links:\n\n\nSonja West’s faculty profile, writing, and Twitter stream\nSonja West, Press Exceptionalism, 127 Harv. L. Rev (forthcoming 2014)\nJustice John Paul Stevens, Originalism and History, text of address at University of Georgia, Nov. 6, 2013\nNew York Times v. Sullivan\nBranzburg v. Hayes (the Supreme Court on the reporters’ privilege)\nIn re: Grand Jury Subpoena, Judith Miller\nEmployment Division v. Smith (the peyote case)\nHouchins v. KQED (the Supreme Court on press access to prisons)\nNeshaminy student newspaper to resume ‘redskin’ ban, Philly.com\nHazelwood School District v. Kuhlmeier\nMorse v. Frederick (the BONG HiTS 4 JESUS case)\nSpecial Guest: Sonja West.","content_html":"The 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 Washington football team, and Christian’s “profoundly stupid” proposal.
\n\nThis show’s links:
\n\nSpecial Guest: Sonja West.
","summary":"The Press and the First Amendment, with Sonja West.","date_published":"2013-12-28T10:15:00.000-05:00","attachments":[{"url":"https://aphid.fireside.fm/d/1437767933/3ae5a79c-3d91-4814-b174-11dccc5bfd13/a038150c-fb17-48b0-bbb0-0e26ce85b771.mp3","mime_type":"audio/mpeg","size_in_bytes":50075823,"duration_in_seconds":4887}]},{"id":"49453e5d-59c9-4616-9178-c2afc0949bca","title":"Who Is Your Hero?","url":"https://oralargument.org/zero","content_text":"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.\n\nRelevant links:\n\n\nPhil Magary, Duck Dynasty's Phil Robertson Gives Drew Magary a Tour, GQ.\nHillbilly Handfishin'\nChristian Turner, State Action and Duck Dynasty, HydraText\nChristian Turner, State Action Problems, HydraText\nShelley v. Kraemer\nBuchanan v. Warley\nShutter Island\n","content_html":"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.
\n\nRelevant links:
\n\n![here](\"https://commons.wikimedia.org/wiki/Commons:Featured_picture_candidates/File:Macaca_nigra_self-portrait_%28rotated_and_cropped%29.jpg#File:Macaca_nigra_self-portrait_.28rotated_and_cropped.29.jpg\"){kind=link}
![Grove Street Cemetery](\"http://ctmonuments.net/wp-content/uploads/2010/11/P1270216.jpg\"){kind=link}