Oral Argument

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

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

We discuss the march on the Capitol and... all this.

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.

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.

We discuss the Supreme Court's (I know, I know) decision in Roman Catholic Diocese v. Cuomo (https://www.supremecourt.gov/opinions/20pdf/20a87_4g15.pdf).

Is this thing on? What did we miss?

Just Joe and Christian on the pandemic, new articles, and spring break. Achieving A Fair and Effective COVID-19 Response: An Open Letter to Vice-President Mike Pence, and Other Federal, State, and Local Leaders from Public Health and Legal Experts in the United States (https://law.yale.edu/sites/default/files/area/center/ghjp/documents/final_covid-19_letter_from_public_health_and_legal_experts.pdf) The President in discussion with pharma execs on a vaccine (https://twitter.com/owillis/status/1234607697540063234)

We are joined by our student, Justin Van Orsdol, who has co-authored a paper with Christian about a new approach to the gun violence crisis. Justin Van Orsdol's writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=3096029) Christian Turner and Justin Van Orsdol, The Gun Subsidy (https://ssrn.com/abstract=3537278) Oral Argument 101: Tug of War (https://oralargument.org/101) Special Guest: Justin Van Orsdol.

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. Josh Hawley, Overhauling the Federal Trade Commission (https://www.hawley.senate.gov/sites/default/files/2020-02/Hawley-FTC-Overhaul.pdf) Mike Masnick, William Barr's Move to Rid the DOJ of Independence Shows One of Many Reasons Josh Hawley's FTC Plan Is Dangerous (https://www.techdirt.com/articles/20200212/16015343912/william-barrs-move-to-rid-doj-independence-shows-one-many-reasons-josh-hawleys-ftc-plan-is-dangerous.shtml)

Sometimes in law, as in other areas of life, we think we know something, but the more we think about, the more we realize we don't know it at all. Legal scholars have focused on puzzles like this before, like why blackmail should be illegal. Deborah Hellman joins us to discuss her attempt to answer a question you might not have known you had: What is wrong with bribery, and what is bribery anyway? The difficulties here shed some light on recent events. Deborah Hellman's faculty profile and writing (https://www.law.virginia.edu/faculty/profile/dh9ev/2299809) Deborah Hellman, A Theory of Bribery (https://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2828840) [Oral Argument 206: What Are We?][ep206] [ep206]: https://oralargument.org/206 Special Guest: Deborah Hellman.

Joe and Christian discuss Christian's latest paper, on the way we define and separate markets, including European football, campaign finance, surrogate motherhood, and water bottles in disaster zones. Christian Turner, The Segregation of Markets (SSRN) (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3342629) (SocArXiv) (https://osf.io/preprints/socarxiv/5ehmy/)

Christian calls Joe out of the blue to celebrate our sixth anniversary and to talk about heroes.

We discuss new calls to integrate church and state. The conversation ranges over liberalism, religion, religious zeal, and, obviously, some nonsense. Micah Schwartzman and Jocelyn Wilson, The Unreasonableness of Catholic Integralism (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3436376) Adrian Vermeule, Integration from Within (https://americanaffairsjournal.org/2018/02/integration-from-within/) Christina Deardurff, "The Depths of the Church Are Not to Be Disturbed": An interview with Adrian Vermeule (https://mirrorofjustice.blogs.com/files/vermeule-article.pdf)

On immaturity, defensiveness, art, the intellect, models, and the self. And mailbag on scholarship and practice, Title VII, and Star Trek. It's Joe's birthday.

We discuss dictionaries, up and down on maps, and excellence in seminar conversation. Joseph Miller, Suggestions for Law School Seminars (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3425608) Seminar Skills – Learning Collaboratively (https://sjcadmissionsblog.com/2019/07/22/seminar-skills-learning-collaboratively/)

Just Joe and Christian, lumbering into season 2, talking about tipping and fraud in the gig economy, bar exam fiascos, legal scholarship, and fireworks. Andy Newman, DoorDash Changes Tipping Model After Uproar From Customers (https://www.nytimes.com/2019/07/24/nyregion/doordash-tip-policy.html?action=click&module=inline&pgtype=Article) Donna Hershkowitz, The State Bar of California, Statement on July 2019 Bar Exam Release of General Topics (http://www.calbar.ca.gov/About-Us/News-Events/News-Releases/statement-on-july-2019-bar-exam-release-of-general-topics) Oral Argument 61: Minimum Competence (https://oralargument.org/61) (guest Derek Muller) The Weeds (https://www.vox.com/the-weeds), Vox's podcast for politics and policy, the episode Dysfunctional Federalism with David Schleicher is accessible within their player or, obv, in your podcast app

We kick off Season 2 with assorted nonsense before diving into our second SCOTUS round-up, which consists entirely of the Supreme Court's decision on the census citizenship question. Dep't of Commerce v. New York (https://www.supremecourt.gov/opinions/18pdf/18-966_bq7c.pdf)

We discuss items from the mailbag and go ahead and conduct our annual, absurd Supreme Court round-up (fifty minutes in). James Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3352745) Obriecht v. Splinter (https://scholar.google.com/scholar_case?case=15666046241258319811) Johari Canty, Florida Deputies Find Sign Warning Drivers About Upcoming Speed Trap (https://wsvn.com/news/local/florida-deputies-find-sign-warning-drivers-about-upcoming-speed-trap/) American Legion v. American Humanist Ass'n (https://www.supremecourt.gov/opinions/18pdf/17-1717_j426.pdf) Knick v. Township of Scott (https://www.supremecourt.gov/opinions/18pdf/17-647_m648.pdf)

How 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. Michelle Meyer’s web page (http://www.michellenmeyer.com), faculty profile (https://www.geisinger.edu/research/research-and-innovation/find-an-investigator/2018/04/04/13/27/michelle-meyer), and writing (http://www.michellenmeyer.com/writing.html) Michelle Meyer et al., Objecting to Experiments that Compare Two Unobjectionable Policies or Treatments (https://www.pnas.org/content/pnas/early/2019/05/08/1820701116.full.pdf) Oral Argument 72: The Guinea Pig Problem (https://oralargument.org/72) (guest Michelle Meyer) Special Guest: Michelle Meyer.

We talk about LARPing, emotions, meaning, exam writing, grading, happiness, and other things. Lawrence S. Krieger and Kennon M. Sheldon, What Makes Lawyers Happy? A Data-Driven Prescription to Redefine Professional Success (https://ir.law.fsu.edu/articles/94/)

Is the common law efficient? Richard Posner, among many others, has argued that it is, perhaps even without judges ever themselves focusing on that goal. Daniel Sokol joins us to discuss how understanding law as a platform, like modular and open-source software platforms, helps to see how some areas of the law might indeed become more efficient over time while others might not. Daniel Sokol's faculty profile (https://www.law.ufl.edu/faculty/d-daniel-sokol) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=362604) Daniel Sokol, Rethinking the Efficiency of the Common Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3328025) Special Guest: Daniel Sokol.

We dip back into the mailbag to discuss verdicts, unpublished opinions, "based off," canons and anti-canons, and more.

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? Zahr Said's faculty profile (https://www.law.uw.edu/directory/faculty/said-zahr-k) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1030166) Jessica Silbey's faculty profile (https://www.northeastern.edu/law/faculty/directory/silbey.html) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=380489) Zahr Said and Jessica Silbey, Narrative Topoi in the Digital Age (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3293933) Ryan Calo, Digital Market Manipulation (https://digitalcommons.law.uw.edu/faculty-articles/25/) Daniel Solove, Privacy and Power: Computer Databases and Metaphors for Information Privacy (https://scholarship.law.gwu.edu/faculty_publications/924/) Special Guests: Jessica Silbey and Zahr Said.

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. Carissa Hessick’s faculty profile (http://www.law.unc.edu/faculty/directory/hessickcarissabyrne/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=445060) Carissa Byrne Hessick, Corpus Linguistics and the Criminal Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3031987) Lawrence Solum, Legal Theory Lexicon: Corpus Linguistics (https://lsolum.typepad.com/legaltheory/2017/10/legal-theory-lexicon-corpus-linguistics.html) James Phillips, Daniel Ortner, and Thomas Lee, Corpus Linguistics and Original Public Meaning: A New Tool to Make Originalism More Empirical (https://www.yalelawjournal.org/forum/corpus-linguistics-original-public-meaning) Special Guest: Carissa Hessick.

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. This episode's links: Larry Solum's faculty profile (https://www.law.georgetown.edu/faculty/lawrence-b-solum/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=327316) Legal Theory Blog (https://lsolum.typepad.com) (see also Larry's very helpful Legal Theory Lexicon (https://lsolum.typepad.com/legal_theory_lexicon/)) Lawrence Solum, Originalism versus Living Constitutionalism: The Conceptual Structure of the Great Debate (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3324264) (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.) David Plunkett, Which Concepts Should We Use?: Metalinguistic Negotiations and The Methodology of Philosophy (https://www.dartmouth.edu/~plunkett/metalinguistic-negotiations.pdf) Special Guest: Lawrence Solum.

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. This episode's links: Eric Kade’s faculty profile (https://law.wm.edu/faculty/bios/fulltime/eakade.php) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=167429) Eric Kades, Of Piketty and Perpetuities (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3056497) Thomas Piketty, Capital in the Twenty-First Century (http://www.hup.harvard.edu/catalog.php?isbn=9780674979857) Special Guest: Eric Kades.

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! Patricia Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings (https://chicagounbound.uchicago.edu/uclrev/vol62/iss4/8/)

Kim 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? Kim Krawiec’s faculty profile (https://law.duke.edu/fac/krawiec/), writing (http://kimberlydkrawiec.org/publications/chronological/), and website (https://kimberlydkrawiec.org) Oral Argument 17: Flesh List (https://oralargument.org/17) (guest Kim Krawiec) Kimberly Krawiec, Kidneys Without Money (http://kimberlydkrawiec.org/repugnance-readings-for-the-new-year/) (a landing page for this article and responses by Glenn Cohen and Weyma Lübbe) Kieran Healy, Last Best Gifts (https://press.uchicago.edu/ucp/books/book/chicago/L/bo3752847.html) Kieran Healy and Kimberly Krawiec, Repugnance Management and Transactions in the Body (https://scholarship.law.duke.edu/faculty_scholarship/3736/) Philip Cook and Kimberly Krawiec, If We Allow Football Players and Boxers to Be Paid for Entertaining the Public, Why Don’t We Allow Kidney Donors to Be Paid for Saving Lives? (https://scholarship.law.duke.edu/lcp/vol81/iss3/2/) Philip Cook and Kimberly Krawiec, A Primer on Kidney Transplantation: Anatomy of the Shortage (https://scholarship.law.duke.edu/lcp/vol77/iss3/2/) Special Guest: Kimberly Krawiec.

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. Carissa Hessick’s faculty profile (http://www.law.unc.edu/faculty/directory/hessickcarissabyrne/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=445060) Carissa Hessick, The Myth of Common Law Crimes (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3139831) United States v. Hudson and Goodwin (https://scholar.google.com/scholar_case?case=10808232938953194239) Bordenkircher v. Hayes (https://scholar.google.com/scholar_case?case=3433599856216279138) Yates v. United States (https://scholar.google.com/scholar_case?case=4276838743116849486) Bond v. United States (https://scholar.google.com/scholar_case?case=14369486041709640908) Carissa Hessick, Vagueness Principles (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2837743) Bob Ratterman, Judicial Candidate Expresses Frustration with the Plea Bargain Process (https://www.journal-news.com/news/local/judicial-candidate-expresses-frustration-with-the-plea-bargain-process/DEn1cDLn83Hz2m5GLIiJjJ/) James Burnham, Why Don’t Courts Dismiss Indictments? A Simple Suggestion For Making Federal Criminal Law A Little Less Lawless (http://www.greenbag.org/v18n4/v18n4_articles_burnham.pdf) Ion Meyn, Why Civil and Criminal Procedure Are So Different: A Forgotten History (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3070478) Special Guest: Carissa Hessick.

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. Jocelyn Simonson’s faculty profile (https://www.brooklaw.edu/faculty/directory/facultymember/biography?id=jocelyn.simonson) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=700555) Jocelyn Simonson, The Place of "the People" in Criminal Procedure (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3273565) Oral Argument 95: Own the Block (https://oralargument.org/95) (guest Jocelyn Simonson) Serial Season 3 (https://serialpodcast.org) Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics (https://press.princeton.edu/titles/10731.html) Unsigned Note, The Paradox of "Progressive Prosecution" (https://harvardlawreview.org/2018/12/the-paradox-of-progressive-prosecution/) Barry Friedman and Maria Ponomarenko, Democratic Policing (https://www.nyulawreview.org/issues/volume-90-number-6/democratic-policing/) Laura Appleman, Defending the Jury (https://www.amazon.com/Defending-Jury-Laura-I-Appleman/dp/1107650933) Jocelyn Simonson, The Criminal Court Audience in a Post-Trial World (https://brooklynworks.brooklaw.edu/faculty/298/) Alexandra Natapoff, The Penal Pyramid (https://books.google.com/books?id=BI1WDwAAQBAJ&pg=PA71&lpg=PA71) Carol Steiker, Tempering or Tampering? Mercy and the Administration of Criminal Justice (https://books.google.com/books?id=KOAoQiRFo70C&pg=PA16&lpg=PA16#v=onepage&q&f=false) Special Guest: Jocelyn Simonson.

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.

Brexit, China, international trade, security, distribution, resentment, madness, and coffee with Tim Meyer. Tim Meyer's faculty profile (http://law.vanderbilt.edu/bio/timothy-meyer) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=440142) Oral Argument 105: Bismarck’s Raw Material (https://oralargument.org/105) (guest Tim Meyer) Oral Argument 2: Bust a Deal, Face the Wheel (https://oralargument.org/2) (guest Tim Meyer) Timothy Meyer and Ganesh Sitaraman, Trade and the Separation of Powers (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3136086) Nicolas Lamp, How Should We Think about the Winners and Losers from Globalization? Three Narratives and Their Implications for the Redesign of International Economic Agreements (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3290590) Special Guest: Tim Meyer.

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). Mary Beard's Ultimate Rome (https://www.bbc.co.uk/programmes/b0797yqk) About Michael Mann (https://en.wikipedia.org/wiki/Michael_Mann) About The Story of Star Wars LP (https://en.wikipedia.org/wiki/The_Story_of_Star_Wars) Travis Bostick, Jóhann Jóhannsson, Mother!, and Sound Over Score (http://blogs.iac.gatech.edu/film2018/2018/02/12/johann-johannsson-mother-and-sound-over-score/) Caselaw Access Project (https://case.law); H2O (https://h2o.law.harvard.edu) About Markdown (https://en.wikipedia.org/wiki/Markdown) Oral Argument 11: Big Red Diesel (https://oralargument.org/11), on Markdown and word processors Ulysses (https://ulysses.app) and Byword (https://bywordapp.com) Bat Kid is cancer free (https://twitter.com/CBSEveningNews/status/1062860135662530560) Jed Shugerman, Whitaker’s Appointment as Acting Attorney General Is Statutorily Illegal (https://shugerblog.com/2018/11/09/whitakers-appointment-as-acting-attorney-general-is-statutorily-illegal/); Stephen Vladeck, Whitaker May Be a Bad Choice, but He’s a Legal One (https://www.nytimes.com/2018/11/09/opinion/trump-attorney-general-constitutional.html); Walter Dellinger and Marty Lederman, Initial Reactions to OLC’s Opinion on the Whitaker Designation as “Acting” Attorney General (https://www.justsecurity.org/61483/initial-reactions-olc-opinion-whitaker-designation-acting-attorney-general/) Podcasts: Bag Man (https://www.msnbc.com/bagman), Slow Burn (https://slate.com/slow-burn), Serial (https://serialpodcast.org) (and Oral Argument 44: Serial (https://oralargument.org/44)), Feeding Us (http://feedingus.libsyn.com), Ipse Dixit (https://shows.pippa.io/ipse-dixit)

Episode 183: West Coast Model (guest Chris Elmendorf) Why 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. This show’s links: Chris Elmendorf's faculty profile (https://law.ucdavis.edu/faculty/elmendorf/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=345940) Christopher Elmendorf, Beyond the Double Veto: Land Use Plans As Preemptive Intergovernmental Contracts (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3256857) William Fischel, The Homevoter Hypothesis (http://www.hup.harvard.edu/catalog.php?isbn=9780674015951) Roderick Hills, Jr. and David Schleicher, Planning an Affordable City (https://ilr.law.uiowa.edu/print/volume-101-issue-1/planning-an-affordable-city/) Robert Ellickson, Suburban Growth Controls: An Economic and Legal Analysis (https://digitalcommons.law.yale.edu/ylj/vol86/iss3/1/) About Senate Bill 827 (https://en.wikipedia.org/wiki/California_Senate_Bill_827) Text of Senate Bill 828 (https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201720180SB828) Special Guest: Chris Elmendorf.

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." This show’s links: Scott Dodson's faculty profile (https://www.uchastings.edu/people/scott-dodson/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=670529) Scott Dodson and Jacob Hirsch, A Model Code of Conduct for Student-Edited Law-Journal Submissions (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3048413) Oral Argument 96: Students as Means (https://oralargument.org/96) Special Guest: Scott Dodson.

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. This show’s links: Sandy Mayson's faculty profile (http://www.law.uga.edu/profile/sandra-g-mayson) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=714728) Sandra Mayson, Bias In, Bias Out (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3257004) Malcolm Feeley and Jonathan Simon, The New Penology: Notes on the Emerging Strategy of Corrections and Its Implications (https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1717&context=facpubs) Robert Martinson, What Works? Questions and Answers about Prison Reform (https://www.pbpp.pa.gov/research_statistics/Documents/Martinson-What%20Works%201974.pdf) Adam Kolber, Punishment and Moral Risk (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2896948) Douglas Husak, Kinds of Punishment (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2979458); Douglas Husak, What Do Criminals Deserve? (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2788152) Special Guest: Sandy Mayson.

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).

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. This show’s links: Joe Miller's faculty profile (http://www.law.uga.edu/profile/joseph-s-miller) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=104702) Mike Madison’s website (http://madisonian.net/home/), writing (http://madisonian.net/home/?page_id=85), and blog (http://madisonian.net) Joseph Miller, Law's Semantic Self-Portrait: Discerning Doctrine with Co-Citation Networks and Keywords (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3212131) Joseph Miller, Charting Supreme Court Patent Law, Near and Far (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3125510); Joseph Miller, Which Supreme Court Cases Influenced Recent Supreme Court IP Decisions? A Citation Study (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3012262) Charles Barzun, Three Forms of Legal Pragmatism (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3178155) Andrew Green and Albert Yoon, Triaging the Law: Developing the Common Law on the Supreme Court of India (https://onlinelibrary.wiley.com/doi/full/10.1111/jels.12161) Frank Pasquale, A Rule of Persons, Not Machines: The Limits of Legal Automation (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3135549) James Scott, Seeing Like a State (https://books.google.com/books?id=PqcPCgsr2u0C&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false) Special Guest: Mike Madison.

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. This show’s links: Farah Peterson’s faculty profile (https://www.law.virginia.edu/faculty/profile/fp9r/2708426) Farah Peterson, Interpretation as Statecraft: Chancellor Kent and the Collaborative Era of American Statutory Interpretation (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3201036) Dark Sky (https://www.hydratext.com/blog/2012/6/5/dark-sky.html) (blog post) Siddhartha Mukherjee, The Emperor of All Maladies: A Biography of Cancer (https://www.amazon.com/Emperor-All-Maladies-Biography-Cancer/dp/1439170916) Oral Argument 168: Galaxy-Sized Diamond (http://oralargument.org/168) (with Maggie McKinley on petitioning in Congress) Richard Verdon, A Large Meteor (https://twitter.com/kjhealy/status/1032589101877395462) Guido Calabresi, A Common Law for the Age of Statutes (https://books.google.com/books/about/A_Common_Law_for_the_Age_of_Statutes.html?id=KSy5QpdRMNsC) Special Guest: Farah Peterson.

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. This show’s links: First Mondays (http://www.firstmondays.fm) Ian Samuel’s writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=936551) Ian Samuel, The New Writs of Assistance (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3075587) Snopes, Did Facebook Shut Down an AI Experiment Because Chatbots Developed Their Own Language? (https://www.snopes.com/fact-check/facebook-ai-developed-own-language/) (no, but interesting) Oral Argument 134: Crossover (http://oralargument.org/134) Christian Turner, Amendment XXVIII: A First Draft (https://www.hydratext.com/blog/2018/7/12/amendment-xxviii) Ian Ayres and John Witt, Democrats Need a Plan B for the Supreme Court. Here’s One Option. (https://www.washingtonpost.com/opinions/democrats-need-a-plan-b-for-the-supreme-court-heres-one-option/2018/07/27/4c77fd4e-91a6-11e8-b769-e3fff17f0689_story.html) Oral Argument 37: Hammer Blow (http://oralargument.org/37) (with Michael Dorf); Oral Argument 38: You're Going to Hate this Answer_ (http://oralargument.org/38) (with Steve Vladeck); Christian Turner, Bound by Federal Law (http://www.hydratext.com/blog/2014/10/29/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) Carpenter v. United States (https://www.supremecourt.gov/opinions/17pdf/16-402_new_o75q.pdf) Radiolab, Eye in the Sky (https://www.wnycstudios.org/story/update-eye-sky/) Ian Samuel, Warrantless Location Tracking (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1092293) Lucas v. South Carolina Coastal Council (https://scholar.google.com/scholar_case?case=659168721517750079) Florida v. Jardines (https://scholar.google.com/scholar_case?case=2570635442757547915) Justice Souter’s discussion of Plessy and the role of history in judging (http://www.c-span.org/video/?284498-2/america-courts) (watch from minute one until about minute fourteen) and his Harvard Commencement speech (http://news.harvard.edu/gazette/story/2010/05/text-of-justice-david-souters-speech/) on Plessy Hold Up! (http://www.hydratext.com/blog/2015/7/24/hold-up) Special Guest: Ian Samuel.

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.) This show’s links: About "antepenultimate" (https://en.wiktionary.org/wiki/antepenultimate) (including links to "propreantepenultimate") About Battle Royale games (https://en.wikipedia.org/wiki/Battle_royale_game) Tim Dowling, Order Force: The Old Grammar Rule We All Obey Without Realising (https://www.theguardian.com/commentisfree/2016/sep/13/sentence-order-adjectives-rule-elements-of-eloquence-dictionary) Joe Miller, Law's Semantic Self-Portrait: Discerning Doctrine with Co-Citation Networks and Keywords (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3212131) Carpenter v. United States (https://www.supremecourt.gov/opinions/17pdf/16-402_new_o75q.pdf) Anil Seth, The Real Problem (https://aeon.co/essays/the-hard-problem-of-consciousness-is-a-distraction-from-the-real-one) (on the problem of consciousness) Philip Bobbitt, Constitutional Fate: Theory of the Constitution (https://books.google.com/books?id=qVrjzOHlKsEC&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false),

We'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. This show’s links: Paul Gowder's faculty profile (https://law.uiowa.edu/paul-gowder) and website (http://paul-gowder.com), which includes links to his writing Paul Gowder, The Rule of Law in the Real World (http://rulelaw.net) Paul Gowder, Transformative Legal Technology and the Rule of Law (https://utpjournals.press/doi/abs/10.3138/utlj.2017-0047) About bycatch (https://en.wikipedia.org/wiki/Bycatch) Nathan Masters, The 5, the 101, the 405: Why Southern Californians Love Saying "the" Before Freeway Numbers (https://www.kcet.org/shows/lost-la/the-5-the-101-the-405-why-southern-californians-love-saying-the-before-freeway-numbers) Mignon Fogarty, Spendy (https://www.quickanddirtytips.com/education/grammar/spendy) Roadwork (http://5by5.tv/roadwork) AT&T Mobility v. Concepcion (https://scholar.google.com/scholar_case?case=17088816341526709934) Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (https://press.princeton.edu/titles/9837.html); see also Margaret Jane Radin, Boilerplate: A Threat to the Rule of Law? (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2340005) F.A. Hayek, Law, Legislation and Liberty: Vol.1 (https://books.google.com/books/about/Law_Legislation_and_Liberty_Volume_1.html?id=4TjL9Ox1ntoC) Elizabeth Anderson, What Is the Point of Equality? (https://www.jstor.org/stable/10.1086/233897?seq=1#page_scan_tab_contents) Pericles's Funeral Oration (https://en.wikisource.org/wiki/History_of_the_Peloponnesian_War/Book_2#Pericles_Funeral_Oration) Oral Argument 133: Too Many Darn Radio Buttons (http://oralargument.org/133) (guest Jim Gibson) Frank Pasquale, Is Eviction-as-a-Service the Hottest New #LegalTech Trend? (https://concurringopinions.com/archives/2016/02/is-eviction-as-a-service-the-hottest-new-legaltech-startup.html) Ron Amadeo, Talking to Google Duplex: Google’s Human-Like Phone AI Feels Revolutionary (https://arstechnica.com/gadgets/2018/06/google-duplex-is-calling-we-talk-to-the-revolutionary-but-limited-phone-ai/) Special Guest: Paul Gowder.

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. This show’s links: All about notaries public (https://en.wikipedia.org/wiki/Notary_public) Rebecca R. Ruiz and Michael Schwirtz, Russian Insider Says State-Run Doping Fueled Olympic Gold (https://www.nytimes.com/2016/05/13/sports/russia-doping-sochi-olympics-2014.html); the "McLaren Report" on Russian doping in Sochi (https://www.wada-ama.org/sites/default/files/resources/files/20160718_ip_report_newfinal.pdf) Stephen Herrero, Bear Attacks: Their Causes and Avoidance (https://books.google.com/books/about/Bear_Attacks.html?id=dqRGDwAAQBAJ&printsec=frontcover&source=kp_read_button#v=onepage&q&f=false) Ella Morton, The Snake Catchers Who Handle Australia’s Most Venomous Home Invaders (https://www.atlasobscura.com/articles/the-snake-catchers-who-handle-australias-most-venomous-home-invaders) About the "Deep South" (https://en.wikipedia.org/wiki/Deep_South) Katie Herzog, How Air-Conditioning Made America — and How It Could Break Us All (https://grist.org/food/how-air-conditioning-made-america-and-how-it-could-break-us-all/) Christian Turner, The Failures of Freedom (https://www.hydratext.com/blog/2012/2/4/the-failures-of-freedom.html) Oral Argument 134: Crossover (http://oralargument.org/134) (guests Dan Epps and Ian Samuel)

The 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. This show’s links: Ethan Leib’s faculty profile (https://www.fordham.edu/info/23159/ethan_j_leib) and academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=344006) Jed Shugerman’s faculty profile (https://www.fordham.edu/info/23180/jed_shugerman), academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=625422), and blog (https://shugerblog.com) Ethan Leib and Jed Shugerman, Fiduciary Constitutionalism and ‘Faithful Execution’: Two Legal Conclusions (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3177968) Gary Lawson and Guy Seidman, "A Great Power of Attorney:" Understanding the Fiduciary Constitution (https://www.jstor.org/stable/j.ctt1nxqpnj) Eric Muller, Even More on Self-Pardons (http://www.thefacultylounge.org/2018/06/more-on-self-pardons.html) (containing links to Eric's original post and to a critique by Michael McConnell) Special Guests: Ethan Leib and Jed Shugerman.

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. This show’s links: Aziz Huq’s faculty profile (https://www.law.uchicago.edu/faculty/huq) and academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1266817) Aziz Huq, Legal or Political Checks on Apex Criminality: An Essay on Constitutional Design (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3185835) Thomas Ginsburg, Zachary Elkins, and James Melton, The Lifespan of Written Constitutions (https://www.law.uchicago.edu/news/lifespan-written-constitutions); Tom Ginsburg and James Melton, Does the Constitutional Amendment Rule Matter at All? Amendment Cultures and the Challenges of Measuring Amendment Difficulty (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2432520); Aziz Huq, The Function of Article V (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2406089) Aziz Huq, Hippocratic Constitutional Design (https://books.google.com/books?id=pg3PDAAAQBAJ&lpg=PA64&pg=PA39#v=onepage&q&f=false) in Assessing Constitutional Performance (https://books.google.com/books?id=pg3PDAAAQBAJ) Tom Ginsburg and Aziz Huq, How to Save a Constitutional Democracy (http://press.uchicago.edu/ucp/books/book/chicago/H/bo28381225.html); Aziz Huq and Tom Ginsburg, How to Lose a Constitutional Democracy (https://www.uclalawreview.org/lose-constitutional-democracy/) (see also the version of these ideas in Tom and Aziz's article for Vox (https://www.vox.com/the-big-idea/2017/2/21/14664568/lose-constitutional-democracy-autocracy-trump-authoritarian)) The Comparative Constitutions Project (http://comparativeconstitutionsproject.org) Special Guest: Aziz Huq.

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). This show’s links: Steve Vladeck’s faculty profile (https://law.utexas.edu/faculty/stephen-i-vladeck) and academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=362455) The National Security Law Podcast (https://www.nationalsecuritylawpodcast.com/) Special Guest: Steve Vladeck.

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. This show’s links: Charles Barzun’s faculty profile (https://content.law.virginia.edu/faculty/profile/clb6x/1144315) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=546584) Charles Barzun, Three Forms of Legal Pragmatism (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3178155) About Shane Carruth (https://en.wikipedia.org/wiki/Shane_Carruth), director of Primer and Upstream Color Judge John Hodgman (https://www.johnhodgman.com/JJHO) and John Hodgman, Vacationland (https://www.amazon.com/Vacationland-True-Stories-Painful-Beaches/dp/B074F3CWXZ/) Brian Tamanaha, A Realistic Theory of Law (https://www.amazon.com/Social-Legal-Theory-Modern-Transformation/dp/1316638510) Charles Barzun, Inside/Out: Beyond the Internal/External Distinction in Legal Scholarship (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2507260) Guy Kahane, Evolutionary Debunking Arguments (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3175808/) Charles Barzun, Justice Souter’s Common Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3035402) Oral Argument 146: Somehow in the Middle (http://oralargument.org/146) (with Charles discussing Justice Souter) Special Guest: Charles Barzun.

Back with a casual conversation about exams, faculties and their politics, and other random things. This show’s links: None.

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. This show’s links: Maggie McKinley's faculty profile (https://www.law.upenn.edu/cf/faculty/mmckinle/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1646988) Maggie McKinley, Petitioning and the Making of the Administrative State (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3150671) Maggie McKinley, Lobbying and the Petition Clause (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2762012) Sonja West, First Amendment Neighbors (http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=2035&context=fac_artchop) Oral Argument 1: Send Joe to Prison (http://oralargument.org/1) (guest Sonja West) Special Guest: Maggie McKinley.

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. This show’s links: None!