Podcasts about carolene products

This Day in Legal History: United States v. Carolene Products Co. DecidedOn April 25, 1938, the U.S. Supreme Court issued its decision in United States v. Carolene Products Co., 304 U.S. 144, a seemingly mundane case about a federal law banning the interstate shipment of “filled milk.” But beneath its surface lay one of the most consequential footnotes in American constitutional history. The Court upheld the statute under a rational basis review, affirming Congress's authority to regulate economic activity. However, in Footnote Four of the majority opinion, Justice Harlan Fiske Stone proposed a bold and lasting idea: not all legislation should be treated equally when it comes to judicial review.Stone suggested that while economic regulations would generally be upheld if they had a rational basis, laws that appeared to conflict with specific constitutional prohibitions or aimed at "discrete and insular minorities" might require stricter scrutiny. This footnote planted the seed for what would become the modern system of tiered judicial scrutiny—rational basis, intermediate scrutiny, and strict scrutiny—used to assess the constitutionality of laws under the Equal Protection and Due Process Clauses.Though Footnote Four was not binding, it became one of the most cited and influential passages in constitutional law. It signaled a shift away from the Lochner-era deference to economic liberty and toward more robust judicial protection of civil rights and liberties. The idea that courts have a special role in protecting politically powerless groups fundamentally shaped later decisions in cases involving racial discrimination, free speech, and voting rights.In this way, a case about dairy regulation became a cornerstone of modern constitutional doctrine. Carolene Products illustrates how even minor legal disputes can produce major legal revolutions—one footnote at a time.In a rare display of bipartisan unity, the U.S. government is making significant legal advances against Big Tech, with Meta and Google facing tough antitrust scrutiny in simultaneous court cases. In separate proceedings in a Washington federal courthouse, the FTC is attempting to break up Meta, while the DOJ is pressing Google over illegal monopoly practices, including deals to pre-install its AI on smartphones. These efforts reflect years of legal groundwork laid across both the Trump and Biden administrations, showing that concerns over Big Tech's power and influence transcend party lines—even if the motivations differ. While Democrats emphasize market concentration and data control, Republicans have focused on censorship and political bias. Despite court momentum, legislative action remains stalled, hindered by political polarization and disagreements over broader issues like content moderation and China policy. The bipartisan front could fracture as political dynamics shift, especially with Trump signaling a more cooperative stance toward tech companies–or at least a willingness to extract rents from them.Meta, Google Hammered in Court in Sign of Rare Left-Right Unity - BloombergThe American Bar Association (ABA) laid off over 300 employees after the Trump administration cut $69 million in federal grant funding, according to a new lawsuit filed by the ABA against the Department of Justice. The organization alleges the cuts were politically motivated retaliation for its support of diversity initiatives and criticism of the administration. The terminated grants had funded legal aid programs for domestic violence victims and immigrants, as well as global rule of law initiatives. The layoffs affected about a third of the ABA's staff, including workers in its South Texas ProBar program and international legal development projects. The DOJ ended the grants shortly after barring its attorneys from participating in ABA events. The ABA is being represented by Democracy Forward in the suit, which also names Attorney General Pam Bondi and Deputy Attorney General Todd Blanche as defendants.ABA Lays Off 300 Employees, Blaming Trump Grant Funding Cuts (1)Richard Lawson, the lawyer defending President Trump's executive orders targeting law firms, has faced repeated courtroom defeats while offering vague, evasive answers under judicial questioning. In four separate cases, courts have temporarily blocked Trump's orders, which aimed to punish firms like Perkins Coie and WilmerHale for their roles in legal actions against him by revoking security clearances and threatening government contracts. Judges have openly criticized the orders as retaliatory and politically motivated. Despite this, Lawson has often appeared alone in court, prompting speculation that even the Justice Department is reluctant to back the arguments he's tasked with presenting. His vague responses and visible discomfort have drawn scrutiny, especially given his political ties to Attorney General Pam Bondi and his role at the pro-Trump America First Policy Institute. While some law firms have settled by agreeing to large pro bono commitments, others are pushing forward in court, where permanent injunctions against the executive orders now seem likely.Trump Attorney for Big Law Attacks Says Little as Losses Rack UpIn a piece for Forbes earlier this week, I argue that the state and local tax (SALT) deduction is fundamentally flawed and difficult to defend. Though often framed as a benefit to the middle class or a protection against double taxation, the deduction overwhelmingly favors wealthy households and creates inequities in the federal tax system. It allows states to impose high taxes without facing full political accountability, effectively outsourcing part of the cost to the federal government. The 2017 cap of $10,000 was a step in the right direction, and data shows that repealing it would benefit primarily the top 20% of earners—not typical working families. Unlike other personal expenses like rent or groceries, which aren't deductible, SALT gets special treatment without clear justification. If we care about fairness, progressivity, and honest budgeting, it's time to seriously consider scrapping the deduction altogether.Reconsidering The SALT Deduction: Is It Defensible?This week's closing theme is the final section of Finlandia, Op. 26, by the Finnish composer Jean Sibelius, performed here in its piano version. Composed in 1899 during a time of intense political censorship and rising nationalist sentiment, Finlandia was Sibelius's defiant musical response to Russian oppression. The tone poem was originally part of a series of historical tableaux performed as a protest against censorship, with Finlandia serving as the rousing finale.While the early passages of Finlandia are turbulent and stormy—meant to evoke struggle—the final section is a striking contrast: serene, solemn, and deeply moving. This lyrical closing, often referred to as the Finlandia Hymn, became an unofficial anthem of Finnish resistance and later a national symbol of unity and perseverance. In this week's selection, we hear a solo piano arrangement that strips the music to its essence, allowing the melody's dignity and quiet strength to shine through.Sibelius once said, “Music begins where the possibilities of language end,” and in Finlandia's final moments, words do indeed fall away. What remains is a profound expression of hope and resilience—qualities that have made this music resonate far beyond Finland's borders. Though Sibelius composed in the late Romantic tradition, his voice is unmistakably his own: direct, elemental, and rooted in the landscape and soul of his homeland.As we close out the week, let Finlandia remind us that even in times of turbulence, grace and resolve can still find their voice. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit www.minimumcomp.com/subscribe

When the draft majority decision in Dobbs v. Jackson Women's Health was leaked, the media, public officials, and scholars focused on the overturning of Roe v. Wade. They noted Justice Alito's strident tone and radical use of originalism to eliminate constitutional protection for reproductive rights. My guest today has written a book that asks us to also notice over 140 footnotes in the majority opinion and dissent. Are these notes part of the law? In his new book, The Supreme Court Footnote: A Surprising History (NYU Press, 2024), Dr. Peter Charles Hoffer insists that these notes are significant. The footnotes reveal the justices' beliefs about the Constitution's essence, highlight their controversial reasoning, and expose “vastly different interpretations of the role of Supreme Court Justice.” Using a comprehensive qualitative analysis, The Supreme Court Footnote, offers a history of the evolution of footnotes in US Supreme Court opinions and a thoughtful set of case studies to reveal the particular ways that the footnote has affected Supreme Court decisions. Hoffer argues that justices alter the course of history through their decisions and the footnote is the way in which they push their own understanding of the Constitution. Eight case studies show how the footnote has evolved over time. He begins with Chisholm v. Georgia in 1792 and ends with Dobbs v. Jackson case in 2022. Using Dred Scott, Viterbo v. Friedlander, Muller v. Oregon, United States v. Carolene Products, Brown v. Board of Education of Topeka, and District of Columbia v. Heller, Hoffer demonstrates how the footnotes reflect the changing role of the Supreme Court justice and the manner in which they interpret the Constitution. Dr. Hoffer looks back in order to look forward. He offers a study of the footnote that is relevant to contemporary debates over the Supreme Court, methods of interpretation, and politics.  Dr. Peter Charles Hoffer is Distinguished Research Professor of History at the University of Georgia. Hoffer went to University of Rochester and Harvard and has taught at Ohio State, Notre Dame, and UGA (since 1978). He has written books on the Supreme Court, the Federal Court System, infanticide, impeachment, abortion, early American history, slave rebellions, and historical methods. During the podcast, we mentioned: Anthony Grafton's The Footnote: A Curious History (Harvard, 1999) My NBN conversation with Laura F. Edward's on her book (The People and their Peace), originalism and domestic violence The University of Kansas's Landmark Law Series Peter's book Reading Law Forward: The Making of a Democratic Jurisprudence from John Marshall to Stephen G. Breyer (University of Kansas, 2023) The June 2024 recording of Justices Roberts and Alito on godliness Susan's “Sensitive Places?: How Gender Unmasks the Myth of Originalism in District of Columbia v. Heller” (Polity, 2021) Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/new-books-network

When the draft majority decision in Dobbs v. Jackson Women's Health was leaked, the media, public officials, and scholars focused on the overturning of Roe v. Wade. They noted Justice Alito's strident tone and radical use of originalism to eliminate constitutional protection for reproductive rights. My guest today has written a book that asks us to also notice over 140 footnotes in the majority opinion and dissent. Are these notes part of the law? In his new book, The Supreme Court Footnote: A Surprising History (NYU Press, 2024), Dr. Peter Charles Hoffer insists that these notes are significant. The footnotes reveal the justices' beliefs about the Constitution's essence, highlight their controversial reasoning, and expose “vastly different interpretations of the role of Supreme Court Justice.” Using a comprehensive qualitative analysis, The Supreme Court Footnote, offers a history of the evolution of footnotes in US Supreme Court opinions and a thoughtful set of case studies to reveal the particular ways that the footnote has affected Supreme Court decisions. Hoffer argues that justices alter the course of history through their decisions and the footnote is the way in which they push their own understanding of the Constitution. Eight case studies show how the footnote has evolved over time. He begins with Chisholm v. Georgia in 1792 and ends with Dobbs v. Jackson case in 2022. Using Dred Scott, Viterbo v. Friedlander, Muller v. Oregon, United States v. Carolene Products, Brown v. Board of Education of Topeka, and District of Columbia v. Heller, Hoffer demonstrates how the footnotes reflect the changing role of the Supreme Court justice and the manner in which they interpret the Constitution. Dr. Hoffer looks back in order to look forward. He offers a study of the footnote that is relevant to contemporary debates over the Supreme Court, methods of interpretation, and politics.  Dr. Peter Charles Hoffer is Distinguished Research Professor of History at the University of Georgia. Hoffer went to University of Rochester and Harvard and has taught at Ohio State, Notre Dame, and UGA (since 1978). He has written books on the Supreme Court, the Federal Court System, infanticide, impeachment, abortion, early American history, slave rebellions, and historical methods. During the podcast, we mentioned: Anthony Grafton's The Footnote: A Curious History (Harvard, 1999) My NBN conversation with Laura F. Edward's on her book (The People and their Peace), originalism and domestic violence The University of Kansas's Landmark Law Series Peter's book Reading Law Forward: The Making of a Democratic Jurisprudence from John Marshall to Stephen G. Breyer (University of Kansas, 2023) The June 2024 recording of Justices Roberts and Alito on godliness Susan's “Sensitive Places?: How Gender Unmasks the Myth of Originalism in District of Columbia v. Heller” (Polity, 2021) Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/history

When the draft majority decision in Dobbs v. Jackson Women's Health was leaked, the media, public officials, and scholars focused on the overturning of Roe v. Wade. They noted Justice Alito's strident tone and radical use of originalism to eliminate constitutional protection for reproductive rights. My guest today has written a book that asks us to also notice over 140 footnotes in the majority opinion and dissent. Are these notes part of the law? In his new book, The Supreme Court Footnote: A Surprising History (NYU Press, 2024), Dr. Peter Charles Hoffer insists that these notes are significant. The footnotes reveal the justices' beliefs about the Constitution's essence, highlight their controversial reasoning, and expose “vastly different interpretations of the role of Supreme Court Justice.” Using a comprehensive qualitative analysis, The Supreme Court Footnote, offers a history of the evolution of footnotes in US Supreme Court opinions and a thoughtful set of case studies to reveal the particular ways that the footnote has affected Supreme Court decisions. Hoffer argues that justices alter the course of history through their decisions and the footnote is the way in which they push their own understanding of the Constitution. Eight case studies show how the footnote has evolved over time. He begins with Chisholm v. Georgia in 1792 and ends with Dobbs v. Jackson case in 2022. Using Dred Scott, Viterbo v. Friedlander, Muller v. Oregon, United States v. Carolene Products, Brown v. Board of Education of Topeka, and District of Columbia v. Heller, Hoffer demonstrates how the footnotes reflect the changing role of the Supreme Court justice and the manner in which they interpret the Constitution. Dr. Hoffer looks back in order to look forward. He offers a study of the footnote that is relevant to contemporary debates over the Supreme Court, methods of interpretation, and politics.  Dr. Peter Charles Hoffer is Distinguished Research Professor of History at the University of Georgia. Hoffer went to University of Rochester and Harvard and has taught at Ohio State, Notre Dame, and UGA (since 1978). He has written books on the Supreme Court, the Federal Court System, infanticide, impeachment, abortion, early American history, slave rebellions, and historical methods. During the podcast, we mentioned: Anthony Grafton's The Footnote: A Curious History (Harvard, 1999) My NBN conversation with Laura F. Edward's on her book (The People and their Peace), originalism and domestic violence The University of Kansas's Landmark Law Series Peter's book Reading Law Forward: The Making of a Democratic Jurisprudence from John Marshall to Stephen G. Breyer (University of Kansas, 2023) The June 2024 recording of Justices Roberts and Alito on godliness Susan's “Sensitive Places?: How Gender Unmasks the Myth of Originalism in District of Columbia v. Heller” (Polity, 2021) Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/political-science

When the draft majority decision in Dobbs v. Jackson Women's Health was leaked, the media, public officials, and scholars focused on the overturning of Roe v. Wade. They noted Justice Alito's strident tone and radical use of originalism to eliminate constitutional protection for reproductive rights. My guest today has written a book that asks us to also notice over 140 footnotes in the majority opinion and dissent. Are these notes part of the law? In his new book, The Supreme Court Footnote: A Surprising History (NYU Press, 2024), Dr. Peter Charles Hoffer insists that these notes are significant. The footnotes reveal the justices' beliefs about the Constitution's essence, highlight their controversial reasoning, and expose “vastly different interpretations of the role of Supreme Court Justice.” Using a comprehensive qualitative analysis, The Supreme Court Footnote, offers a history of the evolution of footnotes in US Supreme Court opinions and a thoughtful set of case studies to reveal the particular ways that the footnote has affected Supreme Court decisions. Hoffer argues that justices alter the course of history through their decisions and the footnote is the way in which they push their own understanding of the Constitution. Eight case studies show how the footnote has evolved over time. He begins with Chisholm v. Georgia in 1792 and ends with Dobbs v. Jackson case in 2022. Using Dred Scott, Viterbo v. Friedlander, Muller v. Oregon, United States v. Carolene Products, Brown v. Board of Education of Topeka, and District of Columbia v. Heller, Hoffer demonstrates how the footnotes reflect the changing role of the Supreme Court justice and the manner in which they interpret the Constitution. Dr. Hoffer looks back in order to look forward. He offers a study of the footnote that is relevant to contemporary debates over the Supreme Court, methods of interpretation, and politics.  Dr. Peter Charles Hoffer is Distinguished Research Professor of History at the University of Georgia. Hoffer went to University of Rochester and Harvard and has taught at Ohio State, Notre Dame, and UGA (since 1978). He has written books on the Supreme Court, the Federal Court System, infanticide, impeachment, abortion, early American history, slave rebellions, and historical methods. During the podcast, we mentioned: Anthony Grafton's The Footnote: A Curious History (Harvard, 1999) My NBN conversation with Laura F. Edward's on her book (The People and their Peace), originalism and domestic violence The University of Kansas's Landmark Law Series Peter's book Reading Law Forward: The Making of a Democratic Jurisprudence from John Marshall to Stephen G. Breyer (University of Kansas, 2023) The June 2024 recording of Justices Roberts and Alito on godliness Susan's “Sensitive Places?: How Gender Unmasks the Myth of Originalism in District of Columbia v. Heller” (Polity, 2021) Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/intellectual-history

When the draft majority decision in Dobbs v. Jackson Women's Health was leaked, the media, public officials, and scholars focused on the overturning of Roe v. Wade. They noted Justice Alito's strident tone and radical use of originalism to eliminate constitutional protection for reproductive rights. My guest today has written a book that asks us to also notice over 140 footnotes in the majority opinion and dissent. Are these notes part of the law? In his new book, The Supreme Court Footnote: A Surprising History (NYU Press, 2024), Dr. Peter Charles Hoffer insists that these notes are significant. The footnotes reveal the justices' beliefs about the Constitution's essence, highlight their controversial reasoning, and expose “vastly different interpretations of the role of Supreme Court Justice.” Using a comprehensive qualitative analysis, The Supreme Court Footnote, offers a history of the evolution of footnotes in US Supreme Court opinions and a thoughtful set of case studies to reveal the particular ways that the footnote has affected Supreme Court decisions. Hoffer argues that justices alter the course of history through their decisions and the footnote is the way in which they push their own understanding of the Constitution. Eight case studies show how the footnote has evolved over time. He begins with Chisholm v. Georgia in 1792 and ends with Dobbs v. Jackson case in 2022. Using Dred Scott, Viterbo v. Friedlander, Muller v. Oregon, United States v. Carolene Products, Brown v. Board of Education of Topeka, and District of Columbia v. Heller, Hoffer demonstrates how the footnotes reflect the changing role of the Supreme Court justice and the manner in which they interpret the Constitution. Dr. Hoffer looks back in order to look forward. He offers a study of the footnote that is relevant to contemporary debates over the Supreme Court, methods of interpretation, and politics.  Dr. Peter Charles Hoffer is Distinguished Research Professor of History at the University of Georgia. Hoffer went to University of Rochester and Harvard and has taught at Ohio State, Notre Dame, and UGA (since 1978). He has written books on the Supreme Court, the Federal Court System, infanticide, impeachment, abortion, early American history, slave rebellions, and historical methods. During the podcast, we mentioned: Anthony Grafton's The Footnote: A Curious History (Harvard, 1999) My NBN conversation with Laura F. Edward's on her book (The People and their Peace), originalism and domestic violence The University of Kansas's Landmark Law Series Peter's book Reading Law Forward: The Making of a Democratic Jurisprudence from John Marshall to Stephen G. Breyer (University of Kansas, 2023) The June 2024 recording of Justices Roberts and Alito on godliness Susan's “Sensitive Places?: How Gender Unmasks the Myth of Originalism in District of Columbia v. Heller” (Polity, 2021) Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/american-studies

When the draft majority decision in Dobbs v. Jackson Women's Health was leaked, the media, public officials, and scholars focused on the overturning of Roe v. Wade. They noted Justice Alito's strident tone and radical use of originalism to eliminate constitutional protection for reproductive rights. My guest today has written a book that asks us to also notice over 140 footnotes in the majority opinion and dissent. Are these notes part of the law? In his new book, The Supreme Court Footnote: A Surprising History (NYU Press, 2024), Dr. Peter Charles Hoffer insists that these notes are significant. The footnotes reveal the justices' beliefs about the Constitution's essence, highlight their controversial reasoning, and expose “vastly different interpretations of the role of Supreme Court Justice.” Using a comprehensive qualitative analysis, The Supreme Court Footnote, offers a history of the evolution of footnotes in US Supreme Court opinions and a thoughtful set of case studies to reveal the particular ways that the footnote has affected Supreme Court decisions. Hoffer argues that justices alter the course of history through their decisions and the footnote is the way in which they push their own understanding of the Constitution. Eight case studies show how the footnote has evolved over time. He begins with Chisholm v. Georgia in 1792 and ends with Dobbs v. Jackson case in 2022. Using Dred Scott, Viterbo v. Friedlander, Muller v. Oregon, United States v. Carolene Products, Brown v. Board of Education of Topeka, and District of Columbia v. Heller, Hoffer demonstrates how the footnotes reflect the changing role of the Supreme Court justice and the manner in which they interpret the Constitution. Dr. Hoffer looks back in order to look forward. He offers a study of the footnote that is relevant to contemporary debates over the Supreme Court, methods of interpretation, and politics.  Dr. Peter Charles Hoffer is Distinguished Research Professor of History at the University of Georgia. Hoffer went to University of Rochester and Harvard and has taught at Ohio State, Notre Dame, and UGA (since 1978). He has written books on the Supreme Court, the Federal Court System, infanticide, impeachment, abortion, early American history, slave rebellions, and historical methods. During the podcast, we mentioned: Anthony Grafton's The Footnote: A Curious History (Harvard, 1999) My NBN conversation with Laura F. Edward's on her book (The People and their Peace), originalism and domestic violence The University of Kansas's Landmark Law Series Peter's book Reading Law Forward: The Making of a Democratic Jurisprudence from John Marshall to Stephen G. Breyer (University of Kansas, 2023) The June 2024 recording of Justices Roberts and Alito on godliness Susan's “Sensitive Places?: How Gender Unmasks the Myth of Originalism in District of Columbia v. Heller” (Polity, 2021) Learn more about your ad choices. Visit megaphone.fm/adchoices Support our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

When the draft majority decision in Dobbs v. Jackson Women's Health was leaked, the media, public officials, and scholars focused on the overturning of Roe v. Wade. They noted Justice Alito's strident tone and radical use of originalism to eliminate constitutional protection for reproductive rights. My guest today has written a book that asks us to also notice over 140 footnotes in the majority opinion and dissent. Are these notes part of the law? In his new book, The Supreme Court Footnote: A Surprising History (NYU Press, 2024), Dr. Peter Charles Hoffer insists that these notes are significant. The footnotes reveal the justices' beliefs about the Constitution's essence, highlight their controversial reasoning, and expose “vastly different interpretations of the role of Supreme Court Justice.” Using a comprehensive qualitative analysis, The Supreme Court Footnote, offers a history of the evolution of footnotes in US Supreme Court opinions and a thoughtful set of case studies to reveal the particular ways that the footnote has affected Supreme Court decisions. Hoffer argues that justices alter the course of history through their decisions and the footnote is the way in which they push their own understanding of the Constitution. Eight case studies show how the footnote has evolved over time. He begins with Chisholm v. Georgia in 1792 and ends with Dobbs v. Jackson case in 2022. Using Dred Scott, Viterbo v. Friedlander, Muller v. Oregon, United States v. Carolene Products, Brown v. Board of Education of Topeka, and District of Columbia v. Heller, Hoffer demonstrates how the footnotes reflect the changing role of the Supreme Court justice and the manner in which they interpret the Constitution. Dr. Hoffer looks back in order to look forward. He offers a study of the footnote that is relevant to contemporary debates over the Supreme Court, methods of interpretation, and politics.  Dr. Peter Charles Hoffer is Distinguished Research Professor of History at the University of Georgia. Hoffer went to University of Rochester and Harvard and has taught at Ohio State, Notre Dame, and UGA (since 1978). He has written books on the Supreme Court, the Federal Court System, infanticide, impeachment, abortion, early American history, slave rebellions, and historical methods. During the podcast, we mentioned: Anthony Grafton's The Footnote: A Curious History (Harvard, 1999) My NBN conversation with Laura F. Edward's on her book (The People and their Peace), originalism and domestic violence The University of Kansas's Landmark Law Series Peter's book Reading Law Forward: The Making of a Democratic Jurisprudence from John Marshall to Stephen G. Breyer (University of Kansas, 2023) The June 2024 recording of Justices Roberts and Alito on godliness Susan's “Sensitive Places?: How Gender Unmasks the Myth of Originalism in District of Columbia v. Heller” (Polity, 2021) Learn more about your ad choices. Visit megaphone.fm/adchoices

This week we decided to play “clean up on Supreme Court aisle [footnote] four,” and explain further why we think 1938's Carolene Products decision was actually the most significant of the New Deal era decisions that distorted the Constitution and our subsequent politics. Many of the perversions of modern civil rights politics actually descend from this case that was about adulterated milk... Source

This week we decided to play “clean up on Supreme Court aisle [footnote] four,” and explain further why we think 1938’s Carolene Products decision was actually the most significant of the New Deal era decisions that distorted the Constitution and our subsequent politics. Many of the perversions of modern civil rights politics actually descend from this case that was about adulterated milk, of all silly things. How did we get so far off track? Lucretia, naturally, takes a more radical view of the problem. But not before she assails Steve for his choice of opening bumper music, which was yet another argument Steve lost. From there we introduce a new magic number to track alongside the count for “Who Shot Ashli Babbit” (now 121 days), some thoughts on the California recall, how Arizona Senator Kirsten Sinema seems to be less than a total Flake, and some head scratching about wide-angle lens photography at the White House.

This week we decided to play “clean up on Supreme Court aisle [footnote] four,” and explain further why we think 1938’s Carolene Products decision was actually the most significant of the New Deal era decisions that distorted the Constitution and our subsequent politics. Many of the perversions of modern civil rights politics actually descend from […]

Start your study of individual rights on the right foot(note) with this discussion of Con Law’s most famous footnote and the tiers of scrutiny that it spawned.

In 1988, the editors of the University of Pennsylvania Law Review published an aside titled "Don't Cry Over Filled Milk: The Neglected Footnote Three to Carolene Products." It provided a trenchant critique of legal citation practices as described in the Bluebook through a satirical examination of footnote three of United States v. Carolene Products, and has been cited with relative frequency by those critiquing current practices. It has also been noted in a number of Constitutional Law texts, including Norman Redlich's Constitutional Law casebook, for its numerous citations to scholarship focused on footnote four of United States v. Carolene Products.This episode of Lex Phonographica was read by Luce Nguyen. See acast.com/privacy for privacy and opt-out information.

Way back in Episode 49, Andrew argued that lawyers who claim to follow in the footsteps of Antonin Scalia-style originalism should be disqualified from serving on the U.S. Supreme Court, and that Democrats on the Senate Judiciary Committee need to be challenging Scalia's acolytes (like Neil Gorsuch) on their underlying philosophy and not just their compassion (or lack thereof). In this episode, friend of the show David Michael challenges some of the points made by Andrew in the original episode , as well as raises new ones.  Along with Thomas, we have a great three-way discussion about U.S. history, the Federalist papers, key cases, the underlying work of Robert Bork, and more.  Does Andrew change his mind?   Does Thomas?  Listen and find out! After the lengthy interview, we end with the answer to an all-new TTTBE #67 about a gang party where the boss just wanted to "send a message."  Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess.  We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None!  Have us on your show! Show Notes & Links You can listen to our (ahem) original episode on originalism, Episode 49. Please also check out David Michael's new podcast, The Quorum! Here’s a link to the full text of the Federalist Papers. United States v. Carolene Products, 304 U.S. 144 (1938). Harmelin v. Michigan, 501 U.S. 957 (1991) is the infamous decision in which Scalia declared that the Eighth Amendment only bars punishments that are both “cruel” and “unusual in the Constitutional sense.” Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ Don't forget the OA Facebook Community! And email us at openarguments@gmail.com  

In today's episode, we take a long look at the judicial philosophy of "originalism" made popular by former Supreme Court Justice Antonin Scalia and advocated by his would-be replacement. First, we begin with a question from Jodi, who asks Andrew for his opinion of LegalZoom and other law-in-a-box services.  Andrew gets a little emotional in his response.... Next, we break down originalism as a form of jurisprudence and examine why it is (1) internally incoherent and contradictory; (2) dangerous and unconstrained; and (3) contrary to the fundamental purpose of the judiciary.  Andrew's argument is that originalists do not belong on the Supreme Court.  Period. Finally, we end with the answer to Thomas Takes the Bar Exam question #13 about hearsay.  Remember that TTTBE issues a new question every Friday, followed by the answer on next Tuesday's show.  Don't forget to play along by following our Twitter feed (@Openargs) and/or our Facebook Page and quoting the Tweet or Facebook Post that announces this episode along with your guess and reason(s)! Recent Appearances: Andrew was a panel guest on The Thinking Atheist episode "Donald Trump's America," which you can listen to by clicking right here. Show Notes & Links Here are Andrew's two blog posts -- one about Legal Zoom and one about downloading contracts off the internet.  His law firm site is here. This Huffington Post piece quotes Scalia's 2008 interview with Nina Totenberg about the Eighth Amendment not prohibiting 18th-century forms of torture. Here's a link to the full text of the Federalist Papers. Marbury v. Madison, 5 U.S. 137 (1803). United States v. Carolene Products, 304 U.S. 144 (1938). Scalia's dissent in Atkins v. Virginia, 536 U.S. 304, 347-48 (2002) and opinion in Printz v. United States, 521 U.S. 898 (1997) are where he makes fun of citations to international law. Harmelin v. Michigan, 501 U.S. 957 (1991) is the infamous decision in which Scalia declared that the Eighth Amendment only bars punishments that are both "cruel" and "unusual in the Constitutional sense." Support us on Patreon at:  patreon.com/law Follow us on Twitter:  @Openargs Facebook:  https://www.facebook.com/openargs/ And email us at openarguments@gmail.com  

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. This show’s links: Lori Ringhand’s faculty profile, books, and articles Episode 31: Knee Defender, in which we first spoke of the airplane seat reclining controversy Neil Buchanan, Airplane Seatbacks, the Coase Theorem, and Simplistic Solutions to Difficult Questions Josh Barro, Don’t Want Me to Recline My Airline Seat? You Can Pay Me Katia Hetter, Seat Recline Fight Diverts Another Flight Baskin v. Bogan, Judge Posner’s opinion for the Seventh Circuit striking down marriage bans in Indiana and Wisconsin Robicheaux v. Caldwell, Judge Feldman’s opinion upholding Louisiana’s marriage ban Mark Joseph Stern, Judge Posner’s Gay Marriage Opinion Is a Witty, Deeply Moral Masterpiece Christian Turner, 404: Argument Not Found Brown v. Board of Education What Brown v. Board of Education Should Have Said, Jack Balkin ed. Episode 30: A Filled Milk Caste, in which we discuss United States v. Carolene Products Windsor 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 Romer 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 Special Guest: Lori Ringhand.

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. This show’s links: Episode 28: A Wonderful Catastrophe, including discussion of the first of Joe’s favorite cases and our discussion of the case of the monkey selfie Draft Compendium of U.S. Copyright Practices, including at page 54 of the linked manual: “The Office will not register works produced by nature, animals, or plants. ... Examples: A photograph taken by a monkey.” United States v. Carolene Products Co. Hebe Co. v. Shaw About filled milk Josh Blackman, 60 New Recipes for Carolene Products Co.’s Milnut from 1939 Lochner v. New York Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs Wickard v. Filburn Letter from Justice Robert H. Jackson to Chief Justice Harlan F. Stone on Wickard v. Filburn Jackson’s thoughts on the Wickard problem were put down most candidly in a memo to his law clerk (Robert Jackson, Memorandum for Mr. Costelloe, Re: Wickard Case 15 (July 10, 1942) (on file with the Library of Congress, Jackson MSS, Box 125). Perhaps you’ll have better luck finding this online than we did. It is described in many of the many, many articles about the famous footnote. David Strauss, Does the Constitution Always Mean What It Says?, video of a terrific lecture The text of foonote four Louis Lusky, Footnote Redux: A Carolene Products Reminiscence (note: Joe misspoke. Lusky was a Columbia, not Yale, prof.) Episode 27: My Favorite Case on Plessy v. Ferguson Lincoln Caplan, Ruth Bader Ginsburg and Footnote Four, which concerns this appearance by Justice Ginsburg at which she discusses Footnote Four and affirmative action (just after minute 36) David Strauss, Is Carolene Products Obsolete?

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. This show’s links: Overcast, the newest podcast app on the block Episode 8: Party All over the World Christian Turner, Leveling Up Ed Cray, Chief Justice: A Biography of Earl Warren (and here’s a review) Episode 27: My Favorite Case About the Canadian Charter of Rights and Freedoms Erie Railroad Co. v. Tompkins United States v. Carolene Products Swift v. Tyson Black 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.”) The monkey selfie: (go here to see the image if it doesn’t appear in your podcast client) Mike Masonic, How That Monkey Selfie Reveals The Dangerous Belief That Every Bit Of Culture Must Be 'Owned' Annemarie Bridy, Coding Creativity: Copyright and the Artificially Intelligent Author