Oral Argument (Joe Miller and Christian Turner)

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.

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. This show’s links: Franita Tolson's faculty profile (http://gould.usc.edu/faculty/?id=73521) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=737594) Franita Tolson, What is Abridgment?: A Critique of Two Section Twos (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2644320) Luther v. Borden (https://scholar.google.com/scholar_case?case=7884047486442944178) (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 (https://scholarship.law.duke.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1696&context=faculty_scholarship) Sharrow v. Brown (https://scholar.google.com/scholar_case?case=13060533703812147352) at footnote 9, for an example of a court wrestling with the seemingly mandatory language of section two's reduction formula Shelby County v. Holder (https://scholar.google.com/scholar_case?case=4053797526279899410) Special Guest: Franita Tolson.

What 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. This show’s links: Richard Re’s faculty profile (https://www.law.ucla.edu/faculty/faculty-profiles/richard-m-re/) and academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=974617) Re's Judicata (https://richardresjudicata.wordpress.com) Richard Re, Beyond the Marks Rule (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3090620) Adam Steinman, Non-Majority Opinions and Biconditional Rules (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3123807) Marks v. United States (https://scholar.google.com/scholar_case?case=12064198172779556411) SCOTUSblog page for Hughes v. United States (http://www.scotusblog.com/case-files/cases/hughes-v-united-states/) Richard's amicus brief in Hughes (https://www.supremecourt.gov/DocketPDF/17/17-155/33360/20180126134313770_17-155%20Re%20Amicus%20Brief.pdf) Aro Mfg. Co. v. Convertible Top Replacement Co.: the 1961 decision (https://scholar.google.com/scholar_case?case=14679629603309035961) and the 1964 decision (https://scholar.google.com/scholar_case?case=2231855974886805443) Justice Lewis Powell's papers on Marks (http://law2.wlu.edu/deptimages/powell%20archives/75-708_Marks_US.pdf) from the The Lewis Powell Supreme Court Case Files (http://law2.wlu.edu/powellarchives/page.asp?pageid=1279) at Washington and Lee University School of Law Special Guest: Richard Re.

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.

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. This show’s links: Steve Vladeck’s faculty profile (https://law.utexas.edu/faculty/stephen-i-vladeck), academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=362455), and blogging on Lawfare (https://lawfareblog.com/contributors/svladeck) The National Security Law Podcast (https://www.nationalsecuritylawpodcast.com) and in particular episode 21: A Military Commissions Deep Dive (https://www.nationalsecuritylawpodcast.com/episode-21-a-military-commissions-deep-dive/) Steve Vladeck, An Unconventional Test Case for Civilian Control of the Military (https://lawfareblog.com/unconventional-test-case-civilian-control-military) SCOTUSblog page for Dalmazzi v. United States (http://www.scotusblog.com/case-files/cases/dalmazzi-v-united-states/) (containing links to the opinion below and all briefing) Edmond v. United States (https://scholar.google.com/scholar_case?case=378350361225082100) In re Al-Nashiri (https://scholar.google.com/scholar_case?case=1182013408965603282) Steve Vladeck, The Misbegotten Court of Military Commission Review (https://www.lawfareblog.com/misbegotten-court-military-commission-review) Christian Turner, Submarine Statutes (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2913641) William Eskridge and John Ferejohn, Super-Statutes (http://scholarship.law.duke.edu/dlj/vol50/iss5/3/) Kathleen McInnis, Statutory Restrictions on the Position of Secretary of Defense: Issues for Congress (https://fas.org/sgp/crs/natsec/R44725.pdf) (an excellent and highly readable Congressional Research Service report on civilian control of the military and civil-military relations) Steve Vladeck, [Calling it] Treason Doth Never Prosper… (https://www.justsecurity.org/39204/calling-it-treason-doth-prosper/) Diane Mazur, A More Perfect Military (https://www.amazon.com/More-Perfect-Military-Constitution-Stronger/dp/0195394488) Special Guest: Steve Vladeck.

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

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.

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).

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 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)

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.

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. This show’s links: Christopher Newman’s faculty profile (http://www.law.gmu.edu/faculty/directory/fulltime/newman_christopher) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1222496) Christopher Newman, Vested Use-Privileges in Property and Copyright (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2897083) Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning (https://archive.org/details/jstor-785533) Christian Turner, Legal Theory 101, Reading 3: Hohfeld (https://www.hydratext.com/malt2016/2016/8/14/reading-3-hohfeld) Tom Bell and Chris Newman discussing (https://www.cato.org/events/intellectual-privilege) Bell’s book, Intellectual Privilege (https://books.google.com/books?id=JTanAwAAQBAJ) Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency (https://scholar.google.com/scholar_case?case=4226653435664355113) Lucas v. South Carolina Coastal Council (https://scholar.google.com/scholar_case?case=659168721517750079) Eric Claeys, Labor, Exclusion, and Flourishing in Property Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2665829) Folsom v. Marsh (https://h2o.law.harvard.edu/cases/5238) and Sony Corp. v. Universal City Studios (https://scholar.google.com/scholar_case?case=5876335373788447272) Christopher Newman, [An Exclusive License Is Not an Assignment: Disentangling Divisibility and Transferability of Ownership in Copyright][newman2] [newman2]: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2286833 Special Guest: Christopher Newman.

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.

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

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. This show’s links: Christina Mulligan's faculty profile (https://www.brooklaw.edu/faculty/directory/facultymember/biography?id=christina.mulligan) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1557395) Christina Mulligan, Revenge Against Robots (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3016048) About Betty Smith's A Tree Grows in Brooklyn (https://en.wikipedia.org/wiki/A_Tree_Grows_in_Brooklyn_(novel)) About the Tree that Owns Itself (https://en.wikipedia.org/wiki/Tree_That_Owns_Itself) The Trial of the Autun Rats (http://www.duhaime.org/LawMuseum/LawArticle-1529/1508-The-Trial-of-the-Autun-Rats.aspx) Oral Argument 70: No Drones in the Park (http://oralargument.org/70) Scott Hershovitz, Tort as a Substitute for Revenge (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2308590) Kate Darling, Palash Nandy, and Cynthia Breazeal, Empathic Concern and the Effect of Stories in Human-Robot Interaction (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2639689); Kate Darling, "Who's Johnny?" Anthropomorphic Framing in Human-Robot Interaction, Integration, and Policy (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2588669) Office Space, the printer scene (https://www.youtube.com/watch?v=N9wsjroVlu8) (nsfw) Hunter Walk, Amazon Echo Is Magical. It’s Also Turning My Kid into an Asshole. (https://hunterwalk.com/2016/04/06/amazon-echo-is-magical-its-also-turning-my-kid-into-an-asshole/) Hannah Gold, This Mirror that Forces People to Smile Is Going to Piss Everyone Off (https://jezebel.com/this-mirror-that-forces-people-to-smile-is-going-to-pis-1819828956) Special Guest: Christina Mulligan.

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. This show’s links: First Mondays (http://www.firstmondays.fm) Oral Argument 79: He Said It Peabody Well (http://oralargument.org/79) The Supreme Court of the UK (https://www.supremecourt.uk/index.html) Jay Wexler’s SCOTUS Humor (http://jaywex.com/wordpress/scotus-humor/) Oral Argument 31: Knee Defender (http://oralargument.org/31) Plato, The Republic (http://classics.mit.edu/Plato/republic.html) and, yep, r/plato (https://www.reddit.com/r/Plato/) Texas v. Johnson (https://scholar.google.com/scholar_case?case=2084618710761560217)

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.

We’ve been asking for a true originalist to take us to the woodshed for all our prior doubts and dismissiveness of originalism as a method of interpretation. Enter Will Baude. This show’s links: William Baude’s faculty profile (http://www.law.uchicago.edu/faculty/baude) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=398074) About Ben Linus (https://en.wikipedia.org/wiki/Ben_Linus) First Mondays (http://www.firstmondays.fm) Legal Theory 101 (http://www.hydratext.com/legal-theory-101/) (and corresponding blog post (http://www.hydratext.com/blog/2016/11/2/legal-theory-101)) William Baude and Stephen Sachs, Originalism’s Bite (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2851986) William Baude and Stephen Sachs, The Law of Interpretation (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2783398) William Baude, Is Originalism Our Law? (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2672631) Oral Argument 113: The Entrails of Fowl (http://oralargument.org/113) (guest Charles Barzun) Lawrence Solum, Semantic Originalism (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1120244) Stephen Sachs, Originalism as a Theory of Legal Change (http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=6059&context=faculty_scholarship) Richard Re, Promising the Constitution (http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1230&context=nulr) Two debates about interpretation between Justices Breyer and Scalia: Annenberg Classroom (http://www.annenbergclassroom.org/page/a-conversation-on-the-constitution-judicial-interpretation) and a joint Federalist Society and ACS event (https://www.youtube.com/watch?v=_4n8gOUzZ8I) Richard Posner, Supreme Court Breakfast Table Entry 27: Broad Interpretations (http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2016/supreme_court_breakfast_table_for_june_2016/richard_posner_clarifies_his_views_on_the_constitution.html) Radiolab Presents: More Perfect, The Political Thicket (http://www.wnyc.org/story/the-political-thicket) Mary Sarah Bilder, Madison’s Hand: Revising the Constitutional Convention (https://www.amazon.com/Madisons-Hand-Revising-Constitutional-Convention/dp/0674055276); see also a conversation with Bilder at the National Constitution Center (https://www.c-span.org/video/?401572-3/madisons-hand) Special Guest: William Baude.

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. This show’s links: Daphna Renan’s faculty profile (http://hls.harvard.edu/faculty/directory/11495/Renan) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2426885) Daphna Renan, The Law Presidents Make (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2948177) About the Office of Legal Counsel (https://en.wikipedia.org/wiki/Office_of_Legal_Counsel), the White House Counsel (https://en.wikipedia.org/wiki/White_House_Counsel), and the Solicitor General (https://en.wikipedia.org/wiki/Solicitor_General_of_the_United_States) Jeremy Waldron, Separation of Powers in Thought and Practice? (http://lawdigitalcommons.bc.edu/bclr/vol54/iss2/2/) Jack Goldsmith, The Terror Presidency: Law and Judgment Inside the Bush Administration (https://books.google.com/books/about/The_Terror_Presidency.html?id=3uFre3VPSz8C) Special Guest: Daphna Renan.

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. This show’s links: Greg Klass's faculty profile (https://www.law.georgetown.edu/faculty/klass-gregory.cfm) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363445) Greg Klass, A Critical Assessment of the Empiricism in the Restatement of Consumer Contract Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3001212) Oral Argument 133: Too Many Darn Radio Buttons (http://oralargument.org/133) (guest Jim Gibson) John Gruber, Apple to Release Software Update to Solve iOS 11 Issue When Typing the Letter "I" (https://daringfireball.net/linked/2017/11/07/ios-11-i) About the ALI's draft Restatement of Consumer Contracts (http://www.thealiadviser.org/consumer-contracts/) Oren Bar-Gill, Omri Ben-Shahar, and Florencia Marotta-Wurgler, Searching for the Common Law: The Quantitative Approach of the Restatement of Consumer Contracts (http://chicagounbound.uchicago.edu/uclrev/vol84/iss1/2/) Florencia Marotta-Wurgler, Does Contract Disclosure Matter? (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2736521); Yannis Bakos, Florencia Marotta-Wurgler, David Trossen, Does Anyone Read the Fine Print? Consumer Attention to Standard Form Contracts (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1443256) Arthur Leff, Contract as Thing (http://digitalcommons.law.yale.edu/fss_papers/2827/) William Baude, Adam Chilton, and Anup Malani, Making Doctrinal Work More Rigorous: Lessons from Systematic Reviews (http://chicagounbound.uchicago.edu/public_law_and_legal_theory/622/) Gregory Klass and Kathryn Zeiler, Against Endowment Theory: Experimental Economics and Legal Scholarship (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2224105) Special Guest: Greg Klass.

The election. And then viewer mail on media for scholarship and ideas, suspense and emotional salience in judicial opinions, and a little more. This show’s links: Oral Argument 106: Legal Asteroid (http://oralargument.org/106) Robert Bolt, A Man for All Seasons (https://en.wikipedia.org/wiki/A_Man_for_All_Seasons) David Souter on the Danger of America’s “pervasive civic ignorance” (video) (https://www.youtube.com/watch?v=rWcVtWennr0) Oral Argument 105: Bismarck’s Raw Material (guest Tim Meyer) (http://oralargument.org/105) Oral Argument 112: Quasi-Narrative (guest Simon Stern) (http://oralargument.org/112) Popov v. Hayashi (http://news.findlaw.com/hdocs/docs/bonds/popovhayashi121802dec.pdf) Oyez page for NFIB v. Sebelius (https://www.oyez.org/cases/2011/11-393) (select Opinion Announcement, part 1, for the relevant portion of the hand-down) Oral Argument 113: The Entrails of Fowl (guest Charles Barzun) (http://oralargument.org/113) Paul Horwitz, On “The Troublesome Use of Photographs . . . and Other Images” in Federal Court Opinions (http://prawfsblawg.blogs.com/prawfsblawg/2016/10/on-the-troublesome-use-of-photographs-and-other-images-in-federal-court-opinions.html) Blackmun’s dissent in DeShaney v. Winnebago County Department of Social Services (https://www.law.cornell.edu/supremecourt/text/489/189#writing-USSC_CR_0489_0189_ZD1) Jamal Greene, Pathetic Arguments in Constitutional Law (http://columbialawreview.org/wp-content/uploads/2016/04/Greene-J..pdf) The Oral Argument Index (http://www.hydratext.com/oralargumentindex/) David Ziff, The Worst System of Citation Except for All the Others (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2862090)

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!

Do 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. This show’s links: Stephen Sachs' faculty profile (https://law.duke.edu/fac/sachs/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=532296) Stephen Sachs, Finding Law (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3064443) Erie Railroad Co. v. Tompkins (https://scholar.google.com/scholar_case?case=4671607337309792720) Yes, I said "statistics," but I know it's Herbert Spencer, Social Statics (https://en.wikipedia.org/wiki/Social_Statics) Felix Cohen, Transcendental Nonsense and the Functional Approach (http://www.jstor.org/stable/1116300?seq=1#page_scan_tab_contents) Oral Argument 28: A Wonderfule Catastrophe (http://oralargument.org/28) (the one on Erie) Special Guest: Stephen Sachs.

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. This show’s links: Anthony Kreis’s faculty profile (https://www.kentlaw.iit.edu/faculty/full-time-faculty/anthony-michael-kreis), his writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=2277553), and his twitter feed (https://twitter.com/AnthonyMKreis) Oral Argument 36: Firehose of Equality (http://oralargument.org/36) (Anthony’s last, historic guest appearance on the show) Anthony Kreis, Against Gay Potemkin Villages: Title VII and Sexual Orientation Discrimination (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2944046) Seventh Circuit, Hively v. Ivy Tech Community College (https://scholar.google.com/scholar_case?case=3783878574608367042) (includes the concurrence of Judge Posner that occupies much of our discussion) Second Circuit, Anonymous v. Omnicom Group (https://scholar.google.com/scholar_case?case=1449039503425455437) Eleventh Circuit, Evans v. Georgia Regional Hospital (https://scholar.google.com/scholar_case?case=6662354858682210483) William Eskridge and John Ferejohn, [Super-Statutes][eskridge] [eskridge]: http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1108&context=dlj Special Guest: Anthony Kreis.

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 dig into the mailbag and discuss legal foundations, grammar, the Establishment Clause, LaTex, OralArgCon, and Submarine Statutes, and more. No show notes this week.

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.

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. This show’s links: James Grimmelmann’s wesbite (http://james.grimmelmann.net) (containing links to his scholarship, courses, blog, and more) Cornell Tech (https://tech.cornell.edu) James Somers, Torching the Modern-Day Library of Alexandria (https://www.theatlantic.com/technology/archive/2017/04/the-tragedy-of-google-books/523320/) James Grimmelmann, Future Conduct and the Limits of Class-Action Settlements (http://james.grimmelmann.net/files/articles/future-conduct.pdf) For many resources on the Google Books case and settlement, visit the site James and his students created: thepublicindex.org (http://www.thepublicindex.org) Authors Guild v. Google (https://scholar.google.com/scholar_case?case=2220742578695593916); Authors Guild v. HathiTrust (https://scholar.google.com/scholar_case?case=4571528653505160061) Sony Corp. v. Universal Studios (https://scholar.google.com/scholar_case?case=5876335373788447272) About A&M Records, Inc. v. Napster, Inc. (https://en.wikipedia.org/wiki/A%26M_Records,_Inc._v._Napster,_Inc.) Video from the panel discussion (https://archive.org/details/Orphanworksandmassdigitization20120412) at UC Berkeley’s April 2012 Orphan Works and Mass Digitization Conference diybookscanner.org (https://diybookscanner.org) Internet Archive Books (https://archive.org/details/internetarchivebooks) Vernor Vinge, Rainbow’s End (https://www.amazon.com/Rainbows-End-Vernor-Vinge/dp/0812536363) About shotgun sequencing (https://en.wikipedia.org/wiki/Shotgun_sequencing), the DNA sequencing method used by Celera Genomics to sequence the human genome in 2000 James Grimmelmann, Scholars, Teachers, and Servants (https://james.grimmelmann.net/files/articles/scholars-teachers-servants.pdf) New York Law School’s In re Books Conference (http://www.nyls.edu/innovation-center-for-law-and-technology/iilp-archive/iilp-conferences/in_re_books/) Special Guest: James Grimmelmann.

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.

This 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. This show’s links: Christina Mulligan’s faculty profile (http://www.law.uga.edu/profile/christina-mulligan), writings (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1557395), and Twitter (https://twitter.com/chrystyna) The Kythera Mechanism (http://en.wikipedia.org/wiki/Antikythera_mechanism) Kaiju (http://pacificrim.wikia.com/wiki/Kaiju) Bonobos (http://en.wikipedia.org/wiki/Bonobo) Owen Jones bio (http://law.vanderbilt.edu/bio/owen-jones) and writing (http://ssrn.com/abstract=688619) Candy Crush cease and desist letters (http://www.escapistmagazine.com/forums/read/7.839964-Candy-Crush-Saga-Studio-Trademarks-the-Word-Candy) and recent trademark withdrawal (http://www.kotaku.com.au/2014/02/candy-crush-makers-dont-want-to-trademark-candy-anymore/) Gramma Nutt (http://candy-land.wikia.com/wiki/Gramma_Nut), of Candyland fame Background on net neutrality (http://en.wikipedia.org/wiki/Net_neutrality), which has nothing to do, we are told, with this kind of neutrality (http://en.wikipedia.org/wiki/Alignment_(Dungeons_%26_Dragons)) Verizon v. FCC (http://www.cadc.uscourts.gov/internet/opinions.nsf/3AF8B4D938CDEEA685257C6000532062/$file/11-1355-1474943.pdf), the DC Circuit’s net neutrality case Content delivery networks (http://en.wikipedia.org/wiki/Content_delivery_network) Joshua Brustein, Netflix and YouTube Dominate Online Video. Can Amazon Catch Up? (http://www.businessweek.com/articles/2013-11-11/netflix-and-youtube-dominate-online-video-dot-can-amazon-catch-up) (Businessweek.com) Timothy Lee, Comcast’s deal with Netflix makes network neutrality obsolete (http://www.washingtonpost.com/blogs/the-switch/wp/2014/02/23/comcasts-deal-with-netflix-makes-network-neutrality-obsolete/) (Washington Post) Traffic shaping (http://en.wikipedia.org/wiki/Traffic_shaping) Common carrier regulations (http://www.law.cornell.edu/uscode/text/47/chapter-5/subchapter-II/part-I) Jon Brodkin, Make ISPs into "common carriers," says former FCC commissioner (http://arstechnica.com/tech-policy/2014/01/drop-regulatory-hammer-on-internet-providers-says-former-fcc-commish/) (arstechnica.com) Wikipedia on natural monopoly (http://en.wikipedia.org/wiki/Natural_monopoly) Steve Perlman’s pCell (http://www.wired.com/business/2014/02/steve_perlman_pcell/) (also see this presentation (http://www.youtube.com/watch?v=5bO0tjAdOIw)) John McDuling, People hate Comcast and Time Warner Cable even more now that they’re merging (http://qz.com/182784/people-hate-comcast-and-time-warner-cable-even-more-now-that-theyre-merging/) (Quartz) About BitTorrent (http://en.wikipedia.org/wiki/BitTorrent) Uber’s surge pricing (http://www.theverge.com/2013/12/18/5221428/uber-surge-pricing-vs-price-gouging-law) Athens’ drought-inspired tiered water rates (http://onlineathens.com/stories/031608/news_2008031600379.shtml) and the general idea (http://www1.gadnr.org/cws/Documents/Conservation_Rate_Structures.pdf) Yves Smith, The Myth of Maximizing Shareholder Value (http://www.nakedcapitalism.com/2014/01/myth-maximizing-shareholder-value.html) Jonathan Owen, The Pronunciation of Smaug (http://www.arrantpedantry.com/2013/12/20/the-pronunciation-of-smaug/) The Death Star conspiracy (http://www.youtube.com/watch?v=cEPazLTGceI) Special Guest: Christina Mulligan.

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. This show’s links: Steve Vladeck’s faculty profile (https://law.utexas.edu/faculty/siv245/) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=362455) The National Security Law Podcast (http://www.nationalsecuritylawpodcast.com) Steve Vladeck, The Supreme Court, the Trump Transition, and the Future of the Constitutional “Border” (https://www.justsecurity.org/36234/border/) (a concise overview of the Supreme Court cases under discussion, also contains links to SCOTUSblog pages where you can find briefs) The Immigration Executive Order (http://www.npr.org/2017/01/31/512439121/trumps-executive-order-on-immigration-annotated) with annotations by NPR reporters Steve Vladeck, The Airport Cases: What Happened, and What’s Next? (https://www.justsecurity.org/36960/stock-weekends-district-court-orders-immigration-eo/) Benjamin Wittes, Malevolence Tempered by Incompetence: Trump’s Horrifying Executive Order on Refugees and Visas (https://lawfareblog.com/malevolence-tempered-incompetence-trumps-horrifying-executive-order-refugees-and-visas) ACLU’s compendium of documents in Loughalam v. Trump (https://aclum.org/cases-briefs/louhghalam-v-trump/) (the Boston case) Tuaua v. United States (https://scholar.google.com/scholar_case?case=14728241865713760068) Boumediene v. Bush (https://scholar.google.com/scholar_case?case=2483936489630436485) Stephen Vladeck, The Suspension Clause as a Structural Right (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1020265) The Obama White House Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations (https://obamawhitehouse.archives.gov/sites/whitehouse.gov/files/documents/Legal_Policy_Report.pdf); see also commentary from Marty Lederman (https://www.justsecurity.org/35239/president-obamas-report-legal-policy-frameworks-guiding-united-states-military-force-related-national-security-operations/) Al-Aulaqi v. Obama (https://scholar.google.com/scholar_case?case=1758537122087571034) (against the targeting) and Al-Aulaqi v. Panetta (https://scholar.google.com/scholar_case?case=10730664581031404447) (Bivens claim) In re Territo (https://scholar.google.com/scholar_case?case=18125308868589836596) Lebron v. Rumsfeld (https://scholar.google.com/scholar_case?case=10647104112426887557) (Wilkinson) and Al Shimari v. CACI Premier Tech. (https://scholar.google.com/scholar_case?case=8123144860034346802) (the Abu Ghraib case) United States v. Verdugo-Urquidez (https://scholar.google.com/scholar_case?case=10167007390100843851) David Frum, How to Build an Autocracy (https://www.theatlantic.com/magazine/archive/2017/03/how-to-build-an-autocracy/513872/) Special Guest: Steve Vladeck.

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? This show’s links: Tim Meyer’s faculty profile (http://www.law.uga.edu/profile/timothy-l-meyer) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=440142) The World Trade Organization (http://en.wikipedia.org/wiki/World_Trade_Organization) John Austin (http://en.wikipedia.org/wiki/John_Austin_(legal_philosopher)) (and the command theory) Youngstown Sheet and Tube v. Sawyer (http://scholar.google.com/scholar_case?case=14460863599772421355) Cooter, Marks, and Mnoonkin, Bargaining in the Shadow of the Law (http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1084&context=facpubs), 11 J. L. Stud. 225 (1982) The Vienna Convention on the Law of Treaties (http://www.worldtradelaw.net/misc/viennaconvention.pdf) Wikipedia page on the UN Convention on Climate Change (http://en.wikipedia.org/wiki/United_Nations_Framework_Convention_on_Climate_Change) (includes a link to the text) The Kyoto Protocol (http://unfccc.int/resource/docs/convkp/kpeng.pdf) Andrew T. Guzman and Timothy Meyer, International Soft Law (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1353444), 2 Journal of Legal Analysis (2011) Master Blaster runs Bartertown (http://www.youtube.com/watch?v=_Xetonjc3M8) (youtube) and Bust a Deal and Face the Wheel (http://www.hark.com/clips/csnjfrxldc-bust-a-deal-and-face-the-wheel) (sound clip) Jean d’Aspremont, Formalism and the Sources of International Law (http://books.google.com/books?id=cnAnAgAAQBAJ), Oxford Univ. Press (2011) The London Club (http://en.wikipedia.org/wiki/Nuclear_Suppliers_Group) Goldilocks Globalism (Guzman and Meyer, 2015) Tim’s book suggestions: Robert Keohane, After Hegemony (http://www.amazon.com/After-Hegemony-Cooperation-Political-Princeton/dp/0691122482); Lloyd Gruber, Ruling the World (http://www.amazon.com/Ruling-World-Lloyd-Gruber/dp/0691010412/); Pollack and Shaffer, When Cooperation Fails (http://www.amazon.com/When-Cooperation-Fails-International-Genetically/dp/0199567050); Andrew Guzman, How International Law Works (http://www.amazon.com/How-International-Law-Works-Rational/dp/0195305566); Posner and Sykes, Economic Foundations of International Law (http://www.amazon.com/Economic-Foundations-International-Eric-Posner/dp/0674066995) Special Guest: Tim Meyer.

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

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.

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. Relevant links: Phil Magary, Duck Dynasty's Phil Robertson Gives Drew Magary a Tour (http://www.gq.com/entertainment/television/201401/duck-dynasty-phil-robertson), GQ. Hillbilly Handfishin' (http://en.wikipedia.org/wiki/Hillbilly_Handfishin') Christian Turner, State Action and Duck Dynasty (http://www.hydratext.com/blog/2013/12/20/muzzling-the-duck-dynasty), HydraText Christian Turner, State Action Problems (http://www.hydratext.com/blog/2012/3/22/state-action-problems.html), HydraText Shelley v. Kraemer (http://scholar.google.com/scholar_case?case=12732018998507979172) Buchanan v. Warley (http://scholar.google.com/scholar_case?case=17109776118808449915) Shutter Island (http://en.wikipedia.org/wiki/Shutter_Island_(film))

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/)

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.

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. This show’s links: Jessica Bulman-Pozen, Partisan Federalism (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2291000); Jessica Bulman-Pozen, Unbundling Federalism: Colorado's Legalization of Marijuana and Federalism's Many Forms (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2366388) Christian Turner, Submarine Statutes (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2913641) Harlan F. Stone, The Common Law in the United States (http://www.jstor.org/stable/1333183?seq=1#page_scan_tab_contents) Marty Lederman, Why the Strikes Against Syria Probably Violate the U.N. Charter and (Therefore) the U.S. Constitution (https://www.justsecurity.org/39674/syrian-strikes-violate-u-n-charter-constitution/); Harold Koh, Not Illegal: But Now The Hard Part Begins (https://www.justsecurity.org/39695/illegal-hard-part-begins/); Marty Lederman, My Discrete but Important Disagreement with Harold Koh on the Lawfulness of the Strikes on Syria (https://www.justsecurity.org/39704/discrete-disagreement-harold-koh-lawfulness-strikes-syria/)

Logan 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. This show’s links: Logan Sawyer's faculty profile (http://www.law.uga.edu/profile/logan-e-sawyer-iii) and writing (http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=547659) Logan Sawyer, Creating Hammer v. Dagenhart (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2033351) Oral Argument Episode 2: Bust a Deal, Face the Wheel (http://oralargument.org/2) (in which we learned Tim Meyer’s coffee habits) The court-packing plan (http://en.wikipedia.org/wiki/The_switch_in_time_that_saved_nine) Legal realism (http://en.wikipedia.org/wiki/Legal_realism) Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (http://www.amazon.com/Rethinking-New-Deal-Court-Constitutional/dp/0195120434) Lochner v. New York (http://scholar.google.com/scholar_case?case=10760991087928264675) Charles Warren, A Bulwark to the State Police Power — the United States Supreme Court (http://www.jstor.org/stable/1110654) David Bernstein, [Rehabilitating Lochner][Bernstein] Oral Argument Episode 4: Grow a Pear (guest Sarah Schindler) (http://oralargument.org/4) Village of Euclid v. Ambler Realty Co. (http://scholar.google.com/scholar_case?case=8376015914752485063) [Bernstein]: http://www.amazon.com/Rehabilitating-Lochner-Defending-Individual-Progressive/dp/0226043533 Special Guest: Logan Sawyer.

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!) This show’s links: SCOTUSblog page on United States v. Microsoft (http://www.scotusblog.com/case-files/cases/united-states-v-microsoft-corp/) (including links to the petitions for cert and the Second Circuit's panel opinion) Paul Schwartz, Legal Access to Cloud Information: Data Shards, Data Localization, and Data Trusts (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3008392) The National Security Law Podcast 41: Han Shot First (https://nationalsecuritylawpodcast.com/episode-41-han-shot-first/) (featuring discussion of the United States v. Microsoft) Jennifer Daskal, There's No Good Decision in the Next Big Data Privacy Case (https://www.nytimes.com/2017/10/18/opinion/data-abroad-privacy-court.html?_r=0) SCOTUSblog page on Carpenter v. United States (http://www.scotusblog.com/case-files/cases/carpenter-v-united-states-2/) Oral Argument 42: Shotgun Aphasia (http://oralargument.org/42) (guest Orin Kerr) (discussing Orin Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1748222))

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.

This show’s links:

• Jim Speta’s faculty profile and writing
• James B. Speta, Supervising Managed Services
• Oral 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
• Comcast, Press Release about its FCC filing on its proposed merger with Time Warner
• Edward Wyatt, Internet Choice Will Be Crucial Battlefield in Big Cable Merger
• Edward Wyatt, Senate Panel Expresses Caution on Merger of Cable Giants
• Susan Crawford, Comcast Pretends to Be on Your Side
• Wikipedia on the Telecommunications Act of 1996
• The National Broadband Plan, executive summary
• Susan Crawford, The Looming Cable Monopoly
• Cecilia Kang, Comcast the little guy? There’s competition everywhere, the company argues
• Bae, Beigman, Berry, Honig, Shen, Vohra, and Zhou, Spectrum Markets for Wireless Services
• Reed Hastings, Internet Tolls And The Case For Strong Net Neutrality
• Jon Brodkin, Netflix says it will pay “tolls” to more ISPs, not just Comcast
• Benjamin, Shelnski, Speta, and Weiser, Telecommunications Law and Policy: Third Edition

Special Guest: James Speta.

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.

This show’s links:

• Kim Krawiec’s faculty profile and writing
• Oral Argument Episode 14: The Astronaut’s Hair, with Lisa Milot
• The Faculty Lounge blog
• Taxing Eggs, a mini-symposium on the Faculty Lounge blog
• Viviana A. Rotman Zelizer, Morals and Markets: The Development of Life Insurance in the United States
• Viviana A. Zelizer, Pricing the Priceless Child
• Viviana A. Zelizer, The Price and Value of Children: The Case of Children’s Insurance
• Kimberly Krawiec, Price and Pretense in the Baby Market
• Kimberly Krawiec, A Woman’s Worth
• Margaret Jane Radin, Contested Commodities
• Richard Posner, The Regulation of the Market in Adoptions
• Kimberly Krawiec, Kamakahi v. ASRM: The Egg Donor Price Fixing Litigation
• Philip Cook and Kimberly Krawiec, A Primer on Kidney Transplantation: Anatomy of the Shortage
• Wikipedia on the National Organ Transplant Act of 1984
• Kieran Healy and Kimberly Krawiec, Custom, Contract, and Kidney Exchange
• Show Me the Money: Making Markets in Forbidden Exchange, an issue of Law and Contemporary Problems
• Kimberly Krawiec, Foreword to Show Me the Money: Making Markets in Forbidden Exchange
• Guido Calabresi and Philip Bobbitt, Tragic Choices

Special Guest: Kimberly Krawiec.

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.

This show’s links:

• Tom Goldstein’s profile and law firm
• SCOTUSblog and its About page
• Oral Argument Episode 17: Flesh List, with Kim Krawiec
• Kim’s posts here and here about her appearance and with some follow-up information
• Subsume
• Oyez, a resource for, among other things, audio of Supreme Court oral arguments dating back at least to the 1950s
• The U.S. Supreme Court’s own pages for oral argument transcripts and audio
• Barry Sullivan, Other Minds: The Use and Uses of Oral Argument
• Epstein, Landes, and Posner, Inferring the Winning Party in the Supreme Court from the Pattern of Questioning at Oral Argument
• Wikipedia, collecting sources, on Justice Thomas’ approach to oral argument
• The 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
• Ronald Collins, Hypothetically Speaking: Justice Breyer’s Dialectical Propensities
• Joshua Stein, Tentative Oral Opinions: Improving Oral Argument Without Spending a Dime
• Oyez page for Kelo v. City of New London
• Oral argument transcript in Alice Corp. v. CLS Bank Int’l, just search for “King Tut” within this document
• Adam Liptak, A Taxonomy of Supreme Court Humor
• Jay Wexler, Laugh Track II - Still Laughin’!

Special Guest: Tom Goldtsein.

Shaking 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.

This show’s links:

• Nathan Chapman’s faculty profile and writing
• Nathan Chapman, Disentangling Conscience and Religion
• This Week in Law, Episode 258, featuring Christina Mulligan and recommending our show
• Oral Argument 18: Oral Argument, with Tom Goldstein
• Town of Greece v. Galloway, Supreme Court, pdf and html
• Town of Greece v. Galloway, Judge Calabresi’s opinion for the Second Circuit
• Allegheny County v. Greater Pittsburgh ACLU, a creche case that uses the “endorsement” test
• Marsh v. Chambers, the principle Supreme Court case on legislative prayer
• Lemon v. Kurtzman, origin of the so-called Lemon test for Establishment Clause challenges
• Lee v. Weisman, prohibiting prayers at public school graduation ceremonies
• McCreary County v. ACLU, finding a predominantly religious purpose in displaying the Ten Commandments in courthouses and holding government must remain neutral between religious and non-religious viewpoints, with O’Connor’s concurrence decisive
• Nelson Tebbe and Micah Schwartzman, The Puzzle of Town of Greece v. Galloway
• Akhil Amar, The Bill of Rights: Creation and Reconstruction
• Marie Griffith, The Establishment Clause: An Interview with Judge Guido Calabresi
• Guido Calabresi, video of lecture, What about the Establishment Clause? (his remarks begin at 8:50)
• The entry gate to New Haven’s Grove Street Cemetery

Special Guest: Nathan Chapman.

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.

This show’s links:

• Atlanta’s News Radio 106.7 FM and, in particular, The Michael Graham Show
• Episode 7: Speed Trap and follow-up on speed-trap law on Episode 8: Party All Over the World
• Christian Turner, This Thing I Made, describing HydraText
• Yochai Benkler, The Wealth of Networks, from which you can download the book or read it in a browser
• The Berkman Center’s H2O Project at Harvard University
• eLangdell, CALI’s casebook project
• Semaphore Press, Joe’s and Lydia Loren’s casebook company
• James Grimmelman, Internet Law: Cases and Materials
• Daniel Nazer, Aspen to Students: Your Property Book is Not Your Property
• Mike Masnick, Publisher 'DRMs' Physical Legal Textbook About 'Property,' Undermines Property And First Sale Concepts
• Josh Blackman, Aspen Casebook Connect Textbooks Must Be Returned At End Of Class, Cannot Be Resold
• Josh Blackman, Aspen Issues Revised “Connected Casebook” – Now You Can Choose To Keep Your Book
• Ian Chant, Law Profs Revolt after Aspen Casebook Tries to Get Around First Sale Doctrine

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.

This show’s links:

• Brigham Daniels’ faculty profile and writing
• Brigham Daniels, Addressing Global Climate Change in an Age of Political Climate Change
• EPA, Carbon Pollution Standards
• EPA, 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
• Vox’s Guide to Obama's New Rules to Cut Carbon Emissions from Power Plants
• Jonathan Cohn, Obama's New Rules for Coal Plants Are a B.F.D. The Ensuing Political Fight May Be Even Bigger
• The United Nations Framework Convention on Climate Change, website and wikipedia
• Explanation of the Kyoto Protocol
• U.S. Global Change Research Program, 2014 National Climate Assessment
• USGCPR, Appendix: Climate Science Supplement
• About the Intergovernmental Panel on Climate Change or IPCC
• IPCC Assessments
• Massachusetts v. EPA, holding (among other things) that EPA has authority under some parts of the Clean Air Act to regulate greenhouse gas emissions
• EPA, Section 111(d) Plans mandated after an endangerment finding
• In 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
• Justin Gillis and Kenneth Chang, Scientists Warn of Rising Oceans From Polar Melt
• Ezra Klein, How Politics Makes Us Stupid
• Last Week Tonight with John Oliver, Climate Change Debate on YouTube
• Letter 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
• Competitive Enterprise Institute, Energy, YouTube video (“They call it pollution. We call it life.”)
• Kevin Drum, Sorry, "Daily Show": Anti-Vax Nuts Come From Both Sides of the Aisle
• Jedediah Purdy, Climate Change Needs the Politics of the Impossible
• Ezra Klein, 7 Reasons America Will Fail on Climate Change

Special Guest: Brigham Daniels.

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.

This show’s links:

• Dahlia Lithwick’s latest articles on Slate
• Adam Smith, The Theory of Moral Sentiments (pdf) and wikipedia summary
• Slate Plus
• Derek Muller, The Five Law-Related Podcasts You Should Listen To
• Jack Shafer, Serving up the Supreme Court Dough Before It’s Baked
• Tom Goldstein, We’re Getting Wildly Different Assessments (a deep look into what went wrong with the reporting on the Obamacare decision)
• RonNell Andersen Jones, U.S. Supreme Court Justices and Press Access
• Jesse Wegman, (Supreme) Court TV and the Magically Disappearing Protest
• Kenneth Vogel, Defiant Clarence Thomas Fires Back
• Vikram Amar, Why Did Justice Scalia Decline to Participate in the "One Nation Under God" Case?
• Jack Balkin, ”High” Politics and Judicial Decisionmaking
• Justice Scalia’s memo on a recusal motion in Cheney v. United States District Court for the District of Columbia
• Oral Argument Episode 6: Productive Thoughtlessness, in which we previously discussed Dahlia Lithwick
• Pew Research Center, Political Polarization in the American Public
• Eduardo Peñalver, Property as Entrance
• Town of Greece v. Galloway
• Dahlia Lithwick, You Don’t See What I See
• Oral Argument Episode 8: Party All Over the World, for some of our discussion on speed traps
• Waze app
• Artist Aaron Fein
• Statler and Waldorf:

Special Guest: Dahlia Lithwick.

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.

This show’s links:

• Ethan Leib’s faculty profile and articles
• This Week in Law 263: More Bodies on Blackacre, on which Joe and Christian were guests
• Nestor Davidson and Ethan Leib, Regleprudence - at OIRA and Beyond
• Mark Tushnet, Legislative and Executive Stare Decisis
• The nuclear option
• About OIRA, the Office of Information and Regulatory Affairs, and its resource page
• The major executive orders concerning federal regulation and the role of OIRA
• The repository of OIRA return letters
• Cass Sunstein, The Office of Information and Regulatory Affairs: Myths and Realities
• Catherine Sharkey, State Farm 'with Teeth': Heightened Judicial Review in the Absence of Executive Oversight
• Julius Cohen, Towards Realism in Legisprudence and Legisprudence: Problems and Agenda
• Lon Fuller, The Morality of Law
• Carol Rose, New Models for Local Land Use Decisions
• Cass Sunstein’s memorandum for agency heads, Disclosure and Simplification as Regulatory Tools
• Office of Management and Budget, Circular A-4
• Public 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)
• Ethan Leib and David Ponet, Fiduciary Representation and Deliberative Engagement with Children
• Evan Criddle, Fiduciary Administration: Rethinking Popular Representation in Agency Rulemaking

Special Guest: Ethan Leib.

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.

This show’s links:

• Kevin Collins’ faculty profile and writing
• Edinburgh’s statue of Adam Smith, though not the photo taken by listener Barbara:
• Riley v. California, the cell phone search case, PDF and HTML
• Frank Easterbrook, Cyberspace and the Law of the Horse
• Lawrence Lessig, The Law of the Horse: What Cyberlaw Might Teach
• Christian Turner, The Information Law Crisis
• Sony Corp. v. Universal City Studios, Inc., the VCR case
• American Broadcasting Cos. v. Aereo, PDF and HTML
• Mike Masnick, Aereo Fallout Begins: Fox Uses Ruling To Attack Dish's Mobile Streaming Service
• Summary of the history of cable television in the U.S.
• Alice Corp. v. CLS Bank, PDF and HTML
• Episode 3: Cut It Off (guest Paul Heald)
• O’Reilly v. Morse, the telegraph case
• Nautilus v. Biosig Instruments, PDF and HTML
• Association for Molecular Pathology v. Myriad Genetics
• Kevin Collins, The Knowledge/Embodiment Dichotomy
• Kevin Collins, Bilski and the Ambiguity of 'An Unpatentable Abstract Idea’
• Michele Boldrin and David Levine, Against Intellectual Monopoly
• Michele Boldrin and David Levine, The Case Against Patents

Special Guest: Kevin Collins.

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.

This show’s links:

• Burwell v. Hobby Lobby Stores

We 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?

This show’s links:

• Sonja West’s faculty profile and writing
• Oral Argument 1: Send Joe to Prison, guest Sonja West
• Sonja West’s appearance on MSNBC’s The Last Word with Lawrence O’Donnell
• Burwell v. Hobby Lobby Stores
• The full but brief text of the Religious Freedom Restoration Act
• Oral Argument 25: Normal Religions, in which we first discussed and set out the basics of the Hobby Lobby decision
• Wheaton College v. Burwell, granting a temporary injunction pending full appellate review
• Wheaton College, the one in Illinois, and its Statement of Faith and Educational Purpose
• Form 700
• Dahlia Lithwick and Sonja West, Quick Change Justice: While You Were Sleeping, Hobby Lobby Just Got So Much Worse
• Marty Lederman, What Next in Wheaton College? Is It Also a “Win/Win” Compromise?
• University of Notre Dame v. Sebelius, Posner’s Seventh Circuit opinion on Notre Dame’s objections to filling out Form 700
• Michael Dorf, Hobby Lobby Post-Mortem Part 2: The Wheaton College Stay
• Reprieve, Gitmo Detainees Demand Same Religious Rights as Hobby Lobby
• Employment Division v. Smith, the case that launched RFRA
• Boy Scouts of America v. Dale
• Dahlia Lithwick, After Hobby Lobby, Dahlia’s analysis of the gender divide evident in and exacerbated by the Supreme Court’s end-of-term decisions (posted after we recorded)

Special Guest: Sonja West.

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.

This show’s links:

• Plessy v. Ferguson, which you should scan through as bit, as recommended during the show
• Some background here and here on Homer Plessy and his act of civil disobedience
• Henry Louis Gates, Jr., Plessy v. Ferguson: Who Was Plessy?
• Justice 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
• United States v. Wong Kim Ark, in which Harlan joined a dissent arguing that those children of Chinese citizens who are born in the United States should not receive citizenship; see here for a summary
• Gabriel Chin, The Plessy Myth: Justice Harlan and the Chinese Cases

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

It’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."

This show’s links:

• Mehrsa Baradaran’s faculty profile and last appearance on Oral Argument
• The Solar Hijra calendar and the Islamic calendar
• Mehrsa Baradaran, Teaching While Woman
• Lyrissa Lidsky, Ten (okay, Nineteen) Tips for New Law Professors
• Jodi Kantor, Harvard Business School Case Study: Gender Equity
• Wikipedia on Implicit association testing
• Project Implicit
• Paul Ford, How to Be Polite
• Christian’s imagined monocle-based approach to formality in the classroom:
• The Postmaster General and Executive Leadership Team (note: The current Postmaster General is Patrick Donahoe.)
• About the office of the Postmaster General (including information concerning the first Postmaster General, no spoilers, but…)

Special Guest: Mehrsa Baradaran.

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?

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.

This show’s links:

• Seventh Circuit arguments in Baskin v. Bogan and Wolf v. Walker
• Christian Turner, 404: Argument Not Found
• Paul Ford, How to Be Polite
• About the duty to rescue
• Paul Bloom, Against Empathy in the Boston Review, with respondents
• Richard Greenstein, Against Professionalism
• The Knee Defender
• AP, Plane Diverted as Passengers Fight over Seat Reclining
• CBC News, Fired RIM Execs “Chewed Through Restraints” on Flight
• Josh Barro, Don’t Want Me to Recline My Airline Seat? You Can Pay Me
• About the so-called Coase Theorem
• Stanley Coren, Is It Safe to Ship Dogs or Cats by Air?
• About boarding patterns on airplanes
• Dahlia Lithwick, Checking In on the Town of Greece
• Episode 19: The Prayer Abides (guest Nathan Chapman), discussing the Town of Greece case
• About the Streisand effect
• Jack Jenkins, How Satanists Are Testing The Limits Of Religious Freedom In Oklahoma
• Swartz v. Insogna
• About contempt of cop

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.

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.)

This show’s links:

• About Matthew Liebman, senior attorney for the Animal Legal Defense Fund
• Bruce Wagman and Matthew Liebman, A Worldview of Animal Law
• Oregon v. Nix, the case about animals as “victims”
• David Favre and Vivien Tsang, The Development of Anti-Cruelty Laws During the 1800s (PDF and HTML)
• About Henry Bergh, founder of the American Society for the Prevention of Cruelty to Animals
• The Moral Status of Animals, an overview that includes a description of Immanuel Kant’s views on the moral status of animals
• Andrew Ireland Moore, Defining Animals as Crime Victims (note, Joe referred to this article, but the one by my classmate, Adam Kolber, is here)
• Current cases in which ALDF is involved
• Leanne Louie, Toothed Whales: Are They People Too
• Thomas 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
• Maneesha Deckha, Animal Justice, Cultural Justice: A Posthumanist Response to Cultural Rights in Animals (Hein only) and Initiating a Non-Anthropocentric Jurisprudence
• Steven Wise’s Nonhuman Rights Project
• Michael Mountain, Appeals Court Sets Date for First Chimpanzee Lawsuit
• Sierra 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)
• Sue Donaldson and Will Kymlicka, Zoopolis: A Political Theory of Animal Rights (also see an overview by the authors)
• About the other mind problem
• About cognitive ethology and animal cognition
• Ben Beaumont-Thomas, SeaWorld shares tumble 33% following Blackfish documentary
• Tilikum v. Sea World Parks and Entertainment, the 13th Amendment case brought on behalf of Sea World’s orcas
• American Meat Institute v. USDA

Special Guest: Matthew Liebman.

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.

This show’s links:

• About Matthew Butterick, also here and @mbutterick on Twitter
• Nicholas Georgakopoulos, Knee Defender, Barro’s Error, and Surprise Norms
• Christopher Buccafusco and Chris Sprigman, Who Deserves Those 4 Inches of Airplane Seat Space?
• Keith O’Brien, America’s Chimp Problem
• The pronunciation of “chimpanzee”
• Cecilia 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)
• Overcast, our preferred podcast app
• Episode 11: Big Red Diesel, in which we discussed typography, text editing, and the worst breaches of email etiquette
• Butterick’s Practical Typography (and how to pay for it if you choose!)
• From the book: Typography in Ten Minutes and Summary of Key Rules
• Matthew Butterick, Typography for Lawyers (and how to purchase physical and Kindle editions)
• Ben Carter, Typography for Lawyers: One Space, Double Spacing, and Other Good Ideas
• An example of a Supreme Court opinion, notable for its design
• Robin Williams, The Mac is Not a Typewriter
• Matthew Butterick, The Bomb in the Garden, text and images from a talk Matthew gave at TYPO San Francisco in 2013
• Rob 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.)
• Dan Barry, A Writing Coach Becomes a Listener, a profile of William Zinsser, author of On Writing Well
• Mike Monteiro, Design Is a Job
• Lawrence Solum, Legal Theory Lexicon: Fit and Justification
• Patrick Kingsley, Higgs Boson and Comic Sans: The Perfect Fusion
• Matthew 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”
• Matthew’s Equity and Concourse typefaces
• Matthew Butterick, The Economics of a Web-Based Book: Year One

Special Guest: Matthew Butterick.

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.”

This show’s links:

• About Bernadette Meyler and her writing
• Follow-up from Matthew Butterick, in which he reminds us that the podcast app we mentioned last week, Overcast, uses his typeface, Concourse
• Ed Mazza, Nearly 1,000 Chickens Killed (a story of animal victimization related to our conversation with Matthew Liebman)
• Background on the common law
• About Sir Edward Coke and his Law Reports, which can be browsed here
• Calvin’s Case as reported by Coke
• About Dr. Bonham’s Case
• Background on originalism; see also here
• Antonin 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
• Lawrence Solum, Semantic Originalism (an originalist theory that includes “the idea of the division of linguistic labor”)
• Bernadette Meyler, Accepting Contested Meanings
• Bernadette Meyler, Defoe and the Written Constitution (compare with Andrew Coan, The Irrelevance of Writtenness in Constitutional Interpretation)
• Walt Whitman, Song of Myself
• Oliver 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)
• Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It

Special Guest: Bernadette Meyler.

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.)

This show’s links:

• About Anthony Kreis, his CV, and his twitter feed
• Anthony Kreis, Marriage Equality in State and Nation
• Amy 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)
• Latta v. Otter, the Ninth Circuit case handed down on Tuesday of this week and striking down marriage bans in Nevada and Idaho
• Loving v. Virginia and amazing audio of the oral argument
• McLaughlin v. Florida
• Last term’s gay marriage decisions: United States v. Windsor and Hollingsworth v. Perry
• Description of and links to audio of oral arguments in the several Sixth Circuit cases challenging marriage bans in Kentucky, Michigan, Ohio, and Tennessee
• Linda 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)
• A recent Pew survey on, among other things, whether homosexuality is sinful
• Heather 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
• Geoff Pender, State’s Gay Marriage Ban’s Days Appear Numbered (about Mississippi)
• Some background on homosexuality and Catholicism
• Margaret Fosmoe, Notre Dame, Saint Mary’s Extend Benefits to Same-Sex Spouses
• Doug 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?”)
• James Oleske, Jr., The Evolution of Accommodation: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriages
• Dahlia Lithwick and Sonja West, Stop Draggin’ My Heart Around: The Supreme Court Is Harming people with Its Inscrutable Gay Marriage Actions.
• South 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)
• Saikrishna Pakrash, The Executive’s Duty to Disregard Unconstitutional Laws
• Kansas Supreme Court’s temporary injunction blocking issuance of same-sex marriage licenses
• Lyle Denniston, Gay Marriage and Baker v. Nelson
• Catherine Thompson, GOP Nominee for Wisconsin AG Says He Would Defend Interracial Marriage Ban
• Center for Reproductive Rights, What if Roe Fell? (see especially pages 8-9 on the repeal implications of a federal finding of unconstitutionality)
• Christian Turner, Roles

Special Guest: Anthony Kreis.

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.

This show’s links:

• Michael Dorf’s profile, his writing, and his world-famous blog Dorf on Law
• Amicus, the new Slate podcast by Dahlia Lithwick
• Oral Argument 36: Firehose of Equality, the last episode in which Anthony Kreis was terrific and Christian made an error that led to this show
• Michael Dorf, No Massive Resistance to Same-Sex Marriage from South Carolina
• Michael Dorf, The Relative Importance of Inter-Circuit Conflict and State-Circuit Conflict as Cert Criteria
• About claim preclusion and nonmutual issue preclusion; United States v. Mendoza (holding that issue preclusion does not apply against the federal government)
• Colin Wrabley, Applying Federal Courts of Appeals’ Precedent
• The Supremacy Clause of the U.S. Constitution
• Lochart 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”
• Martin v. Hunter’ Lessee
• About the grimly named Antiterrorism and Effective Death Penalty Act, which everyone calls “the AEDPA,” and pronounces ED-puh
• The 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
• Teague v. Lane
• About the removal jurisdiction of federal courts, the ability of a defendant to move a state court action to a federal court under certain circumstances
• Guido Calabresi, Federal and State Courts: Restoring a Workable Balance
• Henry Friendly, In Praise of Erie — And of the New Federal Common Law (unfortunately only available for a fee on Hein Online)
• State 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)
• Kevin Walsh, Re: SSM Cert Denials (suggesting South Carolina should review and change its apparent approach to Fourth Circuit precedent)
• Michael Dorf, Should Anti-SSM Appeals Court Judges Rule For Same-Sex Marriage Based On The Cert Denials?
• Michael Dorf, Prediction and the Rule of Law (an article analyzing the general point applied in the above-linked blog post)
• Oral Argument 28: A Wonderful Catastrophe, which is all about and contains links for the famous Erie case
• Michael Dorf, How the Supreme Court’s Inaction on Same-Sex Marriage Echoes Its Conduct in the Civil Rights Era
• United States v. Windsor
• Michael Dorf, Cert Denied Is Justice Delayed: SCOTUS Kremlinology in the SSM Cases
• Stuart v. Laird and some background

Special Guest: Michael Dorf.

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?

This show’s links:

• Steve Vladeck’s profile, his writing, his info and posts on the Just Security blog, and his Twitter feed
• Oral 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)
• Oral 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
• Danforth 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)
• Bush 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)
• VOPA v. Stewart
• Stephen Vladeck, Douglas and the Fate of Ex Parte Young
• Douglas v. Independent Living Center
• The 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.”
• Ex 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.”)
• The 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
• Adar 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)
• Alexander v. Sandoval (marking the end of inferring private causes of action in federal statutes)
• Gonzaga University v. Doe
• Lyle Deniston, Opinion Analysis: A Right to Sue Under Medicaid – Maybe
• Pennsylvania 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)
• SCOTUSblog page for Armstrong v. Exceptional Child Center, which will be updated with briefs, arguments, and, ultimately, the Court’s decision
• Seminole Tribe of Florida v. Florida
• Steve’s amicus brief in Douglas
• Jonathan Freiman, to whom both Steve and Christian trace experience with detainee cases

Special Guest: Steve Vladeck.

It’s our ebola episode. You know, I think that’s description enough.

This show’s links:

• Fazal Khan’s profile and his writing
• Our U.S. News rankings episode, Heart of Darkness
• More on the debate about state courts’ following federal circuit courts (relevant to the gay marriage rulings) that arose during our episodes with Michael Dorf and with Steve Vladeck: (1) a post by Michael Dorf, (2) a post by Steve Vladeck, and (3) a post by Christian Turner
• About Ebola virus diseased and about Ebola in the United States
• The CDC’s information page on Ebola transmission and Review of Human-to-Human Transmission of Ebola Virus
• Michael Dorf, Is There Any Risk of Ebola Transmission from an Asymptomatic Person?
• EM Leroy et al., Human Asymptomatic Ebola Infection and Strong Inflammatory Response
• Gostin, Hodge, and Burris, Is the United States Prepared for Ebola
• Tavernise, Shear, and Cooper (for the NY Times), Seeking Unity, U.S. Revises Ebola Monitoring Rules
• Laura Donohue, Biodefense and Constitutional Constraints (an excellent history of US and UK quarantine law)
• Josh Hicks, A Brief History of Quarantines in the United States (a very short timeline in the Washington Post) and Peter Tyson, A Short History of Quarantine (a more detailed and global timeline)
• Jacobson v. Massachusetts; see also James Colgrove and Ronald Bayer, Manifold Restraints: Liberty, Public Health, and the Legacy of Jacobson v Massachusetts
• Tara Ragone, State Quarantines: Balancing Public Health with Liberty Interests (a very helpful blog post discussing issues and authorities relevant to the Kaci Hickox case)
• Jared Cole (for the Congressional Research Service), Federal and State Quarantine and Isolation Authority
• Gostin, Burris, and Lazzarini, The Law and the Public's Health: A Study of Infectious Disease Law in the United States
• About Philadelphia’s Yellow Fever epidemic of 1793
• The text of the Public Health Service Act (containing the authority for federal quarantine and isolation)
• Jew Ho v. Williamson
• Norimitsu Onishi (for the NY Times), Quarantine for Ebola Lifted in Liberia Slum
• Michael Dorf, Containing Ebola: Quarantine and the Constitution
• Arjun Jaikumar, Red Flags in Quarantine: The Questionable Constitutionality of Federal Quarantine After NFIB v. Sebelius
• Mark Rothstein, From SARS to Ebola: Legal and Ethical Considerations for Modern Quarantine
• Morgan’s Steamship Co. v. Louisiana Board of Health (upholding the constitutionality of state quarantine)
• CDC, Interim U.S. Guidance for Monitoring and Movement of Persons with Potential Ebola Virus Exposure
• See section 604 of the The Model State Emergency Health Powers Act
• Fazal Khan, Ensuring Government Accountability During Public Health Emergencies
• City of Newark v. J.S. (analyzing the Due Process and statutory rights of a “non-compliant,” TB-infected, homeless man)
• Greene v. Edwards (awarding a state writ of habeas corpus in a TB isolation case)
• About the 2007 tuberculosis scare caused by the travel of Andrew Speaker
• Fidler, Gostin, and Markel, Through the Quarantine Looking Glass: Drug-Resistant Tuberculosis and Public Health Governance, Law, and Ethics (also discussing the Andrew Speaker incident)
• Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health
• Wendy Parmet, AIDS and Quarantine: The Revival of an Archaic Doctrine (interesting, among other reasons, for the fact it was written in 1985 in the midst of the relative early days of the AIDS crisis)
• City of New York v. New Saint Mark’s Baths
• Randy Shilts, And the Band Played On
• About the John Warner National Defense Authorization Act of 2007, the Posse Comitatus Act, and the Pandemic and All-Hazards Preparedness Reauthorization Act of 2013
• Mathews v. Eldridge (and, yes, there are only three factors)
• Daniel Markovits, Quarantines and Distributive Justice
• Helene Cooper and Michael Shear, Joint Chiefs Chairman Urges 21-Day Quarantine for Troops Working in Ebola Zone

Special Guest: Fazal Khan.

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.

This show’s links:

• Michael Dorf, Why Danforth v. Minnesota Does Not Undermine My View About State Court Decisions to Follow Lower Federal Court Precedent
• Our episode with Peabody award winner, Tom Goldstein
• About typefaces (and the difference between typefaces and fonts)
• About 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
• The Unrecorded Podcast
• Michelle 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
• DeBoer v. Hodges, the Sixth Circuit decision by Judge Sutton upholding various state marriage bans
• Oral Argument 36: Firehose of Inequality (guest Anthony Kreis)
• Baskin 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
• About Baker v. Nelson
• Hicks v. Miranda
• Loving v. Virginia
• Plessy v. Ferguson
• Romer v. Evans
• Balkinization 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.)
• William Eskridge, Jr. A History fo Same Sex Marriage

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.

This show’s links:

• Ryan Calo’s faculty profile and writing
• Follow-up from listener David on Episode 40: The Split Has Occurred, Shelley v. Kraemer, and Buchanan v. Warley
• Lego Mindstorms
• Ryan Calo, Robots and Privacy
• FIRST Lego League robotics competition for ages nine to fourteen
• DJI Phantom Vision 2+ flying drone camera thing capable of making like this one and this one
• Mark Berman, National Park Service Bans Drone Use in All National Parks and Chris Vanderveen, Man Banned from Yellowstone after Drone Crash
• FAA’s Key Initiatives page on drones
• Joan Lowy, Drone Sightings Up Dramatically
• Ryan 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)
• Stephen Johnson, Emergence: The Connected Lives of Ants, Brains, Cities, and Software
• Radiolab, Emergence
• Frank Easterbrook, Cyberspace and the Law of the Horse
• Cory Doctorow, Why It Is Not Possible to Regulate Robots
• Neil Richards and William Smart, How Should the Law Think About Robotics?
• Ryan Calo, A Horse of a Different Color: What Robotics Law Can Learn from Cyberlaw
• About IBM’s Watson and Deep Blue (the chess machine)
• Daniel Suarez, Daemon
• Richard Fisher, Is It OK to Torture or Murder a Robot?
• Radiolab, Furbidden Knowledge
• Nicholas Bakalar, Robotic Surgery Report Card
• Studdert, Mello, and Brennan, Medical Malpractice
• Ryan Calo, The Case for a Federal Robotics Commission
• Excerpt from In re Polemis, the case we forgot the name of
• About Amazon’s Kiva Systems, the subsidiary that supplies Amazon with robotic warehouse workers
• Rochelle 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
• E.M. Forster, The Machine Stops
• About the Future Tense event, Can We Imagine Our Way to a Better Future?, including descriptions and video, in which Ryan participated
• About cognitive radio
• Daria Roithmayr, Complexity Law and Economics
• We Robot 2015, meeting April 10-11, 2015 in Seattle

Special Guest: Ryan Calo.

When 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.

This show’s links:

• Orin Kerr’s faculty profile, writing, and blogging at the Volokh Conspiracy
• Background on the Fourth Amendment and the exceptions to the warrant requirement
• Orin Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment
• Carroll v. United States and the automobile exception
• Ex Parte Jackson (one of the earliest Fourth Amendment decisions)
• Riley v. California (and see Orin’s post about the case shortly after it was decided
• Example undercover informant cases: On Lee v. United States and Lewis v. United States
• Keynote by Judge Richard Posner at the Empirical Legal Studies Conference
• Jacqueline Ross, Tradeoffs in Undercover Investigations: A Comparative Perspective
• John Mikhail on Universal Moral Grammar, on the excellent philosophy bites podcast
• Orin Kerr, The Curious History of Fourth Amendment Searches
• Orin Kerr, Foreword: Accounting for Technological Change
• United States v. Robinson
• Paul Giannelli, Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias
• United States v. Ganias
• Our first speed trap shows: Speed Trap and Party All Over the World

Special Guest: Orin Kerr.

We’re back. Speed traps, the police, and Judge Edwards’ renewed attack on modern legal scholarship.

This show’s links:

• Complaint in Jarman v. City of Grain Valley
• Elli v. City of Ellisville
• Oral Argument 7: Speed Trap and Oral Argument 8: Party All over the World
• City 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)
• About “contempt of cop”
• Raizel 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.)
• Michael Dorf, Judge Harry Edwards Is Still Unimpressed With Legal Scholarship
• Harry Edwards, Another Look at Professor Rodell’s Goodbye to Law Reviews

The 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.)

This show’s links:

• Serial, the most popular podcast ever
• Willa Paskin, Totally Obsessed
• Christian Turner, Bet Your Life Before You Impose Death
• About Hunt Wofford
• Mythbusters
• Links to some Serial parodies
• Murder on a Sunday Morning
• About procedural justice
• About Anthony Kreis and his last appearance on our show
• Debra Cassens Weiss, Posner Questions Basis for ‘Archaic’ Hearsay Rule
• The Scottish “not proven” verdict
• About Mehrsa Baradaran and her first and second appearances on our show
• Susan Simpson, Serial: Why the Nisha Call Shows that Hae Was Murdered at 3:32 p.m.
• About Dahlia Lithwick and her appearance on the show
• Dahlia’s new podcast, Amicus, and her video interviews on SCOTUSblog
• Dahlia Lithwick, A Horrifying Miscarriage of Justice in North Carolina
• Justice Scalia’s concurrence in Callins v. Collins (criticizing Justice Blackmun for not using the McCollum case, with its brutal facts, for dissenting from the imposition of the death penalty)
• Justice Blackmun’s subsequent dissent in McCollum v. North Carolina, addressing Scalia’s concurrence
• Brandon Garrett’s page, featuring his recent books

Special Guests: Anthony Kreis, Dahlia Lithwick, and Mehrsa Baradaran.

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).

This show’s links:

• Judge John Hodgman
• Episode 18: Oral Argument (with Tom Goldstein), featuring Josh Stein’s paper
• Richard Stallman’s info packet
• Episode 44: Serial
• Natasha Vargas-Cooper, Jay, Key Witness from “Serial” Tells His Story for First Time, parts one, two, and three
• Slate’s Serial Spoiler Special podcast discussing the Jay interviews
• Ezra Klein, Serial Revisited
• Susan Simpson’s The View from LL2 blog
• Rene Stutzman, Lawsuits by Drivers Ticketed for Flashing Headlights Produce Change, No Money
• Episode 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
• Gross, O’Brien, Hu, and Kennedy, Rate of False Conviction of Criminal Defendants Who are Sentenced to Death
• Christian’s silly wrongful conviction calculator, which you can copy and paste into the wonderful Calca app
• All about the Innocence Project
• Kevin Drum, America’s Real Criminal Element: Lead
• Dragonslayer, the 1981 film
• The Flynn effect
• Philosophy Bites: Hugh Mellor on Probability, a fascinating episode of a great series of brief discussions on philosophy

Leave 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.

This show’s links:

• Orly Lobel’s faculty profile and writing
• The Woodchipper in Fargo Exhibit (and on Facebook)
• The Smoking Gun’s collection of performers’ backstage riders
• Orly Lobel, Talent Wants to Be Free, Orly’s new book on competition, secrecy, motivation, and creativity, examining companies lie Google, JetBlue, and Mattel (Amazon or IndieBound)
• Orly Lobel, The New Cognitive Property
• Mattel v. MGA Entertainment, the Barbie vs. Bratz case
• PepsiCo v. Redmond
• About the Uniform Trade Secrets Act
• Ronald Gilson, The Legal Infrastructure of High Technology Industrial Districts: Silicon Valley, Route 128, and Covenants Not to Compete
• AnnaLee Saxenian, The Origins and Dynamics of Production Networks in Silicon Valley
• AnnaLee Saxenian, Regional Advantage: Culture and Competition in Silicon Valley and Route 128
• About the “espionage case” of Sergey Aleynikov and Goldman Sachs
• Neil Irwin, When the Guy Making Your Sandwich Has a Noncompete Clause, about the Jimmy John’s noncompete clauses for its sandwich makers
• Orly Lobel and On Amir, Driving Performance: A Growth Theory of Noncompete Law
• David Streitfeld, Bigger Settlement Said to Be Reached in Silicon Valley Antitrust Case, in which Orly is quoted

Special Guest: Orly Lobel.

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.

This show’s links:

• Two Story Coffeehouse
• Rene Stutzman, Lawsuits by Drivers Ticketed for Flashing Headlights Produce Change, No Money
• The Madigan Memorial Hospital, Houlton, Maine (jpeg)
• Oral Argument on Twitter and on Facebook
• Oral Argument 45: Sacrifice, on which we discussed Nicholas Georgakopoulos’s email on reasonable doubt
• Derek Muller’s invitation to make a stop at Pepperdine Law on the Oral Argument road show, which stop is imagined in this photo:
• Oral Argument 14: The Astronaut’s Hair (guest Lisa Milot) and Oral Argument 17: Flesh List (guest Kim Krawiec)
• Perez v. Commissioner of Internal Revenue
• Lisa Milot, What Are We - Laborers, Factories, or Spare Parts? The Tax Treatment of Transfers of Human Body Materials
• Taxing Eggs, a mini-symposium on the Faculty Lounge blog
• Margaret Jane Radin, Property and Personhood
• Kimberly Krawiec, Sunny Samaritans and Egomaniacs: Price-Fixing in the Gamete Market
• The Georgia Law Summer Program in China, where you can be misinformed by Christian in person and in China

With 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.

This show’s links:

• Lisa Kern Griffin’s faculty profile and writing
• Sonja West, First Amendment Neighbors, citing Joe Miller, Christian Turner, and Sonja West, Oral Argument 1: Send Joe to Prison at 46:53, available at http://oralargument.org/1
• Bunny’s coffee-roasting links: the Nesco Professional 800-watt Roaster, Green Coffee Buying Club, and information from Sweet Maria’s; Listener Zachary’s links: the Fresh Roast Plus 8 and White Mountain Coffee
• AP, Police Urge Google to Turn Fff ‘Stalking’ Feature on Mobile App for Drivers and Waze
• Video of Mike Tyson’s ten fastest knockouts
• Video of Lindsey Graham asking AG-nominee Loretta Lynch about the legal connection between gay marriage and polygamy
• Oral Argument 40: The Split Has Occurred, discussing Judge Sutton’s gay marriage opinion
• Oral Argument 44: Serial
• Oral Argument 45: Sacrifice
• Lisa Kern Griffin, Narrative, Truth, and Trial
• About the murder of Julie Jensen
• Jensen v. Schwochert (granting Jensen’s petition for a writ of habeas corpus on Confrontation Clause grounds); see also the denial of the state’s motion to alter the habeas judgment (note that this case is before the Seventh Circuit, which has had argument but not yet ruled)
• Christian Turner, Bet Your Life Before You Impose Death
• Old Chief v. United States
• Mark Spottswood, Emotional Fact-finding

Special Guest: Lisa Kern Griffin.

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).

This show’s links:

• Episode 7: Speed Trap
• Fresh 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)
• Flowers for Algernon and Lucy
• INS v. AP, Traffix Devices v. Marketing Displays, and Bonito Boats v. Thunder Craft Boats
• Tom Wheeler (FCC Chairman), This Is How We Will Ensure Net Neutrality
• Episode 10: My Beard Is Not a Common Carrier (guest Christina Mulligan)
• Episode 16: The Whole Spectrum (guest Jim Speta)
• Hayley Tsukayama, AOL Still Makes Most of Its Money Off Millions of Dial-Up Subscribers
• Joe Brodkin, Verizon Nears “the End” of FiOS Builds (Joe was right.)
• FCC, Chairman Wheeler Proposes New Rules for Protecting the Open Internet
• About municipal broadband
• Episode 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)
• Episode 33: Other Minds (guest Matthew Liebman)
• About Groundhog Day
• Eyder Peralta, Groundhog in Wisconsin Bites Mayor’s Ear

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.

This show’s links:

• Amanda Frost’s faculty profile and writing
• A helpful list of North Dakota landmarks
• 2 Hidden Ways to Get More from Your Gmail Address
• The Georgia Law Summer Program in China, where you can be misinformed by Christian in person and in China
• Amanda Frost, Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?
• Our trilogy of prior episodes on this issue: with Anthony Kreis, with Michael Dorf, and with Steve Vladeck
• The series of blog posts coinciding with those episodes: from Michael Dorf here and here, Steve Vladeck, and Christian Turner
• Michael Dorf, Even More Thoughts on State Court (Non)Obligation to Follow Federal Appeals Court Precedents (Wherein I Respond to Professor Frost)
• Amanda Frost, The “Inferior” Federal Courts
• Chief Justice Roy Moore’s Administrative Order
• Eric Eckholm, Supreme Court Undercuts Alabama Chief Justice’s Argument to Delay Same-Sex Marriages
• Lockhart 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”
• Cooper v. Aaron
• Martin v. Hunter’ Lessee
• Amanda Frost, Overvaluing Uniformity
• Erie Railroad Co. v. Tompkins; see also our episode all about Erie
• About the adequate and independent state grounds doctrine
• James Pfander, One Supreme Court: Supremacy, Inferiority, and the Judicial Power of the United States (see also this very brief book review)
• Dice v. Akron, Canton and Youngstown Railroad Co.
• Bush 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)
• About Chevron deference
• Abbe Gluck, The States as Laboratories of Statutory Interpretation
• United States Telecom Association v. FCC
• Peter Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action

Special Guest: Amanda Frost.

Why 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.

This show’s links:

• John Pfaff’s faculty profile and writing
• Blakely v. Washington and United States v. Booker
• United States v. Vernier, increasing a sentence for credit card fraud from up to 51 months to 210 months based on a conclusion that fraud was accompanied by a murder
• John Pfaff, The Continued Vitality of Structured Sentencing Following Blakely: The Effectiveness of Voluntary Guidelines
• Leon Neyfakh, Why Are So Many Americans in Prison? (interviewing John for Slate) (and here is the tweet from the Texas District and County Attorneys Association saying John’s theory is idiotic)
• John Pfaff, The Micro and Macro Causes of Prison Growth
• Joe Palazzolo, U.S. Prisons Grapple with Aging Populations
• Bureau of Justice Statistics, Survey of Inmates in State Correctional Facilities
• David Ball, Why State Prisons?
• John Pfaff, The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options

Special Guest: John Pfaff.

Joe and Christian try to understand King v. Burwell, or Obamacare II, in light of the oral argument last week.

This show’s links:

• The SCOTUSblog page for King v. Burwell, containing the briefs, commentary, and links to the argument`
• The Supreme Court’s page for downloading audio of the oral argument
• Dahlia Lithwick’s Amicus episode about the case

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.

This show’s links:

• Michelle Wirth, Bill To Reduce ‘Speed Traps’ Gains Senate Approval
• DOJ Civil Rights Division, Investigation of the Ferguson Police Department; AG Holder’s prepared remarks on the report
• Oral Argument 52: Nihilism
• The SCOTUSblog page for King v. Burwell, containing the briefs, commentary, and links to the argument
• David Ziff, Halbig and the “Isolationist” Theory of Statutory Interpretation
• David Ziff, Halbig and the Problem of Creeping Constitutionalism
• Simon Maloy, GOP’s George Costanza Moment: The “Moops” Doctrine and the War on Obamacare
• coffeegeek.com’s review of the Gene Cafe Roaster

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.

This show’s links:

• Aaron Perzanowski’s faculty profile and writing
• Episode 52 and Episode 53 on King v. Burwell
• William Baude, Could Obama Bypass the Supreme Court?, and Michael Dorf, Obama Wouldn’t Circumvent SCOTUS on Subsidies
• We’ve reached North Dakota!
• Our earlier shows on net neutrality: Episode 49, Episode 16 (with Jim Speta), and Episode 10 (with Christina Mulligan)
• About the FCC’s Open Internet Order
• Download page for the Open Internet Order and Commissioner statements
• About the FCC Computer Inquiries of the 1960s and 1970s
• AT&T v. City of Portland
• National Cable & Telecommunications Assn. v. Brand X Internet Services
• Verizon v. FCC
• About the FCC’s Incentive Auction for the 600MHz band

Special Guest: Aaron Perzanowski.

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.

This show’s links:

• Dave Fagundes’s faculty profile and writing
• The decision in Armstrong v. Exceptional Child Center and Steve Vladeck’s reaction, Steve’s having discussed this case in episode 38
• David Fagundes, Waiting in Line: Norms, Markets, and the Law
• Episodes 31 and 32, in which there are links and discussion concerning the “knee defender” controversy and airline seat reclining
• David Fagundes, Talk Derby to Me: Intellectual Property Norms Governing Roller Derby Pseudonyms
• A stachexchange thread about standing “in line” vs. “on line”
• The word “spendy” dates from 1911 at the latest
• How Y’all, Youse and You Guys Talk, a quiz to see your personal dialect map
• Hella Blitzgeral, roller derbyist
• Lisa Bernstein, Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry
• Robert Ellickson, Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County (and more in his book, Order Without Law)
• Philosophy Bites: Lisa Bortolotti on Irrationality
• Louis Kaplow and Steven Shavell, Fairness versus Welfare: Notes on the Pareto Principle, Preferences, and Distributive Justice
• Leon Mann, Queue Culture: The Waiting Line as a Social System
• About cronuts
• Carol Rose, Possession as the Origin of Property
• Thomas Merrill and Henry Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle
• An example of a “queuing app”
• About the “tit for tat” strategy and its connection to human nature in Robert Axelrod, The Evolution of Cooperation
• An excerpt on social norms from Dan Ariely’s Predictably Irrational
• The excerpt on videphones from David Foster Wallace’s Infinite Jest; see also Infinite Summer
• Michael Sandel, What Money Can’t Buy: The Moral Limits of Markets (his Tanner Lecture)
• Lior Strahilevitz, How Changes in Property Regimes Influence Social Norms: Commodifying California's Carpool Lanes
• David 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
• The set of policies for “Krzyzewskiville,” the grassy lawn at Duke where students line up for days to get basketball tickets
• Catherine Eade, Diplomatic (Snow) Storm Erupts After American Ambassador to Switzerland Criticises Its Ski Lift Queues
• About power distance index
• John Wiseman, Aspects of Social Organisation in a Nigerian Petrol Queue
• Lior Strahilevitz, Charismatic Code, Social Norms, and the Emergence of Cooperation on the File-Swapping Networks (discussing reciprocity cascades)
• Dan Kahan, The Logic of Reciprocity: Trust, Collective Action, and Law
• Felix Oberholzer-Gee, A Market for Time: Fairness and Efficiency in Waiting Lines
• Stanley Milgram, Response to Intrusion into Waiting Lines

Special Guest: Dave Fagundes.

When 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?

This show’s links:

• Lori Ringhand’s faculty profile and writing
• Periscope
• About Margaret Atwood’s Oryx and Crake
• Lori’s last appearance on the show
• The SCOTUSblog page for Arizona State Legislature v. Arizona Independent Redistricting Commission (which includes links to briefs and oral argument)
• Alabama Legislative Black Caucus v. Alabama
• About the Voting Rights Act, including a brief outline of its major provisions
• Shelby County v. Holder
• About cracking, packing, and other redistricting shenanigans; see also more on this in ProPublica’s Devil’s Dictionary
• About multiple-winner voting methods and single-winner voting methods (which distinction roughly tracks some of the issues we raised)
• Shaw v. Reno, which was followed by Miller v. Johnson
• Partisan gerrymandering cases: Davis v. Bandemer (1986), Vieth v. Jubelirer (2004), League of United Latin American Citizens v. Perry (2006)
• Christopher Elmendorf, Representation Reinforcement through Advisory Commissions: The Case of Election Law
• Links to the oral argument in the Arizona case
• Smiley v. Holm and Bush v. Gore (and it was Justice Rehnquist’s concurrence)

Special Guest: Lori Ringhand.

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.

This show’s links:

• The Wirecutter and the Sweet Home
• Oral Argument 55: Cronut Lines
• The documentary about people competing to win a truck, Hands on a Hardbody
• Oral Argument 51: The Faucet (guest John Pfaff)
• Euclid’s Elements
• About Paul Erdős
• Mark Lemley, Faith-Based Intellectual Property
• Frank Michelman, Takings
• Mark Lemley, The Surprising Virtues of Treating Trade Secrets as IP Rights
• International News Service v. Associated Press
• SCOTUSblog on Glossip v. Gross
• Associated Press, Utah Brings Back Firing Squads as Lethal Injection Drugs Remain Scarce
• About Cameron Todd Willingham
• Oral Argument 45: Sacrifice
• About “death-qualified” juries

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.

This show’s links:

• Woody Hartzog’s faculty profile and writing
• Philosophy Bites, Shaun Nichols on Death and the Self
• Woodrow Hartzog, Chain-Link Confidentiality
• Joshua Fairfield, BitProperty
• About security through obscurity
• Woodrow Hartzog and Frederic Stutzman, Obscurity by Design
• Daniel Solve, A Taxonomy of Privacy
• David Brin, The Transparent Society
• Cass Sunstein, Republic.com
• About the narcissism of small differences
• Richard Posner, The Right of Privacy
• Neil Richards, Intellectual Privacy (the article) and Intellectual Privacy (the book)
• Library of Congress, Update on the Twitter Archive at the Library of Congress
• Twitter, About Public and Protected Tweets; see also Greg Kumparak, Twitter Bug Allowed Some Protected Accounts to Be Read by Unapproved Followers
• About Yik Yak
• Mike Isaac, A Look Behind the Snapchat Photo Leak Claims
• In the Matter of Red Zone Investment Group, Inc., an FTC case involving, among other things, a fake windows registration window
• Woodrow Hartzog, Website Design as Contract
• About the Whisper app
• About the Sears Holdings Management Corp. case before the FTC

Special Guest: Woodrow Hartzog.

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.)

This show’s links:

• Sarah Schindler’s faculty profile and writing
• Oral Argument 4: Grow a Pear
• Sarah Schindler, Architectural Exclusion
• Our guest hosts: Paul Heald (Paul’s writing), Jessica Owley (Jesse’s writing), and Justin Steil (Justin’s writing)
• About Robert Moses and his low bridges
• Nicholas Blomley, Traffic Logic and Political Logic
• About NEPA and environmental impact statements
• Robin Malloy, Inclusion by Design, Thinking Beyond a Civil Rights Paradigm
• Washington v. Davis
• Benjamin Mueller, In Connecticut, Breaking a Barrier Between a Suburb and Public Housing
• Barton 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”)
• About the Edmund Pettus Bridge
• About public choice
• Links to audio and text of David Foster Wallace’s This Is Water

Special Guests: Jessica Owley, Paul Heald, and Sarah Schindler.

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.

This show’s links:

• Ann Bartow’s faculty profile and writing
• Kerbal Space Program
• The Philosophy Bites podcast
• Open Yale Courses, Phil 176: Death
• Renowned IP Scholar Ann Bartow to Lead Franklin Pierce Center for Intellectual Property at UNH Law
• Ann Bartow, Privacy Laws and Privacy Levers: Online Surveillance versus Economic Development in the People's Republic of China
• Lijia 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)
• About Chinese patent law
• China’s IP-related laws and other information as collected by the World Intellectual Property Organization
• Jeffrey Podoshen, Materialism and Conspicuous Consumption in China
• China Economic Review, Chinese Shoppers Begin to Master the Art of Subtlety
• About WeChat
• China Law and Practice, Copyright Administration Gives in to Musicians
• China Retains on Foreign Film Quota (noting that, as of February 2014, the foreign film quota was thirty-four films per year)
• Eric Priest, Copyright Extremophiles: Do Creative Industries Thrive or Just Survive in China's High Piracy Environment?

Special Guest: Ann Bartow.

Longtime 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.

This show’s links:

• Derek Muller’s faculty profile and writing
• The Virginia Board of Bar Examiners’ Mandatory Dress Code
• Derek Muller, Visualizing the Grim Final Numbers from the July 2014 Bar Exam
• National Conference of Bar Examiners, National Data for 2014 MBE and MPRE Administrations
• Reuters, U.S. States Extend Bar Exam Deadlines After Software Havoc
• Jerry Organ, What Might Have Contributed to an Historic Year-Over-Year Decline In the MBE Mean Scaled Score?
• Gary Rosin, Unpacking the Bar: Of Cut Scores, Competence, and Crucibles
• Oral Argument 12: Heart of Darkness
• Deborah Merritt, ExamSoft Update (including links to Merritt’s other posts on the topic)
• Karen Sloan, Software Maker Settles ‘Barmageddon’ Class Action for $2.1M
• Vikram Amar, Lower Bar Pass Rates in Some States Should Cause Us to Examine This Year’s Test, and the Bar Exam in General and Additional Thoughts (and Concerns) About the Low Bar Pass Rates in California and Elsewhere in 2014
• Derek Muller, Here We Go Again: February 2015 Bar Pass Rates Down over Last Year
• About the Daniel Webster Scholar Program and its curriculum
• Stephanie Clifford and James McKinley Jr., New York to Adopt a Uniform Bar Exam Used in 15 Other States
• Erwin Chemerinsky, It’s Time for California to Accept the Uniform Bar Exam
• About the Uniform Bar Examination

Special Guest: Derek Muller.

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.

This show’s links:

• Kerbal Space Program (and see, e.g., this video tutorial by the Scott Manley)
• Temma Ehrenfeld, Should You Knit?
• Randall Munroe, Orbital Mechanics on xkcd.com
• David Letterman’s Viewer Mail and the Pyramid of Comedy
• Oral Argument 61: Minimum Competence
• Daniel Solove, The Multistate Bar Exam as a Theory of Law
• Virginia Board of Bar Examiners, Mandatory Dress Code (compare with the Georgia bar exam’s Dress Code)
• Nicholas L. Georgakopoulos, Visualizing Trials with Large DNA Databases
• Oral Argument 45: Sacrifice
• About the Monty Hall problem

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.)

This show’s links:

• Jessica Owley’s faculty profile and writing
• Jessica Owley, Keeping Track of Conservation
• About 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
• Babbitt v. Sweet Home Chapter, Communities for Great Ore.
• Tennesse Valley Authority v. Hill
• More about the snail darter controversy
• About Habitat Conservation Plans (USFWS); see also Wikipedia on HCPs
• An example Habitat Conservation Plan at Stanford University
• About conservation easements
• Jessica Owley, Exacted Conservation Easements: Emerging Concerns with Enforcement
• The San Bruno Mountain Habitat Conservation Plan and related documents
• Lujan v. Defenders of Wildlife

Special Guest: Jessica Owley.

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.

This show’s links:

• Seth Stoughton’s faculty profile and writing
• Seth Stoughton, Law Enforcement’s ‘Warrior’ Problem (read online here if you don’t want the PDF)
• Seth Stoughton, A Former Cop on What Went Wrong in McKinney
• Seth Stoughton, What a Police Expert Calls the Most Ignored Cause of Cop Violence
• Klein et al., The Good Stranger Frame for Police and Military Activities
• Final Report of the President’s Task Force on 21st Century Policing
• All Thing Considered, Police-Involved Shootings Highlight Problem With Law Enforcement 'Culture'
• Seth Stoughton, What Would a Better Ferguson Response Have Looked Like?
• U.S. Department of Justice, Investigation of the Ferguson Police Department
• This American Life, Right to Remain Silent; see also Graham Rayman, The NYPD Tapes: Inside Bed-Stuy’s 81st Precinct
• Jamelle Bouie, Criminal Neglect

Special Guest: Seth Stoughton.

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.

This show’s links:

• Steve Vladeck’s faculty profile and writing
• Oral Argument 22: Nine Brains in a Vat (guest Dahlia Lithwick)
• Obergefell v. Hodges
• Oral 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
• San Antonio Independent School District v. Rodriguez
• Oral Argument 30: A Filled Milk Caste, containing discussion and links concerning United States v. Carolene Products Co.
• Brown v. Board of Education; see also What Brown v. Board of Education Should Have Said (Jack Balkin, ed.)
• Town of Greece v. Galloway; Kimble v. Marvel Entertainment
• Reed v. Reed
• Boumediene v. Bush
• Lochner v. New York; Dred Scott v. Sanford
• King v. Burwell
• City of Arlington v. FCC, Roberts’ dissenting regarding the application of Chevron v. NRDC
• Amalgamated Transit Union Local 1309 v. Laidlaw Transit Services, one of the cases about “not less than seven days”
• Adam Zimmerman, Chevron after King v. Burwell (the comments to which feature thoughts from listener Asher)
• Shelby County v. Holder
• Steward Machine Co. v. Davis

Special Guest: Steve Vladeck.

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?

This show’s links:

• Kareem Crayton’s writing
• Glossip v. Gross
• Michael Dorf, Evolving Standards of Decency that Mark the Progress of Maturing Justices
• Orin Kerr, Why the Late-Career Conversions at the Supreme Court on the Death Penalty?
• United States v. Quinones (Judge Rakoff’s district court opinion striking down the death penalty in 2002, later reversed)
• Josh Lee, Dignity Kennedy, Burkean Kennedy, and Libertarian Kennedy
• Josh Lee, Determinism and the Death Penalty
• Josh Lee, Judicial Abolition from Below
• BBC, Hong Kong’s Democracy Debate (an explainer)
• Arizona State Legislature v. Arizona Independent Redistricting Comm’n
• Giles v. Harris
• Romer v. Evans
• Busbee v. Smith (a 1982 decision containing finding of fact 17, that a Georgia representative was a racist)
• Shelby County v. Holder
• Brief of Political Science and Law Professors as Amici Curiae in Shelby County
• Kareem Crayton, Five Justices, Section 4, and Three Ways Forward in Voting Rights
• Kareem Crayton, Sword, Shield, and Compass: The Uses and Misuses of Racially Polarized Voting Studies in Voting Rights Enforcement
• Kareem Crayton, Take Down the Confederate Flag

Special Guest: Kareem Crayton.

We’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.

This show’s links:

• About Josh Lee
• Amicus: The Term in Review, episode 23 of Dahlia Lithwick’s excellent Supreme Court podcast
• Oral Argument 66: You’re Never Going to Get It All Done
• Federal Public Defender Organization, Eastern District of Arkansas
• About the Antiterrorism and Effective Death Penalty Act of 1996
• Ake v. Oklahoma (guaranteeing a right to psychiatric exam to prepare a criminal defense); see also Ward v. State, an Arkansas Supreme Court decision noting the court’s belief that “a defendant's rights are adequately protected by an examination at the state hospital, an institution that has no part in the prosecution of criminals”
• ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases
• Josh Lee, Determinism and the Death Penalty
• Williams v. Hobbs
• Glossip v. Gross
• Josh Lee, Dignity Kennedy, Burkean Kennedy, and Libertarian Kennedy
• Josh Lee, Judicial Abolition from Below
• Bill Mears, Justice Breyer Robbed at Machete-Point During Caribbean Vacation
• Doug Berman, "Anti-Death Penalty Activists Are Winning The Fundraising Battle In Nebraska"
• Casetext
• Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights; see also Christopher McCrudden, Understanding Human Dignity (the introduction of which is here)

Special Guest: Josh Lee.

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.

This show’s links:

• Oral Argument 51: The Faucet (guest John Pfaff)
• German Lopez, Mass Incarceration in America, Explained in 28 Maps and Charts (vox.com)
• Oliver Roeder, Releasing Drug Offenders Won’t End Mass Incarceration (538.com)
• Oral Argument 6: Productive Thoughtlessness
• Emily Lakdawalla, First Look at New Horizons' Pluto and Charon images: “Baffling in a Very Interesting and Wonderful Way"
• The picture of the comet
• About Leviathan
• Monica Davey, A Church of Cannabis Tests Limits of Religious Law in Indiana
• Oral Argument 66: You’re Never Going to Get It All Done (guest Kareem Crayton)
• Oral Argument 12: Heart of Darkness (about the US News rankings)
• Alexia 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
• Stanford Encyclopedia of Philosophy on Free Will and on Retributive Justice

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?

This show’s links:

• Brandon Garrett’s faculty profile, author page, and writing
• Hold Up!, the (probably) one-off movie podcast we recorded
• Oral Argument 44: Serial
• Brandon Garrett, The Banality of Wrongful Executions
• Brandon Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong
• Brandon Garrett, Contaminated Confessions Revisited
• About Elizabeth Loftus
• Oral 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
• James 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
• This American Life, Confessions, Act One, an interview with Jim Trainum about botched confessions
• Benjamin Weiser, Settlement Is Approved in Central Park Jogger Case, but New York Deflects Blame
• National Research Council, Identifying the Culprit
• Alex Kozinski, Criminal Law 2.0
• About the Criminal Cases Review Commission
• Innocence Project at the UVA School of Law

Special Guest: Brandon Garrett.

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.

This show’s links:

• Frank Pasquale’s faculty profile and writing
• Frank Pasquale, The Black Box Society
• Oral Argument 41: Sense-Think-Act (guest Ryan Calo)
• Robot or Not?, a podcast of one to two-minute episodes
• Jeff John Roberts, Man Arrested for Shooting $1,800 Drone Won’t Apologize, Cites Privacy
• DJI, drone purveyor, which company’s name Christian managed to mangle, Joe-style
• Michael Froomkin and Zak Colangelo, Self-Defense Against Robots and Drones
• Frank Pasquale, Air Traffic Control for Drones
• Jacque v. Sternberg Homes, Inc.
• Desnick v. ABC
• United States v. Causby
• Hinman v. Pacific Air Transport
• See, e.g., Field v. Google (on copyright claims against Google for search results)
• Margot Kaminsky, Drone Federalism: Civilian Drones and the Things They Carry
• Thomas Frey, 55 Jobs of the Future
• Timothy Lee, Amazon Has a Plan for Thousands of Drones to Fill the Sky
• Yoko Kubota, Google Reshoots Japan Views after Privacy Complaints
• The 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)
• Foster v. Svenson (finding no statutory privacy right to prevent artistic show of photographs taken unsuspecting through open windows via telephoto lens)
• AP, Enrique Iglesias Recovering After Fingers Sliced at Concert, video
• Patrick Hubbard, 'Sophisticated Robots': Balancing Liability, Regulation, and Innovation
• 99% Invisible 170: Children of the Magenta (Automation Paradox, pt. 1); see also part 2
• Turn Your Key, Sir!
• Grégoire Chamayou, A Theory of the Drone
• Frank Pasquale, Do Corporations Enjoy a 2nd Amendment Right to Drones?
• Jathan Sadowski and Frank Pasquale, The Spectrum of Control: A Social Theory of the Smart City
• Jathan Sadowski and Frank Pasquale, Creditors Use New Devices to Put Squeeze on Debtors
• Dale Carrico, We Are the Killer Robots; see also Dale Carrico, Natality, Tech “Disruption,” and Killer Robots
• Mary Ellen O’Connell, 21st Century Arms Control Challenges: Drones, Cyber Weapons, Killer Robots, and WMDs
• Samuel Bowles and Arjun Jayadev, One Nation Under Guard; see also Samuel Bowles and Arjun Jayadev, Garrison America
• Frank Pasquale and Glyn Cashwell, Four Futures of Legal Automation

Special Guest: Frank Pasquale.

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.

This show’s links:

• Mark McKenna’s faculty profile and writing
• About the escutcheon
• About Joe Miller, the Alaskan politician
• The A.V. Club’s Podmass, featuring a write-up about our show by Dan Jakes!
• Mark McKenna, Trademark Year in Review
• Qualitex Co. v. Jacobson Prods. Co.
• Wal-Mart Stores v. Samara Brothers
• Traffix Devices v. Marketing Displays
• Mark McKenna, Confusion Isn’t Everything
• Apple v. Samsung (order denying attorneys’ fees but reviewing the substance of the trade dress claims)
• Sears, Roebuck and Co. v. Stiffel Company
• Compco Corp. v. Day-Brite Lighting, Inc.
• In re Webb (reversing a ruling that a prosthesis, unobservable once implanted, could not be the subject of a design patent)
• Christopher Jobson, Welcome to Dismaland: A First Look at Banksy’s New Art Exhibition Housed Inside a Dystopian Theme Park
• Mark McKenna and Katherine Strandburg, Progress and Competition in Design
• Steve Jobs’ slide containing smartphones as they existed at the moment (source article)

Special Guest: Mark McKenna.

With 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.

This show’s links:

• Michelle Meyer’s web page, faculty profile, and writing
• America’s Team
• The excellent Phantom Menace poster
• Vindu Goel, Facebook Tinkers with Users’ Emotions in News Feed Experiment, Stirring Outcry
• Christian Sandvig, Karrie Karahalios, and Cedric Langbort, Uncovering Algorithms: Looking Inside the Facebook News Feed
• Michelle Meyer, Everything You Need to Know about Facebook’s Controversial Emotion Experiment (Wired)
• About social comparison theory and emotional contagion
• Adam Kramer, Jamie Guillory, and Jeffrey Hancock, Experimental Evidence of Massive-Scale Emotional Contagion Through Social Networks
• The Belmont Report
• The Common Rule
• Michelle Meyer and Christopher Chabris, Please, Corporations, Experiment on Us (N.Y. Times)
• James Grimmelmann, Illegal, Immoral, and Mood-Altering (Medium)
• Michelle Meyer et al., Misjudgements Will Drive Social Trials Underground (Nature)
• Michelle Meyer, Two Cheers for Corporate Experimentation: The A/B Illusion and the Virtues of Data-Driven Innovation
• Michele Meyer, More on the A/B Illusion: IRB Review, Debriefing, Power Asymmetries and a Challenge for Critics

Special Guest: Michelle Meyer.

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.

This show’s links:

• Oral Argument on Twitter and on Facebook
• About Carl Malamud
• Georgia Accuses Public Records Activist of Information “Terrorism”
• Episode 68: Listen to My Full Point and Episode 12: Heart of Darkness
• Episode 62: Viewer Mail
• Episode 30: A Filled Milk Caste
• Episode 66: You’re Never Going to Get It All Done (guest Kareem Creighton) and Kareem Creighton’s tweet to us about this question
• Chris Elmendorf, Making Sense of Section 2: Of Biased Votes, Unconstitutional Elections, and Common Law Statutes
• Episode 56: Cracking and Packing (guest Lori Ringhand)
• Episode 67: Monstrous Acts (guest Josh Lee)
• Callins v. Collins (Scalia’s concurrence citing the brutality of a murder in a case in which the defendant was later proved innocent)
• Danielle Allen, Our Declaration; Robert Cover, Violence and the Word ; Jedediah Purdy, After Nature: A Politics for the Anthropocene
• Undisclosed: The State v. Adnan Syed, a podcast recommended to us
• Episode 69: Contaminated Evidence (guest Brandon Garrett); see also Episode 45: Sacrifice, Episode 64: Protect and Serve (guest Seth Stoughton)
• The Our National Conversation about Conversations about Race podcast
• Episode 70: No Drones in the Park (guest Frank Pasquale)
• Episode 72: The Guinea Pig Problem (guest Michelle Meyer)
• A youtube of David Foster Wallace talking about drugs and entertainment in Infinite Jest (2m23s)
• Anthony Kreis’s tweet about civil disobedience

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.

This show’s links:

• Amanda Frost’s faculty profile and writing
• Rowe v. Gibson
• Coleen Barger, On the Internet Nobody Knows You’re a Judge
• Alli 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
• Alli Orr Larsen on the Colbert Report discussing amicus briefs and factfinding
• Amanda Frost, The Limits of Advocacy
• Brianne Gorod, The Adversarial Myth: Appellate Court Extra-Record Factfinding
• Zantac’s Comparison of OTC Heartburn Treatment Options
• Mitchell 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)

Special Guest: Amanda Frost.