Oral Argument

Oral Argument

oralargument.org
A podcast about law, law school, legal theory, and other nerdy things that interest us.
144: Path of Totality
Aug 4 • 126 min
We ramble about various non-law things. Maybe this will become the first installment of our annual beach episode series, in which we casually let it all hang out and take a vacation from law. We'll be back in a couple of weeks with the usual nonsense,…
143: The Gak
Aug 1 • 96 min
More than the usual nonsense and sniffles as we try to empty the mailbag. Note: Because of a massive gap between time available and time required to edit out the gak, this episode contains many more than the average number of sniffles and echoes. We tried…
142: Normativity
Jul 23 • 79 min
Jeffrey Kaplan joins us to discuss his work in philosophy on the nature of law, law’s connection to morality, and the way law gives us reasons to follow it. We discuss the connection with Christian’s work and also succeed (wildly but sporadically) in…
141: The Picard Meltdown Principle
Jul 9 • 80 min
Leah Litman joins us to discuss the problematic argument that a law’s novelty is a reason to believe it is unconstitutional. In particular, she focuses on arguments that statutes that affect the separation of powers or the federalism balance are suspect…
140: Decider
Jul 2 • 74 min
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…
139: It’s All the Stacey Show
Jun 25 • 62 min
IP expert Stacey Dogan joins us to discuss: the merits and demerits of trademark law, values and stock characters of IP, non-interference and design choice, antitrust and IP optimists and skeptics, BU’s new clinics and collaborations with MIT for law and…
138: Crackdowns
Jun 14 • 67 min
CRACKDOWN TIME, with Mila Sohoni! Whatever the law says in the books, it is felt by all of us when it is enforced. How should we think about a sudden change in enforcement priorities that cracks down on some allegedly bad thing? Mila helps us to…
137: Steve Vladeck Pincer Move
Jun 2 • 79 min
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…
136: The Coase of Copyright
May 26 • 78 min
With Zahr Said, we discuss what makes creative works similar and the role of the “reader” in constructing a work’s meaning. Christian derails with a James Bond commercial. But we get back on track and talk about paintings, poems, Star Wars, textualism,…
135: Alexandria
May 13 • 79 min
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…
134: Crossover
May 6 • 92 min
It’s finally here, the one where we talk with the hosts of the world-famous First Mondays podcast, Ian Samuel and Dan Epps. Topics include physics conundrums, podcasts (05:13), the politics of Supreme Court nominations (27:08), and radically changing the…
133: Too Many Darn Radio Buttons
Apr 28 • 74 min
By listening to this podcast YOU AGREE to arbitrate all disputes in Florida and to forego class actions and consequential damages. This week: Jim Gibson on boilerplate terms in contracts. What to do with contract terms that aren’t read? This show’s links:…
132: The Soul of Music
Apr 21 • 69 min
What is music? With IP scholar Joe Fishman, we talk about music to work by, whether being unable to imagine doing anything else is a sign you’re doing the right thing, and, mostly, what in music should be protected by copyright. Is the essence of music…
131: Because of Sex
Apr 14 • 76 min
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…
130: Simian Mentation
Apr 7 • 75 min
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…
129: All My Cussin’
Mar 31 • 78 min
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.
128: Federalism-palooza
Mar 17 • 72 min
We talk with federalism scholar Jessica Bulman-Pozen about how things get done in an age of partisan polarization. Executive federalism, the negotiated implementation of policy between the executive branch and states, not only leads to…
127: I Own My Fist
Feb 24 • 76 min
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…
126: Permanently Banned
Feb 10 • 74 min
We continue our discussion of the rights of non-citizens, this time with immigration scholar and award-winning fiddle player Jason Cade. We discuss Jason’s latest research into the judicial and administrative responses to of deportation. (Note that we…
125: The Elephant
Feb 3 • 69 min
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 and writing The National…
124: Sung Hero
Jan 28 • 81 min
Just Christian and Joe talking a little about the outrageous first week of the new administration (refugees, emoluments, Russia, and more) and then opening up the mailbag. Nixonian firings, self-driving cars, and more. No other show notes this week!
123: Cruising Altitude
Jan 13 • 76 min
Mike Madison is back to talk with us about knowledge commons, institutions, open-source software, citizen science, and the the basic problem of understanding how we cooperate. This show’s links: Mike Madison’s website, writing, and blog Oral Argument 90:…
122: Choose Your Own Adventure
Dec 30, 2016 • 66 min
Jeremy Sheff joins us to discuss a successful project to create a free and open Property Law casebook. Students of the world unite! You have only your restrictive licenses to lose. (Jeremy worked on this project with the incomparable Stephen Clowney,…
121: 90,000 Local Governments
Dec 23, 2016 • 56 min
Home for the holidays, back in Oral Argument World Headquarters, with property, land use, and local government law scholar Nestor Davidson. We discuss the fascinating, important, and under-theorized world of the thousands of local “administrative states”…
120: Unbound
Dec 16, 2016 • 84 min
In our remote recording location and with returning election-law expert Lori Ringhand, we talk about the election. The electoral college, the moral and legal roles of electors, disputed elections in the House, crises, civil wars. Oh my. (Back in OA World…
119: Consistently Inconsistent
Dec 9, 2016 • 60 min
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…
118: Harmonization Costs
Nov 19, 2016 • 67 min
And now for something completely different. Not being up to talking again about current events, we have a great chat with David Ziff, who has bravely and beautifully written in defense of the Bluebook. Once again, we do battle over legal citation. This…
117: Coarsening
Nov 11, 2016 • 66 min
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 Robert Bolt, A Man for All Seasons David Souter on the…
116: Co-Authorial Privilege
Nov 4, 2016 • 78 min
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 and writing About Ben Linus…
115: Gonna Work? (Live at the Tech Law Institute)
Oct 28, 2016 • 59 min
We made a return to the annual Tech Law Institute meeting in Atlanta and recorded a live episode about self-driving cars. We talked optimism, pessimism, political valence, regulatory challenges, federalism, trolley problems, and more. This show’s links:…
114: Tort Festivity
Oct 20, 2016 • 68 min
Causation and responsibility are interrelated, crucial, and yet puzzling concepts in law. With tort scholar Shahar Dillbary, we explore situations in which spectators “cause” accidents in a drag race that they merely witness and in which the more…
113: The Entrails of Fowl
Oct 1, 2016 • 85 min
Is originalism required by our law? We chat with Charles Barzun about his critique of the inclusive originalists, the new movement to claim that an originalist interpretive method is not only a good choice among possible methods but is the method which is…
112: Quasi-Narrative
Sep 23, 2016 • 72 min
Is legal writing narrative? How about judgments, appeals, testimony? We talk with Simon Stern about narrative and its techniques and effects, suspense, dicta, authorial purposes, a crazy idea for a novel, mathematical proofs, and more. This show’s links:…
111: A Random Walk
Sep 16, 2016 • 74 min
The merits of going live-to-tape, RSS woes, podcasts, mailbag, judges and voting, decisionmaking machines, breaking the law by not facilitating others’ breaking the law, shipping Perceiving Law, cutting one’s favorite scene, a mysterious phone call. This…
110: Equity
Sep 2, 2016 • 62 min
After some goofy but needful pre-pre-roll and pre-post-roll, we take with Emily Sherwin about the law and equity distinction, its relation to rules and standards, its relation to candor, how what looked like a formal distinction had surprisingly…
109: A Common Law for the Age of Regulation
Aug 26, 2016 • 87 min
Administrative law expert Cathy Sharkey joins us to talk about conflicting judicial approach(es) to preemption and deference - and the web of institutions and decisionmaking that is modern lawmaking. This show’s links: Cathy Sharkey’s faculty profile and…
108: University, Court, and Slave
Aug 20, 2016 • 88 min
Al Brophy returns to discuss, among other things, his new book on the connections between slavery, the academy, legal theory, and the judiciary. This show’s links: Al Brophy’s faculty profile and writing Alfred Brophy, University, Court, and Slave:…
107: Unleash the Joe
Aug 12, 2016 • 79 min
A special live-to-tape dig through the mailbag. This show’s links: Christian’s Modern American Legal Theory audio downloads (paste this into your podcast app: http://www.hydratext.com/malt2016?format=rss) Episodes relevant to driverless cars: No Drones in…
106: Legal Asteroid
Jul 29, 2016 • 77 min
Joe and Christian talk about this fraught election, focusing on RBG’s Trump remarks. Joe makes a confession. This show’s links: ELB Podcast Episode 14: Erwin Chemerinsky, Did Justice Ginsburg Cross the Line? Dahlia Lithwick, Deciphering Justice Richard…
105: Bismarck’s Raw Material
Jul 22, 2016 • 109 min
With returning guest Tim Meyer, we talk about Brexit. Topics include referenda, democracy, comic book villains, the dynamics of union and separation, treaties and executive actions, Iceland, the roles of crisis and convenience. And a dramatic technical…
104: Drunk in a Dorm Room
Jul 8, 2016 • 92 min
Christian, Joe, and frequent co-host Sonja West dig into the mail and tweet bags and discuss nonsense, sense, and antisense. Topics include: Judge John Hodgman’s weighing in on speed trap law, podcast listening speeds, the Slate Supreme Court Breakfast…
103: All over the Gander
Jul 1, 2016 • 81 min
We’re joined by a scholar of patent law, administrative law, and many other things, Jonathan Masur. Jonathan does not think the patent office has done a very good job of conducting cost-benefit analyses of various rules and procedures for issuing,…
102: Precautionary Federalism
Jun 24, 2016 • 58 min
Despite the fact that our show is pretty much the opposite of careful, we discuss precaution, regulation, and institutional choice with Sarah Light. The environmental and other effects of Uber and Lyft are complicated. If they’re very hard to calculate…
101: Tug of War
Jun 14, 2016 • 41 min
After the deadliest mass shooting in American history, we talk about the problem of gun violence and a possible way forward. This show’s links: Christian Turner, The Freedom to Kill and Maim About guns and suicide (literature overview) Harvard Injury…
100: A Few Minutes in the Rear-View Mirror
Jun 11, 2016 • 109 min
In honor of our base 10 number system, we revert to type and have recorded a long, self-indulgent episode. We reflect on our show, respond to feedback, and wonder about law and legal academia. Also Joe’s travels and nonsense. Feedback includes the other…
99: Power
May 27, 2016 • 72 min
Joe is at the airport for a special pre-roll segment. Then we say hello to Lisa Heinzerling, administrative law expert (5:23). After a substantive and goofy discussion of legislation and regulation courses (6:29), we discuss the development of what Lisa…
98: T3 Jedi
May 20, 2016 • 80 min
Like living things, legal theories are born, grow, change, and die. We are joined by Jeremy Kessler and David Pozen to discuss this life cycle and how it applies to some popular theories today, like originalism. We start by discussing what prescriptive…
97: Facty
May 13, 2016 • 65 min
When interpretations and rules depend on what’s true about the world (so, all the time), judges have to reach conclusions about those truths. But courts are not exactly like administrative agencies or legislatures, and they depend on adversarial parties…
96: Students as Means
May 6, 2016 • 85 min
A show about, among other things, the morality of the law journal system. We start with Joe’s ailments and our scheduling issues. (You’re welcome; we know this is why people tune in.) Then a little about online review sessions, Slack, online classes, and…
95: Own the Block
Apr 15, 2016 • 74 min
Do you have a right to film the police? Should people film the police? A lot of attention has been given to the use by police officers of body cameras (and dash cameras), but what about citizens’ filming arrests on the street? With Jocelyn Simonson, we…
94: Bonus
Apr 9, 2016 • 49 min
This is something different, a recording of a conversation we had for Christian’s Modern American Legal Theory class, which is being run online this semester. It’s a discussion of, among other things, the place of the public/private distinction in law and…
93: Driveby
Apr 2, 2016 • 89 min
We respond to accumulated listener feedback in one unedited take. This show’s links: This space intentionally left blank. No links this week.
92: Deficit Peacock
Mar 18, 2016 • 83 min
We’re joined by tax scholar Daniel Hemel to discuss a puzzling problem. Why don’t presidents use their regulatory powers to affect tax law like they do to affect the law in many other areas? But before that, we talk about Christian’s birthday…
91: Baby Blue
Mar 5, 2016 • 74 min
In a world where a single power controlled the language of justice itself, one man (well, several people and a bunch of students, but anyway) rose up to … produce a free guide to the standardized practices of legal citation. Copyright scholar Chris…
90: We Are a Nation of Time-Shifters
Feb 27, 2016 • 90 min
Our main topic is fair use, the engine of so much cultural reuse and advancement. We’re joined by one of the doctrine’s most interesting scholars, Mike Madison. But the conversation spans: Joe’s telecomm cursing issues (0:00:36), FBiPhones and the…
89: Adequacy
Feb 19, 2016 • 75 min
This week we tackle the simple and uncontroversial topic of education funding with Josh Weishart. We plumb the depths of equity, equality, luck, adequacy, and sufficiency. Legislatures vs. courts, duties and immunities. Luckily Josh saves us from our…
88: The Blue Line
Feb 13, 2016 • 75 min
We record live at the University of Georgia School of Law at the invitation of the Georgia Law Review. The main topic is law journals, but we also give an update on Christian’s crumbling infrastructure, talk about gravitational waves, and introduce a new…
87: Content of the Mark
Jan 31, 2016 • 82 min
Joined in the studio by IP scholar Mark McKenna, yielding a two to one ratio of IP to non-IP people at headquarters, we discuss: the dilapidated state of headquarters (0:00), computers in the classroom and the first installment of Joe’s Quandary (6:11),…
86: The Further Freedoming
Jan 21, 2016 • 63 min
Joe shook off the plague and won a major prize all in one week. In celebration, we debate and discuss the lottery, choosing numbers, and the endowment “effect.” Into the mailbag we go and discuss our Speluncean episodes, an executioner’s privilege,…
85: Missouri Duel: Our Second Annual Call-Out Show
Jan 1, 2016 • 135 min
It’s our second annual call-out show, and it’s a double-sized episode meant to last two weeks. We’re joined by listeners and previous guests who share with us the bits of culture — books, movies, and television — that have affected them and their…
84: Felker’s Chickens
Dec 25, 2015 • 88 min
It’s a Christmas miracle! Steve Vladeck joins us again! He helps us understand how the Contract with America and a thicket of federal law have resulted in people remaining in prison even though their sentences are based on laws that have been found…
83: Embodied Joe
Dec 18, 2015 • 68 min
We’re back with a casual show that starts with Star Wars and criticisms of George Lucas. Then we move to the loneliness of authorship, models of law, movies that make us cry, and an appeal to the listeners to join us live on a future episode. This show’s…
82: Hymn, Part 2: Our Strategy Is a Complete Failure
Nov 21, 2015 • 49 min
The second part of our conversation about the nature of law. Is it murder if, after your group of trapped spelunkers decides, unanimously, to draw lots and eat the loser, it does so? This show’s links: Oral Argument 81: Hymn, Part 1 Lon Fuller, The Case…
81: Hymn, Part 1
Nov 15, 2015 • 77 min
First: oil can, a hymn, and feedback, including a discussion of the web and so-called social obligations. Is a hot dog a sandwich, and is it murder if your group of trapped spelunkers decides, unanimously, to draw lots and eat the loser? We end this part…
80: We’ll Do It LIVE!
Oct 24, 2015 • 63 min
We talk about the war between ad networks, data brokers, publishers, and consumers in front of a live studio audience. At the invitation of Paul Arne and the Tech Law section of the Georgia State Bar, we recorded this episode at the annual Tech Law…
79: He Said It Peabody Well
Oct 18, 2015 • 74 min
When we do a Supreme Court term preview, we of course turn to Slate’s amazing Dahlia Lithwick, and then we proceed not to discuss the upcoming term. We begin with a whirlwind fourteen minutes of feedback on, among other things, an index for the show, the…
78: Listener Fuller
Oct 12, 2015 • 69 min
Feedback on “the Cyberloquium,” theme music, affirmative action, oral arguments, podcast apps, Scalia’s opinion announcement in Glossip, the parliamentary system and complexity, postal banking, killer robots, villains and angels in history, and whether…
77: Jackasses Are People Too
Oct 3, 2015 • 70 min
Why take the time to write show notes if whether I write them is already determined? We’re joined by Adam Kolber to talk about free will, moral responsibility, determinism, and criminal law. This show’s links: Adam Kolber’s faculty profile, writing, and…
76: Brutality
Sep 25, 2015 • 104 min
We start with, among other things, some decidedly negative feedback. But then we’re joined by the endlessly fascinating Al Brophy to discuss the history of slavery, Nat Turner’s rebellion and its aftermath, Thomas Cobb and pro- and anti-slavery…
75: Air Gap
Sep 18, 2015 • 86 min
We start with some feedback and thoughts on the Constitution, the Declaration of Independence, criminal law, and Christian’s brush with Upstream Color greatness. Also Joe’s thank-you notes. Then we’re joined by Mary Ellen O’Connell to talk about…
74: Minimum Curiosity
Sep 11, 2015 • 77 min
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…
73: Looking for the Splines
Sep 4, 2015 • 89 min
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…
72: The Guinea Pig Problem
Aug 28, 2015 • 115 min
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…
71: Rolex Tube Socks
Aug 21, 2015 • 75 min
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…
70: No Drones in the Park
Aug 7, 2015 • 78 min
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…
69: Contaminated Evidence
Jul 31, 2015 • 65 min
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…
68: Listen to My Full Point
Jul 18, 2015 • 85 min
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…
67: Monstrous Acts
Jul 10, 2015 • 99 min
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.…
66: You’re Never Going to Get It All Done
Jul 3, 2015 • 89 min
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…
65: We Can Call It Awesome
Jun 26, 2015 • 89 min
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…
64: Protect and Serve
Jun 19, 2015 • 86 min
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…
63: A Struggle with Every Single One
May 30, 2015 • 82 min
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…
62: Viewer Mail
May 22, 2015 • 98 min
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…
61: Minimum Competence
May 15, 2015 • 96 min
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…
60: The Wisdom of the Bartow
May 8, 2015 • 80 min
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…
59: Folly Bridges
May 2, 2015 • 74 min
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…
58: Obscurity Settings
Apr 24, 2015 • 98 min
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…
57: Light It on Fire and Shove It into the Atlantic
Apr 17, 2015 • 102 min
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…
56: Cracking and Packing
Apr 10, 2015 • 97 min
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…
55: Cronut Lines
Apr 3, 2015 • 100 min
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…
54: No Throttling
Mar 27, 2015 • 103 min
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?…
53: A Satanic Level of Entropy
Mar 16, 2015 • 88 min
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…
52: Nihilism
Mar 7, 2015 • 95 min
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…
51: The Faucet
Feb 27, 2015 • 90 min
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…
50: We Have Fully Exhausted the Topic
Feb 20, 2015 • 91 min
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…
49: The Pot Calling the Kettle Beige
Feb 7, 2015 • 71 min
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:…
48: Legal Truth
Jan 30, 2015 • 83 min
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…
47: Making Lisa So Mad
Jan 23, 2015 • 74 min
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,…
46: Noncompetes on Steroids
Jan 16, 2015 • 86 min
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…
45: Sacrifice
Jan 12, 2015 • 92 min
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…
44: Serial
Dec 23, 2014 • 147 min
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…
43: Some Stuff I Like and Some Stuff I Don’t
Dec 15, 2014 • 82 min
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…
42: Shotgun Aphasia
Nov 20, 2014 • 93 min
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…
41: Sense-Think-Act
Nov 15, 2014 • 99 min
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…
40: The Split Has Occurred
Nov 8, 2014 • 104 min
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…
39: The Ayn Rand Nightmare
Oct 31, 2014 • 99 min
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…
38: You’re Going to Hate This Answer
Oct 24, 2014 • 94 min
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…
37: Hammer Blow
Oct 18, 2014 • 76 min
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…
36: Firehose of Equality
Oct 11, 2014 • 99 min
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…
35: Multitudes
Oct 3, 2014 • 81 min
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…
34: There’s Not Really a Best Font
Sep 27, 2014 • 85 min
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…
33: Other Minds
Sep 20, 2014 • 100 min
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?…
32: Go Figure
Sep 13, 2014 • 89 min
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…
31: Knee Defender
Aug 29, 2014 • 81 min
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…
30: A Filled Milk Caste
Aug 23, 2014 • 95 min
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…
29: Alpha Dog
Aug 15, 2014 • 76 min
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…
28: A Wonderful Catastrophe
Aug 8, 2014 • 91 min
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…
27: My Favorite Case
Jul 19, 2014 • 88 min
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…
26: Form 700
Jul 11, 2014 • 83 min
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…
25: Normal Religions
Jul 4, 2014 • 114 min
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
24: Vacation from Competition
Jun 27, 2014 • 99 min
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.…
23: Rex Sunstein
Jun 19, 2014 • 81 min
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…
22: Nine Brains in a Vat
Jun 12, 2014 • 92 min
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…
21: Kind of a Hellscape
Jun 6, 2014 • 82 min
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…
20: Twelve Billion Dollars
May 23, 2014 • 100 min
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…
19: The Prayer Abides
May 17, 2014 • 102 min
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…
18: Oral Argument
Apr 25, 2014 • 66 min
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…
17: Flesh List
Apr 18, 2014 • 80 min
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.…
16: The Whole Spectrum
Apr 11, 2014 • 74 min
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…
15: In the Weeds
Apr 4, 2014 • 111 min
It’s Reefer Madness week on Oral Argument. We talk with Douglas Berman about marijuana decriminalization and lots more. We discuss blogs and scholarship, LSD, why minds might be changing and how they change on drug use, parental paternalism and state…
14: The Astronaut’s Hair
Mar 28, 2014 • 91 min
This is the one about eggs. Human eggs. And whether selling them is like selling chicken eggs, teaching law school, or being a good samaritan. Lisa Milot joins us to talk about taxing proceeds from transfers of human body materials. We discuss Christian’s…
13: A Special Place in Hell for Joe
Mar 21, 2014 • 61 min
Our guest, Dave Hoffman, writes about everything and helped to found one of the premier legal blogs, Concurring Opinions. We talk about the role of legal blogs in the public sphere and for the academy. And speaking of writing, what’s wrong with legal…
12: Heart of Darkness
Mar 15, 2014 • 104 min
The U.S. News rankings of law schools are out! We wish they would go away. After follow-up on last week’s episode and a dip into viewer mail, we discuss what problems the rankings might be attempts to solve, how they are calculated, and the obvious…
11: Big Red Diesel
Mar 7, 2014 • 101 min
The Spring Break episode in which Joe and Christian take a break from solving the world’s legal problems to talk about the technology and culture of writing. We start with some listener feedback, and then Joe reports on an accidental experiment he…
10: My Beard Is Not a Common Carrier
Mar 1, 2014 • 116 min
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…
9: Torches and Pitchforks
Feb 21, 2014 • 74 min
Law and banking in one podcast. Take deep breaths lest your racing heart burst in your chest. You think I'm joking. Probably because you don't know Mehrsa Baradaran. But then, you probably do, because everyone does. We talk about, among other things, how…
8: Party All Over the World
Feb 15, 2014 • 55 min
Fresh off a week-long, snow and ice shutdown, Joe tells Christian he doesn’t want to be called Adam Smith anymore. We discuss viewer mail. Then we circle back to the emerging show specialty: whether you can be charged for warning drivers of a speed trap.…
7: Speed Trap
Feb 7, 2014 • 40 min
Joe calls in from an undisclosed location(Santa Clara, CA) for a short show. We begin by discussing listener Alan’s demand for more conflict, an Idaho listener’s request for more Darcy, and listener Amy’s request to discuss her parking ticket. The…
6: Productive Thoughtlessness
Jan 31, 2014 • 77 min
Joe, Christian, loyal dog Darcy, a fire, some coffee, and melting snow. We kick back and talk about stuff that has been on our minds. This leads to three very different topics. First: we disagree whether the Supreme Court should strike down the…
5: It Takes All Kinds
Jan 25, 2014 • 70 min
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…
4: Grow a Pear
Jan 17, 2014 • 70 min
From far northern climes, we are joined by Sarah Schindler, land use and property expert, hipster scholar, and lawn destroyer. In this episode we discuss Maine, backyard chicken raising, zoning, Brasília, the virtues and pleasures of law-breaking, and…
3: Cut It Off
Jan 10, 2014 • 63 min
Should we just get rid of intellectual property law altogether? IP scholar Paul Heald, joining us from his home in Illinois, doesn’t think so. But what should we do about patent trolls? Is it even feasible to create virtual fences around ideas? Paul…
2: Bust a Deal, Face the Wheel
Jan 4, 2014 • 68 min
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…
1: Send Joe to Prison
Dec 28, 2013 • 81 min
The real first episode of Oral Argument doesn’t hold back. Prof. Sonja West joins us to talk about the the press, the First Amendment, and other cool things. We discuss Supreme Court justices’ getting to talk about whatever they want, the Press Clause,…
Who Is Your Hero?
Dec 22, 2013 • 55 min
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.…