Oral Argument
205 episodes - English - Latest episode: almost 5 years ago - ★★★★★ - 98 ratingsA podcast about law, law school, legal theory, and other nerdy things that interest us.
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Episodes
Episode 204: Theocracy
October 13, 2019 18:30 - 1 hour - 42.4 MBWe 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 ...
Episode 203: Fifty-Four
September 08, 2019 16:30 - 1 hour - 47.8 MBOn immaturity, defensiveness, art, the intellect, models, and the self. And mailbag on scholarship and practice, Title VII, and Star Trek. It's Joe's birthday.
Episode 202: Conversations
August 23, 2019 20:15 - 1 hour - 39.1 MBWe discuss dictionaries, up and down on maps, and excellence in seminar conversation. Joseph Miller, Suggestions for Law School Seminars (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3425608) Seminar Skills – Learning Collaboratively (https://sjcadmissionsblog.com/2019/07/22/seminar-skills-learning-collaboratively/)
Episode 201: The Bag
July 29, 2019 00:30 - 1 hour - 48.9 MBJust Joe and Christian, lumbering into season 2, talking about tipping and fraud in the gig economy, bar exam fiascos, legal scholarship, and fireworks. Andy Newman, DoorDash Changes Tipping Model After Uproar From Customers (https://www.nytimes.com/2019/07/24/nyregion/doordash-tip-policy.html?action=click&module=inline&pgtype=Article) Donna Hershkowitz, The State Bar of California, Statement on July 2019 Bar Exam Release of General Topics (http://www.calbar.ca.gov/About-Us/News-Events/News-R...
Episode 200: Cite Me, Don't Slight Me
July 08, 2019 20:45 - 2 hours - 60.5 MBWe 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)
Episode 199: Offended Observer
June 23, 2019 00:00 - 2 hours - 75.8 MBWe discuss items from the mailbag and go ahead and conduct our annual, absurd Supreme Court round-up (fifty minutes in). James Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3352745) Obriecht v. Splinter (https://scholar.google.com/scholar_case?case=15666046241258319811) Johari Canty, Florida Deputies Find Sign Warning Drivers About Upcoming Speed Trap (https://wsvn.com/news/local/florida-deputies-find-sign-wa...
Episode 198: The Means of Randomization
May 28, 2019 15:00 - 1 hour - 53.9 MBHow 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 impo...
Episode 197: LARPing
May 15, 2019 23:00 - 1 hour - 50.4 MBWe talk about LARPing, emotions, meaning, exam writing, grading, happiness, and other things. Lawrence S. Krieger and Kennon M. Sheldon, What Makes Lawyers Happy? A Data-Driven Prescription to Redefine Professional Success (https://ir.law.fsu.edu/articles/94/)
Episode 196: It at Least Exists
April 21, 2019 16:30 - 1 hour - 44.2 MBIs the common law efficient? Richard Posner, among many others, has argued that it is, perhaps even without judges ever themselves focusing on that goal. Daniel Sokol joins us to discuss how understanding law as a platform, like modular and open-source software platforms, helps to see how some areas of the law might indeed become more efficient over time while others might not. Daniel Sokol's faculty profile (https://www.law.ufl.edu/faculty/d-daniel-sokol) and writing (https://papers.ssrn.com...
Episode 195: Based
April 07, 2019 22:15 - 1 hour - 46 MBWe dip back into the mailbag to discuss verdicts, unpublished opinions, "based off," canons and anti-canons, and more.
Episode 194: Topoi
March 24, 2019 14:00 - 59 minutes - 34.8 MBWith Zahr Said and Jessica Silbey, we discuss new narrative forms, their setting, and their influence on law and legal education. How do the natures of podcasts, twitter, fake news, and deep fakes affect the way we experience culture together and how do they construct that culture and our legal culture? Zahr Said's faculty profile (https://www.law.uw.edu/directory/faculty/said-zahr-k) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1030166) Jessica Silbey's faculty profi...
Episode 193: A Giant Thunderstorm
March 17, 2019 17:30 - 1 hour - 45.8 MBFast 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 ...
Episode 192: Precisification
March 03, 2019 15:00 - 1 hour - 48.1 MBAt long last, we discuss originalism with one of its foremost proponents, Lawrence Solum. In this conversation, we focus on Larry's recent effort to identify what constitutes originalism as a category of interpretive theories and what distinguishes it from other theories, including living constitutionalism. This episode's links: Larry Solum's faculty profile (https://www.law.georgetown.edu/faculty/lawrence-b-solum/) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=327316)...
Episode 191: Dynasty
February 24, 2019 15:00 - 1 hour - 45 MBAfter discussion of failing memory, mispronunciation of names, and legal scholarship, we turn to a very serious topic with our guest, Eric Kades. The looming threat of dynastic wealth in the United States has been much discussed since, and even before, the publication of Thomas Piketty's Capital in the Twenty-First Century. We discuss Piketty's now-famous inequality, r > g, how certain legal rules handled the building of perpetual dynasties, the attack on those rules during the historically u...
Episode 190: Why We Write
February 10, 2019 23:30 - 1 hour - 50.3 MBJust Joe and Christian talking about, inter alia, a paper about judicial writing and practice by the late Judge Wald. Live to tape and shipped without editing. Buyer beware! Patricia Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings (https://chicagounbound.uchicago.edu/uclrev/vol62/iss4/8/)
Episode 189: Repugnance
January 27, 2019 17:15 - 1 hour - 44.7 MBKim Krawiec rejoins us to discuss "repugnant" transactions. One common target of this adjective is trade in human body parts. While on the one hand making more matching kidneys available saves lives and prevents large amounts of suffering, on the other hand revulsion and concerns about coercion and distributive fairness arise when kidneys are bought and paid for. In recent years, a number of innovative market designs have allowed strangers to exchange kidneys without engaging in impersonal, c...
Episode 188: Common Law Crimes
January 20, 2019 16:30 - 57 minutes - 33.2 MBIf you were charged with a crime, would you rather it be one written down by a legislature and codified in the tomes of a state's laws or one marked out by the decisions of judges over time? You're hardly alone if you chose the first option, and it is in fact the conventional wisdom that we have rightfully abandoned and prohibited "common law crimes." Not so fast, says our guest, Carissa Hessick. Our system of criminal law is still host to a good deal of common law, in the interstices of stat...
Episode 187: Both Sides of the V
January 12, 2019 15:15 - 1 hour - 44 MBJocelyn Simonson returns to the show to wake us up to the many public interests on both sides (and no sides and all sides) in criminal cases. We discuss whether prosecutors are synonymous with "the People" and how a broader conception of "the People's" interests in criminal adjudication might suggest more robust public participation in the criminal process. Jocelyn Simonson’s faculty profile (https://www.brooklaw.edu/faculty/directory/facultymember/biography?id=jocelyn.simonson) and writing (...
Episode 186: Ephemeral
December 22, 2018 21:30 - 1 hour - 41.8 MBExactly five years after our first show, we record a conversation on the ephemeral or perduring nature of podcasts and blogs, dockless scooters and local regulation, and viewer mail.
Episode 185: Embassy Suites
December 04, 2018 15:45 - 1 hour - 50.1 MBBrexit, China, international trade, security, distribution, resentment, madness, and coffee with Tim Meyer. Tim Meyer's faculty profile (http://law.vanderbilt.edu/bio/timothy-meyer) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=440142) Oral Argument 105: Bismarck’s Raw Material (https://oralargument.org/105) (guest Tim Meyer) Oral Argument 2: Bust a Deal, Face the Wheel (https://oralargument.org/2) (guest Tim Meyer) Timothy Meyer and Ganesh Sitaraman, Trade and the Sep...
Episode 184: Bleep that Bleep
November 19, 2018 17:00 - 1 hour - 63.3 MBHere's your Thanksgiving Holiday episode, perfect for travel and your other holiday needs. If you listen only for law-related content, you'll probably want to skip to 01:17:16, where we somewhat casually discuss the controversy over whether the supposed Acting Attorney General was properly appointed. But we discuss many mailbag-related topics: the California fires and climate change (00:25), politeness and over-decorousness (8:53), how we imagine the mailbag and the miracles of pre-computer-a...
Episode 183: West Coast Model
November 10, 2018 22:15 - 1 hour - 54 MBEpisode 183: West Coast Model (guest Chris Elmendorf) Why is housing so expensive in major West Coast and northeastern cities? Not just more than you might want to pay, but, often, prohibitively expensive with little sign of new supply in areas people want to live. Chris Elmendorf joins us to explain this problem and the limited effectiveness of two types of solutions, the Northeastern and West Coast models. Drawing on the intergovernmental approach of the Voting Rights Act, Chris argues that...
Episode 182: An Editorial Board of Dodsonians
October 24, 2018 14:00 - 1 hour - 51.5 MBThe publication of legal scholarship is, compared with that in other academic disciplines, is, well, weird. Almost all legal journals are edited by students, and authors submit to many journals at once. We talk with Scott Dodson about his paper with law student and journal editor Jacob Hirsch. They elaborate a model code of conduct that could easily be implemented and would prevent some of the system's worst pathologies and bad behavior. We also have a little "post-roll." This show’s links: S...
Episode 181: The Dragon
October 10, 2018 14:45 - 1 hour - 43.6 MBWe 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...
Episode 180: Spectral
September 23, 2018 13:30 - 2 hours - 75.2 MBJust Joe and Christian on: listener feedback (01:09), the Supreme Court confirmation crisis and constitutional structure (round one) (08:00), more feedback (17:16), reading glasses (36:10), Apple and Daring Fireball and caring (41:43), peak iPhone (52:34), and the current state of the Kavanaugh nomination, partisanship, and Supreme Court nominations generally (01:01:31).
Episode 179: Snowglobe
September 09, 2018 16:00 - 1 hour - 50 MBJoe becomes the guest guest and Mike Madison the guest host, as we talk about Joe's new research into the web of law and what citations tell us about what law means. As one might expect for a show which is ostensibly about legal theory but actually, as all good argunauts know, an extended meditation on Being Joe, this is a very special episode of Oral Argument. This show’s links: Joe Miller's faculty profile (http://www.law.uga.edu/profile/joseph-s-miller) and writing (https://papers.ssrn.com...
Episode 178: Dear Bushrod
August 26, 2018 16:00 - 1 hour - 44.3 MBThis 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 Interpret...
Episode 177: The Hard Drive Has Always Been the Enemy
August 07, 2018 14:00 - 2 hours - 78.7 MBIt'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...
Episode 176: Ultimate Monday
July 31, 2018 14:30 - 1 hour - 37.7 MBA full hour of pre-roll before our extended conversation (in the next episode) with Ian Samuel. Opening topics: Words, Joe's new paper, phones and their spam and locations. We argue about how to have an argument. Then we stumble into a psychological typology of judginess and prescriptivism. The heartland of the episode concerns the self, law, death, being and non-being, Joe's youthful fear of blindness, the external and internal point of view, the reality of firehouses, and law as a social pr...
Episode 175: The Law Should Not Kick Down
July 21, 2018 14:30 - 1 hour - 47.2 MBWe'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 ...
Episode 174: Podcast of Record
July 07, 2018 21:30 - 2 hours - 76.3 MBJust Joe and Christian on a double-album of an episode. Lots of nonsense and a smattering of sense, including: notaries public, international sport and boycotts and drugs, bears and snakes, the Deep South and weather, these days and conversation, a tiny, incomplete dip into the mailbag, the pronunciation of Argunauts, what we should do with our lives, law and neutrality, law as a substitute for war, 2 + 2 = 5 and right and wrong, hard and easy problems, freedom reasoning and the New Lochner,...
Episode 173: Faithful Execution
June 29, 2018 16:30 - 1 hour - 56.1 MBThe 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...
Episode 172: Apex Criminality
June 22, 2018 16:00 - 1 hour - 44.3 MBIf 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 Ape...
Episode 171: Garbage Gut
June 12, 2018 12:30 - 1 hour - 62.7 MBSteve 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 Master...
Episode 170: The Starters
May 27, 2018 12:00 - 1 hour - 56.6 MBWe talk with Charles Barzun about what it means to be a legal pragmatist. But first we start with the ending and then talk John Hodgman, the F words (Framers and Founders), the old 2x debate, and finally (at 13:31) about legal pragmatism and its many senses. We connect the topic to interpretation, ethics, the age of our legal asteroid, families, infidelity, rupture, continuity, Justice Souter, quietism agonistes, and more. This show’s links: Charles Barzun’s faculty profile (https://content.l...
Episode 169: Terrible Enough for Two Weeks
May 11, 2018 16:00 - 1 hour - 50.3 MBBack with a casual conversation about exams, faculties and their politics, and other random things. This show’s links: None.
Episode 168: Galaxy-Sized Diamond
April 21, 2018 14:30 - 1 hour - 48.7 MBDo 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 ha...
Episode 167: Fingerprint
April 16, 2018 01:00 - 1 hour - 40.2 MBA 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!
Episode 166: Brooding Omnipresence
April 01, 2018 14:00 - 1 hour - 53.9 MBDo 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 wr...
Episode 165: Raging Fire
March 24, 2018 16:00 - 1 hour - 56.2 MBLate at night, mics dragged up by the fire, talking mailbag items on conversation, Banach spaces, mental models, the Facebook dumpster fire, and Christian's weird old tricks for managing your online world. Finally, Mr. Rogers and being better. This show’s links: Larry Alexander, Constrained by Precedent (http://heinonline.org/HOL/LandingPage?handle=hein.journals/scal63&div=10&id=&page=) Scott Hershovitz, Integrity and Stare Decisis (https://books.google.com/books?id=O3FCAgAAQBAJ&lpg=PP1&dq=Ex...
Episode 164: Post-Marks-Regime World
March 10, 2018 21:30 - 1 hour - 48.2 MBWhat 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...
Episode 163: Woodshed
March 06, 2018 00:00 - 1 hour - 59.2 MBWe dive in to the mailbag and one other topic, discussing: nonsense, statutory interpretation and a rebuke to our prior discussion of it, the nature of podcasting, and public corruption by tweet. (No links this week.)
Episode 162: Wealth Gap (live at Georgia Law)
February 19, 2018 21:45 - 54 minutes - 32.1 MBAudiobooks, capital, banks, slavery, regulation, choice, racism, and the racial wealth gap. Mehrsa Baradaran joins the show for the fourth time to talk about her latest book. Recorded in front of a live audience at the University of Georgia School of Law. This show’s links: Mehrsa Baradaran’s faculty profile (http://www.law.uga.edu/profile/mehrsa-baradaran) and academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1178148) Mehrsa Baradaran, The Color of Money: Black Banks...
Episode 161: Meta
February 04, 2018 15:30 - 1 hour - 50.3 MBScott Shapiro joins us to discuss how law relates to, well, everything. His article with David Plunkett argues that theorizing about the nature of law is a project to understand how talking and thinking about law fit into reality. But first, we talk with him about Twitter, writing, collaboration, Joe's innermost psyche, and more. This show’s links: Scott Shapiro’s faculty profile (https://law.yale.edu/scott-j-shapiro) and academic writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per...
Episode 160: In the Barrel
January 27, 2018 19:15 - 1 hour - 37.5 MBSteve Vladeck rejoins us on the law of civilian-military separation, whether Marbury v. Madison was rightly decided, and how his recent oral argument before the Supreme Court went (spoiler: amazingly but weirdly). (Ignore Christian's use of the term "basises" (wtf?) and other misstatements and inanities ... you try recording ever week between classes....) This show’s links: Steve Vladeck’s faculty profile (https://law.utexas.edu/faculty/stephen-i-vladeck) and academic writing (https://papers....
Episode 159: Magical
January 22, 2018 00:15 - 1 hour - 35.8 MBLive to tape, we discuss viewer mail, Tolkien, laptops, and (kind of) a couple of SCOTUS cases. This show’s links: Foundations of American Law (https://www.hydratext.com/foundations-beta/) (an undergraduate course created by Christian, featuring a textbook and companion podcast series with Christian and Joe) Legal Theory 101 (https://www.hydratext.com/legal-theory-101/) (Christian's introductory course to legal philosophy, featuring a reading list (with links) and a companion podcast series)
Episode 158: Ethical Form of Life
January 13, 2018 22:15 - 1 hour - 45 MBWe find ourselves in a moment of untruth. Our guest, Brad Wendel, talks with us about political and legal truth and their relation to morality and social roles. This show’s links: Brad Wendel's faculty profile (http://www.lawschool.cornell.edu/faculty/bio_bradley_wendel.cfm) and writing (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=247191) W. Bradley Wendel, Truthfulness as an Ethical Form of Life (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3072303) Harry Frankfurt, On B...
Episode 157: Blocked
January 07, 2018 23:30 - 1 hour - 50.8 MBHoliday nonsense show part 2: on the upcoming Supreme Court arguments Dalmazzi v. United States, millennials and the punishing U.S. economic system, the presidency and the popular vote, and expertise and Twitter. This show’s links: SCOTUSblog page for Dalmazzi v. United States (http://www.scotusblog.com/case-files/cases/dalmazzi-v-united-states/) In That Case podcast (https://inthatcasepodcast.com) Michael Hobbes, FML: Why Millennials Are Facing the Scariest Financial Future of Any Generation...
Episode 156: Cheap Shot from the Cheap Seats
December 24, 2017 14:30 - 1 hour - 43.6 MBHoliday nonsense show part 1: on compressors, the UFOs, nominations of trial judges without trial experience, feuds, listener Brian's question about our evolving balance of optimism and pessimism, listener Andrew's pointing out the public nudity and sex discrimination case Tagami v. City of Chicago, listener Joel's new podcast, the self, our show, conversation and other minds and double escape, humility, art and wilderness. This show’s links: The link to access all topics discussed on this we...
Episode 155: Presidential Utterance
December 17, 2017 15:15 - 1 hour - 46.5 MBHow do presidents affect the law when they speak? Should courts consider what they say, defer to what they say, and find governmental intentions in what they say? What if a president says one thing, perhaps improvising during a speech, and an official communication of an agency, the Justice Department, or the White House says another? Kate Shaw joins us to talk about her theory that generally (but not always) courts should ignore presidential statements that are not consciously intended to st...