Oral Argument

Oral Argument

By Joe Miller and Christian TurnerSociety & CultureEducationPhilosophy
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Oral Argument episodes

  • Episode 117: Coarsening

    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 Danger of America’s “pervasive civic ignorance” (video)
    • Oral Argument 105: Bismarck’s Raw Material (guest Tim Meyer)
    • Oral Argument 112: Quasi-Narrative (guest Simon Stern)
    • Popov v. Hayashi
    • Oyez page for NFIB v. Sebelius (select Opinion Announcement, part 1, for the relevant portion of the hand-down)
    • Oral Argument 113: The Entrails of Fowl (guest Charles Barzun)
    • Paul Horwitz, On “The Troublesome Use of Photographs . . . and Other Images” in Federal Court Opinions
    • Blackmun’s dissent in DeShaney v. Winnebago County Department of Social Services
    • Jamal Greene, Pathetic Arguments in Constitutional Law
    • The Oral Argument Index
    • David Ziff, The Worst System of Citation Except for All the Others
      • 1 hr 7 min
    • Episode 116: Co-Authorial Privilege

      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
      • First Mondays
      • Legal Theory 101 (and corresponding blog post)
      • William Baude and Stephen Sachs, Originalism’s Bite
      • William Baude and Stephen Sachs, The Law of Interpretation
      • William Baude, Is Originalism Our Law?
      • Oral Argument 113: The Entrails of Fowl (guest Charles Barzun)
      • Lawrence Solum, Semantic Originalism
      • Stephen Sachs, Originalism as a Theory of Legal Change
      • Richard Re, Promising the Constitution
      • Two debates about interpretation between Justices Breyer and Scalia: Annenberg Classroom and a joint Federalist Society and ACS event
      • Richard Posner, Supreme Court Breakfast Table Entry 27: Broad Interpretations
      • Radiolab Presents: More Perfect, The Political Thicket
      • Mary Sarah Bilder, Madison’s Hand: Revising the Constitutional Convention; see also a conversation with Bilder at the National Constitution Center

        • Special Guest: William Baude.

        1 hr 19 min
      • Episode 115: Gonna Work? (Live at the Tech Law Institute)

        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:

        • Oral Argument 80: We’ll Do It LIVE!
        • NHTSA, Federal Automated Vehicles Policy
        • RAND, Autonomous Vehicle Technology: A Guide for Policymakers
        • Duncan Black, some posts on self-driving cars: Not Gonna Work, No One Will Listen to Me, Spot the Key Phrase, "the revolutionary transportation technology”….
        • Chris Martin and Joe Ryan, Super-Cheap Driverless Cabs to Kick Mass Transit to the Curb
        • Tesla, All Tesla Cars Being Produced Now Have Full Self-Driving Hardware (announcement includes a vide demonstration)
        • About Tesla’s Autopilot feature (also Tesla’s page on Autopilot)
        • Alex Davies, Everyone Wants a Level 5 Self-Driving Car – Here’s What That Means
        • Oral Argument 102: Precautionary Federalism (guest Sarah Light)
        • Michael Dorf, Should Self-Driving Cars Be Mandatory?
        • Oral Argument 41: Sense-Think-Act (guest Ryan Calo)
        • Oral Argument 70: No Drones in the Park (guest Frank Pasquale)
        • About trolley problems
        • Megan Barber, Who Should Driverless Cars Save: Pedestrians or Passengers?
        • Frank Pasquale, Get off the Trolley Problem
        • Jules Coleman and William Holahan, Review of Guido Calabresi and Philip Bobbitt’s Tragic Choices
          • 1 hr
        • Episode 114: Tort Festivity

          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 tortfeasors there are, the better. Also, burning Christian’s car and an update on Joe’s recent cold.

          This show’s links:

          • Shahar Dillbary’s faculty profile and writing
          • The Election Profit-Makers Podcast
          • Shahar Dillbary, Causation Actually
          • About the Learned Hand formula for negligence
          • Shahar Dillbary, Tortfest

            • Special Guest: Shahar Dillbary.

            1 hr 9 min
          • Episode 113: The Entrails of Fowl

            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 mandated by a positivist approach to our law.

            This show’s links:

            • Charles Barzun’s faculty profile and writing
            • Charles Barzun, The Positive U-Turn
            • William Baude and Stephen Sachs, The Law of Interpretation
            • William Baude, Is Originalism Our Law?
            • Oral Argument 98: T3 Jedi (guests Jeremy Kessler and David Pozen)
            • Scott Shapiro, Legality (Amazon and Google Books)
            • Brown v. Board of Education; Jack Balkin and Bruce Ackerman (eds.), What Brown v. Board of Education Should Have Said
            • Charles Barzun, Inside/Out: Beyond the Internal/External Distinction in Legal Scholarship
            • Oral Argument 77: Jackasses Are People Too (guest Adam Kolber)

              • Special Guest: Charles Barzun.

              1 hr 26 min
            • Episode 112: Quasi-Narrative

              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:

              • Simon Stern’s faculty profile and writing
              • Simon Stern, Narrative in the Legal Text: Judicial Opinions and Their Narratives
              • William Blackstone, Commentaries on the Laws of England, Book II: Of the Rights of Thing (Simon Stern, ed.); Simon’s introduction to the volume
              • William Brewer and Edward Lichtenstein, Event Schemas, Story Schemas, and Story Grammars
              • About the Paradox of Suspense
              • Jonathan D. Leavitt et al., Story Spoilers Don’t Spoil Stories; Jonathan D. Leavitt et al., The Fluency of Spoilers: Why Giving Away Endings Improves Stories
              • Circles Disturbed: The Interplay of Mathematics and Narrative (Apostolos Doxiadis and Barry Mazur, eds.) (Introduction to the book)
              • Mitchel Lasser, The European Pasteurization of French Law
              • Owen Barfield, This Ever Diverse Pair
              • Wikipedia on epistolary novels
              • Julie Schumacher, Dear Committee Members
              • Oral Argument 48: Legal Truth (guest Lisa Kern Griffin)

                • Special Guest: Simon Stern.

                1 hr 13 min
              • Episode 111: A Random Walk

                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 show’s links:

                • Info about the Technology Law Institute seminar at which we will record an episode in front of a live studio audience
                • Michael Clemente, A Reassessment of Common Law Protections for “Idiots”; Michael Clemente, Executing Idiots; Adam Liptak, Supreme Court to Consider Legal Standard Drawn from “Of Mice and Men”
                • Christian Turner, Perceiving Law (ssrn or socarxiv)
                • Joseph Miller, A Modest Proposal for Expediting Manuscript Selection at Less Prestigious Law Reviews (ssrn or digital commons)
                  • 1 hr 15 min
                • Episode 110: Equity

                  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 functional effects, and how to get the most out of “good” rules.

                  This show’s links:

                  • Emily Sherwin’s faculty profile and writing
                  • Emily Sherwin, Equity and the Modern Mind

                    • Special Guest: Emily Sherwin.

                    1 hr 3 min
                  • Episode 109: A Common Law for the Age of Regulation

                    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 writing
                    • Catherine Sharkey, The Administrative State and the Common Law: Regulatory Substitutes or Complements?

                      • Special Guest: Catherine Sharkey.

                      1 hr 28 min
                    • Episode 108: University, Court, and Slave

                      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: Pro-Slavery Thought in Southern Colleges and Courts and the Coming of Civil War; see also Al’s blog post about the book and Google books page where you can browse a bit
                      • Oral Argument 76: Brutality (guest Al Brophy)
                      • Brooks Barnes and Cara Buckley, ‘The Birth of a Nation,’ Nate Parker’s Heralded Film, Is Now Cloaked in Controversy
                      • Birth of a Nation (2016) trailer
                      • State v. Mann
                      • Sally Green, State v. Mann Exhumed
                      • About Thomas R.R. Cobb
                      • Thomas Cobb, An Inquiry into the Law of Negro Slavery in the United States of America
                      • Daniel Victor, Bill O’Reilly Defends Comments About ‘Well Fed’ Slaves
                      • Sarah Roth, Gender and Race in Antebellum Popular Culture (browse here on Google Books); see also Al’s blog post
                      • Slavery’s Capitalism (Sven Beckert and Seth Rockman, eds.); see also Al’s blog post about the book and containing links)
                      • State v. Negro Will, Slave of James S. Battle

                        • Special Guest: Al Brophy.

                        1 hr 29 min

                      About Oral Argument

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                      A podcast about law, law school, legal theory, and other nerdy things that interest us.