Oral Argument

A special live-to-tape dig through the mailbag.

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Joe and Christian talk about this fraught election, focusing on RBG’s Trump remarks. Joe makes a confession.

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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 difficulty.

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Special Guest: Tim Meyer.

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 Table, the insurable liability approach to the gun crisis, Joe sings (yes) a line from “The Externality Song” and (relatedly, obv) Hamilton vs. Upstream Color, price matching and the morality quiz, footnoting and in-text citation and madness, an argument over Guantanamo and rights, more on the culturally polarized gun debate and on rights generally, Posner’s skepticism of academia, and how things change and get better.

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Special Guest: Sonja West.

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, maintaining, and challenging patents. Supposing patents should exist at all - can you tell who writes these show notes? - how should we account for the effects of the way we administer the system? These questions lead us to some basic conversation about cost-benefit analysis and and the value of patents. And we wind up asking simple questions, like what a cost is.

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Special Guest: Jonathan Masur.

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 and understand, how should we regulate them to address their harms? With uncertain webs of causation, can the precautionary principle tell us not simply whether to regulate but who should regulate? Sarah thinks so.

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Special Guest: Sarah Light.

After the deadliest mass shooting in American history, we talk about the problem of gun violence and a possible way forward.

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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 side of the expedite problem, a morality quiz for Joe, the proper playback speed for this show, political processes in arrest and indictment, professionalism norms and racism, SSRN’s purchase by Elsevier, more on the Bluebook and its connection with the problems of legal knowledge creation, and what our jobs are and whether we should keep doing this show.

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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 calls “the power canons” resulting from recent decisions of the Supreme Court (10:39). If you’re Congress, how do you write a statute meant to solve problems that might evolve in type or degree? Do you have the power to do so, or are you limited to speaking to the here and now? Does the Supreme Court have the power to limit legislative and regulatory power in this way?

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Special Guest: Lisa Heinzerling.

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 legal theories are and how there was a move to transcend politics through process-based theories (3:23). Then: the theory of theories (9:31), the example of Brown v. Board, originalism, and brute political facts (20:17), a sociological story (25:10), the role of law schools and teaching in theory evolution (31:22), a discussion of trees, structure, and the role of higher order principles in law (37:50), theory change in private law (47:14), normative vs. descriptive theories of theories (54:05), and the internal and external approaches to originalism (1:04:27).

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Special Guests: David Pozen and Jeremy Kessler.