Oral Argument

Oral Argument

By Joe Miller and Christian TurnerSociety & CultureEducationPhilosophy
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Oral Argument episodes

  • Episode 87: Content of the Mark

    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), topics we do not yet but one day will discuss and the topic for our upcoming live show (15:25), the speech implications of the revocation of trademark registration as with the Washington football team (20:12), and Knitting with Joe and one other bit of feedback (1:20:15).

    This show’s links:

    • Mark McKenna’s faculty profile and writing
    • The Clear Sky Chart forecast for Athens, Georgia, containing explanations of transparency and seeing
    • Dan Rockmore, The Case for Banning Laptops in the Classroom
    • Clay Shirky, Why I Just Asked My Students To Put Their Laptops Away
    • Pam Mueller and Daniel Oppenheimer, The Pen Is Mightier Than the Keyboard: Advantages of Longhand Over Laptop Note Taking
    • Anne Curzan, Why I’m Asking You Not to Use Laptops
    • Rebecca Schuman, In Defense of Laptops in the Classroom
    • Oral Argument 71: Rolex Tube Socks (guest Mark McKenna)
    • Mark McKenna, Trademark Year in Review
    • In re Simon Shiao Tam
    • Pro-Football, Inc. v. Blackhorse
    • Amicus: The Case of the Missing Constitutional Violation
    • Christine Haight Farley and Robert Tsai, The First Amendment and the Redskins’ Trademark, Part II: A Shot Across the Bow from the Federal Circuit (also containing a link to part one)
    • Christine Haight Farley, Registering Offense: The Prohibition of Slurs as Trademarks
    • Lilit Voskanyan, The Trademark Principal Register as a Nonpublic Forum
    • Theodore Davis, Registration of Scandalous, Immoral, and Disparaging Matter Under Section 2(a) of the Lanham Act: Can One Man's Vulgarity Be Another's Registered Trademark?
    • The National Speed Trap Exchange

      • Special Guest: Mark McKenna.

      1 hr 23 min
    • Episode 86: The Further Freedoming

      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, robotic burritos and sandwiches, engineering happiness and social welfare functions, school funding, freedom, bro country, speed trap brief return, Canadian real estate as political barometer, the rougiest judge, knitting, and the Re-Framing.

      This show’s links:

      • Gregory Klass and Kathryn Zeiler, Against Endowment Theory: Experimental Economics and Legal Scholarship
      • Oral Argument Hymn 1 and Hymn 2
      • Regina v. Dudley and Stephens (and more about the case)
      • Robot or Not burritos
      • Christian List, Social Choice Theory (in the Stanford Encyclopedia of Philosophy)
      • Vox’s The Weeds podcast
      • Gannon v. State (and Trevor Graff and John Eligon, Court Orders Kansas Legislature to Spend More on Schools)
      • San Antonio Independent School District v. Rodriguez
      • About bro country
      • Oral Argument 84: Felker’s Chickens (guest Steve Vladeck)
      • Steve Vladeck, Vehicle Problems vs. Unusual Vehicles: The Supreme Court’s Bizarre Cert. Grant in Welch
      • The Oyez podcast feed for 2015 Supreme Court oral argument and the collection of Oyez feeds in iTunes
      • Josh Blackman and Howard Wasserman, The Process of Marriage Equality
        • 1 hr 4 min
      • Episode 85: Missouri Duel: Our Second Annual Call-Out Show

        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 experience of law and policy. Many things come up, but here’s the rundown:

        • Listener Cameron, 0:00, Les Misérables
        • Listener Michael, 26:11, JFK, the film
        • Listener Bunny, 44:28, Star Trek: The Next Generation, The Measure of a Man
        • Listener and co-host Sonja West, 1:11:26, The Feminine Mystique
        • Listener and co-host Dave Fagundes, 1:41:25, A Wilderness of Error
        • Mom, 2:10:14, Honor Council, The Insider, Serial

          • This show’s links:

          • Oral Argument 44: Serial (A Double-Sized Episode with Many Special Guests)
          • About Les Misérables (and a list of its various incarnations on film and stage)
          • About the “Ban the Box” movement
          • Hicks v. District of Columbia (in which Justice Douglas cites Les Mis in dissent); Harmelin v. Michigan (approving Michigan’s “three strikes” law); and the dissent from the denial of cert in Riggs v. California (in which the defendant’s third strike under California’s law was for stealing a bottle of vitamins); People v. Taylor (a state court appellate case in which the dissent begins: “In a scenario somewhat reminiscent of a late 20th Century, real life Les Miserables, a hungry, homeless man is sent away for 25 years to life for trying to break into a church so he could eat some food he thought the church would be glad for him to have.”)
          • JFK, the 1991 film
          • About the assassination of JFK
          • Philosophy Bites: Quasi Cassam on Conspiracy Theories
          • Hold Up!
          • About the legislative impact of JFK
          • About Making a Murderer
          • Oral Argument 37: Hammer Blow (guest Michael Dorf)
          • The Measure of a Man, an episode of Star Trek: The Next Generation; Picard’s argument for Data’s sentience (youtube)
          • About positronic brains
          • Richard Fisher, Is It OK to Torture or Murder a Robot
          • Oral Argument 41: Sense-Think-Act (guest Ryan Calo)
          • About the technological singularity
          • Her
          • Ray Kurzweil, The Age of Spiritual Machines
          • Betty Friedan, The Feminine Mystique
          • Rostker v. Goldberg (upholding the male-only military draft)
          • Jerome Wakefield, The Concept of Mental Disorder
          • The oral argument in Lawrence v. Texas
          • Amy Argetsinger, Robert Spitzer, Psychiatrist of Transformative Influence, Dies at 83
          • Oral Argument 55: Cronut Lines (guest Dave Fagundes), discussing Waiting in Line: Norms, Markets, and the Law
          • Lauren Davidson, Google’s New “Popular Times” Feature Could Kill the Queue
          • Errol Morris, A Wilderness of Error (and more about Errol Morris)
          • About Jeffrey MacDonald
          • About the controversies over Fatal Vision
          • The Thin Blue Line
          • Serial, season one
          • Janet Malcolm, The Journalist and the Murderer
          • Daniel Medwed, The Innocent Prisoner’s Dilemma: Consequences of Failing to Admit Guilt at Parole Hearings (see also Rob Harris, The “Innocent Prisoner’s Dilemma”, an excellent NY Times video)
          • Oral Argument 48: Legal Truth (guest Lisa Kern Griffin)
          • The Insider

            • Special Guests: Dave Fagundes and Sonja West.

            2 hr 16 min
          • Episode 84: Felker’s Chickens

            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 unconstitutional. Happy Holidays!

            This show’s links:

            • Steve Vladeck’s faculty profile and writing
            • Steve Vladeck, How an Obscure SCOTUS Procedure Can Solve AEDPA's Retroactivity Catch-22 (and a Growing Circuit Split)
            • Teague v. Lane
            • About the AEDPA
            • Brown v. Allen (Justice Jackson in concurrence: “There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final.”)
            • It was 100,000 cops on the beat, not 1 million. We regret the error. (1 million? Really?)
            • About the Contract with America
            • Tyler v. Cain
            • Felker v. Turpin
            • Johnson v. United States
            • Steve Vladeck, The Johnson Retroactivity Circuit Split Plot Thickens…
            • Steve Vladeck, Is the Solicitor General Playing a Shell Game With the Supreme Court Over Johnson Retroactivity?
            • Steve’s (and others’) amicus brief in In re Butler on behalf of law professors

              • Special Guest: Steve Vladeck.

              1 hr 29 min
            • Episode 83: Embodied Joe

              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 links:

              • In Tribute to Marcia Lucas from The Secret History of Star Wars
              • Original Trilogy (a fan website containing, among other things, information about fan edits)
              • Jonathan Soble, Japan’s Top Court Upholds Law Requiring Spouses to Share Surname
              • My Cousin Vinny
              • Serial
              • Miracle on 34th Street (1994)
              • A.I.
              • Battlestar Galactica
                • 1 hr 9 min
              • Episode 82: Hymn, Part 2: Our Strategy Is a Complete Failure

                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 of the Speluncean Explorers ; see also the Wikipedia summary
                • Oliver Wendell Holmes, The Path of the Law
                • Ronald Dworkin, Law’s Empire
                • Scott Shapiro, Legality; see also Scott Shapiro, The "Hart-Dworkin" Debate: A Short Guide for the Perplexed
                  • 50 min
                • Episode 81: Hymn, Part 1

                  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 of the conversation (part two next episode and part three at a later date) there, just by asking the second question.

                  This show’s links:

                  • Vienna Teng, The Hymn of Acxiom (“Leave your life open. You don’t have to hide. . . . Let our formulas find your soul.”)
                  • About Acxiom
                  • Peter Bright, Bob Ross Coming Back to Twitch with Weekly Broadcasts and Annual Marathons
                  • Shia LaBeouf’s #ALLMYMOVIES
                  • Hold Up!
                  • Oral Argument 45: Sacrifice
                  • Sindell v. Abbott Laboratories (DES litigation imposing liability based on market share without regard to individual proof of causation)
                  • William Baude pronouncing his name in what is also a fascinating talk on originalism
                  • Oral Argument 80: We’ll Do It LIVE!
                  • About the Lynx browser
                  • Judge John Hodgman’s settled law and print
                  • Oral Argument 70: No Drones in the Park (guest Frank Pasquale)
                  • Oliver Wendell Holmes, The Path of the Law
                    • 1 hr 17 min
                  • Episode 80: We'll Do It LIVE!

                    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 Institute. But, of course, Big Data didn’t need this description to know that.

                    This show’s links:

                    • The Thrill of Victory and the Agony of Defeat
                    • The Bush-Kerry (not Bush-Gore as Christian had remembered) debate moment that seemed similar to Joe’s “Want some ranch?” utterance
                    • The Technology Law Section of the State Bar of Georgia
                    • We’ll do it live! (video, nsfw on account of language, anger, and Bill O’Reilly)
                    • The Oyez podcast feed for 2015 Supreme Court oral argument and the collection of Oyez feeds in iTunes
                    • The Narrowest Grounds blog, Why it Doesn't Matter if the Court's Opinions Are Originalist - A Comment on Baude on Originalism
                    • An interview with Justice Breyer in French
                    • Katie Benner and Sydney Ember, Enabling of Ad Blocking in Apple’s iOS 9 Prompts Backlash
                    • Some now older pieces by Alexis Madrigal still hold up: Reading the Privacy Policies You Encounter in a Year Would Take 76 Work Days and I'm Being Followed: How Google—and 104 Other Companies—Are Tracking Me on the Web
                    • FTC, Protecting Consumer Privacy in an Era of Rapid Change: Recommendations For Businesses and Policymakers
                      • Douglas MacMilland and Elizabeth Dworkin, Drawbridge Hires Apple Ad Executive to Track Users Across Devices
                    • Matthew Panzarino, Apple’s Tim Cook Delivers Blistering Speech On Encryption, Privacy
                    • Matthew Panzarino, Apple Blows Up the Concept of a Privacy Policy
                    • Ben Thompson, Why Web Pages Suck
                    • Ben Thompson, Popping the Publishing Bubble
                    • Marco Arment: Introducing Peace, My Privacy-Focused iOS 9 Ad Blocker, Why Peace 1.0 Blocks The Deck Ads, Just Doesn’t Feel Good, Apple Refunding All Purchases of Peace
                    • Jack Balkin, Information Fiduciaries in the Digital Age (blog post) and Information Fiduciaries and the First Amendment (article)
                    • The proposed and not passed Do-Not-Track Online Act of 2013
                    • Sorrell v. IMS Health Inc.
                    • Christan Turner, The Failures of Freedom and The Information Law Crisis
                    • Jane Bambauer, Is Data Speech?
                    • Woodrow Hartzog, Website Design as Contract
                    • KidCo
                      • 1 hr 4 min
                    • Episode 79: He Said It Peabody Well

                      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 Cyberloquium, the potential for classes in our goofy style, the North Dakotan listening trend, listening while cooking, the possibility of a Dworkin episode, surname vs. last name, the use of “antepenultimate,” the dearth of recent speed trap law discussion, and a tease further discussion of law and morals. With Dahlia, we then talk about the Supreme Court’s new rule on standing in line for oral arguments, what it means when the Court does things that are not manifest in written opinions, the idea of Supreme Court previews, and looking ahead.

                      This show’s links:

                      • Dahlia Lithwick’s page, featuring her recent writing and podcasting, at Slate
                      • Amicus with Dahlia Lithwick
                      • Oral Argument and the Oral Argument Index
                      • The brand new Narrowest Grounds blog
                      • The Supreme Court’s new rule against “line standers” for members of the Supreme Court bar; Oral Argument 55: Cronut Lines (guest Dave Fagundes)
                      • Joan Biskupic, Janet Roberts and John Shiffman, At America’s Court of Last Resort, a Handful of Lawyers Now Dominates the Docket
                      • The Court’s new repository of PDFs of its web citations and a page featuring samples of the way it will highlight post-hand-down revisions of its opinions
                      • Justice Breyer on The Late Show with Stephen Colbert
                      • A Conversation with Elena Kagan
                      • Oyez, which hosts audio and (interactive) transcripts of decision announcements as well as oral arguments
                      • Oyez’s audio for Glossip v. Gross
                      • Oral Argument 22: Nine Brains in a Vat (guest Dahlia Lithwick), talking about hand-down days
                      • Lani Guinier, Supreme Cout 2007 Term Foreword: Demosprudence Through Dissent
                      • Jill Duffy and Elizabeth Lambert, Dissents from the Bench: A Compilation of Oral Dissents by U.S. Supreme Court Justices (containing a list of all dissents from the bench since 1969 and updated through summer 2014)
                      • William Blake and Hans Hacker, 'The Brooding Spirit of the Law': Supreme Court Justices Reading Dissents from the Bench
                      • Supreme Court Opinion Announcements: An Underutilized Resource (noting Justice Stevens’ oral dissent in Citizens United replaced a comparison between “Tokyo Rose” and “Allied commanders” to one between “Tokyo Rose” and “General MacArthur”)
                      • Dahlia Lithwick and Mark Joseph Stern, The Supreme Court’s Most Important Cases of the New Term
                      • SCOTUSblog page for Evenwel v. Abbott, the new one-person, one-vote case

                        • Special Guest: Dahlia Lithwick.

                        1 hr 15 min
                      • Episode 78: Listener Fuller

                        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 philosophy matters much in law.

                        This show’s links:

                        • Oral Argument 0: Who Is Your Hero?
                        • Amicus podcast: 2015 Term Preview
                        • SCOTUSblog’s page for Fisher v. UT Austin
                        • Oral Argument 27: My Favorite Case
                        • The Oyez page for Glossip v. Gross, containing Breyer’s announcement and Scalia’s response (linked at Part 4)
                        • Overcast
                        • Oral Argument 56: Cracking and Packing (guest Lori Ringhand)
                        • Mehrsa Baradaran, How the Other Half Banks; Nancy Folbre’s review for the NY Times; Oral Argument 9: Torches and Pitchforks
                        • Oral Argument 75: Air Gap (guest Mary Ellen O’Connell)
                        • Oral Argument 76: Brutality (guest Al Brophy)
                        • Oral Argument 77: Jackasses Are People Too (guest Adam Kolber)
                          • 1 hr 10 min

                        About Oral Argument

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