Oral Argument

Oral Argument

By Joe Miller and Christian TurnerSociety & CultureEducationPhilosophy
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Oral Argument episodes

  • Episode 67: Monstrous Acts

    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.

    This show’s links:

    • About Josh Lee
    • Amicus: The Term in Review, episode 23 of Dahlia Lithwick’s excellent Supreme Court podcast
    • Oral Argument 66: You’re Never Going to Get It All Done
    • Federal Public Defender Organization, Eastern District of Arkansas
    • About the Antiterrorism and Effective Death Penalty Act of 1996
    • Ake v. Oklahoma (guaranteeing a right to psychiatric exam to prepare a criminal defense); see also Ward v. State, an Arkansas Supreme Court decision noting the court’s belief that “a defendant's rights are adequately protected by an examination at the state hospital, an institution that has no part in the prosecution of criminals”
    • ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases
    • Josh Lee, Determinism and the Death Penalty
    • Williams v. Hobbs
    • Glossip v. Gross
    • Josh Lee, Dignity Kennedy, Burkean Kennedy, and Libertarian Kennedy
    • Josh Lee, Judicial Abolition from Below
    • Bill Mears, Justice Breyer Robbed at Machete-Point During Caribbean Vacation
    • Doug Berman, "Anti-Death Penalty Activists Are Winning The Fundraising Battle In Nebraska"
    • Casetext
    • Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights; see also Christopher McCrudden, Understanding Human Dignity (the introduction of which is here)

      • Special Guest: Josh Lee.

      1 hr 40 min
    • Episode 66: You’re Never Going to Get It All Done

      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 nature of the voting booth, the practical legal immunity of decisions made for illegitimate reasons, comparisons of elections and other markets for products, racism, the Voting Rights Act, and more. Is racism more like polio or high blood pressure?

      This show’s links:

      • Kareem Crayton’s writing
      • Glossip v. Gross
      • Michael Dorf, Evolving Standards of Decency that Mark the Progress of Maturing Justices
      • Orin Kerr, Why the Late-Career Conversions at the Supreme Court on the Death Penalty?
      • United States v. Quinones (Judge Rakoff’s district court opinion striking down the death penalty in 2002, later reversed)
      • Josh Lee, Dignity Kennedy, Burkean Kennedy, and Libertarian Kennedy
      • Josh Lee, Determinism and the Death Penalty
      • Josh Lee, Judicial Abolition from Below
      • BBC, Hong Kong’s Democracy Debate (an explainer)
      • Arizona State Legislature v. Arizona Independent Redistricting Comm’n
      • Giles v. Harris
      • Romer v. Evans
      • Busbee v. Smith (a 1982 decision containing finding of fact 17, that a Georgia representative was a racist)
      • Shelby County v. Holder
      • Brief of Political Science and Law Professors as Amici Curiae in Shelby County
      • Kareem Crayton, Five Justices, Section 4, and Three Ways Forward in Voting Rights
      • Kareem Crayton, Sword, Shield, and Compass: The Uses and Misuses of Racially Polarized Voting Studies in Voting Rights Enforcement
      • Kareem Crayton, Take Down the Confederate Flag

        • Special Guest: Kareem Crayton.

        1 hr 29 min
      • Episode 65: We Can Call It Awesome

        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 profile and writing
        • Oral Argument 22: Nine Brains in a Vat (guest Dahlia Lithwick)
        • Obergefell v. Hodges
        • Oral Argument 40: The Split Has Occurred (about Judge Sutton’s gay marriage opinion) and Oral Argument 32: Go Figure (guest Lori Ringhand) (about Judge Posner’s gay marriage opinion), both episodes containing ample links concerning the issue
        • San Antonio Independent School District v. Rodriguez
        • Oral Argument 30: A Filled Milk Caste, containing discussion and links concerning United States v. Carolene Products Co.
        • Brown v. Board of Education; see also What Brown v. Board of Education Should Have Said (Jack Balkin, ed.)
        • Town of Greece v. Galloway; Kimble v. Marvel Entertainment
        • Reed v. Reed
        • Boumediene v. Bush
        • Lochner v. New York; Dred Scott v. Sanford
        • King v. Burwell
        • City of Arlington v. FCC, Roberts’ dissenting regarding the application of Chevron v. NRDC
        • Amalgamated Transit Union Local 1309 v. Laidlaw Transit Services, one of the cases about “not less than seven days”
        • Adam Zimmerman, Chevron after King v. Burwell (the comments to which feature thoughts from listener Asher)
        • Shelby County v. Holder
        • Steward Machine Co. v. Davis

          • Special Guest: Steve Vladeck.

          1 hr 30 min
        • Episode 64: Protect and Serve

          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 us some history and shares his own experiences as a former police officer. Also how to pronounce Stoughton.

          This show’s links:

          • Seth Stoughton’s faculty profile and writing
          • Seth Stoughton, Law Enforcement’s ‘Warrior’ Problem (read online here if you don’t want the PDF)
          • Seth Stoughton, A Former Cop on What Went Wrong in McKinney
          • Seth Stoughton, What a Police Expert Calls the Most Ignored Cause of Cop Violence
          • Klein et al., The Good Stranger Frame for Police and Military Activities
          • Final Report of the President’s Task Force on 21st Century Policing
          • All Thing Considered, Police-Involved Shootings Highlight Problem With Law Enforcement 'Culture'
          • Seth Stoughton, What Would a Better Ferguson Response Have Looked Like?
          • U.S. Department of Justice, Investigation of the Ferguson Police Department
          • This American Life, Right to Remain Silent; see also Graham Rayman, The NYPD Tapes: Inside Bed-Stuy’s 81st Precinct
          • Jamelle Bouie, Criminal Neglect

            • Special Guest: Seth Stoughton.

            1 hr 27 min
          • Episode 63: A Struggle with Every Single One

            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 the structure of the Endangered Species Act, snails, dams, the God Squad, “incidental take permits,” how it’s all supposed to work, and, mainly, how Jessica was stymied in her efforts to figure out how it actually is working. (Brought to you by coffee sent by listener Adam.)

            This show’s links:

            • Jessica Owley’s faculty profile and writing
            • Jessica Owley, Keeping Track of Conservation
            • About the Endangered Species Act, with links to the text of the act, other documents, and a video about the act; see also Wikipedia on the ESA
            • Babbitt v. Sweet Home Chapter, Communities for Great Ore.
            • Tennesse Valley Authority v. Hill
            • More about the snail darter controversy
            • About Habitat Conservation Plans (USFWS); see also Wikipedia on HCPs
            • An example Habitat Conservation Plan at Stanford University
            • About conservation easements
            • Jessica Owley, Exacted Conservation Easements: Emerging Concerns with Enforcement
            • The San Bruno Mountain Habitat Conservation Plan and related documents
            • Lujan v. Defenders of Wildlife

              • Special Guest: Jessica Owley.

              1 hr 23 min
            • Episode 62: Viewer Mail

              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 meteors.

              This show’s links:

              • Kerbal Space Program (and see, e.g., this video tutorial by the Scott Manley)
              • Temma Ehrenfeld, Should You Knit?
              • Randall Munroe, Orbital Mechanics on xkcd.com
              • David Letterman’s Viewer Mail and the Pyramid of Comedy
              • Oral Argument 61: Minimum Competence
              • Daniel Solove, The Multistate Bar Exam as a Theory of Law
              • Virginia Board of Bar Examiners, Mandatory Dress Code (compare with the Georgia bar exam’s Dress Code)
              • Nicholas L. Georgakopoulos, Visualizing Trials with Large DNA Databases
              • Oral Argument 45: Sacrifice
              • About the Monty Hall problem
                • 1 hr 39 min
              • Episode 61: Minimum Competence

                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 shocking confession.

                This show’s links:

                • Derek Muller’s faculty profile and writing
                • The Virginia Board of Bar Examiners’ Mandatory Dress Code
                • Derek Muller, Visualizing the Grim Final Numbers from the July 2014 Bar Exam
                • National Conference of Bar Examiners, National Data for 2014 MBE and MPRE Administrations
                • Reuters, U.S. States Extend Bar Exam Deadlines After Software Havoc
                • Jerry Organ, What Might Have Contributed to an Historic Year-Over-Year Decline In the MBE Mean Scaled Score?
                • Gary Rosin, Unpacking the Bar: Of Cut Scores, Competence, and Crucibles
                • Oral Argument 12: Heart of Darkness
                • Deborah Merritt, ExamSoft Update (including links to Merritt’s other posts on the topic)
                • Karen Sloan, Software Maker Settles ‘Barmageddon’ Class Action for $2.1M
                • Vikram Amar, Lower Bar Pass Rates in Some States Should Cause Us to Examine This Year’s Test, and the Bar Exam in General and Additional Thoughts (and Concerns) About the Low Bar Pass Rates in California and Elsewhere in 2014
                • Derek Muller, Here We Go Again: February 2015 Bar Pass Rates Down over Last Year
                • About the Daniel Webster Scholar Program and its curriculum
                • Stephanie Clifford and James McKinley Jr., New York to Adopt a Uniform Bar Exam Used in 15 Other States
                • Erwin Chemerinsky, It’s Time for California to Accept the Uniform Bar Exam
                • About the Uniform Bar Examination

                  • Special Guest: Derek Muller.

                  1 hr 37 min
                • Episode 60: The Wisdom of the Bartow

                  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 profile and writing
                  • Kerbal Space Program
                  • The Philosophy Bites podcast
                  • Open Yale Courses, Phil 176: Death
                  • Renowned IP Scholar Ann Bartow to Lead Franklin Pierce Center for Intellectual Property at UNH Law
                  • Ann Bartow, Privacy Laws and Privacy Levers: Online Surveillance versus Economic Development in the People's Republic of China
                  • Lijia Zhang, China’s Death-Penalty Debate (noting the changing approach to the death penalty in China and the 2007 move by China’s Supreme Court to assert jurisdiction over death penalty appeals); see also Wikipedia on capital punishment in China (noting more details of the post-2007 appellate procedure)
                  • About Chinese patent law
                  • China’s IP-related laws and other information as collected by the World Intellectual Property Organization
                  • Jeffrey Podoshen, Materialism and Conspicuous Consumption in China
                  • China Economic Review, Chinese Shoppers Begin to Master the Art of Subtlety
                  • About WeChat
                  • China Law and Practice, Copyright Administration Gives in to Musicians
                  • China Retains on Foreign Film Quota (noting that, as of February 2014, the foreign film quota was thirty-four films per year)
                  • Eric Priest, Copyright Extremophiles: Do Creative Industries Thrive or Just Survive in China's High Piracy Environment?

                    • Special Guest: Ann Bartow.

                    1 hr 21 min
                  • Episode 59: Folly Bridges

                    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 very special guests Paul Heald, Jessica Owley, and Justin Steil. (With so many of us gathered around three microphones, forgive us for a little more unevenness in levels than usual.)

                    This show’s links:

                    • Sarah Schindler’s faculty profile and writing
                    • Oral Argument 4: Grow a Pear
                    • Sarah Schindler, Architectural Exclusion
                    • Our guest hosts: Paul Heald (Paul’s writing), Jessica Owley (Jesse’s writing), and Justin Steil (Justin’s writing)
                    • About Robert Moses and his low bridges
                    • Nicholas Blomley, Traffic Logic and Political Logic
                    • About NEPA and environmental impact statements
                    • Robin Malloy, Inclusion by Design, Thinking Beyond a Civil Rights Paradigm
                    • Washington v. Davis
                    • Benjamin Mueller, In Connecticut, Breaking a Barrier Between a Suburb and Public Housing
                    • Barton Hinkle, Zoning’s Racist Roots Still Bear Fruit (referencing, like Sarah’s article, the 1910 mayor of Baltimore’s support for zoning that would “quarantine” black residents in “isolated slums”)
                    • About the Edmund Pettus Bridge
                    • About public choice
                    • Links to audio and text of David Foster Wallace’s This Is Water

                      • Special Guests: Jessica Owley, Paul Heald, and Sarah Schindler.

                      1 hr 15 min
                    • Episode 58: Obscurity Settings

                      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 networks. We’re used to the cheap obscurity and fleetingness of our physical lives, but it’s cheap and tempting to know more about others online than they’d like. Can we design platforms to deliver the individual obscurity we’ve enjoyed in the past? Conversation ranges between celebrities and privacy, searchability, giving up on hiding that we’re all gross and weird, our many identities, the problem of dumb teenagers, protected Twitter accounts, internet bad guys, and naked, dancing Buddhist monks.

                      This show’s links:

                      • Woody Hartzog’s faculty profile and writing
                      • Philosophy Bites, Shaun Nichols on Death and the Self
                      • Woodrow Hartzog, Chain-Link Confidentiality
                      • Joshua Fairfield, BitProperty
                      • About security through obscurity
                      • Woodrow Hartzog and Frederic Stutzman, Obscurity by Design
                      • Daniel Solve, A Taxonomy of Privacy
                      • David Brin, The Transparent Society
                      • Cass Sunstein, Republic.com
                      • About the narcissism of small differences
                      • Richard Posner, The Right of Privacy
                      • Neil Richards, Intellectual Privacy (the article) and Intellectual Privacy (the book)
                      • Library of Congress, Update on the Twitter Archive at the Library of Congress
                      • Twitter, About Public and Protected Tweets; see also Greg Kumparak, Twitter Bug Allowed Some Protected Accounts to Be Read by Unapproved Followers
                      • About Yik Yak
                      • Mike Isaac, A Look Behind the Snapchat Photo Leak Claims
                      • In the Matter of Red Zone Investment Group, Inc., an FTC case involving, among other things, a fake windows registration window
                      • Woodrow Hartzog, Website Design as Contract
                      • About the Whisper app
                      • About the Sears Holdings Management Corp. case before the FTC

                        • Special Guest: Woodrow Hartzog.

                        1 hr 39 min

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