Oral Argument

Oral Argument

By Joe Miller and Christian TurnerSociety & CultureEducationPhilosophy
Download on the App Store

Oral Argument episodes

  • Episode 57: Light It on Fire and Shove It into the Atlantic

    We hereby deliver an evening episode comprising role-playing, word pictures, and other podcasting art forms to convey critical information on, among other miscellany: Christian’s week of broken things, follow-up on lines, math and the book of true reasons, Mark Lemley’s article on “faith-based IP,” imagining Benjamin Franklin’s lightning powered potato peeler, iPhone copycats, and, morality aside, the death penalty’s stupidity, and the measure of a civilization.

    This show’s links:

    • The Wirecutter and the Sweet Home
    • Oral Argument 55: Cronut Lines
    • The documentary about people competing to win a truck, Hands on a Hardbody
    • Oral Argument 51: The Faucet (guest John Pfaff)
    • Euclid’s Elements
    • About Paul Erdős
    • Mark Lemley, Faith-Based Intellectual Property
    • Frank Michelman, Takings
    • Mark Lemley, The Surprising Virtues of Treating Trade Secrets as IP Rights
    • International News Service v. Associated Press
    • SCOTUSblog on Glossip v. Gross
    • Associated Press, Utah Brings Back Firing Squads as Lethal Injection Drugs Remain Scarce
    • About Cameron Todd Willingham
    • Oral Argument 45: Sacrifice
    • About “death-qualified” juries
      • 1 hr 43 min
    • Episode 56: Cracking and Packing

      When you have election law and constitutional law scholar Lori Ringhand on your show, you start, of course, by talking about the problem with email, the uses of texting, and apps like Periscope. Lori thinks Christian should read more novels. Fueled by listener Bunny’s small-batch, home-roasted, fine coffee, we move on to the much easier topics of race, voting, and gerrymandering. What do you do when the Supreme Court’s color-blindness understanding of the Equal Protection Clause collides with the Voting Rights Act? And why do geographic voting districts with single winners make sense anyway? Voting’s hard to make fair amirite?

      This show’s links:

      • Lori Ringhand’s faculty profile and writing
      • Periscope
      • About Margaret Atwood’s Oryx and Crake
      • Lori’s last appearance on the show
      • The SCOTUSblog page for Arizona State Legislature v. Arizona Independent Redistricting Commission (which includes links to briefs and oral argument)
      • Alabama Legislative Black Caucus v. Alabama
      • About the Voting Rights Act, including a brief outline of its major provisions
      • Shelby County v. Holder
      • About cracking, packing, and other redistricting shenanigans; see also more on this in ProPublica’s Devil’s Dictionary
      • About multiple-winner voting methods and single-winner voting methods (which distinction roughly tracks some of the issues we raised)
      • Shaw v. Reno, which was followed by Miller v. Johnson
      • Partisan gerrymandering cases: Davis v. Bandemer (1986), Vieth v. Jubelirer (2004), League of United Latin American Citizens v. Perry (2006)
      • Christopher Elmendorf, Representation Reinforcement through Advisory Commissions: The Case of Election Law
      • Links to the oral argument in the Arizona case
      • Smiley v. Holm and Bush v. Gore (and it was Justice Rehnquist’s concurrence)

        • Special Guest: Lori Ringhand.

        1 hr 38 min
      • Episode 55: Cronut Lines

        Why do people stand in line? Or is it “on line”? Of course it isn’t. But the question remains. We talk with Dave Fagundes, scholar of, among many other things, roller derby, who has written the cutting edge article on why we form lines even without laws requiring them. Discussion ranges from cronuts to rock bands to carpool lanes to phone apps.

        This show’s links:

        • Dave Fagundes’s faculty profile and writing
        • The decision in Armstrong v. Exceptional Child Center and Steve Vladeck’s reaction, Steve’s having discussed this case in episode 38
        • David Fagundes, Waiting in Line: Norms, Markets, and the Law
        • Episodes 31 and 32, in which there are links and discussion concerning the “knee defender” controversy and airline seat reclining
        • David Fagundes, Talk Derby to Me: Intellectual Property Norms Governing Roller Derby Pseudonyms
        • A stachexchange thread about standing “in line” vs. “on line”
        • The word “spendy” dates from 1911 at the latest
        • How Y’all, Youse and You Guys Talk, a quiz to see your personal dialect map
        • Hella Blitzgeral, roller derbyist
        • Lisa Bernstein, Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry
        • Robert Ellickson, Of Coase and Cattle: Dispute Resolution Among Neighbors in Shasta County (and more in his book, Order Without Law)
        • Philosophy Bites: Lisa Bortolotti on Irrationality
        • Louis Kaplow and Steven Shavell, Fairness versus Welfare: Notes on the Pareto Principle, Preferences, and Distributive Justice
        • Leon Mann, Queue Culture: The Waiting Line as a Social System
        • About cronuts
        • Carol Rose, Possession as the Origin of Property
        • Thomas Merrill and Henry Smith, Optimal Standardization in the Law of Property: The Numerus Clausus Principle
        • An example of a “queuing app”
        • About the “tit for tat” strategy and its connection to human nature in Robert Axelrod, The Evolution of Cooperation
        • An excerpt on social norms from Dan Ariely’s Predictably Irrational
        • The excerpt on videphones from David Foster Wallace’s Infinite Jest; see also Infinite Summer
        • Michael Sandel, What Money Can’t Buy: The Moral Limits of Markets (his Tanner Lecture)
        • Lior Strahilevitz, How Changes in Property Regimes Influence Social Norms: Commodifying California's Carpool Lanes
        • David Fagundes, The Pink’s Paradox: Excessively Long Food Lines as Overly Strong Signals of Quality, referring to Pink’s Hot Dogs; see also Sally’s Apizza
        • The set of policies for “Krzyzewskiville,” the grassy lawn at Duke where students line up for days to get basketball tickets
        • Catherine Eade, Diplomatic (Snow) Storm Erupts After American Ambassador to Switzerland Criticises Its Ski Lift Queues
        • About power distance index
        • John Wiseman, Aspects of Social Organisation in a Nigerian Petrol Queue
        • Lior Strahilevitz, Charismatic Code, Social Norms, and the Emergence of Cooperation on the File-Swapping Networks (discussing reciprocity cascades)
        • Dan Kahan, The Logic of Reciprocity: Trust, Collective Action, and Law
        • Felix Oberholzer-Gee, A Market for Time: Fairness and Efficiency in Waiting Lines
        • Stanley Milgram, Response to Intrusion into Waiting Lines

          • Special Guest: Dave Fagundes.

          1 hr 41 min
        • Episode 54: No Throttling

          Christian finds himself among two telecommunications and IP experts, Joe and guest Aaron Perzanowski, to discuss the FCC’s recently issued regulations mandating some form of “net neutrality” on broadband internet providers. Will these regulations hold up? Why does your cable company want to provide you with “antivirus” software? What did we receive in the mail last week? Which listener thinks we’re full of it? It’s all in this week’s show.

          This show’s links:

          • Aaron Perzanowski’s faculty profile and writing
          • Episode 52 and Episode 53 on King v. Burwell
          • William Baude, Could Obama Bypass the Supreme Court?, and Michael Dorf, Obama Wouldn’t Circumvent SCOTUS on Subsidies
          • We’ve reached North Dakota!
          • Our earlier shows on net neutrality: Episode 49, Episode 16 (with Jim Speta), and Episode 10 (with Christina Mulligan)
          • About the FCC’s Open Internet Order
          • Download page for the Open Internet Order and Commissioner statements
          • About the FCC Computer Inquiries of the 1960s and 1970s
          • AT&T v. City of Portland
          • National Cable & Telecommunications Assn. v. Brand X Internet Services
          • Verizon v. FCC
          • About the FCC’s Incentive Auction for the 600MHz band

            • Special Guest: Aaron Perzanowski.

            1 hr 44 min
          • Episode 53: A Satanic Level of Entropy

            We start with developments in an area at the core of expertise: speed traps. We continue with policing and, mainly, more on the Obamacare II case. We also have been told to expect an emolument.

            This show’s links:

            • Michelle Wirth, Bill To Reduce ‘Speed Traps’ Gains Senate Approval
            • DOJ Civil Rights Division, Investigation of the Ferguson Police Department; AG Holder’s prepared remarks on the report
            • Oral Argument 52: Nihilism
            • The SCOTUSblog page for King v. Burwell, containing the briefs, commentary, and links to the argument
            • David Ziff, Halbig and the “Isolationist” Theory of Statutory Interpretation
            • David Ziff, Halbig and the Problem of Creeping Constitutionalism
            • Simon Maloy, GOP’s George Costanza Moment: The “Moops” Doctrine and the War on Obamacare
            • coffeegeek.com’s review of the Gene Cafe Roaster
              • 1 hr 29 min
            • Episode 52: Nihilism

              Joe and Christian try to understand King v. Burwell, or Obamacare II, in light of the oral argument last week.

              This show’s links:

              • The SCOTUSblog page for King v. Burwell, containing the briefs, commentary, and links to the argument`
              • The Supreme Court’s page for downloading audio of the oral argument
              • Dahlia Lithwick’s Amicus episode about the case
                • 1 hr 36 min
              • Episode 51: The Faucet

                Why have prison populations exploded? Yeah, we bet you have an opinion on this. But we’ve got someone on the show with the math: Fordham law prof and empiricist extraordinaire John Pfaff. Everything you think you know about our staggering levels of imprisonment are probably wrong. Also, we offer to set up the Supreme Court audio live stream. Also we report on one listener’s Oral Argument power rankings.

                This show’s links:

                • John Pfaff’s faculty profile and writing
                • Blakely v. Washington and United States v. Booker
                • United States v. Vernier, increasing a sentence for credit card fraud from up to 51 months to 210 months based on a conclusion that fraud was accompanied by a murder
                • John Pfaff, The Continued Vitality of Structured Sentencing Following Blakely: The Effectiveness of Voluntary Guidelines
                • Leon Neyfakh, Why Are So Many Americans in Prison? (interviewing John for Slate) (and here is the tweet from the Texas District and County Attorneys Association saying John’s theory is idiotic)
                • John Pfaff, The Micro and Macro Causes of Prison Growth
                • Joe Palazzolo, U.S. Prisons Grapple with Aging Populations
                • Bureau of Justice Statistics, Survey of Inmates in State Correctional Facilities
                • David Ball, Why State Prisons?
                • John Pfaff, The War on Drugs and Prison Growth: Limited Importance, Limited Legislative Options

                  • Special Guest: John Pfaff.

                  1 hr 31 min
                • Episode 50: We Have Fully Exhausted the Topic

                  Last year’s cert denials in various same-sex marriage cases led to renewed discussion concerning the counterintuitive (to Christian, at least) notion but conventional wisdom that state courts are not bound to follow lower federal courts’ interpretations of federal law. While we discussed and debated this last fall, Amanda Frost was putting the finishing touches on an article reviewing, challenging, and otherwise completely examining this curious doctrine. Was Michael Dorf’s Hammer Blow, as we named the episode with him, the final blow or might some of Christian’s naive doubts be rehabilitated by Prof. Frost’s exhaustive analysis? Yep, that kind of cliffhanger is how we roll around here. Also, North Dakota and the permissibility of “funny business” in our email address.

                  This show’s links:

                  • Amanda Frost’s faculty profile and writing
                  • A helpful list of North Dakota landmarks
                  • 2 Hidden Ways to Get More from Your Gmail Address
                  • The Georgia Law Summer Program in China, where you can be misinformed by Christian in person and in China
                  • Amanda Frost, Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?
                  • Our trilogy of prior episodes on this issue: with Anthony Kreis, with Michael Dorf, and with Steve Vladeck
                  • The series of blog posts coinciding with those episodes: from Michael Dorf here and here, Steve Vladeck, and Christian Turner
                  • Michael Dorf, Even More Thoughts on State Court (Non)Obligation to Follow Federal Appeals Court Precedents (Wherein I Respond to Professor Frost)
                  • Amanda Frost, The “Inferior” Federal Courts
                  • Chief Justice Roy Moore’s Administrative Order
                  • Eric Eckholm, Supreme Court Undercuts Alabama Chief Justice’s Argument to Delay Same-Sex Marriages
                  • Lockhart v. Fretwell, in which Justice Thomas concurred and briefly argued that the “Supremacy Clause demands that state law yield to federal law, but neither federal supremacy nor any other principle of federal law requires that a state court's interpretation of federal law give way to a (lower) federal court's interpretation”
                  • Cooper v. Aaron
                  • Martin v. Hunter’ Lessee
                  • Amanda Frost, Overvaluing Uniformity
                  • Erie Railroad Co. v. Tompkins; see also our episode all about Erie
                  • About the adequate and independent state grounds doctrine
                  • James Pfander, One Supreme Court: Supremacy, Inferiority, and the Judicial Power of the United States (see also this very brief book review)
                  • Dice v. Akron, Canton and Youngstown Railroad Co.
                  • Bush v. Gore (Rehnquist’s concurring opinion arguing that state courts may not interfere, even through state constitutional judgments, with certain legislatively enacted election laws that interact in advantageous ways with federal law)
                  • About Chevron deference
                  • Abbe Gluck, The States as Laboratories of Statutory Interpretation
                  • United States Telecom Association v. FCC
                  • Peter Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court's Limited Resources for Judicial Review of Agency Action

                    • Special Guest: Amanda Frost.

                    1 hr 32 min
                  • Episode 49: The Pot Calling the Kettle Beige

                    From an undisclosed location, Joe phones in to talk Arsenal, cigarettes, IQ, marijuana, transcendence, IP law, the regulation of the internet, a look back at taxing eggs, getting rid of Groundhog Day, and nonsense (but I repeat myself).

                    This show’s links:

                    • Episode 7: Speed Trap
                    • Fresh Air, Why Teens Are Impulsive, Addiction-Prone and Should Protect Their Brains (text from and a link to the audio of a Fresh Air interview with neurologist Frances Jensen)
                    • Flowers for Algernon and Lucy
                    • INS v. AP, Traffix Devices v. Marketing Displays, and Bonito Boats v. Thunder Craft Boats
                    • Tom Wheeler (FCC Chairman), This Is How We Will Ensure Net Neutrality
                    • Episode 10: My Beard Is Not a Common Carrier (guest Christina Mulligan)
                    • Episode 16: The Whole Spectrum (guest Jim Speta)
                    • Hayley Tsukayama, AOL Still Makes Most of Its Money Off Millions of Dial-Up Subscribers
                    • Joe Brodkin, Verizon Nears “the End” of FiOS Builds (Joe was right.)
                    • FCC, Chairman Wheeler Proposes New Rules for Protecting the Open Internet
                    • About municipal broadband
                    • Episode 47: Making Lisa So Mad (featuring our discussion of the opinion in Perez v. Commissioner of Internal Revenue finding compensation for egg donations to be taxable)
                    • Episode 33: Other Minds (guest Matthew Liebman)
                    • About Groundhog Day
                    • Eyder Peralta, Groundhog in Wisconsin Bites Mayor’s Ear
                      • 1 hr 12 min
                    • Episode 48: Legal Truth

                      With evidence and criminal procedure scholar Lisa Kern Griffin, we discuss the role of narrative, storytelling, and probability in assessing guilt and innocence. Also, feedback on coffee, citation, librarians, and argument.

                      This show’s links:

                      • Lisa Kern Griffin’s faculty profile and writing
                      • Sonja West, First Amendment Neighbors, citing Joe Miller, Christian Turner, and Sonja West, Oral Argument 1: Send Joe to Prison at 46:53, available at http://oralargument.org/1
                      • Bunny’s coffee-roasting links: the Nesco Professional 800-watt Roaster, Green Coffee Buying Club, and information from Sweet Maria’s; Listener Zachary’s links: the Fresh Roast Plus 8 and White Mountain Coffee
                      • AP, Police Urge Google to Turn Fff ‘Stalking’ Feature on Mobile App for Drivers and Waze
                      • Video of Mike Tyson’s ten fastest knockouts
                      • Video of Lindsey Graham asking AG-nominee Loretta Lynch about the legal connection between gay marriage and polygamy
                      • Oral Argument 40: The Split Has Occurred, discussing Judge Sutton’s gay marriage opinion
                      • Oral Argument 44: Serial
                      • Oral Argument 45: Sacrifice
                      • Lisa Kern Griffin, Narrative, Truth, and Trial
                      • About the murder of Julie Jensen
                      • Jensen v. Schwochert (granting Jensen’s petition for a writ of habeas corpus on Confrontation Clause grounds); see also the denial of the state’s motion to alter the habeas judgment (note that this case is before the Seventh Circuit, which has had argument but not yet ruled)
                      • Christian Turner, Bet Your Life Before You Impose Death
                      • Old Chief v. United States
                      • Mark Spottswood, Emotional Fact-finding

                        • Special Guest: Lisa Kern Griffin.

                        1 hr 24 min

                      About Oral Argument

                      From the publisher's feed

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