Oral Argument

Oral Argument

By Joe Miller and Christian TurnerSociety & CultureEducationPhilosophy
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Oral Argument episodes

  • Episode 47: Making Lisa So Mad

    We clear the docket while enjoying some listener-provided coffee. Topics include coffee roasting, listener feedback, the Oral Argument roadshow, and a recent decision on the taxation of egg donors.

    This show’s links:

    • Two Story Coffeehouse
    • Rene Stutzman, Lawsuits by Drivers Ticketed for Flashing Headlights Produce Change, No Money
    • The Madigan Memorial Hospital, Houlton, Maine (jpeg)
    • Oral Argument on Twitter and on Facebook
    • Oral Argument 45: Sacrifice, on which we discussed Nicholas Georgakopoulos’s email on reasonable doubt
    • Derek Muller’s invitation to make a stop at Pepperdine Law on the Oral Argument road show, which stop is imagined in this photo:
    • Oral Argument 14: The Astronaut’s Hair (guest Lisa Milot) and Oral Argument 17: Flesh List (guest Kim Krawiec)
    • Perez v. Commissioner of Internal Revenue
    • Lisa Milot, What Are We - Laborers, Factories, or Spare Parts? The Tax Treatment of Transfers of Human Body Materials
    • Taxing Eggs, a mini-symposium on the Faculty Lounge blog
    • Margaret Jane Radin, Property and Personhood
    • Kimberly Krawiec, Sunny Samaritans and Egomaniacs: Price-Fixing in the Gamete Market
    • The Georgia Law Summer Program in China, where you can be misinformed by Christian in person and in China
      • 1 hr 15 min
    • Episode 46: Noncompetes on Steroids

      Leave your company, take your ideas, and go to jail. Ok, maybe it’s not always that extreme, but we talk with Orly Lobel, author of Talent Wants to Be Free, about the laws that govern the minds and ideas of employees. From noncompete agreements, to trade secrets, to the illegal talent cartels of Silicon Valley, Orly helps us understand the field she calls “human capital law.” But we start, of course, with woodchippers, North Dakota, and seat recliners.

      This show’s links:

      • Orly Lobel’s faculty profile and writing
      • The Woodchipper in Fargo Exhibit (and on Facebook)
      • The Smoking Gun’s collection of performers’ backstage riders
      • Orly Lobel, Talent Wants to Be Free, Orly’s new book on competition, secrecy, motivation, and creativity, examining companies lie Google, JetBlue, and Mattel (Amazon or IndieBound)
      • Orly Lobel, The New Cognitive Property
      • Mattel v. MGA Entertainment, the Barbie vs. Bratz case
      • PepsiCo v. Redmond
      • About the Uniform Trade Secrets Act
      • Ronald Gilson, The Legal Infrastructure of High Technology Industrial Districts: Silicon Valley, Route 128, and Covenants Not to Compete
      • AnnaLee Saxenian, The Origins and Dynamics of Production Networks in Silicon Valley
      • AnnaLee Saxenian, Regional Advantage: Culture and Competition in Silicon Valley and Route 128
      • About the “espionage case” of Sergey Aleynikov and Goldman Sachs
      • Neil Irwin, When the Guy Making Your Sandwich Has a Noncompete Clause, about the Jimmy John’s noncompete clauses for its sandwich makers
      • Orly Lobel and On Amir, Driving Performance: A Growth Theory of Noncompete Law
      • David Streitfeld, Bigger Settlement Said to Be Reached in Silicon Valley Antitrust Case, in which Orly is quoted

        • Special Guest: Orly Lobel.

        1 hr 27 min
      • Episode 45: Sacrifice

        After beginning with, let’s face it, nonsense, we respond to listener feedback (beginning at 8:30) on, among other topics, speed traps, Serial, and Judge Edwards’ critique of legal scholarship. We wind up discussing reasonable doubt and probability (beginning at about 30:00).

        This show’s links:

        • Judge John Hodgman
        • Episode 18: Oral Argument (with Tom Goldstein), featuring Josh Stein’s paper
        • Richard Stallman’s info packet
        • Episode 44: Serial
        • Natasha Vargas-Cooper, Jay, Key Witness from “Serial” Tells His Story for First Time, parts one, two, and three
        • Slate’s Serial Spoiler Special podcast discussing the Jay interviews
        • Ezra Klein, Serial Revisited
        • Susan Simpson’s The View from LL2 blog
        • Rene Stutzman, Lawsuits by Drivers Ticketed for Flashing Headlights Produce Change, No Money
        • Episode 43: Some Stuff I Like and Some Stuff I Don’t, featuring some speed trap discussion and our discussion of Judge Edwards’ critique of legal scholarship
        • Gross, O’Brien, Hu, and Kennedy, Rate of False Conviction of Criminal Defendants Who are Sentenced to Death
        • Christian’s silly wrongful conviction calculator, which you can copy and paste into the wonderful Calca app
        • All about the Innocence Project
        • Kevin Drum, America’s Real Criminal Element: Lead
        • Dragonslayer, the 1981 film
        • The Flynn effect
        • Philosophy Bites: Hugh Mellor on Probability, a fascinating episode of a great series of brief discussions on philosophy
          • 1 hr 33 min
        • Episode 44: Serial

          The Serial podcast, about the 1999 murder of Hae Min Lee and subsequent conviction of Adnan Syed, has become the most popular podcast ever. In our first anniversary show — which, sure, we could have broken into two parts but consider this super-sized show our gift to you for the holidays — we talk with listeners and past guests about their own reactions to the show and to the case. We discuss reasonable doubt, race, procedure, evidence, voyeurism, what we think, what others think, and the inherent (but vastly improvable) tragedy of criminal justice. Guests: Hunt Wofford, Nathan, Anthony Kreis, Jasmine Guillory, Mehrsa Baradaran, and Dahlia Lithwick. (Several of our guests responded to a call to listeners that we posted on our Facebook and Twitter feeds. Follow us to be in on such things in the future.)

          This show’s links:

          • Serial, the most popular podcast ever
          • Willa Paskin, Totally Obsessed
          • Christian Turner, Bet Your Life Before You Impose Death
          • About Hunt Wofford
          • Mythbusters
          • Links to some Serial parodies
          • Murder on a Sunday Morning
          • About procedural justice
          • About Anthony Kreis and his last appearance on our show
          • Debra Cassens Weiss, Posner Questions Basis for ‘Archaic’ Hearsay Rule
          • The Scottish “not proven” verdict
          • About Mehrsa Baradaran and her first and second appearances on our show
          • Susan Simpson, Serial: Why the Nisha Call Shows that Hae Was Murdered at 3:32 p.m.
          • About Dahlia Lithwick and her appearance on the show
          • Dahlia’s new podcast, Amicus, and her video interviews on SCOTUSblog
          • Dahlia Lithwick, A Horrifying Miscarriage of Justice in North Carolina
          • Justice Scalia’s concurrence in Callins v. Collins (criticizing Justice Blackmun for not using the McCollum case, with its brutal facts, for dissenting from the imposition of the death penalty)
          • Justice Blackmun’s subsequent dissent in McCollum v. North Carolina, addressing Scalia’s concurrence
          • Brandon Garrett’s page, featuring his recent books

            • Special Guests: Anthony Kreis, Dahlia Lithwick, and Mehrsa Baradaran.

            2 hr 28 min
          • Episode 43: Some Stuff I Like and Some Stuff I Don’t

            We’re back. Speed traps, the police, and Judge Edwards’ renewed attack on modern legal scholarship.

            This show’s links:

            • Complaint in Jarman v. City of Grain Valley
            • Elli v. City of Ellisville
            • Oral Argument 7: Speed Trap and Oral Argument 8: Party All over the World
            • City of Warrensville Hts. v. Wason (the speed trap case in which the dissent cites Kant’s categorical imperative and which we mentioned at the end of episode 9)
            • About “contempt of cop”
            • Raizel Liebler and Keidra Chaney, TLF Recommended Podcasts by and for Best Friends (recommending us (thanks!) alongside Denzel Washington Is the Greatest Actor of All Time, Period.)
            • Michael Dorf, Judge Harry Edwards Is Still Unimpressed With Legal Scholarship
            • Harry Edwards, Another Look at Professor Rodell’s Goodbye to Law Reviews
              • 1 hr 23 min
            • Episode 42: Shotgun Aphasia

              When should the police be able to search your phone, your computer, your email, or your dropbox? Orin Kerr thinks that over time, and in the face of changing technology and social practices, courts maintain a relatively consistent balance between privacy and the state’s interest in criminal investigation. The legal changes that maintain that consistency seem to be acceptable to originalists, pragmatists, and living constitutionalists alike. From cell phones to horses and buggies to automobiles and confidential informants. It’s the search episode. And then … yep, speed traps. Joe and Orin make a spiritual connection as non-warners.

              This show’s links:

              • Orin Kerr’s faculty profile, writing, and blogging at the Volokh Conspiracy
              • Background on the Fourth Amendment and the exceptions to the warrant requirement
              • Orin Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment
              • Carroll v. United States and the automobile exception
              • Ex Parte Jackson (one of the earliest Fourth Amendment decisions)
              • Riley v. California (and see Orin’s post about the case shortly after it was decided
              • Example undercover informant cases: On Lee v. United States and Lewis v. United States
              • Keynote by Judge Richard Posner at the Empirical Legal Studies Conference
              • Jacqueline Ross, Tradeoffs in Undercover Investigations: A Comparative Perspective
              • John Mikhail on Universal Moral Grammar, on the excellent philosophy bites podcast
              • Orin Kerr, The Curious History of Fourth Amendment Searches
              • Orin Kerr, Foreword: Accounting for Technological Change
              • United States v. Robinson
              • Paul Giannelli, Independent Crime Laboratories: The Problem of Motivational and Cognitive Bias
              • United States v. Ganias
              • Our first speed trap shows: Speed Trap and Party All Over the World

                • Special Guest: Orin Kerr.

                1 hr 34 min
              • Episode 41: Sense-Think-Act

                Robots. What are they? Just a new sort of tool, qualitatively different kinds of tools that do things we neither expect nor intend, new kinds of beings? With the incipient explosion of complex robots, we may need to re-examine the way law uses and understands intention, responsibility, causation, and other basic concepts. We’re joined by Ryan Calo, who has achieved the outrageously awesome feat of earning a living thinking about robots. (It’s pronounced Kay-low. So Joe got this one right.) We discuss flying drones, chess computers, driverless cars, antilock brakes, and computer-conceived barbecue sauce.

                This show’s links:

                • Ryan Calo’s faculty profile and writing
                • Follow-up from listener David on Episode 40: The Split Has Occurred, Shelley v. Kraemer, and Buchanan v. Warley
                • Lego Mindstorms
                • Ryan Calo, Robots and Privacy
                • FIRST Lego League robotics competition for ages nine to fourteen
                • DJI Phantom Vision 2+ flying drone camera thing capable of making like this one and this one
                • Mark Berman, National Park Service Bans Drone Use in All National Parks and Chris Vanderveen, Man Banned from Yellowstone after Drone Crash
                • FAA’s Key Initiatives page on drones
                • Joan Lowy, Drone Sightings Up Dramatically
                • Ryan Calo, Robotics and the Lessons of Cyberlaw (including a discussion of the concepts of embodiment, emergence, and social meaning as the core of the legal challenge posed by robotics)
                • Stephen Johnson, Emergence: The Connected Lives of Ants, Brains, Cities, and Software
                • Radiolab, Emergence
                • Frank Easterbrook, Cyberspace and the Law of the Horse
                • Cory Doctorow, Why It Is Not Possible to Regulate Robots
                • Neil Richards and William Smart, How Should the Law Think About Robotics?
                • Ryan Calo, A Horse of a Different Color: What Robotics Law Can Learn from Cyberlaw
                • About IBM’s Watson and Deep Blue (the chess machine)
                • Daniel Suarez, Daemon
                • Richard Fisher, Is It OK to Torture or Murder a Robot?
                • Radiolab, Furbidden Knowledge
                • Nicholas Bakalar, Robotic Surgery Report Card
                • Studdert, Mello, and Brennan, Medical Malpractice
                • Ryan Calo, The Case for a Federal Robotics Commission
                • Excerpt from In re Polemis, the case we forgot the name of
                • About Amazon’s Kiva Systems, the subsidiary that supplies Amazon with robotic warehouse workers
                • Rochelle Bilow, We Put a Computer in Charge of Our Test Kitchen for a Day, and Here’s What Happened, and Mark Wilson, I Tasted BBQ Sauce Made By IBM’s Watson, And Loved It
                • E.M. Forster, The Machine Stops
                • About the Future Tense event, Can We Imagine Our Way to a Better Future?, including descriptions and video, in which Ryan participated
                • About cognitive radio
                • Daria Roithmayr, Complexity Law and Economics
                • We Robot 2015, meeting April 10-11, 2015 in Seattle

                  • Special Guest: Ryan Calo.

                  1 hr 40 min
                • Episode 40: The Split Has Occurred

                  This is the week the circuits split. We discuss Judge Sutton’s opinion for a panel of the Sixth Circuit upholding bans on gay marriage in several states. Although Joe and Christian mainly agree about this case, Joe finds plenty of other things Christian says and does to be irritating, especially during our first eighteen minutes when we discuss feedback.

                  This show’s links:

                  • Michael Dorf, Why Danforth v. Minnesota Does Not Undermine My View About State Court Decisions to Follow Lower Federal Court Precedent
                  • Our episode with Peabody award winner, Tom Goldstein
                  • About typefaces (and the difference between typefaces and fonts)
                  • About King v. Burwell, the case the Supreme Court has taken up challenging subsidies on federally run exchanges; see also Christian’s take and Abbe Gluck’s
                  • The Unrecorded Podcast
                  • Michelle Meyer, Will the Real Evidence-Based Ebola Policy Please Stand Up? Seven Takeaways from Maine DHHS v. Hickox (which Christian wrongly attributed to Hank Greely, who has also written on Ebola, but is in fact from fantastic friend of the show Michelle Meyer - sorry Michelle), further to our last episode on the domestic side of the Ebola
                  • DeBoer v. Hodges, the Sixth Circuit decision by Judge Sutton upholding various state marriage bans
                  • Oral Argument 36: Firehose of Inequality (guest Anthony Kreis)
                  • Baskin v. Bogan, Judge Posner’s decision striking down state marriage bans and Christian’s post about the Seventh Circuit’s oral arguments in that case
                  • About Baker v. Nelson
                  • Hicks v. Miranda
                  • Loving v. Virginia
                  • Plessy v. Ferguson
                  • Romer v. Evans
                  • Balkinization Symposium on Unconstitutional Animus (We’d apologize for the error of attributing this to SCOTUSblog, but we don’t have time to apologize for all of our errors.)
                  • William Eskridge, Jr. A History fo Same Sex Marriage
                    • 1 hr 45 min
                  • Episode 39: The Ayn Rand Nightmare

                    It’s our ebola episode. You know, I think that’s description enough.

                    This show’s links:

                    • Fazal Khan’s profile and his writing
                    • Our U.S. News rankings episode, Heart of Darkness
                    • More on the debate about state courts’ following federal circuit courts (relevant to the gay marriage rulings) that arose during our episodes with Michael Dorf and with Steve Vladeck: (1) a post by Michael Dorf, (2) a post by Steve Vladeck, and (3) a post by Christian Turner
                    • About Ebola virus diseased and about Ebola in the United States
                    • The CDC’s information page on Ebola transmission and Review of Human-to-Human Transmission of Ebola Virus
                    • Michael Dorf, Is There Any Risk of Ebola Transmission from an Asymptomatic Person?
                    • EM Leroy et al., Human Asymptomatic Ebola Infection and Strong Inflammatory Response
                    • Gostin, Hodge, and Burris, Is the United States Prepared for Ebola
                    • Tavernise, Shear, and Cooper (for the NY Times), Seeking Unity, U.S. Revises Ebola Monitoring Rules
                    • Laura Donohue, Biodefense and Constitutional Constraints (an excellent history of US and UK quarantine law)
                    • Josh Hicks, A Brief History of Quarantines in the United States (a very short timeline in the Washington Post) and Peter Tyson, A Short History of Quarantine (a more detailed and global timeline)
                    • Jacobson v. Massachusetts; see also James Colgrove and Ronald Bayer, Manifold Restraints: Liberty, Public Health, and the Legacy of Jacobson v Massachusetts
                    • Tara Ragone, State Quarantines: Balancing Public Health with Liberty Interests (a very helpful blog post discussing issues and authorities relevant to the Kaci Hickox case)
                    • Jared Cole (for the Congressional Research Service), Federal and State Quarantine and Isolation Authority
                    • Gostin, Burris, and Lazzarini, The Law and the Public's Health: A Study of Infectious Disease Law in the United States
                    • About Philadelphia’s Yellow Fever epidemic of 1793
                    • The text of the Public Health Service Act (containing the authority for federal quarantine and isolation)
                    • Jew Ho v. Williamson
                    • Norimitsu Onishi (for the NY Times), Quarantine for Ebola Lifted in Liberia Slum
                    • Michael Dorf, Containing Ebola: Quarantine and the Constitution
                    • Arjun Jaikumar, Red Flags in Quarantine: The Questionable Constitutionality of Federal Quarantine After NFIB v. Sebelius
                    • Mark Rothstein, From SARS to Ebola: Legal and Ethical Considerations for Modern Quarantine
                    • Morgan’s Steamship Co. v. Louisiana Board of Health (upholding the constitutionality of state quarantine)
                    • CDC, Interim U.S. Guidance for Monitoring and Movement of Persons with Potential Ebola Virus Exposure
                    • See section 604 of the The Model State Emergency Health Powers Act
                    • Fazal Khan, Ensuring Government Accountability During Public Health Emergencies
                    • City of Newark v. J.S. (analyzing the Due Process and statutory rights of a “non-compliant,” TB-infected, homeless man)
                    • Greene v. Edwards (awarding a state writ of habeas corpus in a TB isolation case)
                    • About the 2007 tuberculosis scare caused by the travel of Andrew Speaker
                    • Fidler, Gostin, and Markel, Through the Quarantine Looking Glass: Drug-Resistant Tuberculosis and Public Health Governance, Law, and Ethics (also discussing the Andrew Speaker incident)
                    • Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health
                    • Wendy Parmet, AIDS and Quarantine: The Revival of an Archaic Doctrine (interesting, among other reasons, for the fact it was written in 1985 in the midst of the relative early days of the AIDS crisis)
                    • City of New York v. New Saint Mark’s Baths
                    • Randy Shilts, And the Band Played On
                    • About the John Warner National Defense Authorization Act of 2007, the Posse Comitatus Act, and the Pandemic and All-Hazards Preparedness Reauthorization Act of 2013
                    • Mathews v. Eldridge (and, yes, there are only three factors)
                    • Daniel Markovits, Quarantines and Distributive Justice
                    • Helene Cooper and Michael Shear, Joint Chiefs Chairman Urges 21-Day Quarantine for Troops Working in Ebola Zone

                      • Special Guest: Fazal Khan.

                      1 hr 40 min
                    • Episode 38: You're Going to Hate This Answer

                      Steve Vladeck joins us to dive further into federal courts and federal rights. After getting Steve’s take on our discussion concerning federal courts of appeals and gay marriage last week with Michael Dorf, we discuss the issues raised by what Steve thinks could be a major new case in the Supreme Court this term: Armstrong v. Exceptional Child Center. How and when can you enforce a federal statute or the Constitution against state officials? Simple question, right?

                      This show’s links:

                      • Steve Vladeck’s profile, his writing, his info and posts on the Just Security blog, and his Twitter feed
                      • Oral Argument 34: There’s Not Really a Best Font with Matthew Butterick and Oral Argument 11: Big Red Diesel (when Butterick’s Practical Typography was first brought up on the show)
                      • Oral Argument 37: Hammer Blow, in which Michael Dorf delivered many lessons in the relationship between state courts and lower federal courts, an issue critical for the current state of gay marriage in the United States
                      • Danforth v. Minnesota (deciding that states, as a matter of state law, may apply retroactively new constitutional rules announced by the Supreme Court, even if federal law does not require retroactive application)
                      • 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)
                      • VOPA v. Stewart
                      • Stephen Vladeck, Douglas and the Fate of Ex Parte Young
                      • Douglas v. Independent Living Center
                      • The Eleventh Amendment: “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”
                      • Ex part Young (And note in dissent we find Justice Harlan, the heroic dissenter in Plessy v. Ferguson, sounding the federalist alarm: Allowing private suits in federal courts against state officers for their official actions “would inaugurate a new era in the American judicial system and in the relations of the National and state governments. It would enable the subordinate Federal courts to supervise and control the official action of the States as if they were "dependencies" or provinces.”)
                      • The cases Steve cites as leading up to Ex parte Young: Hans v. Louisiana (interpreting the Eleventh Amendment to bar suits arising under federal law against a state not only by citizens of “another state” but also by its own citizens) and Lochner v. New York
                      • Adar v. Smith (the Fifth Circuit case to which Steve referred that permitted Louisiana to refuse to add a gay adoptive parent’s name to a birth certificate)
                      • Alexander v. Sandoval (marking the end of inferring private causes of action in federal statutes)
                      • Gonzaga University v. Doe
                      • Lyle Deniston, Opinion Analysis: A Right to Sue Under Medicaid – Maybe
                      • Pennsylvania Pharmacists Association v. Houstoun (in which then-Judge Alito notes that while providers may not sue under the Medicaid access requirements “Medicaid recipients plainly satisfy the intended-to-benefit requirement and are thus potential private plaintiffs” under section 1983)
                      • SCOTUSblog page for Armstrong v. Exceptional Child Center, which will be updated with briefs, arguments, and, ultimately, the Court’s decision
                      • Seminole Tribe of Florida v. Florida
                      • Steve’s amicus brief in Douglas
                      • Jonathan Freiman, to whom both Steve and Christian trace experience with detainee cases

                        • Special Guest: Steve Vladeck.

                        1 hr 35 min

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