Oral Argument

What’s your favorite case? It’s a difficult question, but in this episode Christian answers it: the infamous decision in Plessy v. Ferguson that upheld racial apartheid under the “separate but equal” principle. Joe accuses him of cheating a bit, because Christian’s “favorite” is actually Justice Harlan’s celebrated solo dissent. Its greatness, though, does not lie in any sort of perfection. Severely flawed and yet great, at the same time.

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We are joined by budding media celebrity, Sonja West, who got her start on Episode 1 of Oral Argument. We again turn to the Hobby Lobby decision and the Supreme Court’s odd epilogue. With Sonja’s expert guidance we try to make sense of the web of religious liberty. Also, war on women or the century of gender equality?

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Special Guest: Sonja West.

This is our first annual Supreme Court term roundup. And in our first effort, we manage to discuss, more or less, a single case: Hobby Lobby.

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We talk technology and law with Kevin Collins and begin with the law of the horse. The Supreme Court has given us decisions about searching cell phones, tiny antennae and broadcast television, and patents on business methods implemented in software. Molecules, hair-drying calculating machines, DNA, and the meaning of knowledge. It’s an IP festival this week.

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Special Guest: Kevin Collins.

We dive into the legal nature of the regulatory state with Ethan Leib of Fordham Law School. In what sense is the making of regulatory policy, whether on the environment or on net neutrality, a legal process? Should regulatory agencies adhere to precedent or otherwise be bound by law-like doctrines? We learn about the White House’s influence over rulemaking through OIRA and question how OIRA should function and what legal principles should govern it.

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Special Guest: Ethan Leib.

We talk about the Supreme Court with writer and reporter, Dahlia Lithwick. How should one report on the Court, at a time when analysis of opinions is expected within hours or even minutes? What is the role of the Court press: middle men, translators, or something else? And come to think of it, what’s the role of the Supreme Court? Oracles, politicians, teachers? Should judges give speeches like politicians do? Politics, policy, religion, guns. And, of course, speed traps.

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Special Guest: Dahlia Lithwick.

We talk about the relatively simple problem of global climate change with Brigham Daniels. Starting with EPA’s just-proposed regulations, we discuss the very odd way that U.S. law has confronted the problem. Why has it become a partisan issue and how do we overcome that? Are economic signals enough or must ethics change and tribal alliances break down? How might that happen? Darcy and a special canine guest make brief appearances.

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Special Guest: Brigham Daniels.

We start, of course, with speed traps and the suggestion of a radio talk show host that giving speed trap warnings is a religious obligation. Our major topic, though, is the insanity of the textbook market. Christian takes a typically moderate position and argues that all textbooks should be free. Joe takes a typically strident position and argues that it’s more complicated than that. We discuss our respective projects to change the nature and distribution of law school casebooks. Topics include: textbooks as playlists, how their production is like and unlike the production of wikipedia, the traditional model and how much students pay, the weird market for textbooks, Joe’s collaboration with Lydia Loren to become the Radiohead of textbook publishers, and one publisher’s attempt essentially to lease rather than sell textbooks. We close by noting that it’s hot here now (the slight hiss when Joe speaks is the air conditioning) and Christian’s related parenting woes.

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Shaking off the rust after a two-week break, we’re back to argue about the Supreme Court’s latest entry in the “Let Us Pray” genre. We are joined by law and religion scholar Nathan Chapman and focus on ancient Greece, where by Greece we mean Greece, New York, and by ancient we mean 1999. That’s when the town began to invite local clergy to its monthly Town Board meetings to deliver short prayers. For almost a decade, these prayers were uniformly Christian and almost always explicitly so. Government and prayer: what to do? We disagree.

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Special Guest: Nathan Chapman.

We finally get around to talking about oral argument on Oral Argument. And, oh do we do so in style. Supreme Court advocate and SCOTUSblog co-founder Tom Goldstein joins us for a portion of the show to talk about what oral arguments are, whether they are worth their costs, what they accomplish, and more. Joe complains about absurd hypotheticals. Christian is unfamiliar with any other kind. Also, we begin with errata, in which we acknowledge Christian’s abuse of the English language.

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Special Guest: Tom Goldtsein.