Oral Argument

Just Joe and Christian, coming to you after a terrible week. We talk guns, ex-Judge Posner's book and humility, the right rules for disabled stoplights, the closing of a coffeehouse, and airplane seat reclining behavior.

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With Charles Barzun, we discuss Justice Souter and the nature of legal justification. But we take the long way around to get there, starting with some of Souter’s opinions, moving on to philosophy – the nature of moral reasoning and its relation to fact and intuition – and then back to legal theory and Charles’s insight concerning Justice Souter’s jurisprudence.

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Special Guest: Charles Barzun.

Back after a long hiatus, we talk about Joe’s latest work on patent law and Supreme Court citations networks. Opening a banana, the opening of corpse flowers, the eclipse, news non-roundup, DACA and naming, and, finally, Joe’s paper, examining the steep increase in patent cases before the Supreme Court over the last two decades by mapping citation networks among intellectual property cases, at 20:02.

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We ramble about various non-law things. Maybe this will become the first installment of our annual beach episode series, in which we casually let it all hang out and take a vacation from law. We'll be back in a couple of weeks with the usual nonsense, rather than this unusual nonsense.

More than the usual nonsense and sniffles as we try to empty the mailbag. Note: Because of a massive gap between time available and time required to edit out the gak, this episode contains many more than the average number of sniffles and echoes. We tried to fire the editor responsible but learned he was one of us, unpaid, and would either be able to release this episode as is or not at all. Religion and American policy (6:19), a chrono-completist suggests a show topic (10:51), on sex discrimination (14:08), incentives for creation (22:16), boilerplate and terms of service (27:04), antitrust and big data (28:50), boilerplate and the FyreFestival (36:59), boilerplate and arbitration and class actions and airline passengers (38:43), ye ole 1x vs. 2x debate and binge-watching/listening (45:35), Asher Steinberg on the major question exception to Chevron (51:21), self-promotion (52:30), “research” not equal to “to search again”(54:03), Grimmelman’s Property Course and IP and the bar exam (57:14), ethicists and the morality of expedited review (1:03:34), return to the place of the constitutional law course (1:06:22), the limited role of books on the web (1:11:47), cosplay (1:13:40), Joel’s article (1:14:22), the politicization of the U.S. Supreme Court and its appointments compared to other countries and more on the Crossover episode (1:15:01), argument in the monkey selfie case (1:23:15), Wonder Woman and Star Trek vs. Star Wars (1:25:06).

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Jeffrey Kaplan joins us to discuss his work in philosophy on the nature of law, law’s connection to morality, and the way law gives us reasons to follow it. We discuss the connection with Christian’s work and also succeed (wildly but sporadically) in providing the usual nonsense.

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Leah Litman joins us to discuss the problematic argument that a law’s novelty is a reason to believe it is unconstitutional. In particular, she focuses on arguments that statutes that affect the separation of powers or the federalism balance are suspect if they are somehow unprecedented. Also, brief updates on: a wasp, Joe’s living situation, Christian’s health, Leah’s bee-related flight delay.

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Special Guest: Leah Litman.

If the president does it, is it automatically legal? Of course not, but why not? How is the president constrained by law? Daphna Renan joins us to talk about the structures within the Executive Branch and the attitudes toward them that define what the legal constraints presidents create for themselves. From the post-Watergate efforts to create independent and legalistic sources of Marbury-like trumps on presidential prerogative to today’s chaos, Daphna explores the many design choices between formality and informality, centralization and diffusion, and independence and control. Also the normal nonsense.

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Special Guest: Daphna Renan.

IP expert Stacey Dogan joins us to discuss: the merits and demerits of trademark law, values and stock characters of IP, non-interference and design choice, antitrust and IP optimists and skeptics, BU’s new clinics and collaborations with MIT for law and innovation.

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Special Guest: Stacey Dogan.

CRACKDOWN TIME, with Mila Sohoni! Whatever the law says in the books, it is felt by all of us when it is enforced. How should we think about a sudden change in enforcement priorities that cracks down on some allegedly bad thing? Mila helps us to understand the many reasons agents might have to crack down. From sudden, strict, money-raising speed-limit enforcement to rounding up minorities. We discuss connection with interpretation and “islands of simple literalism,” the role of judges in holding and rhetoric. And speed traps return!

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Special Guest: Mila Sohoni.