By Stanford Law School
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The podcast currently has 147 episodes available.
Is the president above the law? Is the Electoral College democratic? In this episode, historian Jonathan Gienapp critiques the mainstream use of originalism, arguing that it often neglects crucial historical context, overlooking the complexities of original public understanding. The conversation dives into recent court cases, highlighting tensions between historical interpretation and contemporary judicial practices. This is clearly illustrated in Gienapp’s discussion of the Electoral College—a uniquely American invention. He explains the historical roots of the Electoral College, the Framers' intentions, and the criticisms it faces today. He also sheds light on how the Electoral College emerged as a compromise among less desirable options and the historical context surrounding its establishment, including issues of accountability and regional interests. The conversation also touches on ongoing debates about potential reforms, public sentiment toward a national popular vote, and the challenges of amending the Constitution in today's contentious political landscape. Join us for an enlightening discussion that bridges history with contemporary constitutional debates.
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(00:00:00) Chapter 1: Introduction and the Flaws of Originalism
Hosts Pam Karlan and Rich Ford discuss the key issues with modern originalism, focusing on how originalists often overlook the historical context necessary to truly capture the Constitution’s original meaning with historian Jonathan Gienapp. Gienapp critiques the flexibility of originalist interpretations, especially when applied to complex constitutional concepts like freedom of speech and executive power.
(00:04:33) Chapter 2: Public Meaning vs. Original Intent
Rich Ford explores the tension between public meaning and original intent in originalist theory. Gienapp explains how, despite attempts to distinguish them, the two often overlap in practice. The discussion highlights the inconsistency in how originalists pick and choose historical evidence to support their interpretations.
(00:07:47) Chapter 3: Judicial Interpretation in Practice: Rahimi and Trump Cases
Pam Karlan brings up recent court cases, including United States v. Rahimi and Trump v. United States, where originalist judges either struggled with historical evidence or avoided it altogether. Gienapp notes the irony of originalists relying on minimal historical analysis when it contradicts their desired outcomes.
Jonathan Gienapp discusses the historical foundations of the American presidency, emphasizing the founding generation's rejection of monarchy and the importance of presidential accountability. He highlights the debate at the Constitutional Convention regarding the balance between a strong executive and ensuring that executive power remains accountable to the people.
(00:17:06) Chapter 5: Originalism and Constitutional InterpretationJonathan Gienapp delves into the complexities of originalism as a judicial philosophy. He explains the tension between the rhetoric of originalism and its inconsistent application in Supreme Court decisions. He argues for either a more serious commitment to originalism or a recognition of constitutional pluralism, where history is used alongside other interpretative methods.
(00:21:39) Chapter 6: The Origins and Challenges of the Electoral CollegeExploration of the creation of the Electoral College, discussing how it emerged not as a perfect solution but as a compromise to address competing concerns about legislative selection, popular votes, and regional interests. Gienapp examines past and present efforts to reform the Electoral College and explains why it persists despite criticism.
As the 2024 presidential election approaches, Nate Persily forecasts complications along with it.
Persily, a Stanford law professor and a leading expert in election law and administration, says the coming election cycle could pose unprecedented challenges for voters and election officials alike. “We are at a stage right now where there's a lot of anxiety about election administration,” he says. “There's a significant share of the population that's completely lost confidence in our system of elections.”
With nearly every state having altered its election laws since 2020 and a significant turnover in election administrators, Persily says the stage is set for a potentially bumpy ride this November. As voter confusion and AI-powered disinformation loom overhead, Persily says the integrity of our democracy may well depend on our collective ability to weather this less-than-perfect storm.
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Nate Persily outlines the primary concerns for the upcoming election, including voter confusion, changes in election laws, and the pressures faced by election officials.
(00:03:27) Chapter 2: Decentralization and Election AdministrationThe panel discusses the challenges of managing a national election run by numerous local jurisdictions, including issues with certification and varying local procedures.
(00:05:44) Chapter 3: The Evolving Election TimelinePersily, Karlan, and Ford explore how election day has expanded into an extended voting period, covering early and mail-in voting, and the implications for counting and certification.
(00:17:41) Chapter 4: Technology, Disinformation, and Media InfluenceExamines the impact of technology and disinformation, including deep fakes and misinformation about voting procedures, and their effects on public trust.
(00:23:37) Chapter 5: Building Confidence in the Electoral ProcessPersily discusses strategies to bolster confidence in the election process, emphasizing support for election officials and the role of local leaders in maintaining trust.
The Supreme Court's latest term was marked by decisions of enormous consequence. However, the way the Court has communicated about these rulings far undersells the gravity they carry.
While “expressing itself in extremely modest terms,” Professor Jeffrey Fisher says, the current Supreme Court has “[handed] down decisions that have enormously consequential effects for our democracy, people's rights, and everything in between.” He and Assistant Professor Easha Anand, co-directors of the Supreme Court Litigation Clinic, agree that these recent decisions could reshape American law and politics for years to come.
In this episode of Stanford Legal with host Pam Karlan, Fisher, and Anand take a critical look at recent Supreme Court rulings on abortion, gun rights, tech platforms, and the power of federal agencies, examining the Court's evolving approach and considering the potential long-term impacts on American democracy and the rule of law.
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(00:00:00) Chapter 1: Introduction to the Supreme Court Term and Key Cases
Pam Karlan is joined by Professors Jeff Fisher and Easha Anand to discuss the past term at the Supreme Court, constitutional law and Supreme Court practice, highlighting key cases and themes from the term. They explore how the court's conservative majority shapes the docket and the role of Justices Barrett and Jackson in developing their judicial voices.
(00:06:56) Chapter 2: High-Profile Cases: Guns, Abortion, and Administrative Law
Examine major cases, including gun rights in Rahimi v. United States and Cargill v. Garland, abortion-related cases, and the pivotal Loper Bright decision affecting the administrative state. They analyze the court's reasoning and the broader implications of these rulings.
(00:15:28) Chapter 3: The Court's Evolving Role and Methodology
Discussion of the broader implications of the Supreme Court's evolving approach to its docket and decision-making processes, particularly in relation to the administrative state and the impact of recent rulings on future cases.
(00:19:14) Chapter 4: The Supreme Court and Technology Cases
They delve into the significant technology cases that were brought before the Supreme Court this term. They discuss how the Court addressed state laws from Florida and Texas aimed at restricting content moderation by big tech companies, marking the first time the First Amendment was applied to social media platforms. The discussion highlights the tension between traditional legal frameworks and the evolving digital landscape, with a focus on the implications of these rulings for the future of free speech online.
(00:24:10) Chapter 5: Trump and the Supreme Court: Balancing Power and Immunity
The group explores the complex legal landscape surrounding former President Donald Trump's involvement in Supreme Court cases. Easha Anand provides an in-depth analysis of the Trump v. United States case, where the Court examined the extent of presidential immunity concerning acts related to the 2020 election. The discussion also touches on the broader implications of the Court's rulings on Trump’s legal challenges, including how these decisions might shape future presidential conduct and accountability.
(00:29:27) Chapter 6: Supreme Court’s Role in Protecting Democracy
Pam Karlan and Jeff Fisher discuss the Supreme Court's role in safeguarding democratic processes. They analyze the Court's reluctance to engage deeply in political matters, such as the January 6th prosecution and political gerrymandering, highlighting the tension between judicial restraint and the need to protect democratic values. The chapter concludes with reflections on the broader implications of these decisions for the future of U.S. democracy, particularly in the context of voting rights and election integrity.
The bedrock of the legal profession is a commitment to upholding the rule of law. Unfortunately, as Stanford Law researchers discover in the complex world of international sanctions, lawyers can often facilitate non-compliance and evasion.
It’s been two years since Russia's illegal invasion of Ukraine. And yet, businesses are still skirting sanctions imposed on Russia. As Erik Jensen, director of the Rule of Law Program at Stanford Law School, and law students Sarah Manney and Kyrylo Korol explore in this episode of Stanford Legal, lawyers could be playing a critical role in enabling Russian Oligarchs’ evasive maneuvers.
With hosts Rich Ford and Pam Karlan, the three guests explore the intricate relationship between legal practice and international sanctions, discussing insights from their research, the ethical responsibilities of lawyers, and potential solutions for safeguarding the rule of law.
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Kyrylo Korol discusses the responsibility of lawyers to uphold democracy and the impact of their actions on the profession. Hosts Rich Ford and Pam Karlan introduce the topic of Russia's invasion of Ukraine and the international response.
(00:01:33) Chapter 2: Genesis of the Policy LabErik Jensen explains the inception of the Policy Lab focusing on sanctions against Russia, including the motivation from an S-Term course and subsequent student enthusiasm.
(00:03:16) Chapter 3: Kyrylo Korol's Personal MotivationKyrylo Korol shares his dual perspective as a Ukrainian and American lawyer, emphasizing the need to keep the discussion on Russia's war against Ukraine alive and his personal drive to support Ukraine.
(00:05:32) Chapter 4: Focus of the Policy LabThe team discusses the main areas of their research, including the role of Russian oligarchs in the war and the involvement of legal professionals in facilitating sanctions evasion.
(00:12:57) Chapter 5: Comparative Analysis and Legal FrameworksThe conversation shifts to the comparative study of how different countries regulate lawyers concerning sanctions and money laundering, and the ethical obligations of U.S. lawyers with Sarah Manney.
(00:21:25) Chapter 6: Challenges and Implications for the Legal ProfessionThe team delves into the implications of their findings for the legal profession, discussing the balance between upholding legal privileges and preventing abuse, and addressing systemic risks and de-risking issues.
Do courts have the expertise to decide on important environmental law issues? Pam Karlan and Rich Ford speak with environmental law expert Debbie Sivas, director of the Environmental Law Clinic at Stanford, about recent Supreme Court decisions affecting environmental and administrative law--including the Court's decision to overturn decades of settled law by overturning Chevron. What are the implications of the Court's recent blockbuster environmental decisions--the impact on the Clean Air Act, and broader consequences for regulatory agencies and environmental policies. Tune in to explore how these legal shifts could reshape the landscape of environmental regulation in the United States.
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Pam and Rich welcome Professor Debbie Sivas from Stanford's Environmental Law Clinic. They provide an overview of significant Supreme Court cases impacting environmental and administrative law, highlighting the pivotal Loeb or Wright decision that ended Chevron deference.
(00:02:06) Chapter 2: Chevron Deference and Its Implications Explained Discussion on the historical context and implications of Chevron deference, with Debbie Sivas explaining its significance and how its removal might affect future legal interpretations and administrative agency power.(00:09:12) Chapter 3: Expert Opinions vs. Judicial InterpretationsExamination of the Supreme Court's approach to statutory interpretation versus agency expertise, highlighting cases like Ohio against EPA and the challenges posed by the court's stance on scientific and technical matters.
(00:16:12) Chapter 4: The Role of the Major Questions Doctrine and Non-Delegation DoctrineAnalysis of the Major Questions Doctrine's impact on regulatory power and the potential resurgence of the Non-Delegation Doctrine, focusing on how these legal principles shape environmental policy and agency authority.
(00:18:57) Chapter 5: The Ohio Against EPA Case and Its Broader ImplicationsDetailed discussion on the Ohio against EPA case, its current status, and the implications of the Supreme Court's emergency stay decision on future regulatory actions and environmental protections.
Will the three remaining cases against former president Donald Trump ever get to trial? After Judge Cannon's controversial dismissal of charges in the classified documents case—and the Supreme Court's presidential immunity decision—the question is not so obvious. In this episode, criminal law expert David Sklansky joins Pam and Rich to discuss these two earthquake decisions, Special Prosecutor Jake Smith's appeal of Judge Cannon's decision, and the ongoing legal battles surrounding Trump.
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Introduction to the podcast, Professor David Sklansky, and overview of the topics: Judge Cannon's decision, special master appointment, and Supreme Court's recent decision on immunity.
(00:01:43) Judge Cannon's Decision and RationaleDiscussion on Judge Cannon's rationale for dismissing the classified documents case, the 11th Circuit's reversal, and the extraordinary nature of her decision.
(00:04:12) Special Counsel Appointment and Historical ContextExamination of the reasoning behind appointing a special counsel, Judge Cannon's strained statutory interpretations, and the long history of appointing special counsels.(00:07:23) Analysis of Previous Controversial RulingsReview of Judge Cannon's earlier controversial ruling about appointing a special master, the 11th Circuit's reversal, and consistency in historical interpretations.
(00:13:42) Unitary Executive Theory and AccountabilityDiscussion on the unitary executive theory, potential motivations behind Judge Cannon's rulings, and whether the case is about presidential accountability or diffusing responsibility.
(00:21:05) Supreme Court's Immunity Decision and Future ImplicationsAnalysis of the Supreme Court's decision to remand the election interference case, challenges and potential outcomes, and the impact on the Manhattan case involving official acts.
Control of the border and illegal immigration are again in the headlines and the centerpiece of a divisive presidential campaign. Here to help make sense of recent legal successes and failures is immigration law expert Jennifer Chacón, the Bruce Tyson Mitchell Professor of Law at Stanford. The author of the new book, Legal Phantoms: Executive Action and Haunting Failures of Immigration Law, which offers insights into the human stories and governmental challenges shaping contemporary immigration debates, Chacon discusses the complexities of immigration policy, its intersection with constitutional law, criminal law, and societal perceptions of identity and belonging.
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Jennifer Chacón explains deferred action and its implications for individuals lacking legal status, plus the significance of work authorization and the temporary nature of deferred action programs.
(00:10:38) Chapter 4: Personal Stories and Community ImpactJennifer Chacón shares insights from her interviews with long-term residents about their perceptions of border policy and local enforcement and the varied perspectives of immigrants on the issues of border control and local government actions.
(00:17:06) Chapter 5: Future of Immigration ReformRich Ford inquires about potential reforms, and Jennifer Chacón emphasizes the interconnectedness of border policy and long-term resident solutions. They discuss the Biden administration’s recent announcements and their implications. Jennifer Chacón shares her view on the political challenges and ideal legislative changes for addressing immigration issues.
Should presidents be immune from prosecution? If yes, under what circumstances? Stanford Professor Michael McConnell, a former federal judge, joins Pam Karlan for a discussion on presidential immunity, the Constitution, and former president Trump's cases. In this insightful episode, they discuss the implications of the Supreme Court's stance on criminal versus civil liabilities for presidents, the political ramifications of prosecutorial actions, and the historical context of executive power under the U.S. Constitution.
Is legal representation in the U.S. only for the rich and corporations? That's a question that we'll explore in this episode of Stanford Legal with guests David and Nora Freeman Engstrom, two leading authorities on access to justice and the legal profession. They'll explain the roots of the challenge, how unauthorized practice of law rules contribute to the problem, and how to address them. The Engstroms co-direct Stanford Law School's Deborah L. Rhode Center on the Legal Profession, an academic center working to shape the future of legal services and access to the legal system. This episode delves into some alarming statistics, including the fact that in three-quarters of civil cases in state courts, at least one party is without a lawyer. This alone often leads to unjust outcomes in cases involving debt collection, evictions, family law, and other areas. And that is just part of the problem, as the Engstroms explain.
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Chapter 1: The Access to Justice Crisis in the U.S.
(00:00:00) Pam Karlan introduces the episode, discussing the work of David and Nora Freeman Engstrom at Stanford Law School's Deborah Rhode Center on the Legal Profession. This section provides an overview of the access to justice crisis, highlighting the high percentage of cases where individuals lack legal representation and a look at the types of cases predominantly at issue, including debt collection, evictions, mortgage foreclosures, and family law cases.
Chapter 2: Understanding the Consequences and Causes of Legal Inaccessibility
(00:7:06) David and Nora Freeman Engstrom explore the broader implications of the lack of legal representation, including the cascade of related legal and financial issues that arise from initial problems like wage garnishment and eviction. They also touch on the hidden legal issues that never make it to court due to individuals' inability to seek legal help.
Chapter 3: Exploring Solutions and Technological Impacts on Access to Justice
(00:10:07) David and Nora Freeman Engstrom delve into potential solutions to the access to justice crisis, including the role of technology in both exacerbating and potentially alleviating the problem. They discuss the efficiency of technological tools used by the debt collection industry and the implications for legal access.
Chapter 4: The Technology Asymmetry in Debt Collection
(00:14:19 ) Pam Karlan and David Freeman Engstrom discuss how debt collectors use automation to exploit legal processes against unrepresented individuals. They highlight the stark disparity between technological access for debt collectors and individual defendants. Engstrom points out the restrictive rules that limit software-driven legal services, exacerbating the access to justice crisis.
Chapter 5: The Historical Context and Current Restrictions on Legal Services
(00:15:55) Nora Freeman Engstrom delves into the history of legal service restrictions in the U.S., contrasting it with medical professions. She introduces her research on auto clubs and their provision of legal services in the early 20th century, showing how organized bar associations shut down these alternatives to preserve their monopoly.
Chapter 6: Modern Innovations and Future Prospects in Legal Services
(00:24:13) The host and guests discuss recent efforts to relax unauthorized practice of law rules in states like Utah and Arizona. They explore innovative legal service models emerging from these reforms, including tiered services and AI-driven solutions, and their potential to democratize access to legal assistance. The discussion highlights how entities like LegalZoom are now able to hire lawyers and provide more comprehensive services. They also touch on the potential of generative AI to bridge the gap between legal jargon and plain language, making legal assistance more accessible to the public. The chapter concludes with reflections on the promise and challenges of these technological advancements.
In this episode, Rich and Pam discuss the successes and failures of Brown v. Board of Education with their colleague, Rick Banks. Marking the 70th anniversary of the landmark Supreme Court decision, they look at its impact on Jim Crow segregation and the ongoing challenges in achieving educational equality in the U.S. Banks offers a critical analysis of the effectiveness of Brown in integrating American primary and secondary education and explores alternative approaches to further racial and socioeconomic integration in schools.
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(00:00:00) Chapter 1: Introduction and Significance of Brown vs. Board of Education
Introduction to the podcast and the topic of Brown vs. Board of Education. Discussion on the transformative impact of Brown on American society and its less effective impact on primary and secondary education.
(00:02:36) Chapter 2: Initial Impact and Challenges of Brown
Exploration of the immediate aftermath of the Brown decision, including the decade of minimal desegregation and the eventual legislative push in the 1960s. Mention of personal anecdotes highlighting the slow progress.
(00:06:35) Chapter 3: Massive Resistance and Supreme Court’s Role
Discussion on the era of massive resistance to desegregation, the role of the Southern Manifesto, and the Supreme Court's strategic avoidance of direct intervention. Examination of the lingering effects of this period on the present educational landscape.
(00:10:16) Chapter 4: Socioeconomic Disparities and School Segregation
Analysis of the ongoing economic inequality and its impact on school segregation. Comparison between Northern and Southern school desegregation efforts, with specific examples from Detroit and Charlotte.
(00:14:45) Chapter 5: Legal and Structural Barriers to Integration
Examination of legal decisions such as Milliken and San Antonio vs. Rodriguez that reinforced segregation and funding disparities. Discussion on the narrow scope of Brown and its consequences.
(00:18:58) Chapter 6: Integration vs. Educational Quality
Debate on the merits of integration versus focusing on educational quality through alternative methods such as charter schools and vouchers. Consideration of the mixed outcomes of these approaches.
(00:22:19) Chapter 7: Parental Responsibility and Systemic Solutions
Reflection on the burden placed on parents to seek better education through choice programs. Comparison to historical figures who fought for desegregation. Discussion on the need for systemic solutions rather than relying solely on choice.
(00:25:02) Chapter 8: Future Directions and Pragmatic Solutions
Call for a mix of approaches to improve education, combining integration efforts with initiatives focused on educational quality. Emphasis on the importance of experimentation, evidence collection, and open-minded evaluation of educational policies.
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