Episode 141: The Picard Meltdown Principle

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.

This show’s links:

Leah Litman’s faculty profile and writing

Leah Litman, Debunking Antinovelty

First Mondays

United States v. Windsor; Romer v. Evans

Printz v. United States; Free Enterprise Fund v. PCAOB; NFIB v. Sibelius (Obamacare I)

Cass Sunstein, Incompletely Theorized Agreements

PHH Corp. v. Consumer Financial Protection Bureau

Karl Llewellyn, The Bramble Bush: On Our Law and Its Study

Special Guest: Leah Litman.