Oral Argument

We made a return to the annual Tech Law Institute meeting in Atlanta and recorded a live episode about self-driving cars. We talked optimism, pessimism, political valence, regulatory challenges, federalism, trolley problems, and more.

Causation and responsibility are inter-related, crucial, and yet puzzling concepts in law. With tort scholar Shahar Dillbary, we explore situations in which spectators “cause” accidents in a drag race that they merely witness and in which the more tortfeasors there are, the better. Also, burning Christian’s car and an update on Joe’s recent cold.

Is originalism required by our law? We chat with Charles Barzun about his critique of the inclusive originalists, the new movement to claim that an originalist interpretive method is not only a good choice among possible methods but is the method which is mandated by a positivist approach to our law.

Is legal writing narrative? How about judgments, appeals, testimony? We talk with Simon Stern about narrative and its techniques and effects, suspense, dicta, authorial purposes, a crazy idea for a novel, mathematical proofs, and more.

The merits of going live-to-tape, RSS woes, mailbag, decisionmaking machines, breaking the law by not facilitating others’ breaking the law, shipping Perceiving Law, cutting one’s favorite scene, a mysterious phone call.

After some goofy but needful pre-pre-roll and pre-post-roll, we take with Emily Sherwin about the law and equity distinction, its relation to rules and standards, its relation to candor, how what looked like a formal distinction had surprisingly functional effects, and how to get the most out of “good” rules.

Administrative law expert Cathy Sharkey joins us to talk about conflicting judicial approach(es) to preemption and deference - and the web of institutions and decisionmaking that is modern lawmaking.

Al Brophy returns to discuss, among other things, his new book on the connections between slavery, the academy, legal theory, and the judiciary.

A special live-to-tape dig through the mailbag. (Fixed, because the originally posted episode 107 cut out at 13:54 - mysteriously!)

Joe and Christian talk about this fraught election, focusing on RBG’s Trump remarks. Joe makes a confession.

With returning guest Tim Meyer, we talk about Brexit. Topics include referenda, democracy, comic book villains, the dynamics of union and separation, treaties and executive actions, Iceland, the roles of crisis and convenience. And a dramatic technical difficulty.

Christian, Joe, and frequent co-host Sonja West dig into the mail and tweet bags and discuss nonsense, sense, and antisense. Topics include: Judge John Hodgman’s weighing in on speed trap law, podcast listening speeds, the Slate Supreme Court Breakfast Table, the insurable liability approach to the gun crisis, Joe sings (yes) a line from “The Externality Song” and (relatedly, obv) Hamilton vs. Upstream Color, price matching and the morality quiz, footnoting and in-text citation and madness, an argument over Guantanamo and rights, more on the culturally polarized gun debate and on rights generally, Posner’s skepticism of academia, and how things change and get better.

We’re joined by a scholar of patent law, administrative law, and many other things, Jonathan Masur. Jonathan does not think the patent office has done a very good job of conducting cost-benefit analyses of various rules and procedures for issuing, maintaining, and challenging patents. Supposing patents should exist at all - can you tell who writes these show notes? - how should we account for the effects of the way we administer the system? These questions lead us to some basic conversation about cost-benefit analysis and and the value of patents. And we wind up asking simple questions, like what a cost is.

Despite the fact that our show is pretty much the opposite of careful, we discuss precaution, regulation, and institutional choice with Sarah Light. The environmental and other effects of Uber and Lyft are complicated. If they’re very hard to calculate and understand, how should we regulate them to address their harms? With uncertain webs of causation, can the precautionary principle tell us not simply whether to regulate but who should regulate? Sarah thinks so.

After the deadliest mass shooting in American history, we talk about the problem of gun violence and a possible way forward.