Advisory Opinions

Latest Episodes:

The World of Commercial Legal Finance Mar 18, 2021

Show notes

On today’s podcast, Sarah and David discuss a lawsuit in which a high school student sues his Nevada charter school “for repeatedly compelling his speech involving intimate matters of race, gender, sexuality and religion.” Our hosts explain why the critical race theory curriculum in question is unlikely to be deemed unlawful by the court. Per David: “You don’t have an inherent right, once your kid is in public school, to direct and control the curriculum that they see.” Stay tuned to hear special guest Chris Bogart chat about his career in commercial litigation finance.

Show Notes:

-Clark et al v. State Public Charter School Authority et al.

-Brown v. Hot, Sexy and Safer Productions, Inc.

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Listener Mailbag Part II Mar 15, 2021

Show notes

Today, our hosts are taking a break from the news cycle to share some fun facts about the Supreme Court and answer a series of questions from their listener mailbox: Are Democratic-appointed Supreme Court justices more ideologically reliable than their Republican-appointed counterparts? What are some cases where you are inclined to agree with the legal reasoning but were bothered by the policy outcome? And perhaps most important, how should one go about hiring an attorney? Sarah and David have the scoop.

Show Notes:

-“Cleaning Up Quotations” by Jack Metzler in the Journal of Appellate Practice and Process.

-“ ‘(Cleaned Up)’ Parenthetical Arrives in the Supreme Court” by Eugene Volokh in Reason.

-“Larry Flynt’s Life in Contempt” by Ross Anderson in Los Angeles Magazine.

-“Empirical SCOTUS: Interesting meetings of the minds of Supreme Court justices” by Adam Feldman in SCOTUSBlog.

-Federal Tort Claims Act and Immigration and Nationality Act.

-Cases they mentioned: Keeton v. Hustler Magazine, Inc., Knick v. Township of Scott, Bostock v. Clayton County, Masterpiece Cakeshop v. Colorado Civil Rights Commission, Our Lady of Guadalupe School v. Morrissey-Berru, Morse v. Frederick, Rucho v. Common Cause and Kelo v. City of New London.

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Bottle Episode Mar 11, 2021

Show notes

David took the internet by storm last night when he joined a Clubhouse session called “David French, Based or Cringe?” As David puts it in today’s pod, “There’s kind of a subculture where people really hate me!” Joined by a very special guest on today’s episode, David and Sarah chat about nominal damages, the constitutionality of H.R. 1’s effort to federalize elections, and the increasing number of state laws that are aiming to ban critical race theory from being taught in K-12 classrooms.

Show Notes:

-H.R. 1, also known as the “For the People Act.”

-“The New War on Woke” by Jeffrey Sachs in ArcDigital.

-Garcetti v. Ceballos.

-“Beyond Originalism” by Adrian Vermeule in The Atlantic.

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Nominal Damages Mar 08, 2021

Show notes

Katie Barlow, lawyer and media editor of SCOTUSBlog, sits in for David on today’s episode. Sarah and Katie kick off things by discussing the decision handed down in Uzuegbunam v. Preczewski, in which an 8-1 majority ruled that even seeking “nominal damages” can be enough to give a plaintiff standing. Plus, Katie explains how her time working for Nina Tottenberg at NPR helped her prepare for translating SCOTUS decisions into one-minute TikTok videos. And, of course, she weighs in on the “should you go to law school” debate. Make sure you stick around to the end to hear Sarah and Katie sing the praises of Oprah and react to the Prince Harry and Megan Markle interview on CBS.

Show Notes:

-Nominal damages decision

-SCOTUSBlog article about the decision

-Nina Totenberg’s Twitter

-Katie Barlow’s Twitter (which has all of her TikToks)

-CBS’ Harry and Megan interview

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Nondiscrimination Law and the Equality Act Mar 04, 2021

Show notes

Is the Equality Act necessary to codify Bostock v. Clayton County? How might the Equality Act affect religious liberty, if at all? How do we definitively differentiate between men and women? Today, our hosts chat about invidious sex discrimination as it relates to the Equality Act, and what this law means for the future of nondiscrimination law if it is passed by the Senate. Stay tuned to hear our hosts recap oral arguments for Brnovich v. Democratic National Committee, a Supreme Court case that deals with the Voting Rights Act.

Show Notes:

-“The Equality Act Has a Foundational Legal Problem” by David French in The Dispatch.

-Radiolab Presents: Gonads.

-Bostock v. Clayton County.

-Religious Freedom Restoration Act.

-Fulton v. City of Philadelphia.

-Brnovich v. Democratic National Committee and its Supreme Court oral arguments.

-Shelby v. Holder.

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Hot Pursuit Mar 02, 2021

Show notes

The Supreme Court heard oral arguments last week for Lange v. California, a Fourth Amendment case that will determine whether a police officer’s hot pursuit of a person suspected of committing a misdemeanor counts as an exigent circumstance to justify the officer’s warrantless entry onto the suspect’s property. In today’s Supreme Court heavy episode, Sarah and David also talk about two other cases dealing with hostile work environments and whether women should constitutionally be required to register for the draft.

Show Notes:

-Lange v. California oral arguments and transcript.

-National Coalition for Men v. Selective Service System cert petition.

-Robert Collier v. Dallas County Hospital District cert petition.

-Rostker v. Goldberg.

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The Shadow Docket Feb 26, 2021

Show notes

Supreme Court Justice Clarence Thomas made headlines last week for his dissent to the majority’s denial of cert in Republican Party of Pennsylvania v. Veronica Degraffenreid. Even though his dissent mainly focused on the mootness of the case, many media outlets seized on the opportunity to mischaracterize Justice Thomas’ argument by claiming he promoted President Trump’s baseless voter fraud claims. After Sarah and David give us their spiel about how media outlets often botch Supreme Court coverage, University of Chicago Law professor William Baude joins today’s show for an extremely nerdy conversation about the Supreme Court’s shadow docket that you won’t want to miss.

Show Notes:

-Republican Party of Pennsylvania v. Veronica Degraffenreid.

-“Dissent by Justice Thomas in election case draws fire for revisiting baseless Trump fraud claims” by Mark Joseph Stern in Slate.

-“Clarence Thomas Promotes Trump’s Voter Fraud Lies in Alarming Dissent” by John Fritze in USA Today.

-“Foreword: The Supreme Court's Shadow Docket” by William Baude in the New York University Journal of Law & Liberty.

-Feb. 18 House Judiciary Committee hearing on the Supreme Court’s shadow docket.

-Supreme Court Practice by Eugene Gressman.

-South Bay United Pentecostal Church v. Newsom.

-Fulton v. City of Philadelphia.

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The Nondelegation Rumble Feb 22, 2021

Show notes

Originalists have recently come under fire for trying to reinvigorate an old principle in administrative law called the nondelegation doctrine, which holds that Congress cannot delegate its own legislative power to other entities. Are originalists correct in claiming that the nondelegation doctrine was present at the founding? What does the historical record have to say about it? Why should living constitutionalists even care about this debate? Nicholas Bagley, a law professor at the University of Michigan, and Ilan Wurman, an associate professor at the Sandra Day O'Connor College of Law at Arizona State University, join the show to answer all of these questions and more.

Show Notes:

-“There’s No Historical Justification for One of the Most Dangerous Ideas in American Law” by Nicholas Bagley and Julian Davis Mortenson in the Atlantic.

-“Delegation at the Founding” by Nicholas Bagley and Julian Davis Mortenson in Columbia Law Review.

-“No Nondelegation at the Founding? Not so fast,” by Ilan Wurman in the Yale Law Journal.

-Schechter Poultry Corp. v. United States.

-Above the Law.

-The Second Founding: An Introduction to the Fourteenth Amendment by Ilan Wurman.

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Nondelegation Doctrine Feb 18, 2021

Show notes

On Tuesday, Speech First, Inc. filed a free speech lawsuit alleging that the University of Central Florida and its officials “created a series of rules and regulations that restrain, deter, suppress, and punish speech about the political and social issues of the day.” David and Sarah walk us through the history of campus cat and mouse battles over restrictive speech codes and explain whether this lawsuit will matter in the long run. On today’s episode, our hosts also chat about the nondelegation doctrine, the possibility of further criminal prosecution against Donald Trump, and how Rush Limbaugh’s passing might affect the conservative media climate.

Show Notes:

-Speech First vs. Cartwright and Speech First, Inc. v. Gregory L. Fenves.

-Nondelegation doctrine cases: Schechter Poultry Corp. v. United States, J.W. Hampton Jr., & Co. v. United States and Gundy v. United States.

-“Trump’s Acquittal Exposed a Republic in Peril” by David French in Time.

-“There’s No Historical Justification for One of the Most Dangerous Ideas in American Law” by Julian David Mortenson and Nicholas Bagley in the Atlantic.

-“Opinion analysis: Court refuses to resurrect nondelegation doctrine” by Mila Sohoni in SCOTUSblog.

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Death Penalty Distortion Feb 15, 2021

Show notes

The Supreme Court on Thursday granted Alabama death row inmate Willie Smith’s request to have his pastor present at his execution, rejecting the state’s claim that having a spiritual adviser present interferes with prison security. Tune in to hear how the Supreme Court’s religious liberty ruling in Dunn v. Smith might affect future death penalty cases. On today’s episode, our hosts also chat about Yuval Levin’s latest piece in National Review on the sorry state of Congress and the New York Times’ 2020 Hulu documentary about Britney Spears.

Show Notes:

-Dunn v. Smith, federal Religious Land Use and Institutionalized Persons Act, and “Bong Hits 4 Jesus” case Morse v. Frederick.

-“Congress’s Day” by Yuval Levin in National Review and “Transcript: Ezra Klein Interviews Yuval Levin About the Future of the Republican Party” in the New York Times.

-Framing Britney Spears Hulu documentary.

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