Dissenting Opinions

Latest Episodes:

Legal Shell Game (with Caleb Nelson) Jul 28, 2021

Show notes

Will is joined by University of Virginia law professor Caleb Nelson to discuss Association of Data Processing Service Organizations, Inc. v. Camp. They get deep into the weeds of the technicalities of standing and causes of action, and discuss how a misunderstanding of Justice Douglas’s opinion has transformed our understanding of administrative law. WARNING: this one is complicated!

Case audio is from Oyez.org

Stable, Predictable, Commonsensical (with Kevin Walsh) Jul 14, 2021

Show notes

Will is joined by University of Richmond law professor Kevin Walsh to discuss the doctrine of severability, applied by Barr v. American Association of Political Consultants, its formalist alternatives, and the deep dilemma judges face when Congress won't respond to constitutional problems.

Case audio is from Oyez.org

Politics Jun 30, 2021

Show notes

In the final episode of Deep Dive, Will and Adam discuss the partisan politics of originalism. They discuss hot-button topics like: academic freedom, gun rights and the Second Amendment, marijuana regulation, same-sex marriage, and once again the Affordable Care Act.

Recorded February 22, 2021

The Oath Jun 30, 2021

Show notes

In Episode 6 of Deep Dive, Will and Adam discuss the oath judges and public officials take, whether or not it’s still relevant today, and what the oath has to do with originalism. They also argue about an analogy reminiscent of the SAT: Is it constitution:United States, or is it protect and defend:United States?

Recorded February 15, 2021

Original Law Originalism Jun 30, 2021

Show notes

In Episode 5 of Deep Dive, Will and Adam tease out positive law originalism further by discussing "original law originalism." They discuss the difference between original intent and original meaning, how scholars might use methods of change, and how originalism handles the Reconstruction Amendments.

Recorded February 8, 2021

Applications Jun 30, 2021

Show notes

In Episode 4 of Deep Dive, Will and Adam review the positive turn and discuss how originalism applies to modern problems such as the administrative state, handgun laws, and the Affordable Care Act.

Recorded February 1, 2021

The Positive Turn Jun 16, 2021

Show notes

In Episode 3 of Deep Dive, Will and Adam dissect the claim that originalism is "our law." They discuss how courts handle precedent and policy, and also ponder how judges can change their mind while still being an originalist.

Recorded January 25, 2021

The Counterarguments Jun 16, 2021

Show notes

In Episode 2 of Deep Dive, Will and Adam discuss some counterarguments to originalism, both descriptive and normative. They also discuss federalism, judicial choice, and well... there is just too much to sum it all up.

Recorded January 14, 2021

The Emergence of Originalism Jun 16, 2021

Show notes

In Episode 1 of Deep Dive, Will and Adam discuss the rise of originalism up to about 2013, including the three main arguments for originalism: the linguistic argument, two consequentialist arguments, and they ponder: What's the difference between a fried chicken recipe and a Constitution? How important are state constitutions compared to the US Constitution, and how easy or difficult should it be to create constitutional amendments? What should the amendment process look like? Spoiler alert: the movie plot of Lincoln is discussed.

Recorded January 4, 2021

A Court with a Mission (with David Strauss) Jun 02, 2021

Show notes

Will is joined by UChicago Law Professor David Strauss to discuss Congress's power to enforce the Constitution, recognized by Katzenbach v. Morgan, and whether there's still any room today for the principles of the Warren Court.

Audio clips are from Oyez.org

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