The Case of the Speluncean Explorers by Lon Fuller is a classic 1949 law review article that all law students should read. Many thanks to Professor Michael Krauss who first introduced this article to me. I hope my students enjoyed it as much as I did.

The story is set in the year 4300 AD in the fictional state of Newgarth. It tells the story of explorers who are trapped in a cave without adequate supplies. The explorers know that the rescuers will be unable to reach them in time, so they decide they must resort to cannibalism in order to survive. The explorers decide to cast lots, to determine who should be eaten. One of the members is selected, and is eaten. After the surviving explorers are rescued, they are found guilty of murder. The case is appealed to the Newgarth Supreme Court and 5 Justices consider the case. Each of the Justices represents a different modality of jurisprudential thinking.

In the first part of this discussion, we explore the views of Chief Justice Truepenny, who asked the Chief Executive to grant clemency to the cannibalistic explorers, Justice Foster, who sought to discover the spirit of the law, Justice Tating, who could not make up his mind so he withdrew from the case, and Justice Keen, who sought to apply the text of the murder statute.

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Learn everything you ever wanted to know about Iqbal, Twombley, and the new pleading standard for Complaints. Also, hear an interesting discussion that begins, “How open should our courts be.”

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In this lecture, I explore the intersection of disparate impact analysis and the Equal Protection Clause in Ricci v. DeStefano. As well I discuss the Ledbetter opinion, and the resulting Lilly Ledbetter Fair Pay Act. I also provide a brief introduction to the ADA and sexual harassment law.

I’d like to note that I gave this lecture the night before Justice Stevens announced his retirement, and I did give my picks about who would replace JPS. Though, I was off, and predicted JPS make the announcement step at the end of April.

I opened up this lecture with a timely reference to Senator Schumer’s attempt to “overturn” (a term I reject) Citizens United. Discussion of the privilege against self incrimination starts at 6:00.Discussion of federal immunity starts at 15:00. I discuss Miranda and the aftermath of Miranda, including my interview with Bob Corbin, who prosecuted Miranda at 24:00. Discussion of Nixon’s attempt to overturn Miranda at 28:00.A talk of Dickerson at 31:00.Plus I give an extended discussion of McDonald v. Chicago. Trust me, its relevant.

For the first 6 minutes, I give an overview of the history of the Fourth Amendment, focusing on my man, George Mason, the Virginia Declaration of Rights, Writs of Assistance, and sprinkle in a bit of John Locke. I had to make this topic my own. Starting at the 6 minute mark, I go into the text of the Fourth Amendment, and justifications for the exclusionary rule. Around the 30 minute mark I talk about the structural protections of our Constitution, and why it is so important to protect the rights of the accused. At 38:30 I begin a discussion of Terry v. Ohio. Shameless plug for Constitutional Places, Constitutional Faces at 42:00, and a discussion of why there are so many SCOTUS cases that arose from Cleveland.

This is a very special JoshCast. As part of my research for Constitutional Places, Constitutional Faces, I have been in touch with many of the people involved in some of the most famous Supreme Court opinions. In addition to obtaining images of Constitutional Places and Constitutional Faces, we are now conducting interviews as part of a new feature series called Constitutional Voices. Constitutional Voices will be a series of audio interviews with individuals associated with each case — including the lawyers involved, the parties themselves, or even descendants of those parties — and will form a living-history compendium of constitutional stories.

I did an interview this morning with Bob Corbin. Bob was the county prosecutor in Phoenix, Arizona in 1966 when the Supreme Court threw out Miranda’s Conviction. Later, Bob became the Attorney General of Arizona. Bob relayed some amazing stories of how they managed to convict Miranda, even without the confession. Also, interesting to note, is the officers did advise Miranda that anything he said could be used against him in a  court of law, though they did not advise him of his right to counsel. Enjoy.

H/T Dave Hardy for putting me in touch with Robert.

In this lecture we cover:

• Exclusive jurisdiction (14:00), with a fun discussion of the  constitutionality of exclusive jurisdiction at 17:00
• Mottley and the well-pleaded complaint rule (17:00))
• Advisory opinions, and make a timely Alito, J. joke at 52:10
• the constitutionality of advisory opinions at 56:00
• the meaning of “arising under” for purposes of federal questions with a focus on American Well Works, Smith, Merrell Dow, and Grabel v. Darue.
• Pendent Jurisdiction & Gibbs
• Finley, Supplemental Jurisdiction and 28 U.S.C. 1367

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This evening during class, while I was discussing diversity citizenship, and how citizens are considered citizens of the states where they are incorporated, and the place of their principal places of business, Judge Gibson asked me to talk to the class about Citizens United v. FEC.

Mind you, I had briefly read the 190 pages quickly this morning, and I had no notes. I think I did pretty well. And yes, I think I let out a yelp when the opinion was finally released. Hey, it was well worth the wait.

For those of you not able to attend my Federal Court Practice class, I just uploaded a JoshCast of my lecture on Marbury v. Madison. I tell the untold history of Marbury, the underlying political battle between Marshall and Jeferson, and writs of Mandamus in plain English. Take a look at slides 29-35 to follow along.

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Yesterday I blogged about Mike Sacks and his new blog First One @ One First. Mike, a 3L at GULC, wants to be the first one on line for every significant SCOTUS case this term. Anyone this passionate about the Supreme Court needs to be Joshcasted. Take a listen.

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I am a pretty big Justice Scalia, or Nino has his friends call him, fan. So this JoshCast was a special treat for me. I spoke at great lengths with Joan Biskupic, legal affairs correspondent for USA Today, about her new book, American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia.

We covered a lot of ground, so definitely listen to this JoshCast in its entirety. We chatted about Originalism, Raich, Heller, Justice Thomas, Nino’s “John Marshall” moment, and more. Also, check out the SCOTUS family guy clip on the Justice Souter’s initiation to the Supreme Court.

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Why has Justice Scalia has become such a social butterfly of late?

“He wants to peddle that darn book” [referring to Making Your Case: The Art of Persuading Judges co-authored with Brian Garner].

What kind of access did Justice Scalia provide?

Justice Scalia was much more accessible than Justice O’Connor. Biskupic previous authored a biography on Justice O’Connor, in which she worked primarily from documents and not interviews.  Originally Justice Scalia did not want to sit for interviews, but after Biskupic uncovered immigration records and other information about Scalia’s past, he became much more interested.

On Justice Scalia’s “Faint-Hearted Originalism”

“He’s an Originalist, not a nut.”

Also Justice Alito revealed in an Biskupic’s interviews that he is not as devout an originalist, and that “originalist  only gets you part of the way there.”

As a Professor, did Justice Scalia publish on Originalism?

Justice Scalia’s views on Originalism and the Constitution did not flower until he was appointed to the Supreme Court. Did not teach constitutional law in a substantive way at Chicago. He mainly taught administrative law.

On Justice Scalia’s Relations with Justice Thomas

They often reach the same outcomes from different points of view.

Justice Thomas relayed a humorous anecdote comparing how different they are.

Thomas said his favorite thing to do is to watch Nebraska Corn Huskers football game. Justice Scalia’s favorite thing to do is watch opera. Thomas doesn’t care about opera. Scalia has probably never watched a football game on TV.  Thomas said he does not really get into the cases, but he describes Scalia as getting so absorbed into cases, that when he turns on his computer to write opinions, it is like he is orchestrating a symphony.

Scalia- gets so into cases, turning on computers like making a symphony.

On Justice Thomas’s Reaction to D.C. v. Heller

Justice Thomas did not have the same sense of enthusiasm over Heller that Justice Scalia did. “We were not high-fiving each others in the hallway.”

This crushed my spirit. I’m reminded of this Family Guy video

Scalia on Heller, and Interpreting the 2nd Amendment for the First Time

It was  “like being John Marshall for a little tiny portion of the constitution.” [I hope he was saying what the Law is, and not what the Law ought to be]

On Heller’s Constrained Holding and Limiting Dicta

Chief Justice Roberts took a risk assigning the opinion to Scalia, who can lose a majority very easily, as it doesn’t take much to lose Justice Kennedy, who could write a concurring opinion. So, he limited the opinion and saved issues like incorporation for another day.

On Gonzalez v. Raich

It seems Justice Scalia thinks it is permissible for the federal government to regulate moral matters (drugs) but not non-moral matters (guns, violence against women).

Regulation of commerce to achieve moral aims in drug policy area goes back a long way. He didn’t acknowledge inconsistencies in Lopez/Morrison and Raich.  His defense is that the federal government can go into drug area, a more more moral areas, where it has traditionally played that role. Very Scalia moment when he refused to answer the question in front of the Federalist Society.

Would Justice Scalia be confirmed in nominated in 2010?

(Assuming a Republican President nominated him with a Democratic Senate) In 1986, he had the advantage of being the first Italian-American, and his hearing followed the contentious confirmation of Chief Justice Rehnquist. In many cases, the senators did not look at the record. although his record was hiding in plain sight. It would be very hard to confirm him.

In the future, is it possible for an ideological mover like Justice Scalia to be confirmed by a Senate of the Opposite Party?

It would be very difficult. The Bork and Thomas hearings were very contentious and have added to this tension. Even Alito and Roberts were narrowly divided.

What would be Justice Scalia’s ideal Christmas Present?

A bottle of red wine, new hunting gear, and a trip to Louisiana to go after turkey or duck.

Clark Neily of the Institute for Justice is a friend of liberty. He took some time to chat with me about McDonald v. Chicago, substantive due process, privileges or immunities, and Lochner. Clark never minces his words so definitely check it out.

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I am very pleased to present this very special JoshCast. Professor Michael Krauss of the George Mason University School of Law and Rabbi Bruce Aft of Congregation Adat Reyim participated in a discussion on Judaism and the Law sponsored by the George Mason Jewish Law Students Association. Many thanks to Corey Carpenter for recording the event.

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P.S. Yours truly  is referenced by Professor Krauss at 1:26:10. Professor Krauss, I’m still working on an answer to your question.

At the 2009 Federalist Society National Lawyers Convention, Professor Richard Epstein gave me 8 minutes of his time. Professor Epstein is one of my favorite Professors, and I was starstruck the entire interview. I asked him about McDonald, the Hillary Movie Case, his thoughts on Andy Stern and the SEIU, and more. Definitely check it out.

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Check out the most recent JoshCast, where I interview Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute, and the winner of the battle of the Ilyas contest!

Ilya talks about Pandora, McDonald, and his possible celebratory trip to Disney World after his grand victory!

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Anne Heller, the author of Ayn Rand and the World She Made took the time to chat with me about her new biography. I asked a few questions about Rand, Judaism, and Going Galt. Let’s just say Ayn would not be happy with my license plate

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P.S. Dear FTC, I received a free copy of this book from the publisher. Is that okay?

For those of you in the D.C. Libertarian community, you will know that there are two Ilyas.

Ilya Shapiro, a Senior Fellow of Constitutional Studies at the Cato Institute, and Ilya Somin, a Professor at George Mason School of Law. Both are Libertarians. Both are Russian. Both have the same last initial. They often get confused. But they are nothing alike.

To resolve this name-game between these two brains, I proposed a trivia battle. Both parties agreed. I provided each party with a copy of Judge Danny Boggs’s (Court of Appeals for the Sixth Circuit) Trivia Questionnaire . For those unfamiliar with Judge Boggs’s Trivia Questionnaire, check out this story from Underneath Their Robes.

I graded the quizzes, and in this JoshCast, I announce the results with both parties on the line. Take a listen. Hilarity ensues.

But, before you listen, a quick poll: Who do you think won?

Here is the JoshCast:

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I commend you listen to the JoshCast in its entirety, but if you must, fast forward to 8:30 to hear the winner, or click here for the answer.

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I am considering making these trivia battles a weekly program. If you are interested in strutting your stuff, and showing your skills, contact me

Dave Kopel, Research Director of the Independence Institute and frequent blogger of the Volokh Conspiracy took a few minutes to chat with me about the amicus brief he filed in McDonald v. Chicago. Dave presents some fascinating empirical data about the effects of handgun bans on crime, and presents an interesting argument how Meyer v. Nebraska compels striking down the Chicago ban.

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Check out the JoshCast with Tim Sandefur of the Pacific Legal Foundation. Tim took some time to chat with me about McDonald v. Chicago, the Second Amendment, and the Privileges or Immunities Clause. Tim also discusses the Amicus brief Pacific Legal and Cato filed, which I discussed earlier.

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Update: Thanks for the link from Volokh Professor Kopel.