Law Talk Q&A

 

It’s August, which means it’s time to open up the faculty lounge to listener questions. On the next episode of the Law Talk podcast (now a production of The Hoover Institution!), Professors Richard Epstein and John Yoo will take your questions on matters of law, policy, politics, or whatever happens to interest you (though if one of you asks Richard a question about Roman riparian law, so help me God…).

Post your questions in the thread below and a selection of the best ones will be featured in our upcoming episode.

Published in General
Like this post? Want to comment? Join Ricochet’s growing community of conservatives and be part of the conversation. Get your first month free.

There are 19 comments.

  1. Stad Thatcher

    Do disclaimers really protect a business from liability?

    Whether it’s the tiny print at the bottom of an ad on TV, a Eula for software, or warning labels on various products, it seems lawyers these days go to court for any person who gets hurt or wronged, even if they misuse the product. Sadly, it also seems no judge throws these cases out of court (disclaimer or not), no matter how stupid a person is (thinking about the old woman who put the MacDonald’s hot coffee between her knees in a car).

    • #1
    • August 8, 2019, at 1:50 PM PDT
    • Like
  2. Max Ledoux Admin

    What would Roman Riparian law have to say about river boat gambling?

    • #2
    • August 8, 2019, at 2:21 PM PDT
    • 2 likes
  3. Jerry Giordano (Arizona Patrio… Member

    I’d like to get their opinions on the SCOTUS action in the border wall funding case, Trump v. Sierra Club, which essentially reversed the District Court’s stay. The situation is complex — as I understand it, the District Court stayed the administration’s plan to conclude contracts and proceed with border wall construction to the extent of about $2.5 billion in re-allocated funds, and SCOTUS summarily “stayed the stay” pending resolution of the appeal (both to the 9th Circuit and to SCOTUS, if the government loses at the 9th Circuit and seeks a writ of cert).

    The situation is interesting in itself, but I also wonder if it might signal further SCOTUS “smack-downs” of arguably overbroad District Court injunctions.

    It strikes me that this could be a very effective control. It is difficult to articulate a standard for the issuance of a “nationwide” injunction (as in the DACA case or the travel ban case) or for similar injunctions like the border wall case, where the injunction seriously interferes with executive branch decisions. But it is relatively easy to “stay the stay,” with little or no explanation, and it really makes the point about District Court overreach.

    • #3
    • August 8, 2019, at 4:30 PM PDT
    • 2 likes
  4. Gary Robbins Reagan

    Jerry Giordano (Arizona Patrio… (View Comment):

    I’d like to get their opinions on the SCOTUS action in the border wall funding case, Trump v. Sierra Club, which essentially reversed the District Court’s stay. The situation is complex — as I understand it, the District Court stayed the administration’s plan to conclude contracts and proceed with border wall construction to the extent of about $2.5 billion in re-allocated funds, and SCOTUS summarily “stayed the stay” pending resolution of the appeal (both to the 9th Circuit and to SCOTUS, if the government loses at the 9th Circuit and seeks a writ of cert).

    The situation is interesting in itself, but I also wonder if it might signal further SCOTUS “smack-downs” of arguably overbroad District Court injunctions.

    It strikes me that this could be a very effective control. It is difficult to articulate a standard for the issuance of a “nationwide” injunction (as in the DACA case or the travel ban case) or for similar injunctions like the border wall case, where the injunction seriously interferes with executive branch decisions. But it is relatively easy to “stay the stay,” with little or no explanation, and it really makes the point about District Court overreach.

    Ditto on this issue. I was glad that DAPA was stopped by a single District Judge in South Texas, however clearly, there needs to be a uniform standard, not just applicable to cases where I like the result! Should decisions be limited to the Judicial District, the particular state, the particular Circuit, or not at all? Should we encourage a multitude of decisions between the circuits? Or what?

    • #4
    • August 8, 2019, at 7:46 PM PDT
    • Like
  5. RufusRJones Member

    Mark Levin says that Supreme Court terms should be 18 years instead of lifetime. Approvals would be less politically contentious this way. What is your opinion?

    • #5
    • August 9, 2019, at 8:43 AM PDT
    • 3 likes
  6. Jerry Giordano (Arizona Patrio… Member

    Gary Robbins (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):

    I’d like to get their opinions on the SCOTUS action in the border wall funding case, Trump v. Sierra Club, which essentially reversed the District Court’s stay. The situation is complex — as I understand it, the District Court stayed the administration’s plan to conclude contracts and proceed with border wall construction to the extent of about $2.5 billion in re-allocated funds, and SCOTUS summarily “stayed the stay” pending resolution of the appeal (both to the 9th Circuit and to SCOTUS, if the government loses at the 9th Circuit and seeks a writ of cert).

    The situation is interesting in itself, but I also wonder if it might signal further SCOTUS “smack-downs” of arguably overbroad District Court injunctions.

    It strikes me that this could be a very effective control. It is difficult to articulate a standard for the issuance of a “nationwide” injunction (as in the DACA case or the travel ban case) or for similar injunctions like the border wall case, where the injunction seriously interferes with executive branch decisions. But it is relatively easy to “stay the stay,” with little or no explanation, and it really makes the point about District Court overreach.

    Ditto on this issue. I was glad that DAPA was stopped by a single District Judge in South Texas, however clearly, there needs to be a uniform standard, not just applicable to cases where I like the result! Should decisions be limited to the Judicial District, the particular state, the particular Circuit, or not at all? Should we encourage a multitude of decisions between the circuits? Or what?

    Gary, I know, but it gets weird.

    The same judge who stopped DAPA now has a case involving the original DACA. The same arguments against DAPA apply equally to DACA. The order against DAPA was upheld by the 5th Circuit and affirmed by an equally divided SCOTUS (after Scalia’s death and before Gorsuch’s appointment).

    Here’s the really weird thing. There are a couple of other cases prohibiting the Trump administration from ending DACA. DACA was a purely Executive Branch order, and is probably impermissible (under the same reasoning as DAPA) — but I believe that two District Courts have invalidated the Trump administration decision to terminate DACA.

    Quite a mess.

    • #6
    • August 9, 2019, at 9:57 AM PDT
    • 1 like
  7. Miffed White Male Member

    RufusRJones (View Comment):

    Mark Levin says that Supreme Court terms should be 18 years instead of lifetime. Approvals would be less politically contentious this way. What is your opinion?

    I’ll answer that for them:

    The problem with fixed terms for Supreme Court Justices is that it creates a predisposition for confirmation, or else enables game-playing.

    What if the Senate doesn’t confirm? When someone is eventually confirmed, does their 18 years start at the time they take the oath, or is it shortened by the amount of time it took to confirm them?

    If the first, then you’re going to start having some between justices. If the second, then a committed Senate can “shorten” the time in office of an ideologically questionable nominee, even if they ultimately confirm them. 

    Fixed terms work for elected offices where you have a date-certain “take office leave office” because the voters choose. With a “one party nominates and another party has to consent” procedure, fixed terms don’t work.

     

    • #7
    • August 9, 2019, at 10:06 AM PDT
    • 1 like
  8. Steven Hayward Podcaster

    Why is John a closet legal positivist, and what does Richard think of natural law jurisprudence, such as Justice Thomas advocates?

    • #8
    • August 9, 2019, at 9:36 PM PDT
    • 1 like
  9. John Stanley Coolidge

    Many cities have very high housing cost and limited supply. This often deals with property being zoned to single-family homes. Companies can not find reasonable cost locations to build apartments. The U.S. Supreme Court has allowed this in Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926). Question: Do you think the U.S. Supreme Court will review the power of local governments to limit the use of property?

     

    On a related topic, what are your views on local governments requiring the set aside of apartments for lower income tenants. Is this a uncompensated taking in violation of the 14th amendment?

     

    • #9
    • August 10, 2019, at 8:01 AM PDT
    • 1 like
  10. ToryWarWriter Thatcher

    Compare and contrast Roman Law, Napoleonic Code, English Civil Law and Cannon Law.

     

    :)

     

    No seriously dont do that.

    • #10
    • August 10, 2019, at 10:35 AM PDT
    • 2 likes
  11. Max Ledoux Admin

    Hypothetically speaking, is it illegal for an ex-president to have his former rape buddy murdered in prison. I mean, if the buddy was going too rat then he deserved it, right? Hypothetically?

    • #11
    • August 10, 2019, at 8:36 PM PDT
    • 4 likes
  12. Randy Webster Member

    Jerry Giordano (Arizona Patrio… (View Comment):

    Here’s the really weird thing. There are a couple of other cases prohibiting the Trump administration from ending DACA. DACA was a purely Executive Branch order, and is probably impermissible (under the same reasoning as DAPA) — but I believe that two District Courts have invalidated the Trump administration decision to terminate DACA.

    Quite a mess.

    Courts are political now.

    • #12
    • August 12, 2019, at 10:22 PM PDT
    • Like
  13. Randy Webster Member

    Miffed White Male (View Comment):
    Fixed terms work for elected offices where you have a date-certain “take office leave office” because the voters choose. With a “one party nominates and another party has to consent” procedure, fixed terms don’t work.

    You could roll two 12 sided dice after they were confirmed to determine the length of their tenure.

    • #13
    • August 12, 2019, at 10:25 PM PDT
    • 2 likes
  14. MISTER BITCOIN Coolidge

    1. a tariff is a tax.

    all tax bills are supposed to start in the house appropriations committee.

    therefore all tariffs must be approved by congress?

    which means section 230 or whatever clause gives the President the power to impose tariffs based on national security is unconstitutional?

    the tariffs on washing machines and aluminum were justified by ‘national security’.

    washing machines made in S Korea are a threat to national security?

     

    2. do trade agreements between foreign nations count as treaties? 

    if so, don’t they require 2/3 majority support in senate?

     

    3. can USA pull out of NATO without senate approval?

    north atlantic treaty organization is a treaty?

     

    • #14
    • August 13, 2019, at 3:03 AM PDT
    • Like
  15. MACHO GRANDE' (aka - Chri… Coolidge

    Miffed White Male (View Comment):

    RufusRJones (View Comment):

    Mark Levin says that Supreme Court terms should be 18 years instead of lifetime. Approvals would be less politically contentious this way. What is your opinion?

    I’ll answer that for them:

    The problem with fixed terms for Supreme Court Justices is that it creates a predisposition for confirmation, or else enables game-playing.

    What if the Senate doesn’t confirm? When someone is eventually confirmed, does their 18 years start at the time they take the oath, or is it shortened by the amount of time it took to confirm them?

    If the first, then you’re going to start having some between justices. If the second, then a committed Senate can “shorten” the time in office of an ideologically questionable nominee, even if they ultimately confirm them.

    Fixed terms work for elected offices where you have a date-certain “take office leave office” because the voters choose. With a “one party nominates and another party has to consent” procedure, fixed terms don’t work.

     

    I’ll answer that for you.

     

    Image result for ruth bader ginsburg asleep

    • #15
    • August 13, 2019, at 3:34 AM PDT
    • 2 likes
  16. Front Seat Cat Member

    If we have strong immigration laws that have been on the books for years, why the mass migrations who get in – bypass it all – when did it start – was it the Obama years that it really accelerated? I always like GWB’s plan to offer temporary work visas with limited stay – in the meantime you could apply legally. All those that they rounded up in the chicken plant in MS made me think about it. Americans, even poor ones, don’t want those jobs it seems. Now we have Hispanic families with no dad, no income still living here, especially if the kids were born here? So complicated. This doesn’t seem like a solution.

    • #16
    • August 13, 2019, at 6:20 AM PDT
    • Like
  17. benwood91 Member

    How can an increase of even a couple hundred billion dollars in tariffs cause a 21 trillion economy to slip into recession, as seems to be the current scare?

    • #17
    • August 13, 2019, at 6:28 AM PDT
    • 1 like
  18. Right Wing Teamster Lawyer Thatcher

    Do you listen to podcasts other than Law Talk or Libertarian?

    If yes, which ones? Favorite law and non-law related podcast?

     

    As always, keep up the good work.

     

    RWTL

    • #18
    • August 13, 2019, at 6:46 AM PDT
    • Like
  19. Miffed White Male Member

    Front Seat Cat (View Comment):
    I always like GWB’s plan to offer temporary work visas with limited stay – in the meantime you could apply legally.

    That doesn’t work well with Birthright citizenship.

    All those that they rounded up in the chicken plant in MS made me think about it. Americans, even poor ones, don’t want those jobs it seems. Now we have Hispanic families with no dad, no income still living here, especially if the kids were born here? So complicated. This doesn’t seem like a solution.

    I believe it was said about one of the Middle Eastern Countries: “We thought we were importing workers. Turned out we were importing people”.

     

    • #19
    • August 13, 2019, at 9:51 AM PDT
    • Like