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The Three Whisky Happy Hour: Staring Down Stare Decisis, with Guest Bartender John Yoo

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This week's episode is going up a day early as we had to call Happy Hour for Thursday evening on account of scheduling problems, and Steve and Lucretia welcome to the bar the noted Bourbon drinker and McRibb connoisseur John Yoo. (He's also apparently a law professor somewhere.)

We review a few of the tea leaves from last week's Supreme Court oral argument in the Dobbs case, but use this momentous case to talk more broadly about the whole problem of stare decisis ("let the decision stand") in our jurisprudence. Along the way we entertain some seriously heterodox views, such as the proposition that Brown v. Board of Education never actually overturned the "separate but equal" doctrine of Plessy v. Ferguson. It it has done so, we wouldn't have the messy regime of quotas and affirmative action today.

We also speculate on whether there might actually be leaks from somewhere inside the Court ahead of the decision—something that rarely or never happens—because the liberal justices are desperate to do anything to derail an overturning of Roe (which, Steve argued to John, is the "McRibb sandwich of modern jurisprudence: a compressed confection of offal cuts slathered with sauce to disguise its true awfulness"). Finally, we discuss the "crisis of the conservative legal movement" and what might happen to it if the Court muffs the Dobbs case.

Host:
Steve Hayward
Guests:
JYJohn Yoo"Lucretia"

Discussion (1)

  • LibertyDefender@LibertyDefender

    This was a fun podcast, despite the seriousness of the discussion.

    I often point out to lefty libs who spout "substantive due process " one aspect of Lucretia's explication, i.e. that Roger Taney invented "substantive due process" to deny citizenship to freed slaves.

    With respect to Lucretia's and John Yoo's criticism of Political Science's descent into empiricism, as compared to their lofty self-inflated view of modern day law school, I have to think/hope/pray there's a happy medium somewhere. When I was in law school in the early 90s, I took a seminar in which each week different faculty members discussed their leading edge scholarship. One week, a top shelf nationally known scholar in bankruptcy discussed his research, which involved gathering empirical data in an effort to learn if the bankruptcy law was accomplishing what its authors intended. A couple of noteworthy items resulted:

    1. His research partner was a professor of sociology, since no one in the entire law school knew the first thing about collecting or analyzing data, let alone conducting regression analysis; and
    2. The empirical research demonstrated several counterintuitive results, e.g. in many states where Chapter 7 homestead and other exemptions were generous, individuals still chose Chapter 13 at higher rates than in states where Chapter 7 was not as favorable an option. There was much discussion of the possible explanation that the local culture of desire to repay one's debts is more powerful than the law.

    So my point is that many areas of high holy legal research can surely benefit from some actual empirical analysis. There isn't aren't yet enough data in law school for legal researchers to know to ask Steve's oft-quoted line of libs "so what if it works in practice, how does it work in theory?"

    I could totally go for a regular Three Whisky Happy Hour with Lucretia, Steve, John Yoo, Mark Steyn, and Charles Murray - as long as the first order of business is to disabuse Charles Murray of his affection for Universal Basic Income.

    John Yoo gave Richard Epstein more credit than I think he's due with respect to overturning Wickard v. Filburn. I recall one video podcast event a few years ago in which John Yoo explicitly objected to Prof. Epstein's suggestion that the Supreme Court should or would follow Wickard. By my hearing, Prof. Epstein was far too deferential to Wickard. I often feel that I'm the only one who ever mentions that an activity ought to include at least one commercial transaction before Congrefs may regulate that activity as "commerce among the several states."

    @64:25:
    Steve: Lucretia used to accuse me of being a pretentious intellectual
    Lucretia: I used to?

    See Comment #4, Powerline # 292 Three Whisky Happy Hour: What the Latest Hoax Teaches about Liberalism

    Let's Go Brandon!

    (The Let's Go Brandon link would be a fine outro music choice)