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Stanford Legal

Stanford Law School

Law touches most aspects of life. Here to help make sense of it is the Stanford Legal podcast, where we look at the cases, questions, conflicts, and legal stories that affect us all every day. Stanford Legal launched in 2017 as a radio show on Sirius XM. We’re now a standalone podcast and we’re back after taking some time away, so don’t forget to subscribe or follow this feed. That way you’ll have access to new episodes as soon as they’re available. We know that the law can be complicated. In past episodes we discussed a broad range of topics from the legal rights of someone in a conservatorship like Britney Spears to the Supreme Court’s abortion decision to how American law firms had to untangle their Russian businesses after the invasion of Ukraine. Past episodes are still available in our back catalog of episodes. In future shows, we’ll bring on experts to help make sense of things like machine learning and developments in the regulation of artificial intelligence, how the states draw voting maps, and ways that the Supreme Court’s affirmative action ruling will change college admissions. Our co-hosts know a bit about these topics because it’s their life’s work. Pam Karlan studies and teaches what is known as the “law of democracy,”—the law that regulates voting, elections, and the political process. She served as a commissioner on the California Fair Political Practices Commission, an assistant counsel and cooperating attorney for the NAACP Legal Defense Fund, and (twice) as a Deputy Assistant Attorney General in the Civil Rights Division of the U.S. Department of Justice. She also co-directs Stanford’s Supreme Court Litigation Clinic, which represents real clients before the highest court in the country, working on important cases including representing Edith Windsor in the landmark marriage equality win and David Riley in a case where the Supreme Court held that the police generally can’t search digital information on a cell phone seized from an individual w

  • 30 minutes 4 seconds
    Special Counsel Smith's Report on Trump's Interference in the 2020 Election

    In the early hours of January 14, 2024 the Department of Justice released its long-awaited election interference report against President-elect Donald Trump. It was a long and winding road to that moment—and one marked, ultimately, by justice delayed. 

    In November 2022, Attorney General Merrick Garland appointed Jack Smith as special counsel to oversee criminal investigations by the Justice Department into former President Donald Trump’s efforts to overturn the 2020 election and his retention of classified documents. The two cases were brought in different jurisdictions—with charges for the classified documents case filed in Florida and the elections case in Washington, D.C. 

    After false starts, the blockbuster Supreme Court ruling on July 1, 2024 that former President Trump is entitled to some immunity from criminal prosecution for actions taken to overturn the results of the 2020 election, and the subsequent re-election of Trump in November, Smith and the DOJ dropped both cases. (Publication of Smith’s report regarding the documents case is delayed due to pending charges against co-conspirators.)
     

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    (00:00:00) Chapter 1: Introduction and the Role of Special Prosecutors

    Pam Karlan and David Sklansky discuss the history and purpose of special prosecutors, their use in politically sensitive cases, and the implications of their reports. Sklansky explains the transition from independent counsels to special counsels and highlights examples like the Mueller Report and investigations into Hunter Biden.

    (00:05:01) Chapter 2: Insights from Jack Smith’s Report

    The conversation shifts to Jack Smith's report on Donald Trump. Karlan and Sklansky explore the evidence presented, its connection to the January 6th events, and the debates around releasing such reports. Karlan questions the timing of appointing a special counsel, given much was already public knowledge.

    (00:08:25) Chapter 3: Prosecution Outcomes and Future Implications

    Karlan and Sklansky discuss the slow progress of Trump’s investigation compared to other January 6th prosecutions. They also cover Trump’s promise to pardon convicted January 6th defendants, the fate of unnamed co-conspirators, and the ethical questions surrounding Todd Blanche’s involvement at the DOJ.
     

    (00:12:16) Chapter 4: Decisions and Legal Strategies in Trump’s Prosecution

    Karlan and Sklansky discuss the decision not to charge Donald Trump with insurrection, focusing instead on charges like fraud and voter suppression. They analyze why the special counsel avoided certain charges and the challenges of applying existing statutes to unprecedented events.

    (00:16:30) Chapter 5: The Supreme Court’s Role and the Impact on Prosecution

    The conversation explores delays caused by the Supreme Court, including its handling of presidential immunity. Karlan and Sklansky explain how these rulings affected timelines and created legal ambiguities that could influence appeals and the overall process.

    (00:19:00) Chapter 6: Restoring Trust in Criminal Justice and Democracy

    Karlan and Sklansky shift focus to broader implications for democracy, discussing how Trump’s prosecutions might deepen distrust in institutions. They consider paths to reform, including bipartisan efforts to reinforce the rule of law and community policing. The episode concludes with reflections on lessons from past legal leaders and the enduring relevance of Robert Jackson’s warnings about prosecutorial overreach.

    15 January 2025, 12:00 am
  • 29 minutes 43 seconds
    California Burning: LA Fires, Climate Change, and Insurance Nightmares with Environmental Lawyer Debbie Sivas

    The fires in Los Angeles, fueled by drought and the notorious Santa Ana winds, have wreaked devastation on the largest county in the United States, taking at least 10 lives and destroying thousands of structures as of January 10—with much of the Los Angeles metropolis, suburban neighborhoods like Pasadena and Pacific Palisades engulfed in smoke, and tens of thousands of residents without homes. In this episode, environmental law expert Deborah Sivas joins Pam Karlan for a discussion of California's fire crisis, examining how climate change and urban development are making residents more susceptible to the dangers of fires. They also look at air quality, rebuilding challenges, insurance strains, and the broader implications for urban planning, labor, and environmental recovery, highlighting the urgent need for sustainable solutions in an era of intensifying climate impacts.

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    (00:00:00) Chapter 1: Introduction, the Santa Ana Winds, and Fire Dynamics
    Host Pam Karlan introduces environmental expert Deborah Sivas. The two discuss the Santa Ana winds, their origins, and their role in fueling wildfires. They explore the interaction of high winds, parched landscapes, and the growing impact of climate change on fire frequency and intensity.

    (00:06:49) Chapter 2: Urban Fires and the Wildland-Urban Interface

    The conversation shifts to the challenges of wildfires in urban and suburban areas. Sivas explains fire ignition sources, the difficulty of containment, and the need for defensible spaces. She highlights the vulnerability of areas at the wildland-urban interface and discusses practical steps to reduce fire risk, including vegetation management and retrofitting structures.

    (00:12:37) Chapter 3: Air Quality and the Broader Impacts of Fires
    Sivas and Karlan examine the devastating effects of wildfire smoke on air quality, especially in densely populated regions like Los Angeles. They discuss how urban fires release toxic pollutants and disproportionately impact vulnerable communities. The chapter emphasizes the broader environmental and health consequences of wildfires in an era of climate change.

    (00:16:46) Chapter 4: Climate Change, Insurance Challenges, and Recovery Efforts
    The conversation shifts to the economic challenges posed by climate disasters, focusing on California’s wildfire insurance crisis. Sivas explains private insurance limitations, the state's FAIR program, and rebuilding challenges, including rising construction costs and environmental cleanup.

    (00:23:17) Chapter 5: Firefighting, Displacement, and Economic Impact
    Karlan and Sivas explore the complexities of wildfire response, including the reliance on inmate labor and firefighting logistics. They also discuss displacement, long-term housing issues, and the socioeconomic toll on affected communities and businesses.

    10 January 2025, 9:14 pm
  • 29 minutes 1 second
    Tariffs, Trade Wars, and Policy Shifts under Trump: A Tutorial on the Global Economy and Trade

    Just weeks before he was elected president of the United States, during a conversation at the Economic Club of Chicago, Donald Trump declared, “The most beautiful word in the dictionary is ‘tariff.’ And it’s my favorite word.” As the president-elect takes to the bully pulpit, leaders of nations threatened with new tariffs are calling Trump or even flying down to Mar-a-Lago, as Canadian President Trudeau did recently, to argue their case.  Stanford Law Professor Alan O. Sykes joins Pam and Rich for this episode to help make sense of the fascinating world of trade, tariffs, and the global economy. Al is a leading expert on the application of economics to legal problems whose most recent scholarship is focused on international economic relations. His writing and teaching have encompassed international trade, torts, contracts, insurance, antitrust, international investment law and economic analysis of law. He is the author most recently of the book The Law and Economics of International Trade Agreements.


     

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    (00:00:00) Chapter 1: Introduction and Explanation of Tariffs 
    Rich Ford and Pam Karlan introduce Professor Alan Sykes, a leading expert in international trade law, to explore the basics of tariffs. They discuss what tariffs are, how they function like a tax on imports, and who ultimately bears the cost. Sykes explains the economic complexities, such as elasticity of demand and supply, and highlights how tariffs impact U.S. consumers and foreign producers.

    They discuss how tariffs often fail to significantly increase manufacturing jobs and the potential downsides of retaliation and supply chain disruptions.

    (00:08:36) Chapter 2: Policy Implications and Optimal Tariff Strategies 
    Alan Sykes unpacks the policy decisions behind tariffs, such as balancing national security concerns and economic efficiency. Sykes explains the concept of "optimal tariffs" and critiques proposals like 100% tariffs, arguing for targeted approaches such as subsidies for sensitive industries. The hosts highlight the distinction between product-specific measures and country-focused tariffs in maintaining supply chain resilience.

     

    (00:12:28) Chapter 3: The Evolution of U.S. Free Trade Policy 

    The group explores the post-World War II consensus around free trade and how it has shifted in recent years. Alan Sykes outlines bipartisan changes to U.S. trade policy, the impact of the "China shock," and the shift towards an "America First" approach under both Trump and Biden administrations.

    (00:16:43) Chapter 4: Tariffs, Trade Wars, and Public Misunderstandings 

    The discussion delves into the politics of tariffs and their economic implications. Alan Sykes explains why tariffs remain politically popular despite their economic inefficiency, the mechanics of trade wars, and the historical example of the Smoot-Hawley Tariff. They also discuss how tariffs and retaliation, such as restrictions on rare earth elements, could affect U.S. industries.

    (00:23:26) Chapter 5: Multilateral Trade Agreements and National Security 

    Alan Sykes traces the history of multilateral trade institutions, focusing on the GATT, WTO, and USMCA. Sykes explains the U.S.’s recent retreat from WTO commitments, the renegotiation of NAFTA, and the controversial use of national security clauses to justify tariffs and sanctions. The conversation closes with insights on the implications of these shifts for allies and adversaries alike.

    19 December 2024, 2:00 pm
  • 26 minutes 20 seconds
    The Presidential Pardon Power, from Biden and Trump to Ancient Kings

    Presidential pardons are in the headlines again after President Joe Biden’s pardon of his son Hunter. But the vast majority of presidents have used this awesome power, which was enshrined in the Constitution at the founding of the country and dates back to 7th Century English monarchs. What are the issues at play with modern presidential pardons? What does history tell us about this practice? Our guest this week is Stanford Law Professor Bernie Meyler, a scholar of British and American constitutional law and of law and the humanities and author of the book Theaters of Pardoning. She joins Pam and Rich for a discussion of high-profile pardons like Hunter Biden and Donald Trump’s allies to broader issues of mercy, justice reform, the implications of pardons in polarized politics, their historical roots, and ideas for reform.
     

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    (00:00:00) Chapter 1: The Origins and Evolution of the Pardoning Power
    Hosts Pam Karlan and Rich Ford welcome guest Bernie Meyler. The discussion opens with a look at the historical roots of the pardoning power, tracing its lineage from the divine rights of kings in England to its adaptation in American democracy. Key examples include early English judicial pardons, debates at the U.S. Constitutional Convention, and George Washington's use during the Whiskey Rebellion. The chapter closes with insights into President Trump's controversial approach to pardons, likened to monarchical practices of wielding power above the law.

    (00:05:04) Chapter 2: Legal Boundaries and Contemporary Issues in Pardoning
    This chapter examines the legal limits of the president's pardoning power, such as the inability to pardon state crimes, and the various forms pardons can take. The conversation pivots to notable recent pardons, including Hunter Biden's, sparking a discussion about blanket pardons versus specific ones and their implications on guilt and historical accountability.

    (00:14:24) Chapter 3: Pardons, Polarization, and Public Perception 

    The discussion shifts to the broader context of pardons, their declining use, and the influence of public opinion. The hosts analyze the risks of granting pardons and compare historical uses of the power, such as Washington’s Whiskey Rebellion pardons, to modern examples like January 6th.

    (00:21:02) Chapter 4: Reforming the Pardon Process in a Divided Society 

    The group explores potential reforms to the pardon process, suggesting ways to make it more democratic and transparent. Meyler discusses citizen panels and their role in ensuring fairness, while reflecting on the challenges of polarized politics.

    6 December 2024, 6:30 pm
  • 48 minutes 19 seconds
    Exploring AI in Healthcare: Legal, Regulatory, and Safety Challenges

    Artificial Intelligence holds the potential to transform much of our lives and healthcare professions are embracing it for everything from cost savings to diagnostics. But who is to blame when AI assisted healthcare goes wrong? How is the law developing to balance the benefits and risks? In this episode, Pam and Rich are joined by health policy expert Michelle Mello and Neel Guha, a Stanford JD/PhD candidate in computer science, for a discussion on the transformative role of AI in healthcare. They examine AI’s potential to enhance diagnostics and streamline workflows while addressing the ethical, legal, and safety challenges this new technology can bring. The conversation highlights the urgency of adapting regulatory frameworks, the complexities of liability among hospitals, developers, and practitioners, and the need for rigorous testing to ensure patient safety as AI integration in healthcare advances.

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    (00:00:00) Chapter 1: Understanding AI in Medicine
    The episode begins with a broad introduction to AI's applications in medicine. Neel Guha explains generative AI systems and their rapid advancement, including practical applications like chatbots, imaging, and decision-making tools. Michelle Mello highlights AI's widespread integration, from diagnostic tools like radiological imaging and predictive algorithms to administrative uses that aim to reduce physician burnout.

    (00:07:04) Chapter 2: The Benefits and Risks of AI in Healthcare
    The group explores the advantages of AI in medicine, such as enhanced diagnostic precision, reduced administrative burdens, and improved patient outcomes. Michelle Mello identifies potential risks, like automation bias, where reliance on AI might lead to unchecked errors, highlighting the tension between time-saving tools and maintaining human oversight.

    (00:08:22) Chapter 3: Legal Challenges and Liability in AI-Driven Medicine
    The conversation turns to the legal implications of AI in healthcare. Neel Guha outlines scenarios where AI contributes to patient harm, discussing negligence claims, product liability, and the complexity of determining accountability. Michelle Mello and the hosts analyze how liability standards might evolve, comparing AI's systematic errors to human fallibility and addressing the interplay of human-AI collaboration in preventing mistakes.

    (00:14:47) Chapter 4: The Challenges of AI and Transparency in Decision-Making
    The group explores parallels between medical and anti-discrimination fields in understanding machine learning's opaque decision-making. Neel Guha delves into the evolution of AI systems from rule-based programming to complex machine learning, emphasizing challenges in identifying points of failure across stakeholders like hospitals, physicians, and developers.

    (00:17:35) Chapter 5: Regulation and Liability of AI in Healthcare
    Michelle Mello discusses the regulatory framework for AI as a medical device, comparing outdated 1976-era regulations to modern challenges. The conversation shifts to gaps in tort liability and the risks of developers limiting their liability through contracts. Proposals for redistributing liability to incentivize better private governance are examined alongside the need for robust AI quality assurance akin to crash tests or clinical trials.

    (00:23:13) Chapter 6: The Road Ahead: Balancing Innovation and Safety
    The speakers analyze the distinct challenges of regulating AI across diverse healthcare environments. Neel Guha and Michelle Mello discuss adapting evaluation practices to align with AI's real-world complexities. Optimism prevails as Michelle highlights AI’s potential to address critical issues like diagnostic delays, advocating for guardrails to ensure safety without stifling innovation. The episode concludes with reflections on Stanford's interdisciplinary approach to these pressing issues.

    21 November 2024, 2:00 pm
  • 47 minutes 58 seconds
    Crime, the Opioid Crisis, and Gun Violence: New Jersey Attorney General Matt Platkin on How Action at the State Level Is Making a Difference

    Matt Platkin, who was the youngest-ever AG in the country when he was appointed in 2022, discusses some of his public safety initiatives such as the ARRIVE Together program, which pairs mental health professionals with law enforcement to improve responses to mental health crises. Among other pressing issues facing New Jersey, Platkin also addresses his state's comprehensive approach to gun violence, which focuses on data-driven crime enforcement, community violence prevention, and legal accountability for firearm manufacturers.

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    (00:00:00) Chapter 1: The Role and Challenges of State Attorneys General 

    Show Notes: Host Rich Ford introduces Matt Platkin, Attorney General of New Jersey, and dives into the multifaceted role and responsibilities of state attorneys general, especially in enforcing public safety and overseeing large-scale law enforcement. Platkin shares insights on the expectations and hurdles faced by AGs, highlighting the critical role they play in protecting communities.

    (00:03:42) Chapter 2: Innovative Crisis Intervention Programs 

    The discussion shifts to the "ARRIVE Together" program, a pioneering mental health and law enforcement collaboration aimed at de-escalating crisis situations. Platkin explains how pairing officers with mental health professionals in crisis response has drastically reduced force incidents and arrests in New Jersey. He also touches on the broader need for mental health resources, noting how training and interdisciplinary cooperation contribute to more effective, compassionate responses.

    (00:09:10) Chapter 3: Public Health Approaches to Opioid and Gun Crises 

    Platkin outlines New Jersey's proactive strategies to tackle the opioid and gun violence epidemics, focusing on diversion programs, community partnerships, and civil enforcement. He discusses the impactful results of addressing these issues as public health crises, noting the state’s success in reducing both opioid fatalities and gun-related violence through data-driven enforcement, community engagement, and targeted litigation against non-compliant businesses.

    (00:17:34) Chapter 4: Interstate Coordination and the Role of AGs in Federal Litigation

    Attorney General Matt Platkin explains the importance of collaboration among state attorneys general, including bipartisan efforts in federal litigation. He shares examples of major joint cases, such as those against Meta and Apple, and discusses how AGs coordinate on issues that transcend state lines, often through bipartisan associations.

    (00:20:14) Chapter 5: The Evolution and Influence of the New Jersey Supreme Court

    Pam Karlan asks Platkin about New Jersey’s innovative Supreme Court. Platkin delves into the unique aspects of New Jersey’s government structure, including the influential role of the state Supreme Court in affordable housing and school funding cases. He shares insights on recent judicial reforms and the impact of balanced partisan representation on the court.

    (00:25:08) Chapter 6: Path to Public Service and Career Reflections
    Platkin recounts his journey from law school to Attorney General, sharing pivotal moments like working on Cory Booker’s campaign and volunteering in San Antonio. He reflects on how early career risks and public service aspirations shaped his path, highlighting the impact of his experiences on his leadership in New Jersey’s government.

    7 November 2024, 2:00 pm
  • 30 minutes
    Racism in Property Deeds: Stanford Team Develops AI Tool to Identify and Map Racial Covenants

    Stanford Law's Daniel Ho and computer science/law student Mirac Suzgun discuss the enduring impact of racially restrictive covenants in real estate with host Rich Ford. Though unenforceable since 1948, these clauses are a lingering reminder of housing segregation and racism in the United States, as Professor Ho's own experience of discovering a covenant barring Asians from purchasing his home highlights. The conversation also looks at legislative efforts to remove the covenants and an innovative AI tool developed by Stanford's RegLab that helps counties identify and redact these covenants, streamlining the process while preserving the historical record.

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    (00:00:00) Chapter 1: Introduction to Racial Covenants and AB 1466
    Host Rich Ford introduces the episode, guests Professor Dan Ho and SLS student Mirac Suzgun, and the topic of racial covenants in real estate. They discuss the persistence of racially restrictive covenants, despite being declared unenforceable by the Supreme Court in Shelley v. Kramer (1948), and highlight California’s AB 1466 law, which aims to address the issue.

    (00:04:00) Chapter 2: The Role of AI in Redacting Racial Covenants
    Dan Ho explains how Santa Clara County faced the challenge of identifying and redacting racial covenants from millions of historical deed records. The conversation shifts to the AI tool developed by Stanford’s RegLab, which automates the identification of racially discriminatory language in property documents. Mirac Suzgun elaborates on the stages of the AI tool, including OCR and machine learning, to help counties meet their legal obligations.

    (00:10:01) Chapter 3: Historical Context and Persistence of Racial Covenants
    Rich Ford and Dan Ho delve into the history of racial covenants, explaining their rise after the Buchanan decision (1917) and their persistence even after the Shelley v. Kramer ruling. They discuss how these covenants, though unenforceable, served as a community signaling function, reinforcing housing segregation for decades.

    (00:16:13) Chapter 4: The Legacy of Racial Covenants

    Rich Ford and Mirac Suzgun discuss the evolution of state-sponsored race segregation and the role of private covenants in perpetuating housing discrimination. They emphasize how these covenants, often embedded in property deeds, remain binding on homeowners, illustrating the historical entrenchment of racial segregation in real estate.

    (00:18:48) Chapter 5: Uncovering Historical Data and Responsibility

    Dan Ho shares findings from a study revealing the prevalence of racial covenants in Santa Clara County. The discussion highlights the significant responsibility of a small number of developers in enforcing these covenants, contrasting this with the example of Joseph Eichler, who resisted such practices and promoted housing reform.

    (00:23:11) Chapter 6: Utilizing Technology for Social Justice

    The conversation shifts to the innovative tools developed to identify and address racial covenants in property records. The hosts explore the implications of these discoveries for understanding historical injustices and the importance of retaining historical records while advocating for modern social justice initiatives, plus closing remarks.

    24 October 2024, 1:00 pm
  • 29 minutes 59 seconds
    Killing in Self Defense: The Legal Complexities of Abuse-Related Crimes and the Impact of Intimate Partner Violence on Women's Criminal Convictions

    How are victims of intimate partner violence meant to protect themselves—and, often, their children—without winding up dead, in hospital, or prison? It’s a situation that many find themselves in. Approximately 15 percent of women in the United States are victims of intimate partner violence, according to the National Domestic Violence Hotline. But the legal system is not set up to help them. In this episode the executive director of the Stanford Criminal Justice Center, Debbie Mukamal, and Stanford Law student Jacqueline Lewittes join Pam and Rich to discuss the Center's new study “Fatal Peril: Unheard Stories from the IPV-to-Prison Pipeline and Other Stories Touched by Violence,” that offers groundbreaking data and personal stories from women currently in prison because of intimate partner violence. They also touch on the systemic failures in the justice system in handling these complex cases. 

     

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    (00:00:00) Chapter 1: Introductions and Goals of the Research 

    Hosts Pam Karlan and Rich Ford discuss how the project on women incarcerated for killing their abusers began during the pandemic, sparked by a lack of national data on these cases with Debbie Mukamal and SLS student Jacqueline Lewittes. Mukamal explains how her team's long-standing relationships with the California Department of Corrections facilitated their research access despite COVID-19 restrictions.

    (00:04:12) Chapter 2: Research Design and Challenges 

    The team outlines the complexities of designing the study, including broadening the focus beyond intimate partner killings and overcoming barriers like accessing reliable court records. They explain how they relied on direct interviews and used validated tools like the Danger Assessment and Composite Abuse Scale to assess the severity of abuse.

    (00:08:42) Chapter 3: Striking Findings and Legal Implications 

    Explore key findings, including the prevalence of traumatic brain injuries among respondents and the failure of self-defense laws to protect abused women. Jacqueline highlights a specific case that illustrates how memory loss due to abuse complicates self-defense claims, underscoring the systemic legal failures.

    (00:18:30) Chapter 4: The Role of Intimate Partner Violence in Homicide Cases

    The group delves into the startling statistics of women convicted of homicide in connection to intimate partner violence. Debbie Mukamal discusses how nearly 74% of women in their study had experienced abuse at the time of the offense, breaking down the subcategories of cases, from those who killed their abuser to others involving child fatalities.

    (00:21:25) Chapter 5: Systemic Failures in Protecting Abuse Victims

    Examine the various ways in which the legal system fails to protect women who are victims of abuse. From denied protective orders to mistreatment by police and ineffective legal defense, the discussion highlights the failures at multiple levels and the resulting harsh sentences.

    (00:23:55) Chapter 6: Law Reform and the Impact of Trauma on Legal Culpability

    This segment focuses on potential legal reforms, including changes to homicide statutes and the need for better understanding of traumatic brain injury (TBI) in abuse survivors. Debbie Mukamal and Pam Karlan discuss the implications of TBI on a woman’s ability to recall facts, and how reforms could better account for their experiences.

    10 October 2024, 1:00 pm
  • 32 minutes 15 seconds
    Challenging Originalism: Putting the Electoral College, Presidential Immunity, and Recent SCOTUS Decisions into Historical Context

    Is the president above the law? Is the Electoral College democratic? In this episode, historian Jonathan Gienapp critiques the mainstream use of originalism, arguing that it often neglects crucial historical context, overlooking the complexities of original public understanding. The conversation dives into recent court cases, highlighting tensions between historical interpretation and contemporary judicial practices. This is clearly illustrated in Gienapp’s discussion of the Electoral College—a uniquely American invention. He explains the historical roots of the Electoral College, the Framers' intentions, and the criticisms it faces today. He also sheds light on how the Electoral College emerged as a compromise among less desirable options and the historical context surrounding its establishment, including issues of accountability and regional interests. The conversation also touches on ongoing debates about potential reforms, public sentiment toward a national popular vote, and the challenges of amending the Constitution in today's contentious political landscape. Join us for an enlightening discussion that bridges history with contemporary constitutional debates.

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    (00:00:00) Chapter 1: Introduction and the Flaws of Originalism
    Hosts Pam Karlan and Rich Ford discuss the key issues with modern originalism, focusing on how originalists often overlook the historical context necessary to truly capture the Constitution’s original meaning with historian Jonathan Gienapp. Gienapp critiques the flexibility of originalist interpretations, especially when applied to complex constitutional concepts like freedom of speech and executive power.

    (00:04:33) Chapter 2: Public Meaning vs. Original Intent
    Rich Ford explores the tension between public meaning and original intent in originalist theory. Gienapp explains how, despite attempts to distinguish them, the two often overlap in practice. The discussion highlights the inconsistency in how originalists pick and choose historical evidence to support their interpretations.

    (00:07:47) Chapter 3: Judicial Interpretation in Practice: Rahimi and Trump Cases
    Pam Karlan brings up recent court cases, including United States v. Rahimi and Trump v. United States, where originalist judges either struggled with historical evidence or avoided it altogether. Gienapp notes the irony of originalists relying on minimal historical analysis when it contradicts their desired outcomes.

    (00:12:04) Chapter 4: The Framers' Vision of the Presidency

    Jonathan Gienapp discusses the historical foundations of the American presidency, emphasizing the founding generation's rejection of monarchy and the importance of presidential accountability. He highlights the debate at the Constitutional Convention regarding the balance between a strong executive and ensuring that executive power remains accountable to the people.

    (00:17:06) Chapter 5: Originalism and Constitutional Interpretation

    Jonathan Gienapp delves into the complexities of originalism as a judicial philosophy. He explains the tension between the rhetoric of originalism and its inconsistent application in Supreme Court decisions. He argues for either a more serious commitment to originalism or a recognition of constitutional pluralism, where history is used alongside other interpretative methods.

    (00:21:39) Chapter 6: The Origins and Challenges of the Electoral College

    Exploration of the creation of the Electoral College, discussing how it emerged not as a perfect solution but as a compromise to address competing concerns about legislative selection, popular votes, and regional interests. Gienapp examines past and present efforts to reform the Electoral College and explains why it persists despite criticism.

    26 September 2024, 1:00 pm
  • 26 minutes 52 seconds
    Election Stress Test: Can America's Electoral System Weather 2024?

    As the 2024 presidential election approaches, Nate Persily forecasts complications along with it.

    Persily, a Stanford law professor and a leading expert in election law and administration, says the coming election cycle could pose unprecedented challenges for voters and election officials alike. “We are at a stage right now where there's a lot of anxiety about election administration,” he says. “There's a significant share of the population that's completely lost confidence in our system of elections.”

    With nearly every state having altered its election laws since 2020 and a significant turnover in election administrators, Persily says the stage is set for a potentially bumpy ride this November. As voter confusion and AI-powered disinformation loom overhead, Persily says the integrity of our democracy may well depend on our collective ability to weather this less-than-perfect storm.

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    (00:00) Chapter 1: Introduction and Challenges Ahead for the November Election 

    Nate Persily outlines the primary concerns for the upcoming election, including voter confusion, changes in election laws, and the pressures faced by election officials.

    (00:03:27) Chapter 2: Decentralization and Election Administration 

    The panel discusses the challenges of managing a national election run by numerous local jurisdictions, including issues with certification and varying local procedures.

    (00:05:44)  Chapter 3: The Evolving Election Timeline 

    Persily, Karlan, and Ford explore how election day has expanded into an extended voting period, covering early and mail-in voting, and the implications for counting and certification.

    (00:17:41) Chapter 4: Technology, Disinformation, and Media Influence 

    Examines the impact of technology and disinformation, including deep fakes and misinformation about voting procedures, and their effects on public trust.

    (00:23:37) Chapter 5: Building Confidence in the Electoral Process 

    Persily discusses strategies to bolster confidence in the election process, emphasizing support for election officials and the role of local leaders in maintaining trust.

    12 September 2024, 1:00 pm
  • 39 minutes 51 seconds
    High Court, High Stakes: The Massive Weight of Recent Supreme Court Rulings

    The Supreme Court's latest term was marked by decisions of enormous consequence. However, the way the Court has communicated about these rulings far undersells the gravity they carry.

    While “expressing itself in extremely modest terms,” Professor Jeffrey Fisher says, the current Supreme Court has “[handed] down decisions that have enormously consequential effects for our democracy, people's rights, and everything in between.” He and Assistant Professor Easha Anand, co-directors of the Supreme Court Litigation Clinic, agree that these recent decisions could reshape American law and politics for years to come.

    In this episode of Stanford Legal with host Pam Karlan, Fisher, and Anand take a critical look at recent Supreme Court rulings on abortion, gun rights, tech platforms, and the power of federal agencies, examining the Court's evolving approach and considering the potential long-term impacts on American democracy and the rule of law.

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    (00:00:00) Chapter 1: Introduction to the Supreme Court Term and Key Cases

    Pam Karlan is joined by Professors Jeff Fisher and Easha Anand to discuss the past term at the Supreme Court, constitutional law and Supreme Court practice, highlighting key cases and themes from the term. They explore how the court's conservative majority shapes the docket and the role of Justices Barrett and Jackson in developing their judicial voices.

    (00:06:56) Chapter 2: High-Profile Cases: Guns, Abortion, and Administrative Law

    Examine major cases, including gun rights in Rahimi v. United States and Cargill v. Garland, abortion-related cases, and the pivotal Loper Bright decision affecting the administrative state. They analyze the court's reasoning and the broader implications of these rulings.

    (00:15:28) Chapter 3: The Court's Evolving Role and Methodology

    Discussion of the broader implications of the Supreme Court's evolving approach to its docket and decision-making processes, particularly in relation to the administrative state and the impact of recent rulings on future cases.

    (00:19:14) Chapter 4: The Supreme Court and Technology Cases

    They delve into the significant technology cases that were brought before the Supreme Court this term. They discuss how the Court addressed state laws from Florida and Texas aimed at restricting content moderation by big tech companies, marking the first time the First Amendment was applied to social media platforms. The discussion highlights the tension between traditional legal frameworks and the evolving digital landscape, with a focus on the implications of these rulings for the future of free speech online.

    (00:24:10) Chapter 5: Trump and the Supreme Court: Balancing Power and Immunity

    The group explores the complex legal landscape surrounding former President Donald Trump's involvement in Supreme Court cases. Easha Anand provides an in-depth analysis of the Trump v. United States case, where the Court examined the extent of presidential immunity concerning acts related to the 2020 election. The discussion also touches on the broader implications of the Court's rulings on Trump’s legal challenges, including how these decisions might shape future presidential conduct and accountability.

    (00:29:27) Chapter 6: Supreme Court’s Role in Protecting Democracy

    Pam Karlan and Jeff Fisher discuss the Supreme Court's role in safeguarding democratic processes. They analyze the Court's reluctance to engage deeply in political matters, such as the January 6th prosecution and political gerrymandering, highlighting the tension between judicial restraint and the need to protect democratic values. The chapter concludes with reflections on the broader implications of these decisions for the future of U.S. democracy, particularly in the context of voting rights and election integrity.

    29 August 2024, 1:00 pm
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