Joseph Diedrich on the Chevron & the Rational Basis Test
Season 1, Ep. 675
In this episode, Joseph S. Diedrich, an Associate at Husch Blackwell LLP, discusses his article "Separation, Supremacy, and the Unconstitutional Rational Basis Test," which will be published in the Villanova Law Review. Diedrich begins by explaining what the rational basis test is and where it came from. He argues that it violates the separation of powers, by absolving courts of the obligation to judge in certain cases. And he analogizes to the Chevron Doctrine to explain why that is a problem. Diedrich is on Twitter at @JSDiedrich.
This episode was hosted by Brian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at @brianlfrye.
778. Brian McBrearty on Forensic Musicology35:34In this episode, Brian McBreary, a forensic musicologist, explains what forensic musicologists do and how they analyze music. He describes how he became a forensic musicologist and the process by which forensic musicologists approach the analysis of songs as expert witnesses in copyright infringement litigation. And he specifically reflects on recent copyright infringement cases involving Marvin Gaye songs. McBrearty hosts the website Musicologize and is on Twitter at @brianmcbrearty.
777. Sara Gras on Podcasting as Legal Scholarship57:08In this episode, Sara Gras, Associate Professor and Executive Director of the Peter W. Rodino, Jr. Law Library Center for Information & Technology at Seton Hall University School of Law, discusses her article "Positioning Podcasting as Legal Scholarship," which will be published in the Utah Law Review. Here is the abstract:Technology has revolutionized legal practice, education, and society generally, yet the availability of new forms of digital media has not significantly changed the locus of legal scholarship. This Article examines whether our collective understanding of where scholarship can exist should expand to include podcasting as a formally acknowledged medium for legal scholarship.This episode was hosted by Noah Chauvin. Chauvin is on Twitter at @NoahChauvin.
776. Elise Maizel on Reform Corporate Attorney-Client Privilege34:44In this episode, Elise Bernlohr Maizel, Acting Assistant Professor of Lawyering at NYU Law School, discusses her article "The Case for Downsizing the Corporate Attorney-Client Privilege." Maizel begins by describing the attorney-client privilege and work product doctrine. She explains why the attorney-client privilege doctrine has always been a poor fit for corporate clients. And she proposes a new model for the attorney-client privilege in the corporate context that is both more conceptually coherent and practically desirable. Maizel is on Twitter at @eliseconstance.This episode was hosted by Brian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at @brianlfrye.
775. Mike Kasdan on Web3 Lawyering38:25In this episode, Michael J. Kasdan, a partner at Wiggin and Dana LLP, discusses his work as a lawyer in the Web3 space. Among other things, Kasdan discusses how intellectual property affects Web3 markets, including how Web3 companies are using their intellectual property rights in new and unexpected ways.This episode was hosted by Sidhant Raghuvanshi, an LLM student at UC Berkeley School of Law.
774. Aliza Shatzman on Judicial Accountability35:04In this episode, Aliza Shatzman, President and Founder of The Legal Accountability Project, discusses her new article, "The Conservative Case for the Judiciary Accountability Act," which is published in the Harvard Journal on Legislation. Schatzman observes that the federal judiciary has a harassment problem and describes her own experience of harassment. She describes the Judicial Accountability Act, which would impose Title VII requirements on the federal judiciary, among other protections. And she explains why conservative lawmakers should support the legislation.This episode was hosted by Brian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at @brianlfrye.
773. Ari Cohn on the Kids Online Safety Act39:15In this episode, Ari Cohn, Free Speech Counsel at Tech Freedom, discusses the proposed Kids Online Safety Act, which the Senate is currently considering. Cohn begins by explaining the history of KOSA and similar previous bills, what KOSA is supposed to accomplish, and how it's supposed to accomplish that goal. He explains why KOSA as drafted presents intractable practical and First Amendment problems. And he argues that Congress should reject KOSA in its entirety. Cohn is on Twitter at @AriCohn.A current version of KOSA is available here.Tech Freedom's letter opposing KOSA is available here.A coalition letter opposing KOSA is available here.Additional information is available here.This episode was hosted by Brian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at @brianlfrye.
772. Neil Chilson on FTC Rulemaking & AI46:23In this episode, Neil Chilson, a senior research fellow for technology and innovation at Stand Together and former chief technologist at the FTC, discusses the FTC's proposal to create a trade regulation rule on commercial surveillance and data security. Chilson begins by discussing the FTC's history of rulemaking and why this rulemaking proposal is important. He reflects on what the FTC might be trying to achieve in this rulemaking process and discusses some potential concerns. He also discusses his own public comments, some of which he produced using an AI text generator, in order to express concerns about the potential effect of regulation on the development of AI tools. Chilson is on Twitter at @neil_chilson.This episode was hosted by Brian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at @brianlfrye.
771. Sarah Polcz on Authorship Norms Among Songwriters40:57In this episode, Sarah Polcz, a fellow at Stanford Law School, discusses her articles "Co-Creating Equality," which will be published in the Southern California Law Review, and "Loyalties & Royalties," which will be published in the Hastings Law Journal. Polcz describes her empirical research on the distribution of songwriting credit in the music business. She explains how authorship norms among songwriters differ from the default rules of copyright because of the incentives that are salient to bands. And she reflects on what her work can tell us about copyright incentives more broadly. Polcz is on Twitter at @SPolcz.This episode was hosted by Brian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at @brianlfrye.
770. Schwarcz, Wolff & Woods on Privilege & Cybersecurity41:12In this episode, Daniel Schwarcz, Fredrikson & Byron Professor of Law at the University of Minnesota Law School, Josephine Wolff, Associate Professor of Cybersecurity Policy at the Fletcher School at Tufts University, and Daniel W. Woods, Lecturer of Cybersecurity at the University of Edinburgh School of Informatics, discuss their article "How Privilege Undermines Cybersecurity," which will be published in the Harvard Journal of Law & Technology. They begin by explaining what the attorney-client privilege and work product doctrines are and how they negatively affect cybersecurity investigations and the implementation of lessons learned from those investigations. They describe their qualitative study of lawyers and cybersecurity professionals conducting cybersecurity investigations. And they make recommendations about how courts could amend their approach to privilege to improve cybersecurity outcomes.This episode was hosted by Brian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at @brianlfrye.