Legal Theory 101

Over the past few years, I have developed and taught a course in basic American legal theory, or jurisprudence, covering legal realism, analytical jurisprudence, law and economics, critical legal theory, and, occasionally, other topics. The course asks, repeatedly, what we are doing when do law. A lot of what I do when I teach the course is to suggest to students just how much of what they assume about the practice of law is just that, unexamined assumption. Legal change, and even just excellent normal-science lawyering, occurs only when one understands the social phenomenon of law a little more deeply than as a set of static rules to be mastered.

In 2016, I began to offer this course online to our students. The in-person version of the course comprised twice-a-week seminar meetings. For the online version, I recorded a podcast series discussing the readings and asking some questions. The students would listen to the week’s episodes in advance of an online, 100-minute meeting. Like all courses, this one may not be for everyone, but I’ve enjoyed putting it together and have been pleased with the resulting feedback.

I’m making the syllabus and podcast available to anyone who might be interested. So here is Legal Theory 101. Feel free to make use of the syllabus and materials in any way you like. If you’re a teacher who winds up using some or all of the audio, it’d make me happy to hear from you. I’m always delighted to engage and talk about these matters!

True Love Waits

I'm not ready to say anything more about A Moon Shaped Pool than that yesterday, see previous post, I wrote:

True Love Waits (live). A straight-ahead acoustic ballad. "I'm not living. I'm just killing time." It works. This is one many fans have hoped would be finished in the studio. I also have a fan-made version that combines various live performances and an arpeggiated synth pattern that I really like. We'll see.

and today we got True Love Waits as the emotionally overwhelming closing song on a riveting album. "Just ... don't leave."

All My Radiohead

Radiohead's ninth album will arrive tomorrow at 2 p.m. where I live. Today, I'm going to listen to every album and EP that I have. I'll record some thoughts here. I'm going to start with Pablo Honey, to which I've only listened a few times. I'll end with the Spectre single that was released on Christmas Day 2015. It should be roughly eight and a half hours of music. All this is stream of consciousness. So, there will be typos - and bad writing.

Pablo Honey

May 7, 2016, 10:15 a.m.: And we're underway with the electric guitars of You. And I'm back in 1993 listening to 107.7 K-NACK as I pass through Austin on the way to backpacking in the desert. More soon.

10:20: Creep. Well, I should say first that this album is not why I'm a Radiohead fan. It barely contains any hint at all of what will be "so fucking special" about this band. The second track, Creep, is a bit of a hint. But, like the rest of the album, it mostly taps into a guitar-driven, youth-infused landscape that was cracked open for me by Nirvana.

I've always been the type to become obsessed with things. When I was a pre-teen it was Prince. Then, and it happened in one moment, I played Pink Floyd's Final Cut. And I was immediately obsessed with everything Pink Floyd. And Led Zeppelin. At some point, I was introduced to REM and saw them in concert on the Document tour in Clemson.

I was 21 in 1993. And moved to graduate school in Texas. In the summer of 1994, I did my first big climbing trip in the Northwest. The road trips were a big part of my life. And it just felt like my generation was coming into its own, our tastes, our music, our voices. It was such a freeing time. That's where the new alt-radio, Nirvana, Nine Inch Nails, and sleeping in the open air under the West Texas stars fit in.

Stop Whispering is a decent track. Now Thinking About You is playing. Yeah, it just seems to fit in to that early 90s zeitgeist without in any way transcending it. It sounds like a young group with talent who are trying to make music that will break through.

10:36: Anyone Can Play Guitar, now on to Ripcord. These are more interesting (nostalgic?) than I remember them. It's hard to hear them without thinking the Crash Test Dummies will come up next. I didn't own this album and am not sure when I first heard these songs. If I were a decent musician, maybe I'd be able to hear hints of future genius in here. But I don't, just the REM/Pink Floyd/punk melange of the early 90s, well-executed but not timeless.

10:43: "I will not control myself" from Vegetable. Love it. And now on to "I'm better off dead," Prove Yourself. A very, very Sugar vibe to this one. God, I'm liking these songs more than I thought I would.

10:51: Lurgee. This is a much more interesting album than I remember from earlier listens. Is the second half more compelling? Would it hold up as more than an archaeology of grunge? Here's the closer, Blow Out. This is another good song. I think if my 21-year-old self had bought this album, I'd have become obsessed with it. Yes, it's still beholden to conventions that hold it back. That will persist, to some degree, up until Kid A. But there are some good ideas in here. And focusing on the music, I'm coming around to it.

The Bends

10:58: We jump to 1995. I've been through a depressing period starting graduate school but now am in a much better place. I'm just about to become an activist within the Sierra Club and restart a local group. My wife and I have some good friends in Texas, and our trips to the desert and plans for summer mountaineering are omnipresent. Lots of trips into Austin.

I still wasn't a Radiohead fan when The Bends came out. I don't know how I missed it. I know I liked some of the tracks when I heard them. I just didn't buy it. And you had to buy CDs in those days. I think I was listening to a lot of REM, Tori Amos, Mazzy Star, the Pulp Fiction soundtrack, Cake, etc. in those days. Maybe just starting to dabble in Philip Glass.

Planet Telex is a good opening track, sounding so much more like Radiohead, at least conventional Radiohead, to me.

11:03: Now that we're hearing a much better hint of the specialness of this band, here's my theory. Good rock bands usually feature a member with unusual creative talent and other members who are good at their instruments. Special bands, those that transcend, are the ones that have two different, but unusually talented musicians. Many bands form among friends, and so there's no reason to expect that two creative geniuses will wind up in a band together. They're people who knew each other at school. But every now and then it happens. The Beatles had Paul, John, and George. REM had it. U2 has it. You can go down the list.

Radiohead somehow wound up forming around a bunch of gifted, creative musicians. And they complement one another unusually well. Jonny and Thom are a stunningly interesting combination of talents. And that's not to gainsay the talents of the other members of the band. This is not normal science.

11:11: Fake Plastic Trees. "She lives with a broken man..." "He used to do surgery..." These lines get me. This is a timeless song.

11:13: This is also one of those songs I heard in a movie that totally took me over. And it was Clueless, which we saw in the theater for some reason.

11:16: I've always liked Bones. It has that grungy verse-chorus structue, but it feels so realized and has musical turns that make me feel like I'm flying with it. And the guitar tweaks in just the right way. Again, none of this is near, for me, the genius of the later records, but there's a lot of great stuff here.

11:19: (Nice Dream). They can write melodies, and this one is just so great. And it's not just a throwaway verse and one hook-y line for the chorus. It's a continuous float. At least up until the guitars at about 2:30, which don't add anything for me. The easy guitars communicating and soft voice are pacific, but there are background elements of dread. Makes me think of How to Disappear Completely.

11:26: Partly in response to the 11:03 post, @crustopher on Twitter writes - "And to further your Beatles comparison, I've always felt the Bends/OKC/Kid A arc tracked that of Rubber Soul/Revolver/Sgt Pepper's." Interesting. I do think that there'd be a very tight symmetry if, say, Amnesiac had been their last album. From convention and popularity, to new directions and dramatic influence.

11:32: Bullet Proof ... I Wish I Was. Love this song. The noodly but focused guitar line that goes with the chorus. I do feel like that there's something more this song could do. Now on to the fade-in of Black Star. Love this song, too. The verse gets its hooks in. It's the chorus that feels more ordinary and takes me out of it. Best title though. You know, I remember so many songs from my youth where there'd be elements I wish could go on forever and conventional-sounding things I wish could be dropped. (I remember going to symphonies and wishing the tuning would go on forever, the individual and yet collective effort, bowing past one another and together. I loved that drone. And then the all-too-mathematically-perfect and crowd-pleasing bit of music would begin...) So this is one, where I just wish it were all verse.

11:42: Streep Spirit (Fade Out). Radiohead fans still love this one, and I do too. Like much of The Bends, it doesn't escape its time, but it reflects the band's embrace of a musical identity in the way Pablo Honey didn't. Well, maybe it does transcend its time. There's just so much to like on this album, as a great rock album.

Singles

11:48: Banana Co. and Talk Show Host. Banana Co. - the acoustic version - pulls the same thread as Fake Plastic Trees. Talk Show Host is excellent. It's original in its construction, sound, lyrics. You can live in it. "I want to be someone else." "You want me? Fuckin' then come on and break the door down. I'm ready." "Nothing. Nothing. Nothing." Nigel Godrich really came into his own with this one. I love songs that came before this one. But not like I love this one.

OK Computer

11:52: Yep.

11:53: This is the first Radiohead album I bought. (As I'll mention, and for reasons, I only really discovered Kid A and Amnesiac several years after their release.) It's now 1997. In a year, my wife and I will have our first son. I'm finishing a PhD and seriously devoting my time to environmental activism. At this point, I'm thinking about law school and a career as an environmental attorney. I'm writing local press releases about climate change (decrying the gag order in Congress that prevented agencies from even talking about global warming) and about the destruction of local creeks. And I'm reading lots of Ed Abbey, taking week-long trips in Canyonlands, lots to Big Bend, climbed Mt. Olympus, Rainier, failed on Baker, Shuksan, and Challenger. But these were the days.

And I bought this from the little CD shop across the street from campus. Listening at a time when I was diving into Philip Glass and local folk music. Kundun was about to come out. I was organizing evening star parties in the country for our local Sierra Club. Yeah, I'm trying, but I can't entirely recapture those days.

"What's this?" Needless to say, Paranoid Android is a great track.

12:03: "From a great height. From a great height. God loves his children." What must they have been thinking when they finished this track?

12:09: "Today, we escape. We escape." Exit Music (For a Film) is one of my favorite tracks here. The brooding space it creates for your own thoughts is classic Radiohead. Is this maybe the most post-Kid A tarck on the album? "Now we are one." Same music as the subdued "we escape" but so different. Interestingly, I've misunderstood the final lyrics to this one. I had always heard in my head "We all let you jump, let you jump" rather than "We hope that you choke." My misheard lyrics are... darker. And now on to Let Down, which at the time was my favorite track. Funny. I still like it a lot, but I wouldn't say it's my favorite at all. It has this driving techno-phobia to it - but that drive sweeps you along, a body out of control hurtling along a robotics-filled track.

12:18: Karma Police. "He talks in maths. He buzzes like a fridge." Looking ahead, this album ends so strongly. The only wrong note - and I'll see if I still think this - is Electioneering. Ideally it'd be Karma Police, Fitter Happier, Climbing Up the Walls, No Surprises, Lucky, The Tourist. Anyway, back to Karma Police. There's just such character in Thom's singing. And the song doesn't give a damn about rock norms. This is a band moving on. "For a minute there, I lost myself." Again, I rarely listen to the albums from before Kid A. This is so much better than I remember it, and I remember it very fondly.

12:21: Ha! I forgot I was listening to a rip of the very CD I used to own. And Karma Police skips where the CD was scratched. The nostalgia of remembered imperfection.

12:34: Yes, I don't think Electioneering fits. I remember not liking Climbing Up the Walls so much when I first had the album. But now, it's just so perfectly itself and creepy.

12:40: I still can't believe that No Suprises was basically the first take. Lucky starts as though it's the album closer. It sounds like a summation. "It's going to be a glorious day. I feel my luck could change." The little guitar breakdown near the end feels so right and interesting here, doesn't sound at all forced.

Singles

12:50: Meeting in the Aisle, Lull, A Reminder, Melatonin, Palo Alto, How I Made My Millions.

12:53: I'm up to Lull now, which is solid, if a bit standard for Radiohead. Melatonin and How I Made My Millions are two my favorite Radiohead songs. Radiohead B-sides would probably be my all-time favorite album if there had otherwise not been a Radiohead. And now up to A Reminder, which is a great song I guess I never listen to.

12:58: I'm not sure when I first heard Melatonin, but it wasn't until after my son was born. Maybe he was two? But "Don't forget that you are our son. Now, go back to bed." And the way the music so simply and earnestly marches lullaby-like. It's a secular prayer, a wish that resonated with me. Right up until "Death to all who stand in your way, my dear."

1:04: How I Made My Millions is right up there with the songs I most treasure. I read that this is Thom's demo, recorded at his house while his girlfriend can be heard unpacking groceries. "Let it fall." This song just feels like mournful yet joyous observation of life outside of itself - just let it. Anyway, I think different thoughts every time I hear it.

Kid A

1:12: The perfect album. The first time I heard the opening tones of Everything in Its Right Place, I was obsessed with Radiohead. Oddly, though, I didn't get this album when it came out in 2000. We'd moved to California for law school. I had a two-year-old, and my daughter would be born the month later. Money was tight, and there was no iTunes Store - and I didn't use Napster. So I just wasn't buying CDs around this time. I was listening to a lot of film music. And I think Magnolia, a PT Anderson film that looms large in my memory, came out the year before.

So it wasn't until we'd left California and moved to the East Coast that I, by chance I think, heard Kid A. That opening. I don't even know what to write. I've heard EEIRP and Kid A so many times, in so many contexts and emotional states.

Kid A, the track, is unlike anything I'd heard before. There's a more traditionally beatutiful song underneath the sonic treatment, but that treatment isn't obscuring - it's just perfect. "Standing in the shadows at the foot of my bed."

1:22: It defies explanation that this album became massively popular. I'm on The National Anthem now, and these just aren't the kinds of songs that you think would have mass appeal. But damn do they move me. And apparently many, many millions of others. This was the music I'd always wished other songs would be, shed of the guitar solo that was added because there was supposed to be a solo and shed of the standard form. How does one even describe what's so great about the ending of The National Anthem, the brass out of control but hitting all the right notes. Someone who also loved to hear the orchestra tune and sunk a little on hearing them start to play perfectly and formally, yes someone like that wrote these songs. And now How to Disappear Completely, the distillation of melody of dread that is a platform for one's own thoughts, how much less would this song be without the background drone? They got so much right on this.

1:32: Do you think some music exec listening to this for the first time and having heard the first four tracks was thinking and hoping, "Maybe there'll be guitars in Treefingers."

1:44: Reading old reviews of this album is hilarious. So many people rejected it. Crazy to think that it's now over fifteen years old. Idioteque is just starting - one of those that I knew instantly would be a favorite for a long time. I'd forgotten that I really like In Limbo, with its wandering notes, living in a fantasy. Curiously, it's Optimistic that seems ever so slightly out of place. I'm sure the label was thrilled to have something, anything, that could pass as a normal rock track. The album would work as well without it for me. "Here I'm allowed everything all of the time." Genius song, Idioteque, just works on every level.

1:55: So many details make these songs more than the sums of their parts. And this album so much more than the sum of its parts. Thom's repetition in the background for the last quarter of Morning Bell. And now Motion Picture Soundtrack, which just sounds like a closer. (And sounds a bit like what you'd have wished some Smashing Pumpkin song would have wound up. I forget the name of it.) "I think you're crazy, maybe." It's a band who, at this point, are just trying to make something great, as painful a process as it was. You can hear the purity of the motivation in every minute of this album.

Single

2:00: True Love Waits (live). A straight-ahead acoustic ballad. "I'm not living. I'm just killing time." It works. This is one many fans have hoped would be finished in the studio. I also have a fan-made version that combines various live performances and an arpeggiated synth pattern that I really like. We'll see.

Amnesiac

2:04: I actually think it was hearing my landlord's copy of Packt Like Sardines in a Crushed Tin Box, the Amnesiac opener, sometime in 2003?, that instantly hooked me on Radiohead again. Maybe I got Amnesiac and Kid A at the same time after hearing this track. I think I bought them on the relatively new iTunes Store. My iTunes suggests it was December 2002. Oh well, whatever it was, there is so much going on and yet such simplicity to this first track. And then into Pyramid Song. There are fluttering strings behind the dominant piano. "I jumped in a river; what did I see?"

2:16: Pitchfork's (otherwise very positive) review of Amnesiac says this about Pulk/Pull: "Powered by a gritty industrial beat, the song's intentional abstractness, for the first time ever, seems forced and caricatured." No. Now, into You and Whose Army? Yep, this is a band that had a fairly obvious route to cashing in after OK Computer. And we get this. The distorted vocals, so devoid of any vanity. Everything is in the service of plumbing the depths of seemingly everything. Then that guitar lick that carries the drone of I Might Be Wrong. Have I told you how much I love this band?

2:25: Knives Out is the most accessible song on the album, where that word accessible just means, I guess, that you can play for it someone who listens to pop music without risk that they'll hurt you in order to turn the music off. But it's also terrific. That mix of incredibly dark lyrics, uptempo beat, somber and stretched out vocal, the kind of "this is life going by" guitar jangle, it's so much more because of the relation among the details that compose it.

2:37: The sounds on Hunting Bears, the subtle whoosing behind guitars whose delay and percussiveness create this tension. It's all in the timing of the elements on this one. I could listen to twenty minutes of this. Now Like Spinning Plates. Drawn from a backwards version of another song they'd been working on (I Will, which appear later), they then recorded some of the vocals and some other elements backwards. The whole thing has trademark Radiohead dread overlying melody. "While you make pretty speeches, I'm being cut to shreds." Ending: "And this just feels like spinning plates. My body is floating down the muddy river." And finally into Life in a Glasshouse, which just comes from nowhere, well, maybe some kinship with the chaotic brass in The National Anthem. But this is New Orleans jazz in a loose, sad, grand, let's have it out, final reckoning.

Singles

2:49: Now seven singles before the next album. And I rarely listen to these, unlike the post-OKC group. But you know what? The Amazing Sounds of Orgy is damned interesting and amazing. The deep, tunnel like bass (reminds me of Burn the Witch at the moment), and the almost rotating quality of the duh - da-da-da - duh - da-da-da - duh. So good.

2:54: Fast-Track - yep, I'm down with it. The blippingly fast vocal sample. Trans-Atlantic Drawl is one that I think I usually skip over. Listening with fresh ears, though. There's a wickedly heavy electric guitar carrying the track, but it doesn't go anywhere unexpected. Ha! Yes it does. Totally forgot the synth interlude 1t 1:50. I love this part! Ok, ok, this is a cool track. I guess you could make two classic albums of Radiohead B-sides. Ok, on to Kinetic, Worrywort, and Fog.

3:00: You know what's absolutely great that I've not listened to nearly enough: Kinetic. Philip Glass-like vocal patterns, synth patterns that serve a purpose. Percussion that says its own thing. Yep, this one I'll come back to.

3:10: Worrywort and Fog. Fog is one of those Radiohead songs that's heartbreaking even if you're not sure why. I've heard some people say it's about children growing up among and within war. Or about children growing into evil generally. On to the divisive Hail to the Thief.

Hail to the Thief

3:20: This has some of my favorite songs on it. But it's also one that I almost never listen to from beginning to end. And it has songs that have brilliant parts that I wish had not been joined with other parts. Everyone, even the band I think, thinks about whether the tracking might have been better. The funny thing is that in instance after instance what some fans say is wrong with the album is exactly what other fans love about it. The album, as an album, doesn't rise above its parts, but those parts are excellent. And one person's fix is another's marring.

Even the opener, 2+2=5, which I think is great, has kind of a standard rock jam near the end. Would it have been better arranged differently? Maybe it depends on your mood. And the "raindrops" repetition in Sit Down. Stand Up. is something that is at times just the right thing and at other times not. It's like I wrote earlier, the thing about Radiohead for me is how in so many cases it appears their judgment about what was good and what they'd cut or re-arrange from the music I grew up with is the same as mine. That we identify very similar qualities as important in music. But on this album, there are a few instances where I'd cut and pieces of music that I wish could stand on their own. (There, there, e.g.)

I just know that I deeply love so many things on this album. (The last two songs especially.)

3:31: I definitely like the back half of this album more than the front. I can appreciate Sail to the Moon, Backdrifts, and Go to Sleep, but they don't move me. Getting into Where I End and You Begin now.

3:38: Yes, Where I End and You Begin ("I will eat you alive.") and We Suck Young Blood are both excellent, though definitely different from the Kid A / Amnesiac vibe. The latter, though, has a lot in common with Life in a Glasshouse - but with a lot of fascinating ornamentation, for a spare yet rich sound.

3:43: I love The Gloaming. I love the title. I love the bleeps, bloops, wandering vocal, the "they will suck you down to the other side." And the fact that it leads into There, There. There, There is one of the all-time great Radiohead songs. And I love it, the lyrics "singing you to shipwreck," and "Just because you feel it, doesn't mean it's there." I just wish it ended around the three-minute mark. It's the first part that works so well, lyrically, sonically. The jammy part, not as much.

3:53: When I first heard that Like Spinning Plates was I Will run backwards (or at least based on it), I was, well, surprised. I love I Will, kind of in the way I love All I Need from In Rainbows. They're earnest and meaningful, not elliptical in a way that totally leaves you with your own thoughts - another quality I love about some RH songs. Now on to Punch Up at a Wedding, which is fine but is not my favorite. Next will be Myxomatosis, which many people love, but I haven't really, at least before. Looking forward to Scatterbrain and Wolf at the Door, which would be on my desert island disc.

3:59: Yeah, I love Myxomatosis sometimes. The out front overloaded blasting line that carries through right up to the "I don't know..." part. And the synths working against the rest of the song. It feels like being lost and in trouble. Ok, Scatterbrain, which is just beautiful. I'll never understand why some fans don't like it. The vocals are set as if they're blown around, vulnerability and violence and, again, being lost. "I'm walking out in a force ten gale. Birds thrown around, bullets for hail. The roof is pulling off by its fingernails. Your voice is rapping at my window sill." It's one of those RH songs that feels inevitable and drives right through you. "Somewhere I'm not Scatterbrain."

4:04: But for the fact that I love Videotape so much, I'd confidently say that Wolf at the Door is the greatest close of an album ever. Thom Yorke channels insanity and violence in a torrent of words. And the music doesn't let you off the ride. It feels like something smashing and not stopping. "I wish you'd get up get over. Get up get over and turn the tape off."

Singles

4:07: Gagging Order, I Am Citizen Insane, Paperbag Writer, Where Bluebirds Fly

4:09: I don't think I'd heard Gagging Order before hearing it on Jaydiohead (the Jay Z / Radiohead mashup). But what a simple and beautiful song. And the dread is there: "A couple more for breakfast. A little more for tea. Just to take the edge off." For me, it's someone who wants to be left alone to their drugs, no matter the inevitability of death. "Move along. There's nothing left to see. Just a body. Nothing left to see." Citizen Insance is a nice instrumental.

4:22: I Am a Wicked Child doesn't do anything for me. Paperbag Writer is fine. Where Bluebirds Fly is probably the most interesting of the three, all rhythm and bleeps and bloops, with synth layering. After this song, it's on to In Rainbows.

In Rainbows

4:30: October 10, 2007, my kids were 9 and about to turn 7. And I was celebrating Radiohead Day and blasting In Rainbows while we were having breakfast and getting ready for school. By this point, my taste had very much turned to experimental music and modern classical. Looking back, I see we also listened to a lot of Arcade Fire, Sigur Ros, and Mozart (with whom my daughter was obsessed). REM Day (Accelerate) would happen the next year.

4:32: As much as I love this album, I don't love Bodysnatchers. It's fine, but the rest I absolutely love. So there's that. There is, though, a part of it I like, the part at 2:15 with the soaring but backgrounded guitar. Yeah, this is good.

4:38: I just don't see how it would be possible to dislike Nude. When we get to Weird Fishes, the whole vibe is very relaxed and yet still intense. I'm loving this so much right now. "In the deepest ocean. The bottom of the Sea. Your eyes..."

4:51: Such a strong album. If I had it my way, I might send All I Need into Reckoner and drop Faust Arp. But when Last Flowers is a B side, you know there's a plethora of material. What's striking me again is just how restrained it all is, especially compared to Hail to the Thief. I mean, there are strings and lots more going on, but All I Need and Reckoner have a pure and unadorned sound.

5:00: I almost always skip over House of Cards. Listening to it, I wonder if it's because it's so restrained that there's not enough musically interesting to me and nothing emotionally compelling even if simple? Or is it just that I'm impatient for the last two songs? As with Hail to the Thief, I often listen just to the last two songs. Jigsaw Falling Into Place. "Come on and let it out ..." and then the part after "dance, dance, dance." "Not just once..." This whole part. Wow.

5:07: I guess Videotape is probably my favorite Radiohead song. The themes of comprehending death, clinging, being satisfied, these I keep turning over. And this deceptively simple but powerful song is always there. I reach for it often. And I feel less alone.

In Ranbows Disc 2

5:18: When I first heard disc two, I was blown away that the songs were easily good enough to compose another album. It may have been the first set of Radiohead B sides I'd heard. Go Slowly is beautiful. Last Flowers is transcendent, and I wish it could have found its way into the In Rainbows track listing. "It's too much. Too bright. Too powerful." I have a literal interpretation of what's going on in this song in which an elderly person can't keep up and the world is caving in and the appliances and everything have gone beserk. But I also hear in it the basic question: how do we cope with our reality? I love it. Listened to it over and over again over the years.

5:25: Up on the Ladder is the perfect song to follow Last Flowers, as it, musically, creates tension in an opposite manner. Still classic Radiohead, but it layers in sound upon sound, pulls them away, builds them in again. "Snake charming" is a lyric and the feeling. It has that elevating synth sound that deepens the mood.

5:34: I'm not a huge fan of Bangers and Mash, which just ended. 4 Minute Warning is a nice step-down. Funny because I can't think of another Radiohead song like it. I keep thinking it reminds me of something else. Sounds like a closer, though.

Singles

5:37: Unravel by Björk is an amazing song. And this cover was a great surprise. But not, because it's a great song. "The devil collects it. With a grin."

5:45: These Are My Twisted Words is a Radiohead jam, easy to listen to and to like but hard to love. (A little of Hunting Bears in the guitar.)

5:49: Last single before The King of Limbs is Harry Patch, which might have been released before These Are My Twisted Words. I love Jonny's film work for PT Anderson and had listened many times over to the soundtrack for There Will Be Blood when this was released. I was excited to hear the string arrangement - with the undertone of dread recalling How to Disappear Completely. But then come beautiful cycles of strings coming in waves, over which Thom sings in a high falsetto. The lyrics are the words of Harry Patch, the last surviving British soldier who fought in the trenches in World War I. I'm taken back to the first time I heard The Final Cut. And the song itself sounds like a field of poppies. This is among my three favorite Radiohead songs.

The King of Limbs

5:53: This album stands in such contrast to In Rainbows for me. I absolutely love it. But Radiohead Day for this album came at a time when my kids were a bit older and when I was absorbed in a research project about which I was passionate. I remember listening to this and the related singles on repeat as I typed and typed. Bloom is magnificent. A track with so much going on that I hear new things, new ways to hear it all the time. Thom Yorke performed a solo piano version at Pathways to Paris last fall that is well worth checking out. Look it up on YouTube or soundcloud.

5:59: Mr. Magpie is one I'd replace. I've never connected with it like I have with The Butcher and Staircase, which followed as singles. What am I missing in it? The other song I'd replace, although I'll give it a fresh listen when it comes up, is fan-favorite Separator. It may be the only Radiohead closer that I like significantly less than other tracks on the album.

6:06: Little by Little feels too easy. Of course I'm going to like this song, and I feel like they could write songs like this by the gross. It's the most Radiohead-y song on the album. And I love it. Then we get to Feral, which gets more interesting and affecting with each listen.

6:19: The subdued but vital feel of the Lotus Flower / Codex /Give up the Ghost tracks is palpable. It transports me back to a particular place, particular struggles. And it best encpasulates the organic themes of the album. Give up the Ghost in particular got its hooks in me when I first saw a solo performance by Thom on YouTube. I find myself having it on the musical loop in my mind, sometimes humming it. It's rich with yearning, with a sense of wanting something more, but more real. "Don't haunt me."

6:25: What do I not get about Separator? I like it, but I don't love it the way some seem to. And I love this album. So I don't know. I do love the light touch of the guitar at the end, at the "if you think this over then you're wrong."

Singles

6:30: Supercollider, The Butcher, The Daily Mail, Staircase, Spectre

6:33: I was one of the poor fools hoping for an Amnesiac for the King of Limbs. We didn't get it, but we did get some finished singles. Several were previewed in solo shows by Thom. Supercollider was one, which I'm not sure if I prefer just on piano or in this produced version. It's interesting. The Butcher, though, is one of those songs that makes me wonder how they do it. So much to think about on that one.

6:44: The Daily Mail and Staircase. Staircase was a song I fell in love with after seeing a video of Thom performing it on solo guitar - I think in LA. It's a beautiful version that I like a little more than this live from the basement version. I listened to this on repeat while working in March 2011. "A magnetic pull." "Let me take control." This song deserves more. Just one more song after this.

6:50: Spectre. Well this was a surprise. Maybe the most beautiful, orchestral Radiohead song yet. It's a perfect Bond theme, evoking Nobody Does It Better, which Radiohead have covered and which was always a favorite of mine. The vocals are sublime. And the way the melody and strings are brought together in a fully realized idea. It sounds more mature and melodically interesting than much they'd done before. My excitement for the new album went through the roof after hearing this.

6:53: And that's it. Yes, I've heard Burn the Witch and Daydreaming, and, yes, they're both amazing. But I'm trying my best not to listen to them too much before the album drops tomorrow. Admittedly, I've failed at that. I've probably listened to BTW over a hundred times, and a couple dozen for Daydreaming. Anyway, I was hoping to capture something of what it's meant to me to age with this band. But I don't know if I've done that. What's amazing to me is just how vital they are now. I think their best work is ahead of them, mostly because they want it to be.

Bargains

A random thought upon beginning a re-reading of Obergefell, which is really just another way of putting a well-known position in a well-known dispute:

The constitutional originalist strives to uphold the terms of a bargain among a people utterly alien to him, people whose culture and reasons he surely and inevitably fails fully to understand much less feel and intuit. He prefers adherence to this bargain rather than that struck by his more recent predecessors: the bargain concerning what to do with all the bargains that came before. And here we all are, giving shape to the past's now-formless physics and calling them intentions. We could indeed adopt a model of law that pretends to reanimate minds and eschews a more direct aim at living together acceptably. It would instead take a purposefully indirect route toward that goal, fearful that anything else would make kings of those at whose feet decisions fall. But that way too makes a king, a king of the one who raises an authority partly from the dead but entirely from opinionated debris and puppets the zombie's mouth.

Hold Up!

While our podcast takes a week off, I'm posting this "pilot" episode of a show called Hold Up! that Joe and I thought of doing last year. We recorded it at the beginning of this year, and I gave it one pass of editing. The premise is that we talk about a movie we remember liking from long ago, pause the recording and watch the movie, and then return to discuss whether it holds up. It would feature Joe, me, my spouse Meredith, and other guests. For this one, we watched Weird Science.

I don't know whether we'll ever record any more of these. Our lives got much busier after this recording was made. But maybe some of you will enjoy this bit of goofiness.

Submarine Statutes

On the podcast, in reference to the Religious Freedom Restoration Act and the Hobby Lobby case, I've described what I see as a troubling kind of congressional action: the enactment of statutes that would affect the interpretation and implementation of all future statutes. The RFRA requires, roughly, individual exemptions from federal laws that interfere with religious practice unless the interference is strictly aligned with a compelling governmental interest. What a new statute will mean in a future case depends not only the interpretation of the law itself but also on the interpretation of its interaction with a prior law, the RFRA, in a specific factual setting. So too lies hidden and potent the debt ceiling statute that restrains the government from borrowing in excess of a specific amount, even when Congress has mandated spending that would require such borrowing. These submarine statutes lurk beneath the layer of newly enacted statutes, potentially dramatically changing the meanings of enactments from what a plain reading of them in isolation would have suggested.

Of course, the venerable Dictionary Act is an example of such a statute, and I don't see it as particularly problematic. The trouble arises when there get to be too many such statutes and when their combined or even singular effects come to be too unpredictable. To create intentional products, legislators need to understand what the words they write will mean, at least in a large sense. Yes, the central dispute among the proponents of the various methods of interpretation is what it means for a text to "mean" something. But a unifying principle among all schools is that a legislator who wants to accomplish some task ought to be able to do it, within the bounds of the Constitution, if he or she speaks plainly enough about that thing. The meaning of any law in a regime thickly patrolled by submarine statutes would be a most uncertain thing. It would begin with one zone of meanings in the mind of a legislator, more or less connected to those in other legislators' minds, but then diverge in meaning and application through a cascade of interactions with all the submarine statutes, like a grand old game of Plinko, a puck bouncing from place to place in a random walk.

That's what caused me to raise an eyebrow at a portion of a speech by Marco Rubio that I otherwise found agreeable for its focus on reigning in federal criminal laws.

It is for this reason that I have proposed that Congress establish a national regulatory budget, which would require that new, costly regulations be offset by the repeal of other existing regulations.

It's an odd proposal to be set amidst other sentences arguing for greater rather than lesser congressional control over agency rule-making. This “regulatory budget" would appear potentially to restrain an agency even from enacting regulations clearly contemplated in later-enacted statutes and therefore clearly intended by the enacting Congress. Of course, a new statute that Congress desires be given effect without regard to other statutes can include a general or specific waiver. But that’s the very problem with submarine statutes. They require Congress when doing anything new to contemplate and keep track of their existence, to anticipate whether they might present a problem, and to enact specific waivers. A court could come to the rescue by observing a fundamental incompatibility and giving effect to the later-passed statute. But when the alteration caused is something less than outright conflict, the meaning of a statute can deviate in all its interactions from anything rational, intended, or plainly inscribed in its text. That’s no good.

I’ll stop here for now. I’m aware of a great many arguments concerning provisions and canons that operate very much like submarine statutes that we have come to accept. And so some further account of the complexity argument against submarine statutes would have to consider them.

The Latest Obamacare Challenge

I was not a fan of the argument that the individual mandate at the heart of Obamacare somehow was beyond the power of Congress to impose. But it at least was interesting and thought-provoking, even if ultimately unpersuasive. That it was partially accepted by the Court, though I maintain only in dicta, was unfortunate.

The latest assault on the Act has no such redeeming qualities. While I can appreciate academic curiosity over the statutory language – it would make for fun debate in hallways, the faculty lounge, or the classroom – the challenge here is, for all practical purposes, positively nihilistic. To tell you the truth, I don't think I can put the problem as well as the challengers themselves did:

The Government tries to make the statutory issue seem complex, but it is not. Only three ACA provisions need to be understood. Section 1311 instructs that states “shall” establish Exchanges. Section 1321 clarifies that in case of a state’s “failure to establish [an] Exchange,” HHS “shall ... establish and operate such Exchange within the State.” And then the Act grants subsidies for coverage “enrolled in through an Exchange established by the State under section 1311.” Any English speaker reading those provisions would immediately understand that if a state “fail[s] to establish [an] Exchange” and taxpayers instead enroll through an Exchange established by HHS under § 1321, no subsidies are authorized.

(Citations omitted.) Here is where we agree:

  1. The issue is not complex.
  2. Only three ACA provisions need to be understood. (Though others make the challengers' argument look even worse.)
  3. The statute's meaning can be immediately understood by reviewing the text. (Though understanding the context and history of Obamacare makes you wonder if you've been living in the same world as those who claim seriously to believe the story the challengers tell.)

What they think: that "such Exchange" clearly and unambiguously does not count as a "State Exchange" but instead means some other kind of exchange that is subject to none of the provisions relating to state exchanges. In particular, the participants in "such Exchanges" would receive none of the subsidies the Act provides for participants in "State Exchanges", thereby – as these very same lawyers have previously argued – undermining the entire statutory scheme. (For reasons relating to something called the Chevron doctrine, if the language is at all unclear, the government's interpretation should win.) Their prize for this feat of language wrangling would be, by 2016, the denial of insurance subsidies to about seven million people, with various and horrible ripple effects, reversing the progress we've made on the problems of and caused by the uninsured. All this because of an unwillingness to accept what the word "such" very clearly means, and, worse yet, because of a bizarre refusal to concede that it's at least unclear that a federally operated exchange in a state is not a state exchange within the meaning of the Act.

It's bad enough that the Supreme Court agreed to hear this case. But if somehow textualism were used to strike down the heart of Obamacare on these grounds, it would not only turn the Supreme Court into a laughingstock, it would denigrate textualism itself as patently not the serious, structurally-focused, and ideologically neutral method its defenders have struggled to claim it to be. For a more detailed argument, one that this challenge does not deserve, read Abbe Gluck's thorough analysis.

No one has to be a supporter of Obamacare, single-payer, or any other kind of health care reform. No one has to give up arguing to adopt another approach. Indeed, there may be valid legal challenges to aspects of the ACA. But just because you can typeset an argument to look like a brief, just because you really hate Obamacare, just because language could, in the abstract, be construed to say something it obviously does not mean, and just because, perhaps because of the confluence of these reasons, you have come honestly to believe in the righteousness of your objection: these are not reasons to treat a fundamentally unserious argument as anything more than an amusing curiosity. Unfortunately, the stakes are high, and I'm not amused. I'm open to being shown the error of my ways. But when you place on the word "such" the weight of the health of millions of people, you better have a good argument that Congress did not mean what it and everyone else on the planet believed it meant.