Listen Now

On Thursday, May 18, 2023, the Supreme Court issued opinions in Gonzalez v. Google and Twitter v. Taamneh. In the Twitter case, the Court unanimously reversed the Ninth Circuit and held that plaintiffs “failed to state a claim under [18 U.S.C.] §2333(d)(2).” Justice Thomas wrote for the Court and Justice Jackson issued a concurring opinion. In Gonzalez, the Court issued a per curiam opinion vacating and remanding the case to the Ninth Circuit for reconsideration in light of the Twitter holding. The Gonzalez and Twitter cases were of great interest to some Court watchers because of their potential ramifications for Section 230 and social media platforms’ liability for bad outcomes connected to hosted content. Please join us as Erik Jaffe discusses the Court’s opinions and what comes next.

In recent years, American organizations of all kinds have dedicated resources towards diversity, equity, and inclusion (DEI) initiatives. These initiatives have become a staple of policy, hiring practices, personnel training, organizational structure, and more. Educational institutions, and higher education in particular, have shown a commitment to DEI. Do DEI practices in colleges and universities result in a better product for students? Do they improve campus communities? Some argue that, yes, DEI is integral to a high-functioning university. These practices improve viewpoint diversity, make students feel more at home on their campuses, and help marginalized groups attain a quality education. Others argue that commitment to DEI has resulted in bloated administrations that increase tuition costs without delivering a better product. Moreover, DEI initiatives support some identity groups at the cost of others, and a fervent commitment to DEI can produce exclusive and unfair outcomes. Please join us as Ilya Shapiro and Professor Todd Clark discuss the merits of DEI initiatives and how state-level policy could shape the future of DEI on campus.

Following a surge in many types of violent crime in 2020 and 2021 that has only recently begun to ebb in some places, many state legislatures, especially in southern states, have passed or are considering policies that are designed to result in longer periods behind bars for those convicted of serious violent crimes. Policy proposals include imposing or lengthening mandatory minimums, removing parole eligibility in certain cases, and requiring that a high percentage of the sentence be served behind bars (often referred to as “truth-in-sentencing”). However, there are also countervailing trends in states like California. Determining the right approach to sentencing and time served raises several questions: What is the proper balance between uniformity and discretion and the degree of influence exercised by legislators versus prosecutors and judges? To what degree is the focus on the length of the sentence or period of incarceration, as opposed to certainty that a significant percentage of the sentence, whatever its length, be served behind bars? Given that elderly individuals have the lowest recidivism rates, would we be shortchanging public safety if we allocate too much prison space to those who committed a heinous crime decades ago as opposed to those who are in the midst of a crime spree involving less serious offenses and have failed at diversion and probation? How do we know whether a jurisdiction is efficiently allocating correctional resources to maximize public safety or perhaps is spending too much or too little on corrections? Should the inquiry at parole solely be a forward-looking one which assesses future risk, as is the case in Michigan due to reforms a few years ago, or should paroling agencies also consider whether further punishment is warranted? What are the merits of concurrent versus consecutive sentences in light of the Lara case that was argued before the Supreme Court in March? How does this relate to whether the primary goal of incarceration is punishment, incapacitation, or rehabilitation? Featuring: Dr. Nazgol Ghandnoosh, Co-Director of Reasearch, The Sentencing Project Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation [Moderator] Marc Levin, Chief Policy Counsel, Council on Criminal Justice and Senior Advisor, Right on Crime

In 2017, ATF agents placed a surveillance camera on a pole across the street from Daphne Moore’s home in Massachusetts. They suspected Moore’s daughter of dealing drugs and guns.They watched the house for eight months until they obtained enough evidence to get a warrant. The warrant led to a prosecution. Moore and her daughter moved to suppress the evidence. The district court granted this motion but the First Circuit later reversed. Now, Moore and her daughter are asking the Supreme Court to decide “[w]hether long-term police use of a surveillance camera targeted at a person’s home and curtilage is a Fourth Amendment search.” A nearly identical certiorari petition arose from the Seventh Circuit a year ago but was denied. The Federalist Society covered that petition on a previous teleforum featuring a debate about whether the word “search” in the Fourth Amendment should be interpreted in accord with the reasonable-expectation-of-privacy test or in accord with the word’s plain meaning. Join Institute for Justice Senior Attorney, Robert Frommer, for a litigation update on this interesting Fourth Amendment question and the petition before the Court. The Institute for Justice filed an amicus brief urging the court to grant the petition for certiorari. Featuring: -- Robert Frommer, Senior Attorney, Institute for Justice -- Moderator: Adam Griffin, Law Clerk, US District Courts

LTL Management LLC (LTL) is a subsidiary of Johnson & Johnson (J&J) that was established in 2021 to hold and manage claims related to a mass tort alleging that J&J’s talc-based baby powder caused many cases of ovarian cancer, mesothelioma, and other serious health issues. J&J claims that settling the mass tort in this manner is a reasonable and legitimate course of action. Some plaintiffs’ attorneys claim that J&J is using a bad faith strategy that serves no legitimate business purpose, and the tort litigation should be allowed to continue. The case began in the United States Bankruptcy Court for the District of New Jersey. Chief Judge Michael Kaplan ruled in favor of LTL in February 2022 holding that LTL’s filing for Chapter 11 protection was “unquestionably a proper purpose under the Bankruptcy Code.” Upon an expedited appeal, a three-judge panel of the Third Circuit reversed and narrowly held in favor of claimants. Hours later, LTL once again filed for Chapter 11 protection; the new filing includes an $8.9 billion settlement offer. Some – including the U.S. Department of Justice’s Trustee Program – continue to argue that J&J is misusing bankruptcy law through LTL, but others think the massive settlement is in the best interest of claimants. Both LTL and parent J&J reject that its bankruptcy filing is illegitimate, illegal, or in bad faith. This webinar will be a second installment of the February 16, 2023 webinar titled Chapter 11 Bankruptcy & Mass Torts: A Review of the Third Circuit’s LTL Opinion with Professors Lindsey Simon and Tony Casey. Please join us as Professors Simon and Casey discuss the case alongside trial attorney Mikal Watts.

In 2003, Professor Brian Fitzpatrick published a piece titled "The Diversity Lie" in which he discussed the recently decided Grutter v. Bollinger case. Twenty years later, the Supreme Court is on the precipice of deciding two important affirmative action cases in SFFA v. Harvard and SFFA v. UNC. How has Professor Fitzpatrick's analysis held up against the test of time? How has the Supreme Court changed? What does the future hold for affirmative action? Can universities install a program of race-neutral affirmative action? Professors Brian Fitzpatrick and Randall Kennedy will join us to consider these questions and more as we reflect on the 20th anniversary of Grutter v. Bollinger.

For decades, the WTO Appellate Body regularly ruled that American laws violated the various WTO treaties. This forced Congress to rewrite WTO non-compliant statutes and altered U.S. policy on issues related to trade, the environment, and taxes - amongst others. In December 2019, however, a U.S. campaign to block Appellate Body judge nominations paralyzed the entire WTO Appellate Body system. As a result, the WTO cannot render final decisions in disputes between its member-states, and in recent years new laws like the Inflation Reduction Act's Electric Vehicle tax credit scheme openly flout WTO treaty rules. How did the Appellate Body constrain U.S. laws pre-2019? Why did the U.S. choose to block nominations to the Appellate Body and what are the prospects that the Appellate Body returns? And if the Appellate Body does not return, how will this impact U.S. trade and trade-related laws? Join us for a panel where two leading experts on trade law and policy will discuss these issues. Featuring: --Jamieson Greer, Partner, King & Spalding --David Ross, Partner, WilmerHale --Moderator: Trevor R. Jones, JD Candidate, Harvard Law School

Over the past several years, a debate has erupted within the world of indigent defense: to what degree is it appropriate or indeed vital for public defenders to be involved in political advocacy? Some contend such advocacy is outside the role and responsibility of public defenders, who should instead focus on defending their clients to the best of their ability. Others assert that involvement on social issues that arguably affect their clients is integral to the public defender’s mission and work. In this recorded Teleforum former public defenders discuss these questions on the role of public defenders in political advocacy. Feauring: Maud Maron, Interim Executive Director, Foundation Against Intolerance and Racism Tiffany Roberts, Public Policy Director, Southern Center for Human Rights [Moderator] Matthew Cavedon, Robert Pool Fellow in Law and Religion & Senior Lecturer in Law, Emory University School of Law

On Wednesday, April 26th, the Supreme Court heard oral argument in Tyler v. Hennepin County, Minnesota. Hennepin County foreclosed on Geraldine Tyler's home to cover her delinquent property taxes, selling the home for $40,000 and keeping the $25,000 surplus as profit. Tyler argues that the county cannot take the equity in her home and has asked the Supreme Court to declare the forfeiture of her home's equity an unconstitutional taking and excessive fine. The county maintains that Tyler had time to pay her taxes and is not entitled to any refund. The Supreme Court will consider whether the county’s actions violate the Takings Clause and whether the forfeiture of property worth far more than the debt plus interest, penalties, and costs is an excessive fine within the meaning of the Eighth Amendment. After the oral argument, Christina Martin, Counsel of Record in the case for Pacific Legal Foundation, joined us to break down the proceedings. Featuring: --Christina Martin, Senior Attorney, Pacific Legal Foundation --Moderator: Tony Francois, Partner, Briscoe Ivester & Bazel

The announcement that the Taiwan President will visit the United States in early April has brought renewed attention to the potential conflict between the US and China over Taiwan. Additionally, some experts assert that the ongoing conflict between Russia and Ukraine has further intensified the need for the US and China to prepare for a possible military confrontation. Despite this perceived urgency, much of the discourse surrounding a Taiwan conflict focuses on the security concerns motivating both powers and the geopolitical fallout that would occur as a result. Our panel of defense and national security law experts will go beyond this analysis to examine the specific scenarios that could trigger conflict and the strategies that the US might deploy to protect its interests. Join us for a comprehensive discussion on one of the most pressing security challenges of our time. Featuring: -- Col. Mark Cancian, (USMCR, ret.) Senior Adviser, International Security Program, CSIS -- Prof. Julian Ku, Senior Associate Dean for Academic Affairs, Faculty Director of International Programs, and Maurice A. Deane Distinguished Professor of Constitutional Law, Maurice A. Deane School of Law at Hofstra University -- Moderator: Prof. Jamil Jaffer, Adjunct Professor, NSI Founder, and Director, National Security Law & Policy Program, Antonin Scalia Law School, George Mason University

On April 19, 2023, the Court considered a question of free speech and criminal law: whether, in order for a statement to be categorized as a "true threat" and thus not protected under a right to free speech, the speaker must subjectively know or intend the threatening nature of the statement, or whether it is enough that an objective "reasonable person" would regard the statement as a threat of violence. The facts of the case that poses this question for the Court, Counterman v. Colorado, are as follows. Billy Raymond Counterman was convicted and sentenced to four-and-a-half years in the state of Colorado for stalking a local female musician. According to Colorado Law, stalking entails “mak[ing] any form of communication with another person … in a manner that would cause a reasonable person to suffer serious emotional distress.” Over the course of two years, Counterman sent the woman direct messages on Facebook in which he suggested that he had seen her while driving and made comments such as “Die” and “(expletive) off permanently.” The woman told a family member that she was “extremely scared” after receiving these messages. Lower courts in Colorado upheld Counterman’s conviction, ruling that the appropriate test for whether Counterman’s statements qualified as a “true threat,” was whether a reasonable person would regard the statement as a threat of violence. The question now comes before the Court as to whether that “reasonable person” test is correct, or whether intent must be established. In this recorded Teleforum we broke down and analyzed how oral argument went before the Court the day after this case is heard. Featuring: --Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below. Slack Technologies v. Pirani (April 17) - Securities, Financial Services; Whether, to bring a securities lawsuit alleging misstatements in a registration statement, a plaintiff must plead and show that he bought shares registered under the allegedly misleading statement. US ex rel. Schutte v. SuperValu Inc. & United States ex rel. Proctor v. Safeway [Consolidated] (April 18) - Financial Services; Whether and when a defendant’s subjective knowledge about whether its conduct was legal is relevant to whether it “knowingly” submitted false claims for payment to the government or “knowingly” made false statements in support of such claims in violation of the False Claims Act. Groff v. Dejoy (April 18) - Labor, Religious Liberties; Whether to overrule the Supreme Court’s 1977 decision in Trans World Airlines v. Hardison, on the accommodations that employers must provide for their employees’ religious practices. Counterman v. Colorado (April 19) - Free Speech; To determine whether statements are “true threats” that are not protected by the Constitution, should courts apply an objective test that considers whether a reasonable person would regard the statement as a threat of violence, or instead a subjective test that requires prosecutors to show that the speaker intended to make a threat? Lac du Flambeua Band v. Coughlin (April 24) - Tribal Law; Whether the Bankruptcy Code unequivocally expresses Congress’s intent to abrogate the sovereign immunity of Native American tribes. Tyler v. Hennepin County (April 26) - Property Rights; Whether the foreclosure on and sale of a home that was worth $25,000 more than the owner owed in taxes violated the Fifth Amendment’s takings clause, which bars the government from taking private property for public use without adequately compensating the property owners. Featuring: --Thomas F. Gede, Counsel, Morgan, Lewis & Bockius LLP --Sharon Fast Gustafson, Principal, Sharon Fast Gustafson, Attorney at Law, PLC --Brian Hauss, Senior Staff Attorney, Speech, Privacy & Technology Project, ACLU --Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University --Moderator: Anastasia P. Boden, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute

Geraldine Tyler, a ninety-three-year-old homeowner, owed Hennepin County, Minnesota, nearly $12,700 in delinquent property taxes, plus interest, penalties, and costs. To cover her debt, the County foreclosed on her home and sold it for $40,000. However, the County also kept the surplus $25,000 as profit. Minnesota, along with thirteen other states, authorize various government agencies to satisfy assorted government debts associated with real property by confiscating all title and equity in an owner’s property. Equity means the value in a piece of property beyond the encumbering debt. No one disputes the government’s ability to forfeit property to cover debts but Ms. Tyler argues the county cannot take the equity in her home. Tyler asks the United States Supreme Court to rule Hennepin County’s forfeiture of the equity in her home an unconstitutional taking and excessive fine. However, the County argues that Tyler failed to pay her property taxes for five years, she had time to pay those taxes, and therefore the County was not required to refund Tyler any money from forfeiting her house to pay the property taxes. Nancie Marzulla, who filed an amicus brief with the Atlantic Legal Foundation on behalf of the petitioner’s position, and John Bursch, who filed a petition for a writ of certiorari in Meisner v. Hall asserting the respondent’s position in Tyler joined us to discuss this important case. Featuring: --Nancie Marzulla, Partner, Marzulla Law --John Bursch, Founder, Bursch Law PLLC --Moderator: Tony Francois, Partner, Briscoe Ivester & Bazel

In Groff v. Dejoy the Court was set to address two issues concerning the protections provided employees who seek to practice their religious beliefs in the context of the workplace. The Court was considering whether to overrule the “more-than-de-minimis-cost” test for refusing religious accommodations under Title VII of the Civil Rights Act of 1964 established in Trans World Airlines, Inc. v. Hardison. Also at issue was whether burdens on employees are sufficient to constitute “undue hardship on the conduct of the employer’s business” for the employer under Title VII. Gerald Groff, a Christian who due to his religious convictions treated Sundays as a sabbath and thus did not work on those days, worked for the U.S. Postal Service in Pennsylvania. Although his sabbath-taking was not a problem at the beginning of his tenure with the USPS, following a 2013 agreement with Amazon, USPS began to provide service on Sundays and holidays. This meant that postal workers now had to work Sundays. Initially, Groff was able to avoid working Sundays by trading shifts with co-workers, but that eventually became untenable as co-workers were not willing or available to trade, resulting in Groff being scheduled for Sunday shifts he could not work due to his convictions. Following disciplinary action for missed shifts, and facing termination, Groff chose to resign. He sued USPS for refusing to accommodate his religious beliefs and practices as required by Title VII. The Third Circuit, following Hardison, ruled in favor of USPS, citing as sufficient to constitute the “undue hardship” test the burden placed on Groff’s coworkers who had to take more Sunday shifts and lessened workplace morale. Groff appealed, and SCOTUS heard oral arguments in the case on April 18, 2023. In this Courthouse Steps webinar where we broke down and analyzed how oral argument went in the case the same day argument occurred. Featuring: --Hiram Sasser, Executive General Counsel, First Liberty Institute

Gonzalez v. Trevino involves an alleged retaliatory conspiracy of city officials from Castle Hills, Texas to arrest Sylvia Gonzalez—a 72-year-old councilwoman—for spearheading a nonbinding petition criticizing the city’s manager. Gonzalez acknowledges that there was probable cause for her arrest and appellants asserted a qualified immunity defense. The district court denied Appellants’ motion to dismiss. On appeal, the Fifth Circuit reversed the district court’s order denying Appellant’s motion to dismiss, finding Appellee failed to establish a violation of her constitutional rights. Notable dissents were issued by Judges Oldham (from the panel opinion) and Ho (from the denial of en banc review). Anya Bidwell and the Institute for Justice have petitioned the Supreme Court for review. In this recorded webinar, Ms. Bidwell discusses qualified immunity, the First Amendment, and the Fifth Circuit’s decision in Gonzalez v. Trevino. Featuring: --Anya Bidwell, Attorney, Institute for Justice

On November 4, 2022, the Supreme Court granted cert in Amgen Inc. v. Sanofi, a patent infringement case that involves the application of the statutory enablement requirement of Section 112 of the patent laws to what is referred to as a "genus claim" as it applies in the context of pharmaceutical applications. The two patents in dispute relate to antibody drugs that reduce low-density lipoprotein (“LDL”) cholesterol. The Court heard oral arguments in the case on March 27, 2023. Specifically at issue was "whether enablement is governed by the statutory requirement that the specifications teach those skilled in the art to 'make and use' the claimed invention, or whether it must instead enable those skilled in the art 'to reach the full scope of claimed embodiments' without undue experimentation—i.e., to cumulatively identify and make all or nearly all embodiments of the invention without substantial 'time and effort.'" Robert Rando, an intellectual property attorney who filed an amicus brief in the case, joined us to break down the arguments. Featuring: --Robert J. Rando, Partner, Greenspoon Marder LLP

As Indonesia, Somalia, Niger, and Mauritania may be next to join the Abraham Accords, what interests unify these countries on Accord agreement? What will be the impact of Saudi Arabia’s alignment with Iran? What are the balance of power dynamics for the Iran-concerned Accord countries of Israel, Bahrain, UAE? What binds signatories to the Accords as regional political pressures mount? Discussants will assess the impact of the normalization of relationships they have evolved in the two and a half years since Accords were negotiated. Cultural shifts are already reported after two years of active Accords with Hebrew frequently spoken on the streets of Dubai. Trade has flourished. Flights and overflights are routine. But the United States’ role has shifted for a variety of reasons. Is America’s leadership critical to salutary Accord developments? Featuring: --David P. Goldman, President, Macrostrategy LLC --Hon. Brian Hook, Founder, Latitude, LLC --Prof. Bernard Haykel, Professor of Near Eastern Studies & Director of the Institute for Transregional Study of the Contemporary Middle East, Princeton University --Moderator: Prof. Jamil Jaffer, Adjunct Professor, NSI Founder, and Director, National Security Law & Policy Program, Antonin Scalia Law School, George Mason University

In this two-for-one Teleforum, we covered two cases with questions concerning criminal law and procedure that are set to be argued before the Court. On March 28, 2023, the Supreme Court heard oral argument in Smith v. United States. Two issues were presented to the Court by this case. One, whether, when there are multiple charges associated with a trial, lack of venue as to one count requires vacatur of the convictions for other counts? Two, what is the proper remedy when someone is tried in an improper venue? Is the government’s failure to prove venue equal to an acquittal barring re-prosecution of the offense, or can the government may re-try the defendant for the same offense in a different venue? The next day, the Supreme Court heard oral argument in Samia v. United States. In it, the Court considered whether the admission of a codefendant’s redacted out-of-court confession that incriminates the defendant due to its content violates the Confrontation Clause of the Sixth Amendment. In this recorded webinar, we broke down and analyzed how oral argument went before the Court in these two cases, united by the Court before which they are set to be argued and the fact they pose questions of proper procedure in criminal cases. Featuring: --Robert McBride, Partner-in-Charge, Northern Kentucky, Taft Stettinius & Hollister LLP

In Jack Daniel’s Properties, Inc. v. VIP Products LLC, the Supreme Court is considering "Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims; and (2) whether humorous use of another’s mark as one’s own on a commercial product is “noncommercial” and thus bars as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act." Following oral arguments in the case, IP expert Adam Mathews joined us to break down the case and answer audience questions. Featuring: --Adam Mathews, State Representative, Ohio, and Attorney, Ashbrook Byrne Kresge

Although a right to trial is enshrined in the American Constitution, practically the nation’s criminal justice system now resolves almost all cases through plea bargaining. This has raised many questions, including whether innocent people are effectively coerced into pleading guilty, whether similarly situated defendants are treated equally, and whether there is enough transparency to evaluate the system’s effectiveness and correct injustices. In February 2023, a task force assembled by the Criminal Law Section of the American Bar Association released a report that made numerous recommendations for changing current policy and practice on plea bargaining. Amid a system struggling with COVID-era backlogs and rates of serious crimes that largely remain above 2019 levels, are there ways to bolster the effective availability of the right to trial without jeopardizing public safety or requiring an unrealistic increase in system capacity? Featuring: --Clark Niely, Senior Vice President for Legal Studies, Cato Institute --Kent Volkmer, Pinal County Attorney, Pinal County, Arizona --[Moderator] Marc Levin, Chief Policy Counsel, Council on Criminal Justice