CLE-Accredited Interviews with the Titans of Law

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The TalksOnLaw MCLE Podcast offers interactive CLE/MCLE credit to satisfy all 25 hours of CLE required by the State Bar of California.  Enjoy our evolving catalog of podcast interviews with the titans of law

 


172
Gun Rights under Rahimi & Cargill

Professor Joseph Blocher (Second Amendment scholar and co-director of the Duke Center for Firearms Law) explains two significant recent Supreme Court cases: United States v. Rahimi and Garland v. Cargill. This discussion provides an in-depth analysis of the legal reasoning behind these decisions and their broader implications for gun regulation and gun rights in the United States.

In United States v. Rahimi, the central question was whether it is constitutional to restrict gun rights for individuals under domestic violence restraining orders. Professor Blocher explains the Supreme Court's decision to uphold the federal law, 18 U.S.C. §922(g)(8), which bars individuals under certain domestic violence orders from possessing firearms. Chief Justice John Roberts' opinion draws from the historical tradition of firearm regulation, referencing “surety” and “going armed” laws to justify modern restrictions aimed at disarming dangerous individuals. This decision reinforces the Court's commitment to a "text, history, and tradition" approach established in the New York State Rifle & Pistol Association v. Bruen, despite the lack of a historical twin specifically for domestic violence orders.

In Garland v. Cargill, Professor Blocher breaks down the Supreme Court's reversal of the federal ban on bump stocks, devices that enable semi-automatic firearms to mimic automatic fire rates. The Court's majority opinion, penned by Justice Thomas, hinges on the technical interpretation of what constitutes a "machinegun" under the National Firearms Act of 1934. By emphasizing the requirement that a machinegun must fire multiple rounds with a single function of the trigger, the Court determined that bump stocks, which necessitate the trigger to reset with each shot, do not meet this definition. This decision underscores the limitations of executive agencies in expanding the scope of existing laws through regulatory reinterpretation.

Joseph Blocher is a law professor a Duke Law School.

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General
171
Criminal Lab Grown Meat

The sale and production of lab-grown meat have been criminalized in Florida and Alabama, with other states considering similar legislation. Food law expert Professor Michael Roberts from UCLA Law School explains what the new laws do as well as how they fit into the federal regulatory framework and the historical context of food law and politics in the United States.

Key Discussion Points:

State-Level Bans:

  • Florida and Alabama Legislation: Both states have recently passed laws prohibiting the manufacture, sale, and distribution of lab-grown meat. Amost other things, these bans aim to protect traditional agriculture and address consumer safety concerns. Professor Roberts discusses the specifics of these laws, criticisms, and the legislative motivations behind them.

Federal Regulatory Framework:

  • USDA and FDA Collaboration: Professor Roberts provides insights into the joint regulatory framework established by the USDA and FDA for overseeing lab-grown meat. He explains the distinct roles of each agency in ensuring the safety and labeling of these products.

Historical Context and Legal Precedents:

  • Evolution of Food Law: The interview places the current bans within the historical context of food regulation in the United States. Professor Roberts traces the development of food law and the political forces that have shaped it, noting key moments and legal precedents from the battle over margarine to the GMO-labeling controversy.

Federalism and State vs. Federal Authority: The tension between state and federal authority in regulating food products is explored. Professor Roberts discusses the potential for legal challenges based on federal preemption principles and how state-level bans interact with federal regulations.

170
Prosecutorial Discretion – Power & Responsibility

The power of prosecutors extends far beyond the courtroom, shaping the trajectory of countless lives through their decisions. Legal experts Bruce Green and Rebecca Roiphe delve into this immense authority in an insightful interview, exploring the nuances of prosecutorial discretion and its profound impact on the justice system. Their discussion sheds light on the ethical and constitutional standards that guide prosecutorial conduct, emphasizing the balance between power and responsibility.

From the initiation of charges to plea bargaining and grand jury proceedings, prosecutors wield significant influence in determining the outcomes of cases. Bruce and Rebecca dissect the factors that federal and state prosecutors consider when making these critical decisions, highlighting differences in conviction rates and the strategic choices that impact both defendants and the broader community. Through real-life examples and high-profile cases, they illustrate the complexities and ethical dilemmas faced by prosecutors in their pursuit of justice.

The conversation also touches on the crucial issue of disclosure obligations and the practice of overcharging. Bruce and Rebecca examine how the Brady Rule and ethical guidelines shape the transparency and fairness of prosecutorial actions. They discuss the potential for misuse of power through overcharging and the significant role of plea bargaining in the American legal system.

1.0 CREDITS
Legal Ethics
169
Deadly Force as Self Defense

The law of self-defense permits the use of deadly force under a strict set of conditions: the threat must be both imminent and unlawful, and the response, both necessary and proportionate. But what of the murkier scenarios where multiple parties, ensnared in the throes of perceived danger, believe themselves justified in their fears? Consider the tragic case of George Zimmerman and Trayvon Martin—where does the law stand when fear is misplaced, and how swiftly can one lawfully escalate to lethal force? Professor Kimberly Ferzan of the University of Pennsylvania School of Law navigates these shadowy waters and others offering her insights into the delicate balance between legal theory and the stark realities of personal safety.

Professor Ferzan uses the high-profile cases of Ahmaud Arbery to shed light on self-defense laws, particularly focusing on the contrasts between "duty to retreat" and "stand your ground" statutes. These distinctions highlight how one's legal obligations during a confrontation can vary significantly from state to state. She clarifies the roles of aggressors and provocateurs in these scenarios—those who initiate violence yet claim self-defense when faced with retaliation, revealing the layered complexities and rapid judgments required by law.

Professor Ferzan explores Kyle Rittenhouse's case to discuss how guns can further complicate self-defense claims. The presence of a firearm can, on the one hand, necessitate a quicker escalation to lethal force, legally justified by the potential threat of the weapon being used against its owner. On the other hand, bringing a weapon into an already tense situation can potentially be seen as a provocative act, influencing the legal framework (and public opinion) on what constitutes legitimate self-defense. Thre notorious examples and hypotheticals, Ferzan sheds light ont the interplay between legal principles, ethical considerations, and the real-world implications of defensive actions.

1.0 CREDITS
General
168
Titanic Nonliability

In the realm of maritime law, ships possess a unique legal characteristic: their total liability in the event of an accident is generally limited to the value of the ship post-incident. This principle, which can seem as impenetrable as the sea itself, is navigated by Professor Martin Davies of Tulane Law School, a renowned expert in maritime law. Davies explains the legal history and justification, real world tragedies and the impact of this limitation, and the cases and opinions that have shaped the law. 

The cornerstone of this discussion is the historical precedent set by laws like the Limitation of Liability Act of 1851. This statute (and others like it around the world) establish that a shipowner's financial responsibility in the aftermath of a disaster, generally cannot exceed the post-accident value of the ship and its cargo. This limitation aims to protect shipowners from crippling financial losses, thereby encouraging maritime commerce, but it also raises questions about justice and compensation for victims.

A stark illustration of this principle can be seen in the case of the RMS Titanic, as discussed by Professor Davies. After the Titanic sank in 1912, the liability of its owners was capped at the value of the remaining lifeboats. This effectively meant that the victims' families could only claim compensation up to this meager sum, starkly highlighting the potential harshness of maritime liability limits.

Professor Davies explores how this framework impacts not just historical incidents but also modern maritime disasters. From the duck boat sinking in 2018 to the fire aboard the "Conception" in 2019, these tragic events test the limits of liability laws and challenge the balance between protecting maritime enterprises and ensuring fair compensation for victims.

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General
167
Injustice by Forensics

Forensic science, when applied rigorously, has the power to catch and convict criminals, but when mishandled, can lead to tragic miscarriages of justice. In this eye-opening interview with Prof. Brandon Garrett (Duke Law School) and Dr. Peter Stout (Houston Forensic Science Center), explore high-profile exoneration cases like those of Josiah Sutton and George Rodriguez to the systemic issues plaguing crime labs across the country.  They explore the impact of quality control, timely analysis, and proper funding on reducing biases and errors in criminal convictions. Every strand of hair, every DNA sample, and every crime lab decision can mean the difference between justice served and justice denied, and yet labs across the country are broadly left to set their own standards. Garrett and Stout share crucial insights into the standards of reliability that should govern forensic evidence, the profound influence that bad forensics has on lives and legal outcomes, and the urgent need for reform.

"Forensic science often does not live up to the current standards of scientific research. And when forensic science fails, injustice follows."

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General
166
Weaponization of Outer Space

As the US accuses Russia of developing nuclear-armed satellites, what does international law say about weapons of mass destruction (WMD) in outer space? Space law expert, Professor Frans von der Dunk  discusses the weaponization of outer space and the laws that govern weapons beyond the planet. The deployment of weapons of mass destruction in outer space presents not only a significant threat to global security but also a complex challenge to international law, explains Professor von der Dunk, a leading authority on space law at the Nebraska College of Law.

The primary legal framework governing this issue is the Outer Space Treaty of 1967, which was established during the height of the Cold War to ensure that the exploration and use of outer space would be carried out for the benefit of all countries. The treaty expressly prohibits the placement of nuclear weapons or any other types of WMDs in orbit around Earth, on celestial bodies, or in other locations in outer space. This comprehensive ban aims to prevent the outer space from becoming an area of military conflict, von der Dunk notes.

In addition to the Outer Space Treaty, the Partial Test Ban Treaty of 1963 also plays a role by prohibiting nuclear explosions in outer space, further underscoring the global intent to maintain space as a peaceful domain. Despite these legal safeguards, recent developments and accusations suggest that some nations might be exploring technologies that could stretch or violate these boundaries. Historical precedents like the Starfish Prime high-altitude nuclear test by the USA and the accidental crash of the Cosmos 954, a nuclear-powered Soviet satellite, in 1978 highlight the risks and consequences of using nuclear technology in space. 

Professor von der Dunk also highlights the strategic ambiguities and unrestricted areas within the treaties. While the laws clearly ban WMDs, they do not speek to conventional weapons or technologies that could be adapted for military use in outer space. This grey area could lead to future legal and geopolitical challenges as more nations push into earths orbit and beyond. Professor von der Dunk emphasizes that it is crucial that all spacefaring nations work together to enforce these legal norms and consider updates to ensuring that outer space remains a realm for peaceful exploration and cooperation. As space activities intensify, the role of international law becomes ever more critical in safeguarding the final frontier from becoming a battleground. 

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165
A Mindful Lawyer

The legal profession is known for its high-stakes, high-stress lifestyle. The dangers of stress to mind and body are similarly well known. However, as one endocrinologist famously put it, “It is not stress that kills us, it is our reaction to it.” In a time of heightened stress, we explore one potentially powerful strategy that lawyers can use to more effectively combat stress and improve their professionalism–mindfulness. As Jon Krop explains, mindfulness is the practice of being present in the moment and a practical tool to help better manage stress. Krop describes some of the unique characteristics of the legal profession that may make lawyers more prone to stress and makes the case for incorporating mindfulness and meditation to improve job performance and the health of the profession overall. This interview explores both the scientific underpinnings and benefits of mindfulness and concrete tips to incorporate mindfulness into a busy lawyer’s daily life.

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Competence Issues
164
War Crimes – Israel & Gaza

In the conflict between Israel and Hamas in Gaza, the line between legitimate military action and war crime is not always clear. Professor Michael Newton, an expert on the laws of war, gives his analysis on events ranging from bombings, to kidnapping, to human shields in order to better distinguish war crimes in the context of Israel and Palestine. 

According to the laws of war, the conflict in Gaza is not a traditional battle between nations. Newton explains that Israeli soldiers and Hamas fighters are in some ways treated differently under international law. Hamas fighters, for example, are not soldiers based on the standard legal definition because they do not fight on behalf of an internationally recognized sovereign state. Rather, under the laws of war, they are “civilians engaged in armed conflict.”  This is relevant as it means that Hamas members do not have combatant immunity protections guaranteed to soldiers at war.  Additionally, this distinction also presents unique challenges to Israel in targeting Hamas since civilians engaged in armed conflict must be classified based on their actions rather than their status as soldiers. 

Professor Newton goes on to analyze various aspects of the Hamas attacks in Israel and the Israel-Hamas conflict in Gaza under the laws of war.  Through the lens of war crime definitions, Newton discusses kidnapping, the targeting of civilians, sexual violence, the use of human shields, starvation as a tool of war, targeting hospitals and places of worship, and the use of disproportionate force and other war crime definitions. He walks through his analysis of how they line up with actions on the ground in Israel and Gaza and explains the judgement calls involved in making such determinations.  In war, Newton explains, mistakes can happen and difficult choices are required with imperfect information. The rules of war were drafted in such a way to allow commanders to exercise discretion and to achieve legitimate military objectives. War crime laws provide important yet pragmatic guardrails during such periods of often tragic violence. 

Michael Newton is a professor at Vanderbilt Law School and is an authority on the law of armed conflict. 

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162
Model Minority & Associates

Like all attorneys, Asian-American lawyers strive for legal excellence by honing their expertise and delivering quality client service. Yet, they often confront a myriad of stereotypes, biases, and misconceptions from colleagues and even clients. In this interview, Prof. Peter Huang of Colorado Law delves into the unique challenges and biases Asian-American lawyers face.

Prof. Huang discusses how many view Asian-American lawyers through the lens of the "model minority" myth. This stereotype paints Asian-Americans as a monolithic group, emphasizing traits such as studiousness, diligence, and obedience, and overlooking their diverse individual qualities. Such perceptions can have detrimental effects. Aspiring Asian-American leaders or law partners may find themselves pigeonholed as effective but potentially lacking creativity or vision, consequently limiting their ascent to senior roles.

To give context, Prof. Huang examines notable historical examples of institutional biases against Asians in the U.S., notably citing the Chinese Exclusion Act of 1882. This federal law, unique in its explicit targeting, suspended Chinese immigration and declared Chinese immigrants ineligible for naturalization. Prof. Huang also references the Supreme Court's 1944 Korematsu decision, which sanctioned the internment of Japanese-Americans during World War II. While such glaring acts of state discrimination have diminished, Prof. Huang emphasizes that today's Asian-American lawyers still wrestle with more subtle, often unspoken or subconscious biases. He further enriches the discussion by introducing concepts like the “perpetual foreigner syndrome” or the minority “cloak of invisibility” shedding light on multifaceted challenges Asian-American professionals encounter.

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Implicit Bias & Bias Reducing Strategies
161
Dying Without a Will

When you die without a will, the default rules of inheritance law kick in, allocating assets based on established formulas and hierarchies. In this conversation, Prof. John Morley (Yale Law School) explains basic inheritance law and delves into the default rules that come into play when a person dies without a will (“intestate”) and how these rules both vary significantly from state to state and are often at odds with common expectations when it comes to an individual’s legacy. 

Through his recent survey, Prof. Morley has uncovered differences in inheritance expectations across various demographic groups. For instance, women are notably less likely than men to intentionally leave money to their spouses. Additionally, the conversation explores discrepancies by race and sexual orientation as well as some notable surprises pertaining to less traditional family structures.

Prof. Morley's insights not only underscore the importance of having a will that accurately reflects one's wishes but also suggest that intestacy laws across the nation may be out of step with modern expectations and in need of revision.

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General
160
Understanding SFFA v. Harvard

Students for Fair Admissions v. Harvard College signals a radical shift in how the Supreme Court views favoring racial diversity and affirmative action in higher education. Chief Justice John Roberts, writing the majority opinion in SFFA v. Harvard, rejects the use of race as a factor in college admissions, asserting that this practice, previously accepted under prior cases such as Bakke and Fisher (see additional resources), is no longer permissible. Professor Theodore Shaw of UNC Law School explains the evolution of affirmative action and racial diversity programs and the impact of this decision on our understanding of Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.

Affirmative action is a policy designed to give employment and educational consideration to individuals from groups that have been historically underrepresented or disadvantaged. Diversity programs similarly promote racial diversity but do so in an effort to improve the overall learning experience and college culture. The group Students for Fair Admissions argues that both are improper. SFFA sued both Harvard and the University of North Carolina (where Prof. Shaw teaches) claiming that race-conscious admissions programs disadvantaged Asian and Asian-American applicants. These applicants, they claim, were disfavored by the policies because Asians are not statistically “underrepresented” at the elite schools.

Chief Justice Roberts rejected the diversity justifications offered by the universities as insufficient to meet the high burden of “strict scrutiny,” and sided with SFFA. According to Chief Justice Roberts, “both programs lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful endpoints.” Roberts finds that the schools may have had good intentions, but their efforts fall short of the standard of the Fourteenth Amendment.

According to Prof. Shaw, there was one notable crack in the wall erected by the SFFA decision barring the use of race in the admissions process. Chief Justice Roberts explained that this decision does not prevent a student from expressing their racial experiences in a personal essay or similar component of a college application. Prof. Shaw discusses what this means for colleges that continue to advocate for diversity, breaks down noteworthy footnotes and dissents, and predicts additional litigation to come.

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General
159
Why Law Firms Implode

Law firm failures do not merely signify bankruptcy - they are spectacles of grand implosions. American law firms suffer from unique structural risks that can drive these formidable institutions to not just falter, but rapidly collapse even where their balance sheets and profitability would suggest more durability. This phenomenon, far from random, stems from the fragile ownership structure unique to the legal industry. In an interview with Yale Law Professor John Morley, we take a deep dive into the inherent risks and dramatic consequences of law firm failures, and why this topic should command our attention. 

Law firms are peculiar entities in the realm of business: partner-owned and restricted from nonlawyer investment or ownership, as mandated by the ABA's Model Rules of Professional Conduct. When a law firm faces a financial crisis, this fragile structure can trigger a devastating cascade. Senior partners, or 'rainmakers', may depart, taking clients, associates, and their capital contributions with them, leading to a 'partner run'. This domino effect of departures, combined with the onerous burden of unfinished business liability and potential clawback provisions, makes the failing law firm's situation perilous. Professor Morley's interview provides enlightening perspectives and unpacks the intricate complexities that have contributed to some of the most notorious law firm collapses, such as Dewey & LeBoeuf and Brobeck, Phleger & Harrison. 

Drawing on detailed analysis, Professor Morley not only discusses potential management strategies to reduce costs, build loyalty, and disincentivize partner runs, but also policy solutions like modifying restrictions on partner withdrawals or even rethinking the prohibition on non-lawyer ownership.

1.0 CREDITS
Legal Ethics
158
Police Commands & Police Coercion

Police commands are the cornerstone of law enforcement, at once projecting the authority of the state and instantly creating legal obligations for which the failure to comply can result in arrest, detention, or even the use of deadly force. But what are the limits of police commands?  When are they lawful and what rights do we have to disobey them when they are unlawful? Professor Rachel Harmon, a leading scholar on police law explains how police commands are the building blocks of police authority and can serve as the foundation upon which a peaceful resolution to a crisis is built. On the other hand, bad commands can create confusion, escalate tensions, and result in unnecessary use of force.  Prof Harmon explains the legal limits of police commands and how regulating them can play a critical role in reducing police abuse and unnecessary force.

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General
157
Inside the Shadow Docket

The term Shadow Docket, refers to the decisions and orders of the Supreme Court outside of the traditional cases with formal briefings, oral arguments, and reasoned, lengthy opinions.  Over the last few years, the Court has increasingly used these decisions to address high-profile and politically-charged issues such as immigration, election disputes, pandemic restrictions, and abortion bans.

In this interview, Professor Stephen Vladeck (University of Texas Law School) breaks down this shift in power at the High Court and offers detailed analysis and a critique of the increased use of the Shadow Docket and what it might mean for the Court’s already-tarnished prestige. 


 

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156
Economic Incentives for Diversity

Diversity and inclusion are laudable goals, but how can change be created in an industry driven by tradition and financial return? This interview explores the concept of using economic incentives and rigorous data to encourage diversity within the legal profession. The conversation also explores controversial topics such as diversity spin, partner compensation, and the impact on the legal profession of changes to affirmative action law currently being considered at the Supreme Court.  

Aviva Will is the Co-Chief Operating Officer at Burford Capital and one of the architects behind Burford’s Equity Project (a $150,000,000 fund allocated exclusively for women and minority litigators). Keith Harrison is a partner and co-chair of Crowell & Moring’s Litigation Group and a member of the firm's Diversity Council.  Aviva and Keith sit down with TalksOnLaw’s Joel Cohen to discuss putting money on the line to overcome inherent biases and structural disadvantages and strategies to encourage and grow diversity in the profession.

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Implicit Bias & Bias Reducing Strategies
155
Lady Justice

The role of women in the legal profession is more than a statistic. Journalist Dahlia Lithwick shares insights from her beat (American courts and the law) about groundbreaking women at the very top of the legal profession. In an interview that reflects upon her recent book, Lady Justice (Penguin Press, 2022), Dahlia explains how gender diversity must include women sharing the stage at the very highest levels of law.

From Supreme Court justices, to Supreme Court advocates, to the fight against white nationalism, to the battle to reform gerrymandering, women are taking the lead. In a free-wheeling conversation with host, Joel Cohen, Dahlia weighs in on many of the most controversial legal cases of the last few years and the central role that women have and continue to play.

Beyond caselaw, Dahlia examines the clerkship model and examples of mistreatment and abuse of female clerks. Advocating for change, she explains how the hierarchical, cloistered nature of clerkships can insulate bullying, harassment, and sexually improper conduct by judges. Finally, Dahlia leaves viewers with an encouraging message that while injustice and disparity persist, prominent women lawyers are, perhaps more than ever before, driving change in America and inspiring the next generation of women attorneys.

1.5 CREDITS
Elimination of Bias in the Legal Profession
154
Regulating Cryptocurrency after FTX

How are cryptocurrencies treated by the U.S. government?  Former Chairman of the CFTC and a pioneer of crypto regulation, Christopher Giancarlo breaks down the crypto-regulatory landscape. Giancarlo explains why some crypto is treated as a commodity, others as a security, while others may not be regulated at all (yet). In a time of extreme volatility in the crypto markets, Giancarlo explores FTX, Bitcoin, stablecoins, DAO's, enforcement actions by the CFTC, the SEC under Chairman Gary Gensler, and the future of crypto regulation.  Finally, Giancarlo looks at the "digital dollar" and discusses with Joel how issues such as privacy and the 4th Amendment would apply to U.S. fiat cryptocurrency.

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General
153
God & Football after Bremerton

In the religious freedom case, Kennedy v. Bremerton School District (2022), the Supreme Court weighed in on the role of God in football in American public schools. Professor Sarah Barringer Gordon (UPenn Law) explains the case, its impact on the First Amendment's Establishment Clause separating church and state, and the unusual history of religion and football at the Supreme Court.

In Bremerton, the Court decided whether a public school football coach named Joseph Kennedy violated the Establishment Clause by prominently praying at midfield after games. The Court found in favor of the coach and determined that his actions were protected by the Free Speech and Free Exercise protections of the First Amendment.  Finally, Prof. Gordon explains the historical ebb and flow of Establishment Clause power and lays out the Court’s new test for evaluating potential violations of church and state after Kennedy v Bremerton.

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152
Recusal & the Bounds of Judicial Bias

With incredible powers to make life-changing decisions involving liberty and fortune, judges are expected to make decisions with a threshold level of neutrality.  In this conversation, we explore the limits of that threshold. When does judicial bias legally or ethically preclude a judge from hearing a case?  Alicia Bannon (director of the Judiciary Project at the Brennan Center for Justice) explains the laws and limits on judicial recusal and where gray areas remain. 

Bannon draws on contentious contemporary examples such as cases involving Justice Thomas and his wife’s connection to cases involving January 6th as well as cases relating to former President Trump.  Bannon explains that the constitutional test for recusal (under the Due Process protections) is “serious risk of actual bias.”  The conversation goes on to explore the limits of that test and potential reforms to improve the integrity of U.S. courts.

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Legal Ethics
151
Gun Law after Bruen

On June 23rd, 2022 the Supreme Court decided the landmark gun rights case New York State Rifle and Pistol Association Inc. v. Bruen. The case, widely seen as a win for advocates of personal gun rights, fundamentally altered the test that courts use to evaluate constitutionality under the 2nd Amendment and expanded gun rights outside of the home. Prof. Joseph Blocher of Duke Law School explains how Bruen fits into the evolving Second Amendment doctrine. 

In Bruen, Justice Thomas writing for the majority knocks down New York's concealed carry law and along with it calls into question laws in other states where significant discretion is given to the state in determining whether they may issue a permit. As Prof. Blocher explains, the case replaces the two-part Second Amendment test previously used by the nation's circuit courts of appeals in favor of a new test focused on historical tradition – the text, history, and tradition test.  After analysis of the decision of the court as well as the concurring and dissenting opinions in the case, Blocher explores the impact of Bruen on laws and individuals across the nation.

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150
WV v. EPA and the Major Questions Doctrine

On June 30th, 2022, the Supreme Court decided West Virginia v. Environmental Protection Agency (EPA), limiting the EPAs ability to regulate greenhouse gas emissions. Beyond its direct impact on climate policy, the case significantly impacts administrative power by supercharging a new legal regime - the “major questions doctrine.” Environmental law and administrative law expert, Professor Lisa Heinzerling (Georgetown Law Center) unpacks the Court’s decision in WV v. EPA and explains the broad powers of the judicial doctrine.

Prof. Heinzerling goes on to explain how major questions may prove to be the death knell for a prior test known as “Chevron deference.” Where Chevron assured judicial restraint toward federal policy, major questions now threatens to stymie agency action on some of the most critical and contentious issues of the moment, from climate change policy and far beyond.

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149
Driverless Cars—A Shift in Risk

 When algorithms take the wheel and human drivers move to the back seat, who's to blame when an accident occurs? The future of driverless cars is already here, with Waymo test offering its autonomous taxi service in Phoenix, AZ and more companies like GM, Nissan, and even Amazon entering the race to market. As driverless cars become the norm, the laws governing its development and use will have to adapt accordingly. RAND Corporation’s James Anderson discusses the complicated legal and policy issues that will need to be contemplated, including tort liability, the insurance regime, cybersecurity, and the regulatory framework.

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148
Assisted Reproduction and Parental Rights

More than ever before, Americans are turning to assisted reproduction to start their families.  In this interview, leading family law expert Professor Douglas NeJaime (Yale Law School) explains how U.S. laws are attempting to catch up to this shift.  Traditionally parental rights are based on the marital presumption – the parents are, by default, the woman who birthed the child and her husband.  This can then result in the denial of parental rights to non-biological mothers or fathers who start a family using assisted reproduction. In these circumstances, states may assign parental rights to the egg donor, sperm donor, or surrogate, despite the intentions and sometimes written agreements of the parties. Finally, Prof. NeJaime discusses how new laws in a number of states  better fit modern reproduction practices and rethinks what it means to be a legal parent.

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147
The Leaked Opinion, Dobbs v. Jackson

On May 2, 2022, Politico published a leaked initial draft majority opinion of Dobbs v. Jackson Women’s Health Organization that was predicted to be released in June. Chief Justice John Roberts confirmed the authenticity of the leaked opinion and stressed that the draft was not final. In the draft opinion authored by Justice Samuel Alito, the Supreme Court strikes down Roe v. Wade and Planned Parenthood v. Casey and upholds a Mississippi law banning abortions after 15 weeks of pregnancy. TalksOnLaw’s Joel Cohen unpacks Alito’s leaked opinion in which Alito traces the history of abortion laws in the U.S., explains the reasoning for overturning Roe, and addresses stare decisis.

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146
Human Information Privacy (Part 2)

As troves of personal data are collected, stored, and used by governments and private companies in today’s digital age, privacy is becoming an increasing concern. Privacy is essentially about setting boundaries to limit the power that information confers on entities, whether public or private, over individuals. Without adequate privacy safeguards, governments have a blank check to interfere in legitimate political exercise. Companies are free to manipulate consumers through “dark patterns” and presenting an illusion of choice. Professor Neil Richards of the University of Washington in St. Louis School of Law explores where the U.S. legal framework potential falls short, namely in consumer protection against private entities, and the problems he sees ripe for reform. He proposes a few starting points to craft meaningful regulations for privacy, including combating deception and restricting surveillance-based advertising.

 

Watch Part 1 of Human Information Privacy.

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145
Human Information Privacy

As troves of personal data are collected, stored, and used by governments and private companies in today’s digital age, privacy is becoming an increasing concern. Privacy is essentially about setting boundaries to limit the power that information confers on entities, whether public or private, over individuals. Without adequate privacy safeguards, governments have a blank check to interfere in legitimate political exercise and companies are free to manipulate consumers through “dark patterns.” Professor Neil Richards of Washington University in St. Louis School of Law discusses why privacy matters in the digital age and the current framework of constitutional protections against government surveillance. He then explores where the U.S. legal framework falls short, namely in consumer protection against private entities, and the ways in which the digital world is designed by tech companies to steer consumers into giving up ever more personal information.

 

Watch Part 2 of Human Information Privacy.

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144
Cyberattack as Use of Force (Part 2)

Cyberwarfare has muddled the understanding of what constitutes the use of force and armed attacks under international law. The 2022 Russian invasion of Ukraine has once again highlighted the risks that states and private entities face in the new realm of cyberwarfare and the need for establishing and clarifying international norms in this context. The Biden administration in March urged private entities to bolster their cyber defenses and warned that the U.S. was prepared to use all tools available to respond to cyberattacks. Under international law, whether those tools may include military responses hinges on determining that a cyberattack is an unlawful use force equivalent to an armed attack. Professor Duncan Hollis of Temple Law explains the standards proposed to assess whether a cyberattack amounts to a use of force and how states may respond when non-state actors engage in cyber operations. Lastly, he discusses influence operations, a type of cyber operation targeted at a certain population designed to affect behaviors or attitudes, and to what extent international laws and norms apply when influence operations do not involve use of force.

 

Watch Part 1 of Cyberattack as Use of Force.

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143
Cyberattack as Use of Force

Cyberwarfare has muddled the understanding of what constitutes the use of force and armed attacks under international law. The 2022 Russian invasion of Ukraine has once again highlighted the risks that states and private entities face in the new realm of cyberwarfare and the need for establishing and clarifying international norms in this context. The Biden administration in March urged private entities to bolster their cyber defenses and warned that the U.S. was prepared to use all tools available to respond to cyberattacks. Under international law, whether those tools may include military responses hinges on determining that a cyberattack is an unlawful use force equivalent to an armed attack. Professor Duncan Hollis of Temple Law explains the development of international cyberspace law, starting with the preliminary questions of whether and how existing international laws apply. He explores the issues with international law’s application to cyberspace, including interpretive disagreements among states and the challenges of developing norms when cyber activities are covert.

 

Watch Part 2 of Cyberattack as Use of Force.

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142
Law of Bourbon

Bourbon is a uniquely American spirit and has played an outsized role in developing important aspects of American law. Bourbon history is peppered with dramatic legal battles and legal innovations, whether it’s laying the foundation for trademark protections or establishing the concept of brand name in the 1800s. Brian Haara, attorney and author of Bourbon Justice: How Whiskey Law Shaped America, explains how bourbon is legally defined and explores the whiskey’s shady past and the legal concepts that bourbon helped build, from trademark to consumer protection to truth in advertising.

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141
Press Freedom vs. Privacy (Part 2)

The First Amendment provides broad but not absolute freedom of press protections. Louis Brandeis and Samuel Warren first famously articulated the right to privacy in 1890, a “right to be let alone” from undue prying by the press in private matters. While historically the press has enjoyed considerable latitude in determining what is newsworthy and publishable, there have been recent movements in the courts to constrict press freedoms and broaden individual privacy rights. Professor Amy Gajda of Tulane Law School examines how the concept of newsworthiness has evolved and what happens to press freedoms when “quasi-journalists,” self-publishers, bloggers and the like who don’t abide by traditional ethics codes overstep the editorial line.

 

Watch Part 1 of Press Freedom vs. Privacy.

 

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140
Press Freedom vs. Privacy

The First Amendment provides broad but not absolute freedom of press protections. Louis Brandeis and Samuel Warren first famously articulated the right to privacy in 1890, a “right to be let alone” from undue prying by the press in private matters. While historically the press has enjoyed considerable latitude in determining what is newsworthy and publishable, there have been recent movements in the courts to constrict press freedoms and broaden individual privacy rights. Professor Amy Gajda of Tulane Law School examines how the concept of newsworthiness has evolved and what happens to press freedoms when “quasi-journalists,” self-publishers, bloggers and the like who don’t abide by traditional ethics codes overstep the editorial line.

 

Watch Part 2 of Press Freedom vs. Privacy.

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139
Investigating the Client

An Ethical Dilemma

If a lawyer suspects, but does not know, that a client or potential client is seeking their services to engage in criminal activity, can they still offer legal counsel? When does a lawyer have a duty to investigate her own clients? In its Formal Opinion 491 issued in 2020, the American Bar Association addressed lawyers’ obligations to inquire further to determine whether a client may be attempting to perpetrate a crime or fraud. Professor Peter Joy, legal ethics scholar, explains the ethics rules governing the lawyer’s scope of representation. He examines the standards put forth in Opinion 491 and raises surprising questions as to whether such standards actually fit with the ethics rules as they are drafted.

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Legal Ethics
138
Memory Evidence (Part 2)

Neuroimaging in the Courts

In 2008, a woman in India was convicted of murder for the death of her fiancé on the basis of evidence derived from a brain-based memory detection exam. The test measured brain activity which purportedly indicated that she had personal knowledge of the poisoning of the victim. While such technology is highly controversial and not in common use in U.S. courts, significant advances in brain science now justify analysis of both the potential applications of memory evidence as well as the constitutional implications of doing so.

In part 2 of this 2-part interview, Professor Emily Murphy of UC Hastings Law evaluates how evidence from brain-based memory detection may be admitted in courts under Daubert. She then explores whether such evidence should be admitted even if the technology were perfect, given technological and biological limits, and how it may infringe upon constitutional and privacy rights if the government compels individuals to undergo brain imaging to decode memories.

Watch Part 1 of Memory Evidence.

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137
Memory Evidence

Neuroimaging in the Courts

In 2008, a woman in India was convicted of murder for the death of her fiancé on the basis of evidence derived from a brain-based memory detection exam. The test measured brain activity which purportedly indicated that she had personal knowledge of the poisoning of the victim. While such technology is highly controversial and not in common use in U.S. courts, significant advances in brain science now justify analysis of both the potential applications of memory evidence as well as the constitutional implications of doing so.

In part 1 of this 2-part interview, Professor Emily Murphy of UC Hastings Law explains the current state of brain-based memory detection technology and how it differs from lie detection tests. She discusses the hypothetical use cases for forensic purposes and the framework for admissibility of expert testimony under the Daubert standard.

Watch Part 2 of Memory Evidence.

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136
Ethics and Batson

Excluding Jurors Based on Race

The United States has a long history of racial discrimination in juries. In 1875, Congress passed the Civil Rights Act which prohibited race-based discrimination in jury service. Yet, states continued to remove Black prospective jurors, by instituting vague requirements for jury service or designating prominent citizens to compile juror lists, and then shifted to excluding jurors from jury selection from around the 1960s.  Despite the landmark 1986 case Batson v. Kentucky in which the Supreme Court held that the state may not use peremptory challenges to exclude jurors solely on the basis of race and set out a standard to determine whether a peremptory strike was discriminatory, the practice persists today. Legal ethics scholar Professor Peter Joy explains the Batson standard and the ways in which the framework falls short. He discusses the legal ethics of racial discrimination in jury selection and considers alternatives to peremptory challenges to combat discrimination.

 

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Legal Ethics
135
Policing the Police (Part 2)

Police officers have broad authority and discretion to enforce order — they can take property, stop, detain, and arrest people — at times under threat of lethal force. With such great power comes a significant risk of abuse, evidenced by the high-profile instances of brutality and misconduct. The challenge of regulating police is crafting effective and tailored rules to allow police officers to do their jobs of maintaining public safety and promoting order without infringing on individual rights or causing other unintended harm. In this conversation, we explore the laws that regulate the police with Professor Rachel Harmon of UVA Law and the director of its Center for Criminal Justice.

In part 2 of this 2-part series, Professor Harmon explains the constitutional right to record the police and under what circumstances that right may be limited, and explores the potential federal reforms that may bring about systemic changes in policing.

Watch Part 1 of Policing the Police.

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134
Policing the Police

Police officers have broad authority and discretion to enforce order — they can take property, stop, detain, and arrest people — at times under threat of lethal force. With such great power comes a significant risk of abuse, evidenced by the high-profile instances of brutality and misconduct. The challenge of regulating police is crafting effective and tailored rules to allow police officers to do their jobs of maintaining public safety and promoting order without infringing on individual rights or causing other unintended harm. In this conversation, we explore the laws that regulate the police with Professor Rachel Harmon of UVA Law and the director of its Center for Criminal Justice.

In part 1 of this 2-part series, Professor Harmon explains the jurisprudential framework of policing. She then explores the constitutional and statutory limits of police conduct, including the use of deadly and non-deadly force in police-citizen encounters, arrests for protests and verbal opposition, and “contempt of cop” or retaliatory arrests.

Watch Part 2 of Policing the Police.

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129
COVID-19 Vaccine Mandates

With COVID-19 vaccinations lagging, some states, universities, and other businesses have turned to vaccine mandates, requiring employees and or customers be vaccinated. In contrast, other states like Arkansas, Montana, and Utah have passed legislation restricting vaccination requirements. Professor Dorit Reiss of UC Hastings Law explains the constitutionality of vaccine mandates and the open question of whether vaccines approved under emergency use authorization or "EUAs" may be mandated. She explains the divergent paths states, employers, and universities have taken and the mounting legal challenges against each of these laws and policies.

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128
Law Combatting Wildfires

The western United States is now experiencing four times more wildfires than ever before. In recent years, wildfires have become larger and more frequent, threatening lives and devastating local communities. A century of wildland fire management policy, climate change, and land development patterns in the West have created a perfect storm of a wildfire crisis. Professor Stephen R. Miller examines the factors proliferating wildfires and complicating effective wildland fire management, including the regulatory structure and the patchwork of federal, state, local, and tribal agencies responsible for fire planning and response.

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127
Who's Liable After GameStop: Litigators' Take

In early 2021, shares of GameStop (GME) spiked, jumping nearly 1000% amid weeks of volatile trading. In the aftermath, several players, including Robinhood, Redditors, and market makers like Citadel face increased risk of liability and regulatory scrutiny for their roles in the GameStop saga. Kenneth Breen and Phara Guberman, partners at Paul Hastings, explain how the events unfolded and break down the legal issues involved, including market manipulation, breach of contract, and potential FINRA violations. They discuss the standards required to show pump and dump schemes and case law that may provide color on how the events should be evaluated.

 

Watch Who's Liable After GameStop: A Law Professor's Take.

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126
Who's Liable After GameStop: A Law Professor's Take

In early 2021, shares of GameStop (GME) spiked, jumping nearly 1000% amid weeks of volatile trading. The rally was initially spurred by discussions of shorting the stock in the Reddit subreddit r/wallstreetbets, and many of those traders flocked to Robinhood, an online broker-dealer known for its commission-free trades. At the height of activity, Robinhood temporarily restricted trading of GME and other similar stocks. In the aftermath, several players, including Robinhood, Redditors, and market makers like Citadel face increased risk of liability and regulatory scrutiny. Corporate and securities law professor James Cox discusses the conditions that created the GameStop saga, its potential impact on the capital markets, and how regulators may review the trading frenzy.

 

Watch Who's Liable After GameStop: Litigators' Take.

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125
Climate Change Law Under Biden

The climate crisis threatens global food, health, housing, and social security and displace millions, if not billions, of people. A major cause of rapid climate change is the dramatic increase in greenhouse gas (GHG) emissions in the atmosphere driven by human activity over the past century. In fact, the past five years have been the five warmest years on record, and all signs point to a continuing trend unless massive steps are taken to slow down and reverse the tide. The international community has been grappling with climate change for decades. Under the Kyoto Protocol, adopted in 1997 and entered into force in 2005, signatory states committed to reducing GHG emissions, but the United States notably did not sign on. In 2015, over 190 countries, including the U.S., adopted the Paris Agreement under which countries pledged to a more flexible framework with strengthened GHG emissions reduction goals. Michael Gerrard, professor at Columbia Law School and the faculty director of the Sabin Center for Climate Change law, examines the international and domestic framework of climate change law, including the development of the Kyoto Protocol and Paris Agreement, and the evolution of domestic policies under the past two administrations and how some states have responded.

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124
Abandoned DNA and the Ownership of Sperm (Part 2)

Are DNA, human tissue, and sperm "property"? What rights do you have over discarded DNA or cells that you shed everyday? Can you be sued for paternity for donating sperm or "stolen" sperm? Professor Glenn Cohen explores these questions and more.

Watch Part 1 of Abandoned DNA and the Ownership of Sperm.

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123
Abandoned DNA and the Ownership of Sperm

Are DNA, human tissue, and sperm "property"? What rights do you have over discarded DNA or cells that you shed everyday? Can you be sued for paternity for donating sperm or "stolen" sperm? Professor Glenn Cohen explores these questions and more.

Watch Part 2 of Abandoned DNA and the Ownership of Sperm.

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122
Lawyering Beyond State Lines

Drafting client emails on an airplane, reviewing an agreement while vacationing out-of-state - lawyers all do this, but are they running afoul of ethics rules? As clients are increasingly doing business across multiple state lines, today's lawyers need to know the pitfalls and safe harbors in multijurisdictional practice. Sarah McShea, legal ethics guru, breaks down this murky area.

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Legal Ethics
121
A Different Path to the Bench

Despite increasing numbers of minorities and women in law schools and state bars, there continues to be a lack of diversity in the judiciary. As the first female South Asian judge in New York, Judge Rajeswari talks about her unique path to the judgeship and why diversity on the bench matters.

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Elimination of Bias in the Legal Profession
120
The Dangers of a Lateral Move

What are the do's and don'ts for lawyers making lateral jumps from one firm to another? Sarah McShea, legal ethics guru, reveals the hidden dangers and breaks down the ethics minefield in conflicts, communications with client, fiduciary duties to the law firm, and more.

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Legal Ethics
116
Using Lawyers to Launder Money

When criminals use shell companies, offshore bank accounts, and real estate as money laundering vehicles, lawyers, whether knowingly or unknowingly, assist these transactions. Professor William Simon explains how an unwitting lawyer could be complicit in the money laundering enterprise, the basics of money laundering laws and the risk factors, and suggests best practices for lawyers.

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Legal Ethics
115
From Super PACs to Dark Money (Part 2)

American political campaigns are increasingly financed by Super PACs and shadowy nonprofits. Some believe that too much money being funneled by special interest groups and wealthy donors opens the door to corruption and influence buying. Host Suraj Patel sits down with Professor Briffault to explore campaign finance laws and the key issues of contention to get to the bottom of this complicated debate.

Watch Part 1 of From Super PACs to Dark Money.

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When Lawyers Break the Law

Lawyers defend clients when they get in trouble with the law, but what happens when lawyers break the law? They could be subject not only to the criminal justice system but also the legal profession's disciplinary system. Hal Lieberman shares his wisdom with host, Joel Cohen.

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Legal Ethics
14
Regulating Finance: Dodd Frank Decoded

The Dodd-Frank Act was enacted as a response to the Great Recession of 2007, but what does this complex regulation do and has it fixed the problems or addressed the causes of the financial meltdown? Annette Nazareth explains.

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Lawyers with Bias

A Look at Implicit Bias in the Legal Profession

We all hold implicit biases which create blind spots that subconsciously affect our understanding and decision-making. Implicit bias has insidious consequences that continue to contribute to low diversity and inclusion rates in law. Paulette Brown, the first woman of color to be president of the American Bar Association, offers concrete examples of biases at play in the legal profession, and what lawyers, firms, and companies can do to mitigate its harmful effects.

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Implicit Bias & Bias Reducing Strategies
11
From Facebook to Tinder: The Ethics of Social Media

Facebook friending a judge, telling a client to "clean up" his Facebook, or an attorney tweeting, "Who wants to win next?" Nicole Hyland explains the common and uncommon ethical pitfalls in attorneys' social media use.

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Legal Ethics
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