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The TalksOnLaw MCLE Podcast offers interactive CLE/MCLE credit to satisfy all the needs of Illinois-admited attorneys – engaging podcast interviews with the titans of law.
Large language models (LLMs) are trained on vast, nearly unfathomable amounts of data—data that is now reshaping the very fields from which it was sourced, including literature, journalism, music, and photography. As a result, these models have sparked high-stakes litigation and raised novel legal questions about ownership and intellectual property, both in the AI training process and the output they produce. In this conversation, we explore the intersection of AI training and copyright law with Professor Shyamkrishna (Shyam) Balganesh of Columbia Law School, a prominent legal scholar who has been closely examining these emerging issues.
At the core of the debate is how these models are trained—using vast datasets that combine both copyrighted and public domain material. LLMs ingest this data to absorb patterns that power their ability to generate intelligent responses, yet their reliance on copyrighted works raises concerns about unauthorized use. Professor Balganesh walks us through the technical aspects of how these models are built, explaining the intricacies of data ingestion and why the training process involves copying datasets onto local servers, potentially leading to copyright violations.
The fair use doctrine has emerged as a central argument in the defense of using copyrighted material in AI training, but this defense has its limitations. Professor Balganesh details how the courts are grappling with balancing innovation with intellectual property rights. While AI companies claim their use of copyrighted works falls under fair use, critics argue that fair use cannot “scale” with the models and that the models reproduce creative outputs in ways that violate authors' rights. Shyam examines the boundaries of this argument and where the law may be heading.
These legal questions are playing out in real time, with high-profile cases capturing national attention. Professor Balganesh shares his insights on key lawsuits, including the New York Times’ challenge to OpenAI, the Suno AI music case brought by Universal Music Group, and Getty Images' case against Stable Diffusion. While these cases remain pending at the time of the interview, Shyam predicts a shift towards increased licensing regimes, where AI developers will secure permissions to use copyrighted material for training their models.
AI is changing how lawyers do their work and raising questions about how lawyers can harness artificial intelligence consistent with their professional responsibilities. Georgetown Law Professor Tanina Rostain answers questions about the transformative impact of AI on the legal profession and how the rules of professional conduct apply to the new ways that attorneys use AI to conduct research, draft documents, and interact with clients.
We begin with questions of competence and diligence. AI models, while powerful, are not infallible. Instances of "hallucinations," where AI generates plausible (even convincing) but incorrect information, emphasize the necessity for lawyers to double-check their work. Professor Rostain walks through examples where courts have sanctioned attorneys for submitting arguments based on AI invented cases. Even as AI systems become more powerful, the responsibility remains on attorneys to ensure the reliability and accuracy of the information they use and present. This vigilance is core to attorney ethics and the protection of clients' interests.
AI threatens to take lawyer jobs and disrupt firm structure. While those are economic issues, they also raise ethics questions under Rule 1.5 governing attorney fees. Professor Rostain explains how traditional law firm structures, particularly in big law, rely heavily on billable hours from associates to drive partner compensation. However, as AI takes over increasing amounts of associate work, Rule 1.5 requires that the savings be passed along to clients. Professor Rostain points out that firms will need to adjust their billing practices, disrupting the traditional associate-leveraged model. This shift could lead to a reevaluation of how legal services are priced and delivered, and may even play a role in democratizing access to high-quality legal advice.
AI models show increasing proficiency in providing legal answers and performing legal work, raising ethical questions under Rule 5.5, the unauthorized practice of law (UPL). Professor Rostain discusses what constitutes the “practice of law” when it comes to AI and suggests that the legal profession may eventually need to bend. According to Rostain, the benefits of AI for people who need legal assistance cannot be stifled by financial protectionism with superficial claims of protecting the public. She advocates for a balance where the advantages of AI in improving legal access and efficiency are harnessed without compromising the professional standards and ethical obligations of the profession.
Tanina Rostain is a professor of law at Georgetown Law Center.
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.
Professor Michael Roberts of UCLA Law provides analysis on the recent laws criminalizing lab-grown meat production in Florida and Alabama. Roberts highlights the potential for conflict between state regulations and federal oversight managed by the USDA and FDA. Food technologies, like lab-grown meat have historically been used as political footballs, both within the U.S. and globally. Professor Roberts explains how the new state regs reflect a broader challenge within food law to balance innovation, public safety, and politics.
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.
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.
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.
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."
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.
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.
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. This interview was recorded in December of 2023.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Jailhouse lawyers are inmates who help other inmates with legal filings while in prison. They handle matters from divorce to criminal appeals to claims against prison officials. They write motions and briefs and counsel clients; short of court representation, they provide the range of legal services that a licensed lawyer would. While the Supreme Court has recognized the importance of jailhouse lawyers in prisons where access to the courts is limited, jailhouse lawyers still operate in a legal gray area in many jurisdictions. Phillip Miller, a former jailhouse lawyer, explains how jailhouse lawyering works in practice and the crucial role that jailhouse lawyers play in the American penal system.
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.
Recent studies have suggested that lawyers are particularly prone to depression, anxiety, and stress, but are lawyers becoming zombies? According to Professor Peter Huang (who co-authored an article of similar title), the plight of the profession presents interesting parallels to the concept of “zombification,” with lawyers and law students mindlessly reacting to stress. Prof. Huang discusses these parallels, the role of stress reduction strategies such as mindfulness, and how the COVID-19 pandemic has impacted attorney mental health. Peter also presents some ways in which the legal profession and law schools can begin to improve attorney well being… perhaps avoiding the zombie apocalypse entirely.
Independence With the DOJ
Traditional norms dictate that the Department of Justice and federal prosecutors exercise discretion independent of partisan politics and free from political interference. In recent years, the DOJ and the Attorney General have acted in ways that some scholars criticize as compromising prosecutorial independence and eroding the integrity of the federal justice system. Professors Bruce Green and Rebecca Roiphe discuss the ethical duties and roles of the Attorney General and line prosecutors in preserving this independence and examine recent high-profile examples of the head of the DOJ at odds with line prosecutors in criminal prosecutions.
Prosecutors have the power to make decisions that have a deep impact on the lives of arrestees and defendants. This power arises, in large part, from the enormous discretion they exercise over decisions like whether to initiate charges and which charges to bring, whether to offer plea bargains and under what terms, what sentences to seek, and how to present and try a case. Public attention has focused on prosecutors’ discretion in recent years, as their conduct is increasingly scrutinized in high-profile cases involving civilian deaths in police shootings and sexual assault by wealthy, powerful men. Professors Bruce Green and Rebecca Roiphe, both former prosecutors, discuss through the lens of recent controversial cases the ethical and legal standards governing prosecutorial conduct and why prosecutorial discretion is not a black-and-white matter.
The Biden administration announced plans to invoke the broad powers under the Defense Production Act to combat the COVID-19 pandemic and aggressively boost vaccine production and distribution. Passed in 1950, the Defense Production Act authorizes the President to require businesses to prioritize government contracts and to create financial incentives to expand domestic output of goods deemed necessary for national defense. Professor Deborah Pearlstein of Cardozo Law School explains the origins and mechanics of the law, how the Act can be implemented to fight the pandemic, and examines its use and potential use under the past and current administrations.
In cases of sexual assault, the credibility of the victim is crucial to whether law enforcement will investigate the assault, prosecutors will bring charges, and whether the jury will ultimately find the defendant culpable. Time and again, victims who come forward recount being disbelieved at each stage of the criminal justice system, a function of what Professor Deborah Tuerkheimer calls credibility discounting. The credibility discount is biased disbelief of the more vulnerable, less powerful party. Tuerkheimer discusses how the credibility discount is at its apex in sexual assault cases and impacts law enforcement intake and investigation in rape cases. She also explores the laws that have made rape charges particularly difficult in the United States such as unique corroboration requirements, prompt outcry rules, cautionary jury instructions, marital rape exceptions as well ill-conceived intoxication rules and resistance requirements. Tuerkheimer explores the surprising legal history of rape law and the formal and informal burdens still imposed on victims today.
Keith Harward was convicted of a horrific murder and served 33 years in prison based on junk science, sometimes referred to as “poor people science.” Chris Fabricant of Innocence Project explains how Harward's conviction for the heinous act was based on little more than a dentist’s testimony that his teeth matched bite marks on the deceased victim. Notwithstanding his innocence, Harward served 33 years before Fabricant and others were able win an exoneration using DNA evidence.
Forensic science is often viewed as the silver bullet in modern criminal convictions, but not all forensic science disciplines are backed by sound empirical data. Fabricant explains how junk science leads to injustice, wrongful convictions, and the failure to apprehend violent criminals responsible. He explains that the term "poor people science" refers to how the courts seem to employ one system to adjudge experts in civil cases against wealthy corporate defendants and a far more lax approach to admitting evidence against criminal defendants with limited resources. Fabricant shares how courts can unintentionally enable destructive precedent that can then lead to the wrongful imprisonment of many.
The climate crisis threatens to create global food, health, housing, and social insecurity 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 last 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. While there is no one-size-fits-all solution to fighting climate change, deep decarbonization, or achieving net-zero emissions, has emerged as the major goal for the next decades. What does deep decarbonization entail? Michael Gerrard, professor at Columbia Law School and the faculty director of the Sabin Center for Climate Change Law, explains the legal challenges and reforms needed in energy and transportation, the two largest GHG emitting sectors, to achieve deep decarbonization and the policies and actions the Biden administration will likely institute in the near-term to reach climate change objectives.
Government Projects as Engines for Growth
America's infrastructure is crumbling. The American Society of Civil Engineers graded the national infrastructure a D+ in 2017, with transit rated a D- and drinking water, dams and roads rated a D. Despite broad bipartisan recognition for the need to rebuild and expand, government spending on infrastructure fell by nearly $10 billion over the past decade, with increased spending on maintaining existing systems and decreased spending on capital projects. Professor Michael Graetz, co-author of The Wolf at the Door: The Menace of Economic Insecurity and How to Fight It, explains why we haven’t seen large-scale improvements in recent decades, ways to finance infrastructure projects to address the funding gap, and the regulatory and policy changes necessary to rebuild America.
A dispute over the proper owner of Barry Bonds’ million-dollar home run ball, the right to grow California redwood trees that are shading a neighbor’s solar panels, the legality of shooting down a drone flying over private property: the common thread among all these seemingly unrelated cases is that these are conflicts about ownership design. Ownership design is a powerful social engineering tool that shapes how we live our lives. It determines who gets what and why. Professor Michael Heller, co-author of Mine! How the Hidden Rules of Ownership Control Our Lives, explains the six fundamental stories that determine all rules of ownership through the lens of some surprising and controversial property law cases in American jurisprudence.
Intimate partner violence is not limited to physical violence and can take many other forms, including emotional, psychological, and financial. Financial abuse can encompass identity theft, the accrual of debt in the victim’s name without their knowledge or consent, the subsequent default of that debt, or having no access to the couple’s financial information. For low-income women in abusive relationships, a key component of escaping the abuse is achieving economic security. Amy Barasch, Executive Director of Her Justice, explains the legal and advocacy tools available to help survivors leave abusive relationships and economically empower them to start their lives anew. She discusses how lawyers can assist in divorce and obtaining support payments and work authorizations for immigrants.
Her Justice provides free civil legal services to women living in poverty in New York City. Through their pro bono first model, they mentor and train volunteer attorneys and pair them with women who have legal needs in family, matrimonial, and immigration law.
Tinder in the Wildland Urban Interface
Wildfire season in the United States is now longer, hotter, and fiercer. With more communities developing in areas that have historically been unoccupied and on the cusp of wildlands with vegetative fuels, the damage and costs of fighting wildfires have become astronomical. The federal government has borne the brunt of these costs, but local governments can do more to take responsibility for their built environment and construct fire-resistant communities. Professor Stephen R. Miller discusses one key framework, the Community Wildfire Protection Plan (CWPP), that allows local communities to meaningfully engage with wildfire management and collaborate with all levels of government to prioritize mitigation projects. Through the CWPP process, communities assess risks and outline strategies to address them, including regulatory tools like zoning and nuisance abatement laws and nonregulatory tools like insurance rebates and homeowners association covenants.
Criminal actors looking for new ways to launder money are increasingly turning to cryptocurrency as a way to inject their ill-gotten gains into the legitimate financial system, to obfuscate the sources of their funds and convert it to cash or other assets. As criminals turn to novel ways to launder money, regulators and law enforcement are responding in like, enacting new and clarifying existing laws and employing increasingly sophisticated investigative and enforcement tools. Alex Zerden, the founder of Capitol Peak Strategies and a former Treasury Department official, discusses some of the high-profile instances of illicit uses of cryptocurrency and how digital assets may be used for money laundering and other criminal activities. Misconceptions abound about the proliferation and utility of digital assets for money laundering and the lawlessness of the crypto industry overall. Alex makes the case that certain key attributes of cryptocurrency may not make them the most elegant tool for such purposes. He explains the anti-money laundering (AML) regulatory framework, FinCEN guidance, and sanctions obligations that apply to the crypto industry and recent DOJ and FinCEN AML enforcement efforts.
For many years, Dru Levasseur fought for LGBTQ+ rights in courts across the nation. Now, he works to improve the experience of LGBTQ+ attorneys in the legal profession. In this conversation, Dru shares from his experiences as a transgender attorney and insights learned in his current role as the Director of Diversity, Equity, and Inclusion for the National LGBTQ+ Bar Association. He examines the representation of LGBTQ+ attorneys in the profession and the discrimination and bias they can face in the workplace. Dru also touches on the fears and insecurities that many lawyers may have when it comes to working with trans colleagues or clients, including concerns about pronouns and sensitive questions about transitioning. The conversation provides resources for lawyers and legal employers to develop a more open and welcoming environment to practice law for trans attorneys, improve understanding among colleagues and to empower LGBTQ+ allies, and to integrate smart policies to improve firm diversity and inclusion.
Watch Part 1 of A Transition in the Legal Profession.
For many years, Dru Levasseur fought for LGBTQ+ rights in courts across the nation. Now, he works to improve the experience of LGBTQ+ attorneys in the legal profession. In this conversation, Dru shares from his experiences as a transgender attorney and insights learned in his current role as the Director of Diversity, Equity, and Inclusion for the National LGBTQ+ Bar Association. He examines the representation of LGBTQ+ attorneys in the profession and the discrimination and bias they can face in the workplace. Dru also touches on the fears and insecurities that many lawyers may have when it comes to working with trans colleagues or clients, including concerns about pronouns and sensitive questions about transitioning. The conversation provides resources for lawyers and legal employers to develop a more open and welcoming environment to practice law for trans attorneys, improve understanding among colleagues and to empower LGBTQ+ allies, and to integrate smart policies to improve firm diversity and inclusion.
Watch Part 2 of A Transition in the Legal Profession.
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.
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.
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.
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.
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.
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.
