Illinois MCLE Podcast

Strategies for Combatting Stress

Lawyers experience elevated levels of mental health issues, with many lawyers reporting anxiety, depression, substance abuse, and problem drinking. As the legal profession is coming to terms with this crisis, lawyers and legal employers are exploring ways to build a better profession and improve lawyer well-being. One key practice, Professor Nathalie Martin of the University of New Mexico School of Law explains, is mindfulness. Mindfulness is the practice of being present in the moment. Studies have shown that regular mindfulness training has measurable physical, mental, and emotional health benefits. For lawyers, mindfulness can help with stress management, increase emotional intelligence, and improve conflict resolution skills. In this interview, Professor Martin explores the factors that contribute to higher levels of stress and mental health issues in the legal profession and offers tips to incorporate mindfulness into lawyers' daily lives.

Watch Part 1 of A Mindful Practice.

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.

High-profile cases in the last decade have brought to the fore issues with private citizens' use of deadly force in self-defense, citizen’s arrest, and vigilantism. The public closely followed three highly-charged trials centered around self-defense: Kyle Rittenhouse shootings, the death of Ahmaud Arbery, and George Zimmerman’s killing of Trayvon Martin. Much has been written about these cases, but some confusion remains about the legal underpinnings that resulted in its divergent outcomes. Self-defense laws are complicated, further muddled by duty to retreat/stand your ground provisions and citizen’s arrest laws. Professor Kimberly Ferzan of the University of Pennsylvania Law School explains self-defense laws and its elements, including the use of deadly vs. nondeadly force, when use of force is reasonable, and provocateurs and initial aggressors. She discusses the hot-button cases and the issues that arise when citizens are empowered to act like law enforcement.

Watch Part 1 of Self Defense and the Use of Deadly Force.

Today, most people own digital assets, which include everything from social media accounts, email and online banking accounts, cloud-stored photos, airline miles, blogs, to virtual currencies. As our communications and financial assets have become more digitized, ensuring loved ones and estate fiduciaries are able to gain access once the account holder dies or becomes incapacitated is critical. Without access, fiduciaries may have difficulty winding down accounts and disposing of assets, and the accounts may be left vulnerable to hacks. Loved ones may be unable to memorialize social media accounts or close them down. Professor Naomi Cahn of UVA Law explains some of the impediments to fiduciary access, including online platforms’ terms of service agreements and laws that prohibit internet service providers from disclosing the contents of its users’ communications. She explores the tools and best practices for digital asset planning, including the Revised Uniform Fiduciary Access to Digital Assets Act now adopted in over 45 states.

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.

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.

Directed trusts have become increasingly popular over the past few decades, in part, for the flexibility they offer in managing trust assets. In a directed trust, a person other than the trustee holds power to make decisions over investment, management, distribution, or some other aspect of trust administration and has the power to direct the trustee. As common as they’ve become, many states’ statutes have yet to iron out the legal uncertainties that arise when a nontrustee (or a “trust director”) holds power over the trust. In an effort to provide clarity and guidance, the Uniform Law Commission approved in 2017 the Uniform Directed Trust Act (UDTA), which has been adopted in some form by 16 states as of 2022. Professor John Morley, the reporter of the UDTA, explains some of the practical innovations and key provisions in the new law, including the scope of the powers of the trust director and the fiduciary duties of the trust director and trustee.

In early 2020, the Committee on Foreign Investment in the United States (CFIUS) published final rules implementing the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), significantly expanding CFIUS jurisdiction over certain types of investments. Often called a “black box,” CFIUS assesses the potential national security risks of investments in the U.S. and operates in a classified environment. To peel back the curtain, we sit down with two longtime leaders of the CFIUS committee Aimen Mir and Colin Costello and discuss the substantive changes and new powers conferred by FIRRMA and CFIUS strategy for businesses under the Biden administration.

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.

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.

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.

Ethics rules guide lawyer behavior, tactics, and strategy in negotiations. The rules prescribe the duties and responsibilities with regard to the client-lawyer relationship and to opposing counsel and third parties. Professor Carrie Menkel-Meadow of UC Irvine Law explores the boundaries of ethics requirements in negotiations. In part 2 of this 2-part series, she explores the tactics and behaviors permissible and impermissible, including bullying and threats, and the concept of fairness in negotiations.

Watch Part 1 of The Ethical Limits of Negotiations.

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.

Problems in forensic labs have contributed to scores of wrongful convictions, resulting in innocent individuals being imprisoned for years, sometimes decades. In recent years, major scandals have revealed problems at labs because of inadequate resources, lack of standards and oversight, management issues, and insufficient training. In part 2 of this 2-part series, Professor Brandon Garrett and Dr. Peter Stout discuss how the Houston Forensic Science Center (often regarded as a model of reform) operates, including implementing blind quality control programs and independent oversight. They explore the legal and policy changes that can be instituted at the lab level and systemwide to address the failures in forensic labs.

Watch Part 1 of A Failure of Forensics.

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.

This term, the Supreme Court is set to decide the most important abortion rights case in decades, Dobbs v. Jackson Women’s Health Organization. The Supreme Court will assess the constitutionality of a 2018 Mississippi law that bans abortion after 15 weeks of pregnancy. We sit down for a conversation with one of the lawyers representing Jackson Women's Health Organization to discuss.

In 1973, the U.S. Supreme Court recognized the unqualified right to pre-viability abortion in its landmark decision Roe v. Wade and has since consistently struck down state laws (like Mississippi's 15 week ban) that have attempted to prohibit pre-viability abortion. Alexia Korberg, co-counsel to Jackson Women’s Health Organization, traces the history of abortion laws in the U.S. from colonial America, to Roe, to the current landscape of state abortion laws. They discuss the central holdings and constitutional basis of Roe and Planned Parenthood v. Casey, the current litigation involving Mississippi, and the implications for abortion access if Roe is overturned.

At the height of the space race in the 1960s, countries around the world first ratified the Outer Space Treaty to prevent any nuclear conflict from extending into outer space and to ensure its use for peaceful purposes. Today, there’s a new kind of space race, one that involves private tourism and resource mining and extraction. And with more players entering the field, including nation-states like India and China and private companies like Blue Origin and SpaceX, how will existing treaties apply? Space law expert Professor Frans von der Dunk explores how the Outer Space Treaty and customary international law applies to modern space activities and addresses the open questions of property rights for celestial and lunar natural resources and liability issues when private enterprises operate in space.

Watch Part 2 of Space Law — Rights and Resources.

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.

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.