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Farha v. United States, currently pending on a petition for writ of certiorari to the U.S. Supreme Court, is a case study raising basic notions of due process, fair notice, the rule of lenity, mens rea, and whether administrative and civil remedies would be more appropriate. What began as a highly publicized raid by some 200 FBI agents on a Florida health care company over an accounting dispute ended in the indictment, conviction, and prison sentences for the Wellcare executives for fraud. -- On appeal, where the case was captioned Clay v. United States, the U.S. Court of Appeals for the Eleventh Circuit upheld the convictions over the objections of the defendants that the jury instruction impermissibly allowed the jury to convict if the defendants were “deliberately indifferent” to the law’s requirement as opposed to finding a “knowing” violation as the statute requires. The Supreme Court in 2011, in Global-Tech Appliances, a civil case involving patent infringement, held that "knowledge" cannot include "deliberate indifference" to show sufficient mens rea to establish infringement. Accordingly, the cert petition, filed by Seth Waxman of WilmerHale, seeks to have the Court rule that the jury instructions should require a higher mens rea standard, all the more so in a criminal case. -- This case is particularly important for all regulated industries, where there are numerous laws and complex regulations governing conduct subject to administrative, civil, and criminal enforcement. -- Featuring: Paul Kamenar, Washington, D.C. Public Policy Attorney and Senior Fellow, Administrative Conference of the U.S. and Jeff Lamken, Partner, MoloLamken. Moderator: John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation.

Farha v. United States, currently pending on a petition for writ of certiorari to the U.S. Supreme Court, is a case study raising basic notions of due process, fair notice, the rule of lenity, mens rea, and whether administrative and civil remedies would be more appropriate. What began as a highly publicized raid by some 200 FBI agents on a Florida health care company over an accounting dispute ended in the indictment, conviction, and prison sentences for the Wellcare executives for fraud. -- On appeal, where the case was captioned Clay v. United States, the U.S. Court of Appeals for the Eleventh Circuit upheld the convictions over the objections of the defendants that the jury instruction impermissibly allowed the jury to convict if the defendants were “deliberately indifferent” to the law’s requirement as opposed to finding a “knowing” violation as the statute requires. The Supreme Court in 2011, in Global-Tech Appliances, a civil case involving patent infringement, held that "knowledge" cannot include "deliberate indifference" to show sufficient mens rea to establish infringement. Accordingly, the cert petition, filed by Seth Waxman of WilmerHale, seeks to have the Court rule that the jury instructions should require a higher mens rea standard, all the more so in a criminal case. -- This case is particularly important for all regulated industries, where there are numerous laws and complex regulations governing conduct subject to administrative, civil, and criminal enforcement. -- Featuring: Paul Kamenar, Washington, D.C. Public Policy Attorney and Senior Fellow, Administrative Conference of the U.S. and Jeff Lamken, Partner, MoloLamken. Moderator: John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation.

On February 21, the Supreme Court will hear argument in Hernandez v. Mesa. In July of 2010, a 15-year-old adolescent named Sergio Adrian Hernandez Guereca and his friends were playing along a concrete structure on the border of the U.S. and Mexico. When Jesus Mesa, Jr., a U.S. Border Patrol Agent arrived, he detained one of the youths on the border, and shot and killed Hernandez, who was hiding behind a pillar of the Paso Del Norte Bridge on the Mexican side of the border. Hernandez’s parents sued Agent Mesa under the Fourth and Fifth Amendment for the use of unlawful and disproportionate force. Agent Mesa argued that the Fourth and Fifth Amendments did not apply because Hernandez was not a U.S. citizen. The District Court found for Agent Mesa, while the U.S. Court of Appeals for the Fifth Circuit held that the Fifth Amendment Protections against deadly force applied but the Fourth Amendment did not, and that Agent Mesa should not receive qualified immunity. -- Professor Andrew Kent of Fordham University School of Law and Professor Stephen I. Vladeck of UT Austin Law School joined us to examine the case and its implications for extraterritorial application of the Bill of Rights and for qualified immunity. -- Featuring: Prof. Andrew Kent, Professor of Law, Fordham University School of Law and Prof. Stephen I. Vladeck, Professor of Law, The University of Texas at Austin School of Law.

President Trump took a step toward fulfilling his campaign promise to cut regulations last week when he signed an executive order calling for two regulations to be eliminated for every new one issued. The president has indicated that the order will yield “the largest ever cut by far in terms of regulations.” But some are worried that it is a Sophie’s choice for regulatory agencies, and the order will change how regulators do business in the U.S. -- Professor Susan Dudley, director of the George Washington University Regulatory Studies Center explained what the order does and does not do. Jitinder Kohli, former head of the UK Better Regulation Executive, described lessons learned from the UK’s “one-in-three-out” policy. This Teleforum was the first episode in the Executive Order Teleforum Series. -- Featuring: Professor Susan Dudley, Director, George Washington University Regulatory Studies Center and Jitinder Kohli, Director in Public Sector Practice, Deloitte Consulting.

Given the size and scope of the federal government, many agency regulations, guidance documents, and cases are left in various stages of development as the executive branch changes hands. The first episode of our Legal Options for the New Administration Teleforum Series focused on pending litigation in the executive branch. Is the administration free to dismiss or stop prosecuting cases which do not align with its policies? Can the administration stop defending actions in court? What are the constraints? What has been the past practice? These and other questions were discussed by our experts. -- Featuring: Steven G. Bradbury, Partner, Dechert LLP and William S. Consovoy, Partner, Consovoy McCarthy Park PLLC.

During the Obama administration, the Department of Education promulgated a host of rules aimed specifically at for-profit educational institutions, which enroll over a million students. For instance, the Obama Department of Education has required for-profit schools to show that graduates are spending less than 20% of their postgraduate discretionary incomes on student loan repayment as a condition of for-profit schools’ continued eligibility for federal financial aid dollars. Another rule threatens to make it substantially easier for graduates of for-profit schools to demand student loan forgiveness. Now that President Trump has taken office, will his administration change course on these regulations? What are the options if his administration wishes to do so, and how feasible are they for the sector? -- Lucas Townsend, a partner at Gibson Dunn with substantial experience litigating agency challenges, surveyed some of the most significant regulations. He discussed options for the Trump administration or Congress to withdraw or alter these actions. -- Featuring: Lucas Townsend, Partner, Gibson Dunn.

In recent decades, there has been much study and debate in the criminal justice community regarding capital punishment and its continued use in most jurisdictions in the United States. Some argue that years of litigation and growing cost have contributed to a new fragility in support for the death penalty and point to polling that reflects decreased enthusiasm for it. Others assert the November 2016 election results at the State and Federal levels demonstrate capital punishment continues to be firmly backed by the public and will remain in place indefinitely. -- Professor Carol Steiker of Harvard Law School, author of the recently released, Courting Death - The Supreme Court and Capital Punishment and Professor William Otis, Adjunct Professor of Law for Georgetown University Law Center and former federal prosecutor, joined us for an insightful look at this important topic. -- Featuring: Professor William G. Otis, Adjunct Professor of Law, Georgetown University Law Center and Professor Carol Steiker, Henry J. Friendly Professor of Law, Harvard Law School.

In recent years, our nation’s college campuses have been portrayed as awash in a violent crime wave—and university leaders, professors, and students as indifferent to female sexual assault victims in their midst. In their recently published book, The Campus Rape Frenzy: The Attack on Due Process at America's Universities, authors Professor KC Johnson and Stuart Taylor examine these assertions in detail. The book presents evidence to the contrary and argues that these claims do not have any bearing in reality. -- New York Law School Professor Nadine Strossen joined us to moderate an illuminating discussion with the authors. -- Featuring: Professor KC Johnson, Professor of History at Brooklyn College and the CUNY Graduate Center and Stuart Taylor, Washington writer, lawyer, and National Journal contributing editor. Moderator: Professor Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School.

Since the Obama administration abstained from the United Nations Security Council vote on Resolution 2334 that condemns Israeli settlements in the West Bank and Jerusalem, there has been much speculation as to the force, effect, and consequence of this Resolution. There are many concerns, including that this United Nations declaration may enable boycotts of Israel and that the Palestinian government might attempt to utilize the pronouncement to bring Israel before the International Criminal Court. President Trump’s has stated that he intends to alter or blunt the instrument. What will be the effect of this United Nations censure, and what are the options available to President Trump? -- Featuring: Prof. Bernard Avishai, Adjunct Professor of Business, Hebrew University of Jerusalem, Visiting Professor of Government, Dartmouth College and Prof. Orde Kittrie, Senior Fellow, Foundation for Defense of Democracies, Professor of Law, Sandra Day O'Connor College of Law, Arizona State University. Prof. Eugene Kontovorich, Professor of Law, Northwestern Pritzker School of Law .

Ziglar v. Abbasi is the result of over a decade of remands and appeals. The case was originally filed by the Center for Constitutional Rights on behalf of incarcerated Muslim, South Asian, and Arab non-citizens who were targeted after 9/11 by law enforcement as “terrorism suspects.” The defendants in the case, high level officials in the Bush administration, such as Attorney General John Ashcroft and FBI director Robert Mueller, and low level detention officials, filed a motion to dismiss which was rejected by the in the District Court. -- In 2009, the Supreme Court decided in Ashcroft v. Iqbal that government officials were not liable for discriminatory actions of their subordinates without evidence they directly ordered the actions. Meanwhile, five of the petitioners in Ziglar settled with the government, and the case was remanded to the District Court and amended. In 2010, the District Court granted a new motion of dismissal, but only for the high level officials. This dismissal was reversed by the Second Circuit and then the government petitioned the Supreme Court for review. -- Professor Jamil Jaffer joined us to discuss the oral argument of this case, which was held on January 18. -- Featuring: Prof. Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland and National Security Law Program, Antonin Scalia Law School and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee.