On February 7, 2022, the Supreme Court noted probable jurisdiction and granted certiorari before judgment in a case involving Alabama's new congressional district map. It also granted a stay allowing the map to go into effect for Alabama's upcoming primary elections. The Alabama State Conference of the NAACP and others had challenged the map adopted by the Alabama State legislature before a three-judge federal district court panel. They argued that the state's redistricting plan dilutes minority votes in violation of Section 2 of the Voting Rights Act. The district court, agreeing with the plaintiffs, enjoined Alabama from implementing the legislature's map and gave the state legislature 14 days to implement a remedial redistricting plan that "include[s] two districts in which Black voters either comprise a voting-age majority or something quite close to it"--or the court would itself retain an expert to draw, on an expedited basis, a congressional map compliant with federal law for purposes of the 2022 congressional elections.
By a 5-4 vote, the Supreme Court stayed that order.
Many commentators have weighed in, some critiquing the Court's order, others dissecting the vote breakdown and still others considering possible implications. Professor Michael T. Morley of FSU College of Law joins us for a litigation update to discuss the issues.
Featuring:
Professor Michael T. Morley, Assistant Professor of Law, Florida State University College of Law

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An exciting petition for certiorari pending before the U.S. Supreme Court, United States v. Tuggle presents the question "Whether long-term, continuous, and surreptitious video surveillance of a home and its curtilage constitutes a search under the Fourth Amendment." The central question deals with the meaning of the word "search." Under Katz v. U.S., the reasonable expectation of privacy test defines a "search." Many argue Katz is incorrect. Instead, the Court should interpret search to have its ordinary public meaning--a purposeful, investigative act. Please join our speakers in a discussion about United States v. Tuggle, the Fourth Amendment, textualism, the meaning of the word "search," and importantly, whether the Court should grant cert in this case.

Featuring:

Professor Orin Kerr, William G. Simon Professor of Law at UC Berkeley School of Law
Josh Windham, attorney at the Institute for Justice
Moderator: Adam Griffin, Law Clerk, U.S. District Courts; former Constitutional Law Fellow, Institute for Justice

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. Issues presented in the next sitting include the regulatory authority of the Environmental Protection Agency, the Controlled Substances Act, states rights, and Indian law.

Ysleta del Sur Pueblo v. Texas (Feb. 22) Indian tribes and state law
Denezpi v. United States (Feb. 22) Indian law
Arizona v. San Francisco (Feb. 23) states’ rights
West Virginia v. EPA (Feb. 28) regulatory authority of the EPA under the Clean Air Act
North American Coal Corp. v. EPA (Feb. 28) regulatory authority of the EPA
Westmoreland Mining Holdings LLC v. EPA (Feb. 28) regulatory authority of the EPA
North Dakota v. EPA (Feb. 28) regulatory authority under the EPA
Ruan v. United States (March 1) defenses under the Controlled Substances Act
Kahn v. United States (March 1) defenses under the Controlled Substances Act
Marietta Memorial Hospital v. Davita Inc. (March 1) – Medicare Secondary Payer Act
Egbert v. Boule (March 2) – Bivens, Fourth Amendment

Featuring:

Anthony J. "A.J." Ferate, Of Counsel, Spencer Fane LLP
Elizabeth Murrill, Solicitor General, Louisiana
Robert V. Percival, Robert F. Stanton Professor of Law, University of Maryland Carey School of Law
Kenji Price, Partner, McDermott Will & Emery
Jeff Beelaert, Partner, Stein Mitchell Beato & Missner LLP
Moderator, Adam Liptak, Supreme Court Correspondent, The New York Times

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The Foreign Sovereign Immunities Act and its lesser-known sibling, the International Organizations Immunities Act, enacted in 1945, codify the immunities afforded to foreign states and certain international organizations in U.S. courts. Sovereign and international organization immunity stand at the nexus of international affairs, policy, and the law. This program will concentrate on developments in this dynamic area of the law, particularly in light of the recent Supreme Court case, JAM v. IFC. The panel features prominent legal practitioners who have litigated these issues and served as directors of international organizations.

Featuring:
--Rick Herz, Senior Litigation Attorney, EarthRights International
--Eliot Pedrosa, Partner, Jones Day
--Moderator: Harout Samra, Counsel, DLA Piper

Rising homicide rates, challenges in fully staffing police departments, and a shortfall in trust between some communities and law enforcement agencies have focused attention on whether and how the federal government should respond. This session will examine the Biden administration’s record on policing during its first year in office and, most importantly, the path forward. In light of stalled congressional talks on policing legislation and constitutional limits on federal power in this traditionally local area, what can and should the administration do in areas such as pattern and practice investigations, use of force, certification and de-certification, training, and qualified immunity?

Featuring:
Andrew McCarthy, Senior Fellow, National Review Institute and Former U.S. Attorney
Renee Mitchell, Co-Founder, American Society of Evidence-Based Policing and Senior Police Researcher, RTI International
Marc Levin, Council on Criminal Justice, Moderator

The propriety of anti-suit injunctions—that is, orders issued in one jurisdiction prohibiting a party from initiating or continuing litigation in another jurisdiction—has recently become a hot topic in international IP disputes. Chinese courts involved in these disputes are a primary reason why: the Shenzhen People’s Court has recently blocked litigants from enforcing their patent rights in other countries, including the United States. During this panel, we will discuss the use of anti-suit injunctions in international IP litigation, including the panelists’ views on recent anti-suit injunction cases and the future viability of this very powerful tool.


Featuring:

--Steve Akerley, Head of Litigation, Interdigital
--Prof. Ann Bartow, University of New Hampshire Franklin Pierce School of Law
--Judge Paul Michel, U.S. Court of Appeals for the Federal Circuit (ret.)
--Moderator: Eliza Beeney, Associate, McKool Smith PC

The FDIC board of directors has been convulsed by the widely publicized dispute over who controls the agenda for FDIC board meetings -- the Board chair or a majority of its members. Currently, the FDIC Board has four members -- Chairperson Jelena McWilliams, Director (and former Chairman) Martin Gruenberg, and serving as ex-officio members, Michael Hsu (Acting Comptroller of the Currency) and Rohit Chopra, Director of the Consumer Financial Protection Bureau; there is one vacancy, that of Vice Chairman.

Director Gruenberg and the two ex-officio directors, both Biden appointees, moved to take control of the board agenda, specifically with regard to bank merger policies, which led McWilliams, a Trump appointee, to resign as chairman, effective February 4. Gruenberg may likely become the acting chairman of what will be, for the time being, a three-member board.
The dispute between McWilliams and the other three directors has raised several issues not just for the FDIC but for other agencies governed by boards, such as the Federal Reserve, the SEC, the NCUA, the CFTC. The FDIC is unique, though, with two directors serving at the pleasure of the President, and who head their own agencies without colleagues who have a vote on their actions.
The webinar panelists will discuss the implications of the turmoil at the FDIC and what it may mean for not just the FDIC but also for the boards of other independent regulatory agencies.

Featuring:

Thomas Vartanian, Executive Director, The Financial Tech and Cybersecurity Center

Michael Krimminger, Senior Counsel, Cleary Gotlieb

Bert Ely, Principal, Ely & Company, Inc.

Moderator: Brian Johnson, Partner, Alston & Bird

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In Cochran v. SEC the Fifth Circuit court of appeals sitting en banc opened the doors of federal district courts in Texas, Mississippi and Louisiana to constitutional challenges to agency administrative law judges (ALJs) who enjoy multiple layers of protection from removal. This means that persons administratively charged by the SEC will no longer have to first endure years of pointless administrative proceedings before judges they claim are unconstitutional. By contrast, in six other circuits (Second, Fourth, Seventh, Eleventh, D.C. and Ninth), administrative agencies such as the SEC and FTC can instigate unconstitutional proceedings and evade judicial review by an Article III court for years on end. Defendants are thereby forced to settle or bankrupted before ever receiving meaningful judicial review.
Cochran is not only a groundbreaking course-correction vindicating Americans’ access to Article III courts for redress of their constitutional rights, but it creates a circuit split that may well prompt Supreme Court review. The Fifth Circuit, by a 9-7 vote (Haynes, Jones, Smith, Elrod, Willett, Duncan, Engelhardt, Oldham and Wilson) held that § 78y of the Exchange Act neither explicitly nor implicitly stripped jurisdiction from federal courts to hear this challenge.
Judge Oldham, joined by Judges Smith, Willett, Duncan, Engelhardt and Wilson, concurred separately in a remarkable opinion that set forth the origins of the administrative state in § 78y’s transfer of power “far away from the three branches of government the Founders worked so hard to create, separate and balance … [a]nd … as far away from democracy and universal suffrage as possible.” They said that critical disjuncture has allowed “administrative agencies to operate in a separate, anti-constitutional, and anti-democratic space—free from pesky things like law and an increasingly diverse electorate.”
Please join Peggy Little, Senior Litigation Counsel of the New Civil Liberties Alliance (NCLA), who argued the en banc, and Gregory Garre, former U.S. Solicitor General and now partner at Latham & Watkins, who worked with another NCLA client in 2020 on a petition for certiorari to the Supreme Court on this point, for a discussion of this landmark decision and the concurrence’s open engagement with administrative power. Peggy and Greg will discuss how this structural constitutional question was litigated in district courts in California, Texas and the Fifth, Ninth and Eleventh Circuits, what the Fifth Circuit got right that so many other circuits got wrong, and how this separation of powers question might reach the Supreme Court in the near future.

Featuring:

Peggy Little, Senior Litigation Counsel, New Civil Liberties Alliance
Gregory Garre, Partner, Latham & Watkins

Breaking news: The Supreme Court granted certiorari in two petitions pending before the Supreme Court which have gained national attention. Students for Fair Admission Inc. v. President and Fellows of Harvard College and Students for Fair Admission, Inc. v. University of North Carolina both ask the Court to overrule Grutter v. Bollinger, a nearly twenty-year-old Supreme Court decision that allowed higher education institutions to consider race in admission decisions.
Beyond challenging Grutter, the petitioners suing Harvard allege the college’s admissions policies discriminate against Asian Americans in violation of Title VI of the Civil Rights Act.
In both the Harvard and UNC cases, lower courts have so far upheld the use of race in admissions. And after the Court called for the views of the Biden Administration, the United States filed a brief urging the Court not to get involved in the Harvard matter. Nevertheless, the case is proceeding to the Court in what is sure to be a significant battle on the topic of whether schools can consider a student's race when making admissions decisions.
Join Will Trachman, former Deputy Assistant Secretary to the Office for Civil Rights, Department of Education, for a litigation update discussing both cases. Will is currently General Counsel to Mountain States Legal Foundation, which filed an amicus brief in both the Harvard and UNC petitions, urging the Court to grant certiorari.
Featuring:

Will Trachman, General Counsel, Mountain States Legal Foundation

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Free speech champion and icon Nadine Strossen joins Erik Jaffe for a virtual “fireside” chat spanning a variety of free speech topics, including: the perpetual and inevitable conflict between process- and outcome-oriented approaches to free speech cases (i.e., whether to defend the speech or speaker you hate); how does a lawyer or public interest group decide whether to take a case raising such a conflict; does more speech always solve the problems of bad speech; how much risk or harm should be tolerated before it is acceptable to restrict speech; the prospective conflict between freedom and equality if speech is claimed to create a hostile environment on campus or in the workplace; balancing private versus public power questions in the free speech and other contexts; how the ACLU has grappled with such issues; and are there areas of or approaches to the First Amendment that might have bipartisan appeal.
Featuring:
Nadine Strossen, John Marshall Harlan II Professor of Law, Emerita, New York Law School
Moderator: Erik Jaffe, Partner, Schaerr Jaffe LLP
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