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On May 18, the Supreme Court ruled in favor of rock and roll photographer Lynn Goldsmith in a dispute between Goldsmith and the Andy Warhol Foundation regarding Warhol’s works based on Goldsmith’s photo of the musician Prince. The fair use doctrine excuses from liability certain unlicensed uses of copyrighted works, and the question before the Court was whether Warhol’s creation of a series of paintings copied from the photo, and the licensure of those paintings to periodicals, constituted a fair use. In a 7-2 decision, the Court ruled that it did not.

Intellectual property law professor Zvi Rosen, who filed an amicus brief in the case in support of Goldsmith, joined us to break down the decision and answer audience questions.

Featuring:
--Zvi Rosen, Assistant Professor, Southern Illinois University School of Law

On Thursday, May 18, 2023, the Supreme Court issued opinions in Gonzalez v. Google and Twitter v. Taamneh. In the Twitter case, the Court unanimously reversed the Ninth Circuit and held that plaintiffs “failed to state a claim under [18 U.S.C.] §2333(d)(2).” Justice Thomas wrote for the Court and Justice Jackson issued a concurring opinion. In Gonzalez, the Court issued a per curiam opinion vacating and remanding the case to the Ninth Circuit for reconsideration in light of the Twitter holding.

The Gonzalez and Twitter cases were of great interest to some Court watchers because of their potential ramifications for Section 230 and social media platforms’ liability for bad outcomes connected to hosted content.

In this recorded webinar Erik Jaffe discussed the Court’s opinions and what comes next.

Featuring:
--Erik Jaffe, Partner, Schaerr | Jaffe LLP

In recent years, American organizations of all kinds have dedicated resources towards diversity, equity, and inclusion (DEI) initiatives. These initiatives have become a staple of policy, hiring practices, personnel training, organizational structure, and more. Educational institutions, and higher education in particular, have shown a commitment to DEI.

Do DEI practices in colleges and universities result in a better product for students? Do they improve campus communities?

Some argue that, yes, DEI is integral to a high-functioning university. These practices improve viewpoint diversity, make students feel more at home on their campuses, and help marginalized groups attain a quality education. Others argue that commitment to DEI has resulted in bloated administrations that increase tuition costs without delivering a better product. Moreover, DEI initiatives support some identity groups at the cost of others, and a fervent commitment to DEI can produce exclusive and unfair outcomes.

In this program, Ilya Shapiro and Professor Todd Clark discussed the merits of DEI initiatives and how state-level policy could shape the future of DEI on campus.

Featuring:
--Ilya Shapiro, Director of Constitutional Studies, Manhattan Institute
--Professor Todd Clark, Associate Dean of Academic Affairs and Professor of Law, St. Thomas University Law School
--[Moderator] Devon Westhill, President and General Counsel, Center for Equal Opportunity

Following a surge in many types of violent crime in 2020 and 2021 that has only recently begun to ebb in some places, many state legislatures, especially in southern states, have passed or are considering policies that are designed to result in longer periods behind bars for those convicted of serious violent crimes. Policy proposals include imposing or lengthening mandatory minimums, removing parole eligibility in certain cases, and requiring that a high percentage of the sentence be served behind bars (often referred to as “truth-in-sentencing”). However, there are also countervailing trends in states like California. Determining the right approach to sentencing and time served raises several questions:

1. What is the proper balance between uniformity and discretion and the degree of influence exercised by legislators versus prosecutors and judges?
2. To what degree is the focus on the length of the sentence or period of incarceration, as opposed to certainty that a significant percentage of the sentence, whatever its length, be served behind bars?
3. Given that elderly individuals have the lowest recidivism rates, would we be shortchanging public safety if we allocate too much prison space to those who committed a heinous crime decades ago as opposed to those who are in the midst of a crime spree involving less serious offenses and have failed at diversion and probation? How do we know whether a jurisdiction is efficiently allocating correctional resources to maximize public safety or perhaps is spending too much or too little on corrections?
4. Should the inquiry at parole solely be a forward-looking one which assesses future risk, as is the case in Michigan due to reforms a few years ago, or should paroling agencies also consider whether further punishment is warranted?
5. What are the merits of concurrent versus consecutive sentences in light of the Lara case that was argued before the Supreme Court in March? How does this relate to whether the primary goal of incarceration is punishment, incapacitation, or rehabilitation?

Featuring:
---Dr. Nazgol Ghandnoosh, Co-Director of Reasearch, The Sentencing Project
--Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation
--[Moderator] Marc Levin, Chief Policy Counsel, Council on Criminal Justice and Senior Advisor, Right on Crime

LTL Management LLC (LTL) is a subsidiary of Johnson & Johnson (J&J) that was established in 2021 to hold and manage claims related to a mass tort alleging that J&J’s talc-based baby powder caused many cases of ovarian cancer, mesothelioma, and other serious health issues. J&J claims that settling the mass tort in this manner is a reasonable and legitimate course of action. Some plaintiffs’ attorneys claim that J&J is using a bad faith strategy that serves no legitimate business purpose, and the tort litigation should be allowed to continue.

The case began in the United States Bankruptcy Court for the District of New Jersey. Chief Judge Michael Kaplan ruled in favor of LTL in February 2022 holding that LTL’s filing for Chapter 11 protection was “unquestionably a proper purpose under the Bankruptcy Code.” Upon an expedited appeal, a three-judge panel of the Third Circuit reversed and narrowly held in favor of claimants.

Hours later, LTL once again filed for Chapter 11 protection; the new filing includes an $8.9 billion settlement offer. Some – including the U.S. Department of Justice’s Trustee Program – continue to argue that J&J is misusing bankruptcy law through LTL, but others think the massive settlement is in the best interest of claimants. Both LTL and parent J&J reject that its bankruptcy filing is illegitimate, illegal, or in bad faith.

This webinar served as a second installment of the February 16, 2023 webinar titled Chapter 11 Bankruptcy & Mass Torts: A Review of the Third Circuit’s LTL Opinion with Professors Lindsey Simon and Tony Casey.

Featuring:
--Professor Tony Casey, Deputy Dean, Donald M. Ephraim Professor of Law and Economics & Faculty Director, The Center on Law and Finance, University of Chicago Law School
--Professor Lindsey Simon, Robert Cotten Alston Associate Chair in Corporate Law, University of Georgia School of Law
--Mikal C. Watts, Partner, Watts Guerra LLP

For decades, the WTO Appellate Body regularly ruled that American laws violated the various WTO treaties. This forced Congress to rewrite WTO non-compliant statutes and altered U.S. policy on issues related to trade, the environment, and taxes - amongst others. In December 2019, however, a U.S. campaign to block Appellate Body judge nominations paralyzed the entire WTO Appellate Body system. As a result, the WTO cannot render final decisions in disputes between its member-states, and in recent years new laws like the Inflation Reduction Act's Electric Vehicle tax credit scheme openly flout WTO treaty rules.

How did the Appellate Body constrain U.S. laws pre-2019? Why did the U.S. choose to block nominations to the Appellate Body and what are the prospects that the Appellate Body returns? And if the Appellate Body does not return, how will this impact U.S. trade and trade-related laws? Join us for a panel where two leading experts on trade law and policy will discuss these issues.

Featuring:
--Jamieson Greer, Partner, King & Spalding
--David Ross, Partner, WilmerHale
--Moderator: Trevor R. Jones, JD Candidate, Harvard Law School

On Wednesday, April 26th, the Supreme Court heard oral argument in Tyler v. Hennepin County, Minnesota.

Hennepin County foreclosed on Geraldine Tyler's home to cover her delinquent property taxes, selling the home for $40,000 and keeping the $25,000 surplus as profit. Tyler argues that the county cannot take the equity in her home and has asked the Supreme Court to declare the forfeiture of her home's equity an unconstitutional taking and excessive fine. The county maintains that Tyler had time to pay her taxes and is not entitled to any refund.
The Supreme Court will consider whether the county’s actions violate the Takings Clause and whether the forfeiture of property worth far more than the debt plus interest, penalties, and costs is an excessive fine within the meaning of the Eighth Amendment.

After the oral argument, Christina Martin, Counsel of Record in the case for Pacific Legal Foundation, joined us to break down the proceedings.

Featuring:
--Christina Martin, Senior Attorney, Pacific Legal Foundation
--Moderator: Tony Francois, Partner, Briscoe Ivester & Bazel

In 2003, Professor Brian Fitzpatrick published a piece titled "The Diversity Lie" in which he discussed the recently decided Grutter v. Bollinger case. Twenty years later, the Supreme Court is on the precipice of deciding two important affirmative action cases in SFFA v. Harvard and SFFA v. UNC. How has Professor Fitzpatrick's analysis held up against the test of time? How has the Supreme Court changed? What does the future hold for affirmative action? Can universities install a program of race-neutral affirmative action?

Professors Brian Fitzpatrick and Randall Kennedy joined us to consider these questions and more as we reflect on the 20th anniversary of Grutter v. Bollinger.

Featuring:
--Professor Brian Fitzpatrick, Milton R. Underwood Chair in Free Enterprise, Vanderbilt Law School
--Professor Randall Kennedy, Michael R. Klein Professor, Harvard Law School
--[Moderator] Ted Frank, Director, Hamilton Lincoln Law Institute

The announcement that the Taiwan President will visit the United States in early April has brought renewed attention to the potential conflict between the US and China over Taiwan. Additionally, some experts assert that the ongoing conflict between Russia and Ukraine has further intensified the need for the US and China to prepare for a possible military confrontation.Despite this perceived urgency, much of the discourse surrounding a Taiwan conflict focuses on the security concerns motivating both powers and the geopolitical fallout that would occur as a result. Our panel of defense and national security law experts will go beyond this analysis to examine the specific scenarios that could trigger conflict and the strategies that the US might deploy to protect its interests.

This recorded webinar features a robust discussion on one of the most pressing security challenges of our time.

Featuring:
--Col. Mark Cancian, (USMCR, ret.) Senior Adviser, International Security Program, CSISProf.
--Julian Ku, Senior Associate Dean for Academic Affairs, Faculty Director of International Programs, and Maurice A. Deane Distinguished Professor of Constitutional Law, Maurice A. Deane School of Law at Hofstra University
--Moderator: Prof. Jamil Jaffer, Adjunct Professor, NSI Founder, and Director, National Security Law & Policy Program, Antonin Scalia Law School, George Mason University

Part I: Where does Law Matter

On April 19, 2023, the Court considered a question of free speech and criminal law: whether, in order for a statement to be categorized as a "true threat" and thus not protected under a right to free speech, the speaker must subjectively know or intend the threatening nature of the statement, or whether it is enough that an objective "reasonable person" would regard the statement as a threat of violence.

The facts of the case that poses this question for the Court, Counterman v. Colorado, are as follows. Billy Raymond Counterman was convicted and sentenced to four-and-a-half years in the state of Colorado for stalking a local female musician. According to Colorado Law, stalking entails “mak[ing] any form of communication with another person … in a manner that would cause a reasonable person to suffer serious emotional distress.”
Over the course of two years, Counterman sent the woman direct messages on Facebook in which he suggested that he had seen her while driving and made comments such as “Die” and “(expletive) off permanently.” The woman told a family member that she was “extremely scared” after receiving these messages.

Lower courts in Colorado upheld Counterman’s conviction, ruling that the appropriate test for whether Counterman’s statements qualified as a “true threat,” was whether a reasonable person would regard the statement as a threat of violence. The question now comes before the Court as to whether that “reasonable person” test is correct, or whether intent must be established.

In this recorded Teleforum we broke down and analyzed how oral argument went before the Court the day after this case is heard.

Featuring:
--Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation