The Campus Rape Frenzy: The Attack on Due Process at America's Universities by Professor KC Johnson and Stuart Taylor
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.
3 Feb 2017
Hively v. Ivy Tech Community College
On April 4, 2017, the Seventh Circuit handed down a divided en banc opinion in Hively v. Ivy Tech Community College, opening a circuit split on how to interpret Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on "race, color, religion, sex, or national origin[.]" In Hively, the Seventh Circuit became the first Court of Appeals to hold that sex discrimination encompasses discrimination based on sexual orientation. It held that plaintiff Kimberly Hively could pursue a claim against her former employer, Ivy Tech Community College, for her firing, which she claimed was motivated by her sexual orientation. In doing so, the court opened a split with the Eleventh Circuit, which had held just a few months earlier that employer decisions based on sexual orientation were not discrimination prohibited by Title VII. In addition to paving the way for a potential Supreme Court case to resolve the issue, the Seventh Circuit's decision includes an array of opinions demonstrating different methods of statutory interpretation. -- Featuring: Kenneth A. Klukowski, General Counsel, American Civil Rights Union and Prof. Anthony Michael Kreis, Visiting Assistant Professor of Law, Chicago-Kent College of Law.
2 Jun 2017
Courthouse Steps: Murr v. Wisconsin Decided
On June 23, the Supreme Court issued its opinion in Murr v. Wisconsin. This is a regulatory takings case which addressed the question: should two legally distinct but commonly owned contiguous parcels be combined, as described in Penn Central Transportation Company v. City of New York, for takings analysis purposes? -- In 1960 and 1963, the Murrs purchased two adjacent lots in St. Croix County, Wisconsin, each over an acre in size. In 1994 and 1995, the parents transferred the parcels to their children. These lots became nonconforming due to various setbacks imposed in the 1970s, but a grandfathering provision would have allowed independent and separate uses – but only if the lots were not owned by the same individuals. Seven years later, the children wanted to sell one of the two original lots and were denied permission to do so by the St. Croix County Board of Adjustment. The Murrs sued the state and county and claimed the county’s actions resulted in an uncompensated taking of their property. The trial court granted summary judgement to the state and county and the Court of Appeals of Wisconsin affirmed. -- James Burling, Vice President of Litigation at the Pacific Legal Foundation, joined us to discuss this interesting case and offer his thoughts following the decision. -- Featuring: James S. Burling, Vice President of Litigation, Pacific Legal Foundation.
28 Jun 2017
Antitrust in the Modern Era
With a change in administration, businesses and consumers alike are searching the tea leaves for indications about how new policy setters will analyze market power, mergers and acquisitions. Will economic analysis play a greater or lesser role? Will the conventional distinctions between horizontal and vertical mergers persist? How will consumer interest be weighed? On the international front, is foreign countries’ use of competition laws to influence or judge American businesses on the rise and, if so, to what effect? -- Featuring: Hon. Joshua D. Wright, Professor of Law, Antonin Scalia Law School, George Mason University.
24 Jul 2017
Most Popular Podcasts
Travel Moratorium Executive Order
On January 21, President Trump signed an executive order “Protecting the nation from foreign terrorist entry into the United States.” The order suspended immigrant and nonimmigrant entry into the country by citizens of seven majority Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days. It also suspended refugee admission into the United States for 120 days, and barred entry of Syrian refugees until further notice. The stated order’s purpose was to “ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.” -- The Washington State Attorney General filed a lawsuit against the order in District Court citing harm to Seattle residents. Judge James Robart in the Western District of Washington issued a restraining order on February 3 halting President Trump’s executive order nationwide. The Department of Justice appealed the restraining order to the Ninth Circuit Court of Appeals, which rejected the Justice Department’s appeal for an emergency stay. -- David Bier of CATO and Andrew C. McCarthy of National Review, who have both written on the topic (see their pieces here and here respectively), joined activist Shireen Qudosi, Director of Muslim Matters with America Matters, to discuss the legality of the executive order in the second episode of our Executive Orders Teleforum Series. -- Featuring: Andrew C. McCarthy, Senior Fellow, National Review Institute; David J. Bier, Immigration Policy Analyst, Cato Institute’s Center for Global Liberty and Prosperity; and Shireen Qudosi, Director of Muslim Matters, America Matters.
1 Mar 2017
Freddie & Fannie Shareholder Litigation Update
During the 2008 financial crisis, Congress provided Fannie Mae and Freddie Mac with billions of dollars in emergency funds to keep them afloat, supplemented by the investments of private investors who bet that these entities would return to profitability. In 2012, just as Fannie and Freddie were indeed becoming profitable again, the Government instituted a "net worth sweep" that required them to remit to the government nearly all of their profits every quarter. Fannie and Freddie have paid the government over $246 billion so far. In the process, the stock was rendered virtually worthless. Investors filed myriad lawsuits as the net worth sweep came into effect. After four years of litigation and an initial dismissal by the district court, the D.C. Circuit has now largely affirmed but also sent key contract-based claims for monetary relief back to the district court for further review. This Teleforum discusses this historic litigation, its implications for the housing market and the proper role of the Government, and the investors' prospects for success on their claims. -- Featuring: John Carney, Editor, Breitbart News and Jason A. Levine, Litigation Partner, Vinson & Elkins LLP.
2 Mar 2017
Eminent Domain: A Comparative Perspective by Professor Ilya Somin, et al.
The taking of private property for development projects has caused controversy in many nations, where it has often been used to benefit powerful interests at the expense of the general public. In their recent book, Eminent Domain: A Comparative Perspective (Cambridge University Press), editors Ilya Somin, Iljoong Kim, and Hojun Lee use a common framework to analyze the law and economics of eminent domain around the world. They show that seemingly disparate nations face a common set of problems in seeking to regulate the condemnation of private property by the state. They include the tendency to forcibly displace the poor and politically weak for the benefit of those with greater influence, disputes over compensation, and resort to condemnation in cases where it destroys more economic value than it creates. With contributions from leading scholars in the fields of property law and economics, the book offers a comparative perspective and considers a wide range of possible solutions to these problems. Professor Richard Epstein and Professor Ilya Somin joined us to discuss this interesting book. -- Featuring: Professor Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law and Professor Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University.
18 Jul 2017
Courthouse Steps: Sessions v. Morales-Santana Update
On November 9, 2016, the Supreme Court heard oral argument in Lynch v. Morales-Santana. Morales-Santana’s father was born in Puerto Rico but acquired U.S. citizenship in 1917 under the Jones Act of Puerto Rico. Morales-Santana was born in 1962 in the Dominican Republic to his father and Dominican mother, who were unmarried at the time. In 1970, upon his parents’ marriage, he was statutorily “legitimated” and was admitted to the U.S. as a lawful permanent resident in 1976. -- The Immigration and Nationality Act of 1952, which was in effect at the time of Morales-Santana’s birth, limits the ability of an unwed citizen father to confer citizenship on his child born abroad, where the child’s mother is not a citizen at the time of the child’s birth, more stringently than it limits the ability of a similarly situated unwed citizen mother to do the same. -- In 2000, Morales-Santana was placed in removal proceedings after having been convicted of various felonies. An immigration judge denied his application for withholding of removal on the basis of derivative citizenship obtained through his father. He filed a motion to reopen in 2010, based on a violation of equal protection and newly obtained evidence relating to his father, but the Board of Immigration Appeals denied the motion. The U.S. Court of Appeals for the Second Circuit reversed the Board’s decision, however, and concluded that Morales-Santana was a citizen as of birth. The Attorney General of the United States then obtained a grant of certiorari from the Supreme Court. -- The two questions before the Supreme Court were: (1) whether Congress’s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children violates the Fifth Amendment’s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so. -- Featuring: Curt Levey, President, Committee for Justice; Legal Affairs Fellow, Freedom Works.
27 Jun 2017
Supreme Court Preview: Hernandez v. Mesa
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.
13 Feb 2017
Courthouse Steps: Packingham v. North Carolina
In Packingham v. North Carolina, the Supreme Court will decide whether the First Amendment bars a state from banning citizens from accessing social media sites like Facebook and Twitter. A North Carolina state makes it a felony for any person on the state's registry of former sex offenders to "access" a wide array of websites--including Facebook, YouTube, and nytimes.com--that enable communications among users if the site is known to allow minors to have accounts. The statute does not require the state to prove the defendant has actually had contact with a minor, intended to do so, or accessed a website for any illicit or improper purpose. ?Lester Packingham was convicted of violating the law for a Facebook post in which he celebrated the dismissal of a traffic ticket, declaring "God is Good!" Packingham and his supporters contend that law amounts to a sweeping, overbroad, and vague ban on protected speech untailored to any legitimate interest and unjustified by any compelling need. -- Featuring: Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute.
2 Mar 2017
The Layered Model of Adjudication and Enforcement of Net Neutrality with the FTC, DOJ, and State AGs
A number of regulatory advocates assert that Title II of the Communications Act, enforced by the Federal Communications Commission, is the only way to protect net neutrality. Research by Roslyn Layton, PhD, who has studied net neutrality in 50 countries, suggests otherwise. Moreover, a layered model using existing antitrust and consumer protection laws enforced by the Federal Trade Commission, Department of Justice, and State Attorneys General may well provide more effective and less costly regulation. Alex Okuliar, formerly an advisor to FTC Commissioner (now Acting Chairman) Ohlhausen, interviewed Roslyn Layton about her research on these issues and the layered model of enforcement. -- Featuring: Roslyn Layton, Visiting Fellow, American Enterprise Institute and Moderator: Alex Okuliar, Partner, Orrick, Herrington & Sutcliffe LLPAlexander Okuliar Partner, Orrick, Herrington & Sutcliffe LLP.
14 Jul 2017
Courthouse Steps: Trinity Lutheran Church of Columbia, Inc. v. Comer - Decided
The Missouri Department of Natural Resources (DNR) denied a Learning Center run by Trinity Lutheran Church of Columbia, Inc. (Trinity) federal funding to refurbish children’s playgrounds on the grounds of religious affiliation. The DNR offers Playground Scrap Tire Surface Material Grants to organizations that qualify for resurfacing of playgrounds. Though the licensed pre- school Learning Center incorporates religious instruction into is curriculum, the school is open to all children. Trinity’s Learning Center was denied funding based on Article I, Section 7 of the Missouri Constitution; the section reads: “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” -- Trinity claimed that the DNR infringed upon their rights under the Equal Protection Clause of the Fourteenth Amendment and the First Amendment’s protections of freedom of religion and speech. The district court dismissed Trinity’s allegations, claiming that Trinity failed to file a specific claim. Trinity responded by amending its complaint to an allegation that other religious institutions had previously received the DNR funding; nevertheless, the district court denied the motions. The Eighth Circuit Court of Appeals upheld the lower court decision, agreeing with both the dismissal and denial of motions. -- In a 7-2 opinion written by Chief Justice Roberts, the Supreme Court ruled in favor of Trinity Lutheran. David Cortman of the Alliance Defending Freedom discussed the decision and its significance. -- Featuring: David A. Cortman, Lead counsel in Trinity Lutheran Church of Columbia v. Pauley, Senior Counsel and Vice President of U.S. Litigation, Alliance Defending Freedom.
28 Jun 2017
Federal Reserve Accountability and the CHOICE Act
o whom is the Federal Reserve accountable? Does the Fed's insistence on its "independence" mean it thinks the answer is: To no one? Who should oversee the results, successful or unsuccessful, of the Fed's actions? One answer was given by a former president of the New York Fed years ago: "The Congress which set us up has the authority and should review our actions at any time they want to, and in any way they want to." The CHOICE Act, recently passed by the House Financial Services Committee would in its Title X., "Fed Oversight Reform," create greater Fed accountability to the Congress. This Federalist Society Teleforum explored the bill's provisions and the issues involved. -- Featuring: Alex Pollock, Senior Fellow, R Street Institute and Norbert Michel, Senior Research Fellow, Financial Regulations and Monetary Policy, The Heritage Foundation.
15 Jun 2017
Courthouse Steps: Supreme Court Oral Arguments in Murr v. Wisconsin
On March 20, the Supreme Court will hear oral argument in Murr v. Wisconsin. This is a regulatory takings case which addresses the question: should two legally distinct but commonly owned contiguous parcels be combined, as described in Penn Central Transportation Company v. City of New York, for takings analysis purposes? -- In 1960 and 1963, the Murrs purchased two adjacent lots in St. Croix County, Wisconsin, each over an acre in size. In 1994 and 1995, the parents transferred the parcels to their children. These lots became nonconforming due to various setbacks imposed in the 1970s, but a grandfathering provision would have allowed independent and separate uses – but only if the lots were not owned by the same individuals. Seven years later, the children wanted to sell one of the two original lots and were denied permission to do so by the St. Croix County Board of Adjustment. The Murrs sued the state and county and claimed the county’s actions resulted in an uncompensated taking of their property. The trial court granted summary judgement to the state and county and the Court of Appeals of Wisconsin affirmed. -- James Burling, Vice President of Litigation at the Pacific Legal Foundation and Misha Tseytlin, the Solicitor General for the State of Wisconsin, will join us to discuss this interesting case and offer their thoughts following oral argument. -- Featuring: James S. Burling, Vice President of Litigation, Pacific Legal Foundation and Misha Tseytlin, Solicitor General for the State of Wisconsin.
22 Mar 2017
Courthouse Steps: Ziglar v. Abbasi
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.
27 Jan 2017
Pena-Rodriguez v. Colorado: Post Decision Recap
On March 6, 2017, the Supreme Court released its 5-3 decision in Pena-Rodriguez v. Colorado. The majority opinion, written by Justice Kennedy, reveresed and remanded the case holding that when there is a juror's clear statement that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the trial court consider the evidence of the statement and any resulting denial of the jury trial guarantee. John Richter, Partner at King & Spalding, joined us to discuss the important ramifications of the Court's striking decision. -- Featuring: John Richter, Partner, King & Spalding.
24 Mar 2017
The Role of White House Counsel
In recent weeks, there has been a flurry of editorials on the proper role of the White House Counsel, driven by criticism of White House Counsel Donald McGahn. After the rollout of President Trump’s Immigration Executive Order, some, like Jack Goldsmith, have written that McGahn should have worked with other agencies before the Order was released to prevent the chaos that ensued. -- But what is the proper role of the White House Counsel? Is it to coordinate inter-agency reaction? Should he or she provide legal support to the President first? Or is his or her real client the office of the presidency? Former White House Counsel C. Boyden Gray and former Deputy White House Counsel Timothy Flanigan joined us to help answer these questions and many others. -- Featuring: Hon. Timothy E. Flanigan, Chief Legal & Compliance Officer, Corporate Secretary, Cancer Treatment Centers of America; Former Deputy White House Counsel to President George W. Bush and Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates; Former White House Counsel to President George H.W. Bush.
17 Mar 2017
Impression Products v. Lexmark International and the Law of Patent Exhaustion
The Federalist Society will host a teleforum discussion of Impression Products v. Lexmark International, which is scheduled for argument before the Supreme Court March 21, 2017. At issue in the case is whether a patent owner may use a combination of patent rights and contract law to restrict what purchasers of patented printer toner cartridges may do with the cartridges. Lexmark makes patented toner cartridges and sells them with a restriction that the cartridges not be resold or refilled. Impression Products buys used Lexmark toner cartridges, refills, and resells them. Lexmark argues that Impression Products’ toner refilling activities violate Lexmark’s patent rights because the license to use the patented product that was given to consumers prohibited refilling, thus putting such use and resale of the patented products outside of the scope of the patent license, in violation of Lexmark’s patent rights. For its part, Impression Products argues that the “patent exhaustion” doctrine should operate here to restrict Lexmark from asserting any patent rights after a first, authorized sale. Also at issue is whether first sales in foreign countries instead of the U.S. should affect the outcome. -- The case will have significant effects on the ability of patent owners to control the downstream uses of their patented products, and may affect the ability of patent owners to prevent the importation of “grey market” goods that have been lawfully sold in other countries, similarly to the Supreme Court’s holding in the 2013 copyright case of Kirtsaeng v. John Wiley & Sons, Inc. -- Featuring: -- Prof. Adam Mossoff, Co-Founder, Director of Academic Programs & Senior Scholar, Center for the Protection of Intellectual Property; Professor, Antonin Scalia Law School, George Mason University; Prof. David Olson, Associate Professor, Boston College Law School; and Mr. Steven Tepp, President & CEO of Sentinel Worldwide; Professorial Lecturer in Law, George Washington University Law School. Moderator: Prof. Kristen Osenga, Professor of Law, University of Richmond.
9 Mar 2017
Turkey in NATO
International & National Security Law Practice Group TeleforumTurkey’s President Erdogan has secured authoritarian rule through constitutional restructuring. He does not tolerate dissent and has arrested journalists, prosecutors, judges, military officials, police, academics and civil servants. Turkey would arguably not qualify to join NATO today. Turkey is seeking common cause with Russia and Iran. Erdogan has called America’s Kurdish allies in Syria “terrorists” and launched air strikes against them. NATO has never expelled a member state. When are the risks to NATO countries’ security and intelligence compelling enough to consider expelling Turkey? Are other, lesser sanctions an option? What would be the mechanism to accomplish this?Featuring: -- Alan Makovsky, Senior Fellow, Center for American Progress-- Blaise Misztal, Director of National Security, Bipartisan Policy Center
7 Jul 2017
Reauthorization of Section 702
Section 702 of the Foreign Intelligence Surveillance Act (FISA) is up for reauthorization in 2017. An earlier version of the program was instituted after 9/11 by President George W. Bush. In 2007, Congress adopted the Protect America Act and one year later passed the FISA Amendments Act, which included Section 702. Section 702 allows the government to target for surveillance non-U.S. citizens “reasonably believed to be located outside the United States to acquire foreign intelligence information.” The authorization does not extend to non-citizens outside the country to gain information on citizens or permanent residents believed to be residing in the United States. -- While proponents of the law argue it is necessary for national security, critics claim that U.S. citizens are too often incidentally swept into surveillance due to the nature of the “targeting procedures” employed by intelligence agencies, and therefore reforms are needed to protect their privacy. Our experts discussed reauthorization, what it would mean if Congress chose not to act, and what kinds of reforms are under consideration. -- Featuring: Adam Klein, Senior Fellow, Center for a New American Security and Kate Martin, Senior Fellow, Center for American Progress. Moderator: Karen Lugo, Founder, Libertas-West Project.
19 Jul 2017