Bridget Anne Kelly and William Baroni were convicted of wire fraud, federal program fraud, and conspiracy for orchestrating lane closures on the George Washington Bridge in September, 2013, as an elaborate punishment to the mayor of Fort Lee, New Jersey, for refusing to endorse Governor Chris Christie for re-election. In Bridget Anne Kelly v. United States, the latest in a series of political corruption cases to reach the Supreme Court, the justices will consider whether these acts can amount to defrauding the government. Steve Klein, a partner at Barr & Klein PLLC and a member of the Free Speech & Election Law Executive Committee, will discuss the implications of the case and give his thoughts on oral argument.

Featuring:
— Steve Klein, Partner, Barr & Klein PLLC

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This teleforum focuses on the sundry problems with so-called “Brand X deference,” whose name derives from the 2005 Supreme Court decision in National Cable & Telecom. Assoc. v. Brand X Internet Services. The judicial deference holding in the case was that federal agencies may issue new regulations that supersede previous interpretations of the relevant statute made by federal courts of appeals (unless that prior federal-court interpretation purported to be the only permissible interpretation of the statute). Hence, even if a federal circuit court of appeals has previously interpreted a statute, if an agency with jurisdiction subsequently issues a new regulation interpreting that statute differently, the federal court in a future case must defer (i.e., give Chevron deference) to the agency’s new interpretation of the statute.

This month the U.S. Supreme Court will consider whether or not to take up a case that could do for Brand X deference what Kisor v. Wilkie did for Auer deference. That is, the Court could radically reduce the scope of Brand X’s application and/or clarify that Brand X deference only applies when a prior federal court did not use traditional tools of statutory analysis in interpreting the statutory provision at issue. Or, the Court could go even further and do away with Brand X deference altogether, as then-Judge Gorsuch called for when he was serving on the Tenth Circuit.

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At issue in the case of Holguin-Hernandez v. United States is whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence. Daniel Guarnera joined us to discuss the case as presented at oral argument before the Supreme Court on December 10, 2019.

Featuring:
— Daniel Guarnera, Associate, Kellogg, Hansen, Todd, Figel & Frederick

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On Wednesday evening, the United States House of Representatives voted to impeach President Donald Trump. This is the third impeachment of a sitting U.S. President after Johnson and Clinton. As a part of their continuing conversation series, John Malcolm and John Yoo discuss the vote, Trump’s letter, possible Senate trial rules, comparisons to the historic meaning of impeachment, and more.

Featuring:
— John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
— Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

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In late October, the People of the State of New York v. ExxonMobil Corp. trial began in the Supreme Court of the State of New York before Justice Barry Ostrager. The lawsuit was brought under New York’s Martin Act, an anti-fraud statute, and alleged that ExxonMobil misled its investors about how the company accounted for climate-change risks. The trial was the culmination of a nearly three year investigation that was initially launched by former New York Attorney General Eric Schneiderman with his successor eventually filing a lawsuit against ExxonMobil in the fall of 2018. Justice Ostrager handed down his decision on December 10, 2019, ruling for Exxon. Andrew M. Grossman, partner at BakerHostetler, joins us to discuss the ruling, next steps in the case and its implications for other ongoing litigation brought by states and municipalities against energy companies.

Featuring:
— Andrew M. Grossman, Partner, Baker & Hostetler LLP

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On September 30 a federal district judge in Massachusetts issued a ruling rejecting discrimination claims in Students for Fair Admissions v. President and Fellows of Harvard College, 2019 U.S. Dist. LEXIS 170309 (D. Mass.), a case that many expect to go to the U.S. Supreme Court and potentially redefine affirmative action law. In the case, Asian-American students allege that Harvard’s racial preferences for other minority groups discriminate against them in violation of Title VI of the 1964 Civil Rights Act. The students introduced evidence that Asian enrollment at Harvard is less than half what it would be if admission was based solely on academic achievement; that Asian applicants receive the lowest scores on an amorphous “personal rating” assigned by admissions officials who have not met them; and that Harvard’s “holistic” admissions system, touted by the Supreme Court as the model for permissible racial preferences, was originally devised to exclude Jews.

The case raises the question of the meaning of “diversity” in an increasingly multi-racial era, and the continued justification for affirmative action in that era when its burden may now fall largely not on the white majority but on another historically marginalized racial minority group.

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In Atlantic Richfield Co. v. Christian, the Supreme Court will determine whether the Comprehensive Environmental Response, Compensation, and Liability Act preempts state common law claims for restoration damages for pollution also addressed by an EPA-directed cleanup plan. In this case, a Montana copper smelter polluted its neighbors’ properties for decades, but has also spent $450 million to remediate this pollution under a plan negotiated with EPA. Believing Montana state law entitles them to more extensive restoration than the EPA plan provides, neighboring property owners sued Atlantic Richfield for trespass and nuisance, seeking restoration damages and other relief. Jonathan Wood and Corbin Barthold join us to discuss the oral argument in this case and its implications for CERCLA and property rights.

Featuring:
— Jonathan Wood, Senior Attorney, Pacific Legal Foundation
— Corbin K. Barthold, Senior Litigation Counsel, Washington Legal Foundation

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We examine the oral argument in New York State Rifle & Pistol Association Inc. v. City of New York, New York. Our experts give a history of the case, discuss the salient facts, and offer predictions on how the Court will come out.

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In 2017, Congress and the President used the Congressional Review Act to disapprove 14 agency rules issued at the end of the Obama administration. As we enter another presidential election year, the CRA may soon experience another resurgence. Our speakers will address recent CRA developments, including ongoing litigation and an OMB memo asserting CRA authority over agency guidance documents, as well as how the upcoming deadline for submitted rules for review by this Congress and President (rather than their successors) affects agency decision-making.

Featuring:
— Amit Narang, Regulatory Policy Advocate, Public Citizen Inc.
— Jonathan Wood, Senior Attorney, Pacific Legal Foundation
— Moderator: Paul J. Larkin Jr., Senior Legal Research Fellow, Meese Center for Legal and Judicial Studies, Institute for Constitutional Government, The Heritage Foundation

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This past August the U.S. Court of Appeals for the Fifth Circuit issued a significant administrative law opinion that has thus far drawn too little attention. The case involved guidance the Equal Employment Opportunity Commission issued in 2012 telling private and public employers—such as the State of Texas—that they could not run criminal background checks on potential employees without incurring potential disparate impact liability for disproportionately screening out statutorily protected groups. Most news articles discussing the case have focused on the immediate outcome, which is that the Fifth Circuit enjoined EEOC’s guidance, effectively preventing the agency from bringing any enforcement actions based on its theory of liability.

But that’s not the big story here. Rather, it is how the Fifth Circuit’s decision did it that could reverberate far beyond the confines of this case. The court may have sounded the death knell for *all* EEOC guidance. When Congress created EEOC, it deliberately denied the agency the ability to issue rules. For the past half century, EEOC did not let this statutory constraint slow it down much. Denied the ability to pass rules, EEOC passed mere “guidance” instead. But because that guidance was backed up with (1) the threat of enforcement; and (2) employers’ knowledge that federal courts readily defer to EEOC’s interpretations of its governing statute, the guidance was as good as law. However, by enjoining the criminal background check guidance on the ground that EEOC has no substantive rulemaking power, the Fifth Circuit exposed the fact that EEOC has long been acting outside its congressional grant of authority. In other words, the reason the Fifth Circuit gave for prohibiting this particular EEOC guidance would apply to most—if not all—substantive guidance that the agency issues.

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The Ninth Circuit recently split from seven other Circuits in deciding a First Amendment question of cardinal importance: should the church choose who will teach religion to children in church schools, or should the state? Our Lady of Guadalupe School is a small California Catholic parish school sued by a former teacher for age discrimination. The fifth-grade teacher taught religion, led prayer, planned liturgy, and performed other important religious functions. Following the Supreme Court’s unanimous 2012 decision in Hosanna-Tabor v. EEOC (which concerned a fourth-grade teacher at a Lutheran school who also performed religious duties), the district court found that the teacher’s religious functions were enough to allow dismissal, since allowing the case to proceed would entangle the state in internal religious affairs and violate the school’s right to select its teachers of religion. But, breaking with seven other circuits, seven state supreme courts, and over the dissent of nine of its judges, the Ninth Circuit reversed. Eric Rassbach, counsel for Our Lady, will explain why the Supreme Court should take the case.

Featuring:
— Eric Rassbach, Vice President and Senior Counsel, Becket Fund for Religious Liberty

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Legal challenges to legislative prayer continue to play out in the courts. Most recently, in Barker v. Conroy, Williamson v. Brevard County, and Speaker v. Fields, atheists have brought a series of Establishment Clause actions against prayer practices that prohibit them from offering secular (as opposed to religious) invocations. Thomas Hungar joins us to discuss those cases and their important implications.

Featuring:
— Thomas Hungar, Partner, Gibson, Dunn & Crutcher LLP

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On September 16, 2019, the Arizona Supreme Court issued a 4-3 decision in Brush & Nib Studio v. City of Phoenix. The case pitted a city anti-discrimination ordinance against a business offering hand-drawn invitations and paintings for various circumstances. The business owners declined to provide custom invitations for same-sex weddings.

The majority opinion rules for the business owners on all three issues presented, holding that (1) the plaintiffs had standing to bring pre-enforcement claims; and (2) the city’s anti-discrimination ordinance, as applied to the plaintiffs’ calligraphy services in connection with gay weddings, both (a) violates the free speech clause in the Arizona constitution and (b) fails to satisfy the test established by Arizona’s Free Exercise of Religion Amendment (“FERA,” i.e., the Arizona equivalent of the federal Religious Freedom Restoration Act or “RFRA”).

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States and municipalities have brought litigation in state court arguing that energy companies should be liable for the effects of global climate change. District courts across five states have issued conflicting rulings on whether state court or federal court is the proper forum to litigate these claims, and whether courts or legislatures should address global environmental questions. In addition, legal investigations and lawsuits are underway by state Attorneys General, particularly in New York where the Attorney General has filed a climate and securities-related lawsuit under the Martin Act. As these municipal lawsuits move to federal appellate court, Hon. C. Boyden Gray joins us to discuss the latest developments in climate change litigation at the municipal level, and the developments involving the New York Attorney General’s litigation.

Featuring:
— C. Boyden Gray, Founding Partner, Boyden Gray & Associates

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This week, the D.C. Circuit issued its long-awaited opinion in Mozilla v. Federal Communications Commission in which the court largely upheld the Commission’s 2017 Restoring Internet Freedom Order that reversed the Obama Administration’s 2015 decision to apply common carrier regulation to the Internet. While the court upheld the bulk of the agency’s actions as reasonable under the Supreme Court’s rulings in Chevron and Brand X, the court also found that the agency lacked plenary preemption authority over state efforts to regulate the Internet under the FCC’s theory of the case. As such, this case does not mark the end of the net neutrality debate; instead, it simply closes one chapter and opens a new one.

In this teleforum, a panel of legal and economic experts shares their views of the court’s reasoning and of the implications of this case upon the on-going net neutrality debate.

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In her new book, Prisoners of Politics: Breaking the Cycle of Mass Incarceration, Professor Rachel Elise Barkow argues that the key problems with our criminal justice system are largely institutional and flow from a failure to properly understand–and constrain–the incentives that drive us toward ineffective policies of overcriminalization and mass incarceration. According to Barkow, our collective desire to punish wrongdoing through our criminal justice system too often outweighs the data that suggest better ways to improve public safety and reduce criminal recidivism. She proposes a fresh approach that includes greater oversight for prosecutors and others who wield vast discretion within the system, along with new expert bodies to collect and analyze data to formulate evidence-based crime policy and insulate policymakers from the populist whims that too often result in punitive laws and long sentences. In these and other ways, Barkow presents arguments for how our criminal justice system could reduce crime, provide justice, and roll back mass incarceration all at the same time.

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Terroristic threats straddle the line between criminal acts and constitutionally protected speech. This is especially so when the apparent threats could also be interpreted as “artistic” speech, say, as song lyrics. How can law enforcement and courts tease out “true” threats from, say, outlaw country music or hip-hop? When should society trade the right to hear the next “I Shot the Sheriff” for protection against illegal intimidation?
Master attorneys John Elwood and Michael Dreeben litigated these questions from opposite sides at the U.S. Supreme Court. Listen to them continue the conversation this Friday at noon, with moderator Prof. Eugene Volokh – America’s most prominent scholar of speech and the law.

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On Thursday, August 29th, the Justice Department’s Office of the Inspector General released its “Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda.” The inspector general report concluded that James Comey violated numerous. This follows an OIG Report earlier this summer criticizing Comey’s conduct in connection with the Clinton email server investigation.
The OIG also released a report in February of 2018, heavily criticizing the conduct of former top FBI official Andrew McCabe for “lack of candor.” The final decision on whether to prosecute McCabe is expected to be made soon.
John Malcolm and John Yoo join us to discuss these and other developments.

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The 2018-2019 Supreme Court term saw the continued evolution of Criminal Law Jurisprudence. Over a dozen cases were decided that will serve to shape and guide criminal law jurisprudence moving forward, on both the State and Federal level. Several prominent legal experts join us to recap the influential Criminal Law related Supreme Court decisions of 2019. Among the cases discussed will be, Timbs v. Indiana, Madison v. Alabama, Bucklew v. Precythe, United States v. Haymond, Mitchell v. Wisconsin, and many more.

Featuring:
Greg Brower, Shareholder, Brownstein, Hyatt, Farber, Shreck
Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation
Dean Mazzone, Deputy Chief of the Criminal Bureau of the Massachusetts Attorney General’s Office, Massachusetts Attorney General

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For over half a century, federal law and most states have regulated secretly recording speech over phone lines and in person by the government and private citizens. Recently, some of the most restrictive of these laws have been struck down on First Amendment grounds, and even some longstanding, widespread provisions are now subject to litigation. Steve Klein, partner at Statecraft PLLC and counsel to James O’Keefe, Project Veritas and Project Veritas Action Fund in several of these lawsuits, will discuss the constitutional and policy considerations of secret recording by citizens.

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