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California MCLE Podcast — Government
California MCLE Podcast

The California MCLE Podcast by TalksOnLaw is a series of enjoyable interviews with leading law professors, practitioners, and judges. Topics from police power, to technology and privacy, to the ownership of DNA. All subscribers can enjoy our interview series with the titans of law. MCLE credit for this series is available only to our TalksOnLaw premium or TalksOnLaw podcast member. Visit www.talksonlaw.com to learn more and join. Courses are accredited on the date published. However, visit www.TalksOnLaw.com/podcast to confirm whether older courses remain active for MCLE reporting purposes.

Copyright: © Copyright 2024 California MCLE Podcast

Latest Episodes:

AI Models & Copyright Battles Sep 30, 2024

Large language models (LLMs) are trained on vast, nearly unfathomable amounts of data—data that is now reshaping the very fields from which it was sourced, including literature, journalism, music, and photography. As a result, these models have sparked high-stakes litigation and raised novel legal questions about ownership and intellectual property, both in the AI training process and the output they produce. In this conversation, we explore the intersection of AI training and copyright law with Professor Shyamkrishna (Shyam) Balganesh of Columbia Law School, a prominent legal scholar who has been closely examining these emerging issues.

(Credits: General 1.5 | MCLE available to TalksOnLaw "Premium" or "Podcast" members. Visit www.talksonlaw.com to learn more.)

Lawyers + LLMs: AI Ethics Sep 23, 2024

AI is changing how lawyers do their work and raising questions about how lawyers can harness artificial intelligence consistent with their professional responsibilities. Georgetown Law Professor Tanina Rostain answers questions about the transformative impact of AI on the legal profession and how the rules of professional conduct apply to the new ways that attorneys use AI to conduct research, draft documents, and interact with clients.

(Credits: Technology 1.0 | MCLE available to TalksOnLaw "Premium" or "Podcast" members. Visit www.talksonlaw.com to learn more.)

Gun Rights under Rahimi & Cargill Jun 28, 2024

Professor Joseph Blocher (Second Amendment scholar and co-director of the Duke Center for Firearms Law) explains two significant recent Supreme Court cases: United States v. Rahimi and Garland v. Cargill. This discussion provides an in-depth analysis of the legal reasoning behind these decisions and their broader implications for gun regulation and gun rights in the United States.

(Credits: General 1.0 | MCLE available to TalksOnLaw "Premium" or "Podcast" members. Visit www.talksonlaw.com to learn more.)

Criminal Lab-Grown Meat Jun 28, 2024

The sale and production of lab-grown meat have been criminalized in Florida and Alabama, with other states considering similar legislation. Food law expert Professor Michael Roberts from UCLA Law School explains what the new laws do as well as how they fit into the federal regulatory framework and the historical context of food law and politics in the United States.

(Credits: General 1.0 | MCLE available to TalksOnLaw "Premium" or "Podcast" members. Visit www.talksonlaw.com to learn more.)

Prosecutorial Discretion – Power & Responsibility Jun 19, 2024

The power of prosecutors extends far beyond the courtroom, shaping the trajectory of countless lives through their decisions. Legal experts Bruce Green and Rebecca Roiphe delve into this immense authority in an insightful interview, exploring the nuances of prosecutorial discretion and its profound impact on the justice system. Their discussion sheds light on the ethical and constitutional standards that guide prosecutorial conduct, emphasizing the balance between power and responsibility.

(Credits: Legal Ethics 1.0 | MCLE available to TalksOnLaw "Premium" or "Podcast" members. Visit www.talksonlaw.com to learn more.)

Deadly Force as Self Defense May 28, 2024

The law of self-defense permits the use of deadly force under a strict set of conditions: the threat must be both imminent and unlawful, and the response, both necessary and proportionate. But what of the murkier scenarios where multiple parties, ensnared in the throes of perceived danger, believe themselves justified in their fears? Consider the tragic case of George Zimmerman and Trayvon Martin—where does the law stand when fear is misplaced, and how swiftly can one lawfully escalate to lethal force? Professor Kimberly Ferzan of the University of Pennsylvania School of Law navigates these shadowy waters and others offering her insights into the delicate balance between legal theory and the stark realities of personal safety.

(Credits: General 1.0 | MCLE available to TalksOnLaw "Premium" or "Podcast" members. Visit www.talksonlaw.com to learn more.)

Injustice by Forensics May 20, 2024

Forensic science, when applied rigorously, has the power to catch and convict criminals, but when mishandled, can lead to tragic miscarriages of justice. In this eye-opening interview with Prof. Brandon Garrett (Duke Law School) and Dr. Peter Stout (Houston Forensic Science Center), explore high-profile exoneration cases like those of Josiah Sutton and George Rodriguez and the systemic issues plaguing crime labs across the country.

(Credits: General 1.0 | MCLE available to TalksOnLaw "Premium" or "Podcast" members. Visit www.talksonlaw.com to learn more.)

Weaponization of Outer Space Apr 29, 2024

As the US accuses Russia of developing nuclear-armed satellites, what does international law say about weapons of mass destruction (WMD) in outer space? Space law expert, Professor Frans von der Dunk discusses the weaponization of outer space and the laws that govern weapons beyond the planet. The deployment of weapons of mass destruction in outer space presents not only a significant threat to global security but also a complex challenge to international law, explains Professor von der Dunk, a leading authority on space law at the Nebraska College of Law.

(Credits: General 1.0 | MCLE available to TalksOnLaw "Premium" or "Podcast" members. Visit www.talksonlaw.com to learn more.)

A Mindful Lawyer – Combatting Lawyer Stress Jan 10, 2024

The legal profession is known for its high-stakes, high-stress lifestyle. The dangers of stress to mind and body are similarly well known. However, as one endocrinologist famously put it, “It is not stress that kills us, it is our reaction to it.” In a time of heightened stress, we explore one potentially powerful strategy that lawyers can use to more effectively combat stress and improve their professionalism–mindfulness. As attorney and mindfulness teacher Jon Krop explains, mindfulness is the practice of being present in the moment and a practical tool to help better manage stress. Krop describes some of the unique characteristics of the legal profession that may make lawyers more prone to stress and makes the case for incorporating mindfulness and meditation to improve job performance and the health of the profession overall. This interview explores both the scientific underpinnings and benefits of mindfulness and concrete tips to incorporate mindfulness into a busy lawyer’s daily life.

(Credits: 1.0 Competence | MCLE available to TalksOnLaw "Premium" or "Podcast" members. Visit www.talksonlaw.com to learn more.)

War Crimes – Israel & Gaza Jan 03, 2024

In the volatile conflict between Israel and Gaza, the line between legitimate military action and war crimes is often blurred. Professor Michael Newton, an expert in the laws of war, begins with a brief history of war crimes and how these international laws were codified. He then turns to the violence in Gaza and Israel, using real life examples from bombings to kidnapping to better understand what differentiates a legitimate act of war from a war crime.

(Credits: 1.5 General MCLE)

Model Minority & Associates Nov 03, 2023

Like all attorneys, Asian-American lawyers generally strive for legal excellence by honing their expertise and delivering quality client service. Yet, they can confront a myriad of stereotypes, biases, and misconceptions from colleagues and even clients. In this interview, Prof. Peter Huang of Colorado Law delves into the unique challenges and biases Asian-American lawyers face.

Prof. Huang discusses how many view Asian-American lawyers through the lens of the "model minority" myth. This stereotype paints Asian-Americans as a monolithic group, emphasizing traits such as studiousness, diligence, and obedience, and overlooking their diverse individual qualities. Such perceptions can have detrimental effects. Aspiring Asian-American leaders or law partners may find themselves pigeonholed as effective but potentially lacking creativity or vision, consequently limiting their ascent to senior roles.

Prof. Huang emphasizes that today's Asian-American lawyers often wrestle with subtle, unspoken or subconscious biases. He further enriches the discussion by introducing concepts like the “perpetual foreigner syndrome” or the minority “cloak of invisibility” shedding light on multifaceted challenges Asian-American professionals encounter.

(Credits: 0.5 Implicit Bias & Bias Reducing Strategies MCLE)

Dying Without a Will Nov 01, 2023

When you die without a will, the default rules of inheritance law kick in, allocating assets based on established formulas and hierarchies. In this conversation, Prof. John Morley (Yale Law School) explains basic inheritance law and delves into the default rules that come into play when a person dies without a will (“intestate”) and how these rules both vary significantly from state to state and are often at odds with common expectations when it comes to an individual’s legacy.

Through his recent survey, Prof. Morley has uncovered differences in inheritance expectations across various demographic groups. For instance, women are notably less likely than men to intentionally leave money to their spouses. Additionally, the conversation explores discrepancies by race and sexual orientation as well as some notable surprises pertaining to less traditional family structures.

Prof. Morley's insights not only underscore the importance of having a will that accurately reflects one's wishes but also suggest that intestacy laws across the nation may be out of step with modern expectations and in need of revision.

(Credits: 1 General MCLE)

SFFA v. Harvard Aug 10, 2023

Students for Fair Admissions v. Harvard College signals a radical shift in how the Supreme Court views favoring racial diversity and affirmative action in higher education. Chief Justice John Roberts, writing the majority opinion in SFFA v. Harvard, rejects the use of race as a factor in college admissions, asserting that this practice, previously accepted under prior cases such as Bakke and Fisher (see additional resources), is no longer permissible. Professor Theodore Shaw of UNC Law School explains the evolution of affirmative action and racial diversity programs and the impact of this decision on our understanding of Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment.

(Credits: 1 General MCLE)

Why Law Firms Implode Jun 16, 2023

Law firm failures do not merely fall off into bankruptcy - they are spectacles of grand implosions. American law firms suffer from unique structural risks that can drive these formidable institutions to not just falter, but to rapidly collapse even when their balance sheets and profitability would suggest more durability in another industry. This phenomenon, far from random, stems from the fragile ownership structure unique to the legal industry. In an interview with Yale Law Professor John Morley, we take a deep dive into the inherent risks and dramatic consequences of law firm failures, and why this topic should command our attention.

(Credits: 1 Legal Ethics MCLE)

Police Commands & Police Coercion Jun 10, 2023

Police commands are the cornerstone of law enforcement, at once projecting the authority of the state and instantly creating legal obligations for which the failure to comply can result in arrest, detention, or even the use of deadly force. But what are the limits of police commands? When are they lawful and what rights do we have to disobey them when they are unlawful? Professor Rachel Harmon, a leading scholar on police law explains how police commands are the building blocks of police authority and can serve as the foundation upon which a peaceful resolution to a crisis is built. On the other hand, bad commands can create confusion, escalate tensions, and result in unnecessary use of force. Prof Harmon explains the legal limits of police commands and how regulating them can play a critical role in reducing police abuse and unnecessary force.

(Credits: 1 General MCLE)

Inside the Shadow Docket Mar 14, 2023

The term shadow docket refers to the decisions and orders of the Supreme Court outside of the traditional cases. Shadow docket cases generally lack the formal briefings, oral arguments, and reasoned, lengthy opinions of the merits cases. Over the last few years, the Court has increasingly used these decisions to address high-profile and politically-charged issues such as immigration, election disputes, pandemic restrictions, and abortion bans.

In this interview, Prof. Steven Vladeck (University of Texas Law School) breaks down this shift in power at the High Court and offers detailed analysis and a critique of the increased use of the shadow docket and what it might mean for the Court’s already-tarnished prestige.

(Credits: 1 General MCLE)

Economic Incentives for Diversity Jan 12, 2023

Diversity and inclusion are laudable goals, but how can change be created in an industry driven by tradition and financial return? This interview explores the concept of using economic incentives and data to encourage diversity within the legal profession. The conversation also explores controversial topics such as diversity spin, partner compensation, and the impact on the legal profession of changes to affirmative action law currently being considered at the Supreme Court.

Aviva Will is the Co-Chief Operating Officer at Burford Capital and one of the architects behind Burford’s Equity Project (a $150,000,000 fund allocated exclusively for women and minority litigators). Keith Harrison is a partner and co-chair of Crowell & Moring’s Litigation Group and a member of the firm's Diversity Council. Aviva and Keith sit down with Joel to discuss putting money on the line to overcome inherent biases and structural disadvantages and to encourage, maintain, and grow diversity in the profession of law.

(Credits: 0.5 Implicit Bias & Bias Reducing Strategies MCLE)

Lady Justice Jan 04, 2023

The role of women in the legal profession is more bigger than a statistic, or headcount. Journalist Dahlia Lithwick shares insights from her beat (American courts and the law) about the insurgent role women are on the cutting edge of developing law. In an interview that reflects upon her recent book, Lady Justice (Penguin Press, 2022), Dahlia explains how gender diversity is also about women sharing the stage at the very highest levels of the profession.

The interview explores the role of women in the most high-pressure and high-profile positions in the legal world – from Supreme Court justices to Supreme Court advocates, to the fight against white nationalism, to the battle to reform gerrymandering. Finally, Dahlia speaks to host Joel Cohen about the treatment of women in federal clerkships. She shares observations, instances of abuse, and explains how the hierarchical nature of clerkships can permit bullying, harassment, and sexually improper conduct to go unchecked.

Finally, Dahlia leaves listeners with an encouraging message that while injustice and disparity persist, prominent women are driving change on many of the most important issues of our time, inspiring the next generation of women attorneys. 1.5 Hrs (Elimination of Bias in the Legal Profession)

(Credits: 1.5 Elimination of Bias MCLE)

Regulating Crypto after FTX Nov 29, 2022

How are cryptocurrencies treated by the U.S. government? Former Chairman of the CFTC and a pioneer of crypto regulation, Christopher Giancarlo breaks down the crypto-regulatory landscape. Giancarlo explains why some crypto is treated as a commodity, others as a security, while others may not be regulated at all (yet). In a time of extreme volatility in the crypto markets, Giancarlo explores FTX, Bitcoin, stablecoins, DAO's, enforcement actions by the CFTC, the SEC under Chairman Gary Gensler, and the future of crypto regulation. Finally, Giancarlo looks at the "digital dollar" and discusses with Joel how issues such as privacy and the 4th Amendment would apply to U.S. fiat cryptocurrency.

(Credits: 1 General MCLE)

God & Football after Bremerton Oct 17, 2022

In the religious freedom case, Kennedy v. Bremerton School District (2022), the Supreme Court weighed in on the role of God in football in American public schools. Prof. Sarah Barringer Gorden (UPenn Law) explains the case, its impact on the First Amendment's Establishment Clause separating church and state, and the unusual history of religion and football at the Supreme Court.

In Bremerton, the Court decided whether a public school football coach named Joseph Kennedy violated the Establishment Clause by prominently praying at midfield after each game. The Court found in favor of the coach and determined that his actions were protected by the Free Speech and Free Exercise protections of the First Amendment. Finally, Prof. Gordon explains the historical ebb and flow of Establishment Clause power and lays out the Court’s new test for evaluating potential violations of church and state after Kennedy v Bremerton.

(Credits: 1 General MCLE)

Recusal & the Bounds of Judicial Bias Oct 01, 2022

With incredible powers to make life-changing decisions involving liberty and fortune, judges are expected to make decisions with a threshold level of neutrality. In this conversation, we explore the limits of that threshold. When does judicial bias legally or ethically preclude a judge from hearing a case? Alicia Bannon (director of the Judiciary Project at the Brennan Center for Justice) explains the laws and limits on judicial recusal and where gray areas remain.

Bannon draws on contentious contemporary examples such as cases involving Justice Thomas and his wife’s connection to cases involving January 6th as well as cases relating to former President Trump. Bannon explains that the constitutional test for recusal (under the Due Process protections) is “serious risk of actual bias.” The conversation goes on to explore the limits of that test and potential reforms to improve the integrity of U.S. courts.

(Credits: 1 Legal Ethics MCLE)

WV v. EPA & the Major Questions Doctrine Sep 01, 2022

On June 30th, 2022, the Supreme Court decided West Virginia v. Environmental Protection Agency (EPA), limiting the EPAs ability to regulate greenhouse gas emissions. Beyond its direct impact on climate policy, the case significantly impacts administrative power by supercharging a new legal regime - the “major questions doctrine.” Environmental law and administrative law expert, Professor Lisa Heinzerling (Georgetown Law Center) unpacks the Court’s decision in WV v. EPA and explains the broad powers of the judicial doctrine.

Prof. Heinzerling goes on to explain how major questions may prove to be the death knell for a prior test known as “Chevron deference.” Where Chevron assured judicial restraint toward federal policy, major questions now threatens to stymie agency action on some of the most critical and contentious issues of the moment, from climate change policy and far beyond.

(Credits: 1 General MCLE)

Driverless Cars—A Shift in Risk Aug 15, 2022

When algorithms take the wheel and human drivers move to the back seat, who's to blame when an accident occurs? The future of driverless cars is already here, with Waymo test offering its autonomous taxi services and more companies like GM, Nissan, and even Amazon entering the race to market. As driverless cars become the norm, the laws governing its development and use will have to adapt accordingly. RAND Corporation’s James Anderson discusses the complicated legal and policy issues that will need to be contemplated, including tort liability, the insurance regime, cybersecurity, and the regulatory framework.

(Credits: 0.5 General MCLE)

Gun Law after Bruen Aug 01, 2022

On June 23rd, 2022 the Supreme Court decided the landmark gun rights case New York State Rifle and Pistol Association Inc. v. Bruen. The case, widely seen as a win for advocates of personal gun rights, fundamentally altered the test that courts use to evaluate constitutionality under the 2nd Amendment and expanded gun rights outside of the home. Prof. Joseph Blocher of Duke Law School explains how Bruen fits into the evolving Second Amendment doctrine.

In Bruen, Justice Thomas writing for the majority knocks down New York's concealed carry law and along with it calls into question laws in other states where significant discretion is given to the state in determining whether they may issue a permit. As Prof. Blocher explains, the case further replaces the two-part Second Amendment test used by the nation's circuit courts of appeals in favor of a new test focused on historical tradition. After analysis of the decision of the court as well as concurring and dissenting opinions, Blocher goes on to explore the impact of Bruen on laws and individuals across the nation.

(Credits: 1 General MCLE)

Surrogates, Donors, & Same Sex Parental Rights Jul 01, 2022

More than ever before, Americans are turning to assisted reproduction to start their families. In this interview, leading family law expert Professor Douglas NeJaime (Yale Law School) explains how U.S. laws are attempting to catch up to this shift. Traditionally parental rights are based on the marital presumption – the parents are, by default, the woman who birthed the child and her husband. This can then result in the denial of parental rights to non-biological mothers or fathers who start a family using assisted reproduction. In these circumstances, states may assign parental rights to the egg donor, sperm donor, or surrogate, despite the intentions and sometimes written agreements of the parties. Finally, Prof. NeJaime discusses how new laws in a number of states better fit modern reproduction practices and rethinks what it means to be a legal parent.

(Credits: 1 General MCLE)

Newsworthiness – Press Freedom v. Privacy (Part 2) Jun 01, 2022

Press Freedom vs. Privacy—Newsworthiness in a Self-Publishing Era (Part 2)

An interview with Prof. Amy Gajda

The First Amendment provides broad but not absolute freedom of press protections. Louis Brandeis and Samuel Warren first famously articulated the right to privacy in 1890, a “right to be let alone” from undue prying by the press in private matters. While historically the press has enjoyed considerable latitude in determining what is newsworthy and publishable, there have been recent movements in the courts to constrict press freedoms and broaden individual privacy rights. Professor Amy Gajda of Tulane Law School examines how the concept of newsworthiness has evolved and what happens to press freedoms when “quasi-journalists,” self-publishers, bloggers and the like who don’t abide by traditional ethics codes overstep the editorial line.

(Credits: 0.5 General MCLE)

Newsworthiness – Press Freedom v. Privacy Jun 01, 2022

Press Freedom vs. Privacy—Newsworthiness in a Self-Publishing Era (Part 2)

An interview with Prof. Amy Gajda

The First Amendment provides broad but not absolute freedom of press protections. Louis Brandeis and Samuel Warren first famously articulated the right to privacy in 1890, a “right to be let alone” from undue prying by the press in private matters. While historically the press has enjoyed considerable latitude in determining what is newsworthy and publishable, there have been recent movements in the courts to constrict press freedoms and broaden individual privacy rights. Professor Amy Gajda of Tulane Law School examines how the concept of newsworthiness has evolved and what happens to press freedoms when “quasi-journalists,” self-publishers, bloggers and the like who don’t abide by traditional ethics codes overstep the editorial line.

(Credits: 0.5 General MCLE)

The Leaked Opinion: Dobbs v. Jackson May 06, 2022

On May 2, 2022, a secret draft of Justice Samuel Alito’s majority opinion in the case Dobbs v. Jackson Women’s Health was published by the website Politico. The opinion is the first unpublished Supreme Court draft known to be leaked. Drafted by Justice Alito, the decision of the Court would also be the first to overturn a constitutional right, overturning the abortion protections established by Roe v. Wade and Planned Parenthood v. Casey. It its wake, dozens of states (including Mississippi, the state whose law was approved by the decision) will be permitted to to restrict and even ban abortion.

Given the impact and the urgency, we rushed out this SCOTUS update explaining Alito’s leaked draft, what are his arguments, and what it means in terms of constitutional law. TalksOnLaw’s founder, Joel Cohen read the opinion in the hours immediately after it was dropped and gives a detailed, politically neutral (we hope) summary of the arguments presented by Justice Alito.

(Credits: 0.5 General MCLE)

Human Information Privacy (Part 2) Apr 28, 2022

As troves of personal data are collected, stored, and used by governments and private companies in today’s digital age, privacy is becoming an increasing concern. Privacy is essentially about setting boundaries to limit the power that information confers on entities, whether public or private, over individuals. Without adequate privacy safeguards, governments have a blank check to interfere in legitimate political exercise. Companies are free to manipulate consumers through “dark patterns” and presenting an illusion of choice. Professor Neil Richards of the University of Washington in St. Louis School of Law explores where the U.S. legal framework potential falls short, namely in consumer protection against private entities, and the problems he sees ripe for reform. He proposes a few starting points to craft meaningful regulations for privacy, including combating deception and restricting surveillance-based advertising.

(Credits: 0.5 General MCLE)

Human Information Privacy Apr 27, 2022

As troves of personal data are collected, stored, and used by governments and private companies in today’s digital age, privacy is becoming an increasing concern. Privacy is essentially about setting boundaries to limit the power that information confers on entities, whether public or private, over individuals. Without adequate privacy safeguards, governments have a blank check to interfere in legitimate political exercise and companies are free to manipulate consumers through “dark patterns.” Professor Neil Richards of Washington University in St. Louis School of Law discusses why privacy matters in the digital age and the current framework of constitutional protections against government surveillance. He then explores where the U.S. legal framework falls short, namely in consumer protection against private entities, and the ways in which the digital world is designed by tech companies to steer consumers into giving up ever more personal information.

(Credits: 0.5 General MCLE)

Cyberattack as Use of Force Apr 19, 2022

The 2022 Russian invasion of Ukraine has highlighted the risks that states and private entities face in the new realm of cyberwarfare and the need for establishing and clarifying international norms in this context. In this interview we examine cyberattacks under the lens of international law. Professor Duncan Hollis of Temple Law explains the development of international cyberspace law, starting with the preliminary questions of whether and how existing international laws apply. This is part 1 of a two part interview with Prof. Duncan Hollis.

(Credits: 0.5 General MCLE)

Cyberattack as Use of Force (Part 2) Apr 19, 2022

In part 2 of the interview with cyberlaw Professor Duncan Hollis, Hollis explains the standards proposed to assess whether a cyberattack amounts to a use of force and how states may respond when non-state actors engage in cyber operations. Prof. Hollis then goes on to discuss how states can obfuscate their actions by contracting out the work or by failing to crack down on cybercriminals who target certain nations. Finally, Hollis discusses influence operations and to what extent international laws and norms apply when influence operations do not involve traditional force.

(Credits: 0.5 General MCLE)

Law of Bourbon Jan 24, 2022

Bourbon is a uniquely American spirit and has played an outsized role in developing aspects of American law. Bourbon history is peppered with dramatic legal battles and legal (and illegal) innovations, whether it’s laying the foundation for trademark protections or establishing the concept of brand name in the 1800s. Brian Haara, attorney and author of Bourbon Justice: How Whiskey Law Shaped America, explains how bourbon is legally defined and explores this American whiskey’s shady past and the legal concepts “that bourbon built,” from trademark to consumer protection to truth in advertising.

(Credits: 0.5 General MCLE)

Suspicious Clients Jan 14, 2022

If a lawyer suspects, but does not know, that a client or potential client is seeking their services to engage in criminal activity, can they still offer legal counsel? When does a lawyer have a duty to investigate her own clients? In its Formal Opinion 491 issued in 2020, the American Bar Association addressed lawyers’ obligations to inquire further to determine whether a client may be attempting to perpetrate a crime or fraud. Professor Peter Joy, legal ethics scholar, explains the ethics rules governing the lawyer’s scope of representation. He examines the standards put forth in Opinion 491 and raises surprising questions as to whether such standards actually fit with the ethics rules as they are drafted.

(Credits: 0.5 Legal Ethics MCLE)

Ethics and Batson – Race Discrimination in Juries Jan 05, 2022

The Batson rule, prohibiting exclusions from jury based on race, is widely viewed as nearly impossible to enforce in practice. However, where Botson fails, do the Model Rules of Professional Conduct have anything to say?.

The United States has a long history of racial discrimination in juries. In 1875, Congress passed the Civil Rights Act which prohibited race-based discrimination in jury service. Despite the federal law, states continued to remove prospective black jurors. Over time, techniques to exclude nonwhites shifted from vague requirements for jury service to excluding jurors using peremptory challenges. Despite the landmark case Batson v. Kentucky (1986) in which the Supreme Court held that the state may not use peremptory challenges to exclude jurors solely on the basis of race, the practice persists today. Legal ethics scholar, Prof. Peter Joy, explains the Batson standard and the ways in which the framework falls short. He discusses the legal ethics of racial discrimination in jury selection and considers alternatives to peremptory challenges to combat discrimination.

Mind Police–Memory Evidence (Part 2) Dec 13, 2021

In 2008, a woman in India was convicted of murder for the death of her fiancé on the basis of evidence derived from a brain-based memory detection exam. The test measured brain activity which purportedly indicated that she in fact had personal knowledge of the poisoning of the victim. While such technology is highly controversial and not in common use in U.S. courts, significant advances in brain science now justify analysis of both the potential applications of memory evidence as well as the constitutional implications of doing so. In part 2 of this 2-part interview, Professor Emily Murphy of UC Hastings Law evaluates how evidence from brain-based memory detection may be admitted in courts under Daubert. She then explores whether such evidence should be admitted even if the technology were perfect, given technological and biological limits, and how it may infringe upon constitutional and privacy rights if the government compels individuals to undergo brain imaging to decode memories.

(Credits: 0.5 General MCLE)

Mind Police–Memory Evidence in the Courts Dec 10, 2021

In 2008, a woman in India was convicted of murder for the death of her fiancé on the basis of evidence derived from a brain-based memory detection exam. The test measured brain activity which purportedly indicated that she in fact had personal knowledge of the poisoning of the victim. While such technology is highly controversial and not in common use in U.S. courts, significant advances in brain science now justify analysis of both the potential applications of memory evidence in criminal justice as well as the constitutional implications of doing so. In part 1 of this 2-part interview, Professor Emily Murphy of UC Hastings Law explains the current state of brain-based memory detection technology and how it differs from lie detection tests. She discusses the hypothetical use cases for forensic purposes and the framework for admissibility of expert testimony under the Daubert standard.

(Credits: 0.5 General MCLE)

Policing the Police (Part 2) Nov 22, 2021

In part 2 of this 2-part series, Professor Harmon explains the constitutional right to record the police and under what circumstances that right may be limited, and explores the potential federal reforms that may bring about systemic changes in policing. Prof. Rachel Harmon of University of Virginia School of Law is a leading scholar on policing and the laws that regulate police behavior and the author of the book, “The Law of the Police” (2021).

(Credits: 0.5 General MCLE)

Policing the Police Nov 16, 2021

Police officers have broad authority and discretion to enforce order — they can take property, stop, detain, and arrest people — at times under threat of lethal force. With such great power comes a significant risk of abuse, evidenced by the high-profile instances of brutality and misconduct.

In part 1 of this 2-part series, Joel sits down with Professor Rachel Harmon of UVA Law and the director of its Center for Criminal Justice to explore the jurisprudential framework of policing. Prof. Harmon then explains the constitutional and statutory limits of police conduct, including the use of deadly and non-deadly force in police-citizen encounters, arrests for protests and verbal opposition, and “contempt of cop” or retaliatory arrests.

(Credits: 0.5 General MCLE)

Space Law (Part 2) Oct 18, 2021

In part 2 of this 2-part series, space law expert Professor Frans von der Dunk discusses how the Outer Space Treaty applies to space tourism and other private space activities and explains the laws on militarization and weaponization of space.

Frans von der Dunk is a professor at Nebraska College of Law and an expert in space, cyber, and telecommunications law. Von der Dunk is the series editor of ‘Studies in Space Law.’ and in 2004, he was awarded the Distinguished Service Award of the International Institute of Space Law of the International Astronautical Federation.

(Credits: 0.5 General MCLE)

The Ethical Limits of Negotiations (Part 2) Aug 30, 2021

In negotiations, can lawyers lie to their advantage? Can lawyers ethically use bullying or threatening to benefit clients? Professor Carrie Menkel-Meadow of UC Irvine Law explores the boundaries of ethics requirements in negotiations. In part 2 of this 2-part series, Prof. Menkel-Meadow explores the tactics and behaviors permissible and impermissible, including bullying and threats, and the concept of fairness in negotiations.

The Ethical Limits of Negotiations Aug 23, 2021

In negotiations, can lawyers lie to their advantage? Can lawyers ethically use bullying or threatening to benefit clients? Professor Carrie Menkel-Meadow of UC Irvine Law explores the boundaries of ethics requirements in negotiations. In part 1 of this 2-part series, she explores the rules on truthful statements, fraud, misrepresentation, and disclosure; facts versus opinions; and the tactics and behaviors permissible and impermissible in negotiations, including bluffing and puffing.

COVID-19 Vaccine Mandates Aug 01, 2021

COVID-19 vaccinations are lagging in the United States, and in an effort to curb rising cases, some states, universities, and other entities have instituted vaccine mandates for its employees and other affiliated individuals. In contrast, other states like Arkansas, Montana, Florida, and Utah have passed legislation prohibiting state agencies or businesses from requiring vaccination. Professor Dorit Reiss of UC Hastings Law explains the constitutionality of vaccine requirements and the open question of whether vaccines approved under emergency use authorization may be mandated. She explains the divergent paths some states, employers, and universities have taken and the mounting legal challenges against such laws and policies.

Combatting Wildfires Jul 12, 2021

In the United States, wildfires have become larger and more frequent, threatening lives and devastating local communities particularly in the American west. A century of wildland fire management policy, climate change, and land development patterns have created a perfect storm of a wildfire crisis. Professor Stephen R. Miller examines the factors proliferating wildfires and those complicating effective wildland fire management, including the regulatory structure and the patchwork of federal, state, local, and tribal agencies responsible for fire planning and response.

Liability after GameStop - Practitioners Insights Jul 06, 2021

In early 2021, shares of GameStop (GME) spiked amid weeks of volatile trading. In the aftermath, several players, including Robinhood, Redditors, and market makers like Citadel face increased risk of liability and regulatory scrutiny for their roles in the GameStop saga. Kenneth Breen and Phara Guberman, partners at Paul Hastings, explain how the events unfolded and break down the legal issues involved, including market manipulation, breach of contract, and potential FINRA violations. They discuss the standards required to show pump and dump schemes and case law that may provide color on how the events should be evaluated.

Who's Liable after GameStop? Jun 16, 2021

In early 2021, shares of GameStop (GME) spiked, jumping nearly 1000% amid weeks of volatile trading. The rally was initially spurred by discussions of shorting the stock in the Reddit subreddit r/wallstreetbets, and many of those traders flocked to Robinhood, an online broker-dealer known for its commission-free trades. At the height of activity, Robinhood temporarily restricted trading of GME and other similar stocks. In the aftermath, several players, including Robinhood, Redditors, and market makers like Citadel face increased risk of liability and regulatory scrutiny. Corporate and securities law professor James Cox discusses the conditions that created the GameStop saga, its potential impact on the capital markets, and how regulators may review the trading frenzy.

This is part one of a two-part interview.

Climate Change Law under Biden Jun 02, 2021

The climate crisis threatens the stability of our planet and our very way of life. In this interview, we explore the power of U.S. law to help stimulate innovation and the change to clean and renewable fuels. Michael Gerrard, professor at Columbia Law School and the director of the Sabin Center for Climate Change Law, gives insight into legal changes to date, analyzes the impact of the Trump Administration, and explores the dramatic changes of the Biden administration to combat the dangerous warming of our planet.

(Credits: 0.5 General MCLE)

Abandoned DNA and the Ownership of Sperm (Part 2) Dec 17, 2019

Are DNA, human tissue, and sperm "property"? What rights do you have over discarded DNA or cells that you shed everyday? Can you be sued for paternity for donating sperm or "stolen" sperm? Professor Glenn Cohen explores these questions and more.

Prof. Cohen is one of the world's leading experts at the intersection of bioethics and the law, as well as health law. A professor at Harvard Law School, Glenn Cohen also serves as the Faculty Director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

(Credits: 0.5 General MCLE)

Abandoned DNA and the Ownership of Sperm Dec 16, 2019

Are DNA, human tissue, and sperm "property"? What rights do you have over discarded DNA or cells that you shed everyday? Can you be sued for paternity for donating sperm or "stolen" sperm? Professor Glenn Cohen explores these questions and more.

Prof. Cohen is one of the world's leading experts at the intersection of bioethics and the law, as well as health law. A professor at Harvard Law School, Glenn Cohen also serves as the Faculty Director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

(Credits: 0.5 General MCLE)

Lawyering Beyond State Lines Dec 15, 2019

Drafting client emails on an airplane, reviewing an agreement while vacationing out-of-state - lawyers all do this, but are they running afoul of ethics rules? As clients are increasingly doing business across multiple state lines, today's lawyers need to know the pitfalls and safe harbors in multi-jurisdictional practice. Sarah McShea, legal ethics guru, breaks down this murky area.

Sarah McShea is an experienced New York ethics attorney who advises lawyers and law firms on a wide range of professional responsibility issues, including disciplinary defense, disqualification and sanctions litigation, risk management for law firms, law firms disputes and dissolutions, and bar admission proceedings. From 1980 to 1989, she served as the staff counsel and then as Deputy Chief Counsel for the Departmental Disciplinary Committee, First Department, and then as the chief of the Public Corruption Bureau of the Kings County District Attorney’s Office from 1990 to 1993. She was an adjunct professor at Brooklyn Law School from 2001 to 2007 and has been on the editorial board of the ABA/BNA Lawyers’ Manual on Professional Conduct since 1994.

(Credits: 0.5 Legal Ethics MCLE)

A Different Path to the Bench Dec 14, 2019

Despite increasing numbers of minorities and women in law schools and state bars, there continues to be a lack of diversity in the judiciary. As the first female South Asian judge in New York, Judge Rajeswari talks about her unique path to the judgeship and why diversity on the bench matters.

Judge Raja Rajeswari is a judge on the New York City Criminal Court of the New York State Unified Court System. She was appointed by Mayor Bill de Blasio in April 2015 and sworn in that month. She is the first South Asian female judge to be appointed a judge to a criminal court New York City. Prior to her appointment, she served as the deputy chief of the Special Victims Unit for the Richmond County District Attorney’s Office for 4 years.

(Credits: 0.5 Diversity MCLE)

The Dangers of a Lateral Move Dec 13, 2019

What are the do's and don'ts for lawyers making lateral jumps from one firm to another? Sarah McShea, legal ethics guru, reveals the hidden dangers and breaks down the ethics minefield in conflicts, communications with client, fiduciary duties to the law firm, and more.

Sarah McShea is an experienced New York ethics attorney who advises lawyers and law firms on a wide range of professional responsibility issues, including disciplinary defense, disqualification and sanctions litigation, risk management for law firms, law firms disputes and dissolutions, and bar admission proceedings. From 1980 to 1989, she served as the staff counsel and then as Deputy Chief Counsel for the Departmental Disciplinary Committee, First Department, and then as the chief of the Public Corruption Bureau of the Kings County District Attorney’s Office from 1990 to 1993. She was an adjunct professor at Brooklyn Law School from 2001 to 2007 and has been on the editorial board of the ABA/BNA Lawyers’ Manual on Professional Conduct since 1994.

(Credits: 0.5 Legal Ethics MCLE)

From Super PACs to Dark Money (Part 2) Dec 07, 2019

(0.5 General California MCLE) American political campaigns are increasingly financed by Super PACs and shadowy nonprofits. Some believe that too much money being funneled by special interest groups and wealthy donors opens the door to corruption and influence buying. Host Suraj Patel sits down with Columbia Law Professor Briffault to explore campaign finance laws and get to the bottom of this complicated debate.

Professor Richard Briffault is the Joseph P. Chamberlain Professor of Legislation at Columbia Law School. He joined the Columbia Law faculty in 1983. He was law clerk to the Honorable Shirley M. Hufstedler of the United States Court of Appeals for the Ninth Circuit, and was Assistant Counsel to New York Governor Hugh L. Carey. In 2014, Professor Briffault was appointed Chair of the Conflicts of Interest Board of the City of New York. He has served as the Reporter for the American Law Institute's project on Principles of Government Ethics.

Super PACs & Dark Money Dec 06, 2019

(0.5 General California MCLE) American political campaigns are increasingly financed by Super PACs and shadowy nonprofits. Some believe that too much money being funneled by special interest groups and wealthy donors opens the door to corruption and influence buying. Host Suraj Patel sits down with Columbia Law Professor Briffault to explore campaign finance laws and get to the bottom of this complicated debate.

Professor Richard Briffault is the Joseph P. Chamberlain Professor of Legislation at Columbia Law School. He joined the Columbia Law faculty in 1983. He was law clerk to the Honorable Shirley M. Hufstedler of the United States Court of Appeals for the Ninth Circuit, and was Assistant Counsel to New York Governor Hugh L. Carey. In 2014, Professor Briffault was appointed Chair of the Conflicts of Interest Board of the City of New York. He has served as the Reporter for the American Law Institute's project on Principles of Government Ethics.

Regulating Finance: Dodd Frank Decoded Nov 29, 2019

(0.5 General California MCLE) The Dodd-Frank Act was enacted as a response to the Great Recession of 2007, but what does this complex regulation do and has it fixed the problems or addressed the causes of the financial meltdown? Former SEC Commissioner Annette Nazareth explains...

Annette Nazareth is a partner at the law firm Davis Polk & Wardwell and served as a key financial services policy maker at the SEC for over a decade. At the SEC, Nazareth has held a number of positions. Joining the SEC staff in 1998, Nazareth served as a Senior Counsel to Chairman Arthur Levitt and then served as Interim Director of Investment Management. She was appointed as Director of Market Regulation (now the Division of Trading and Markets) from 1999 to 2005. In 2005, Nazareth became an SEC Commissioner. During her tenure at the Commission, Nazareth worked on numerous groundbreaking initiatives, including execution quality disclosure rules, implementation of equities decimal pricing, short sale reforms and the modernization of the national market system rules. She also served as the Commission’s representative on the Financial Stability Forum from 1999 to 2008.

Lawyers with Bias Nov 27, 2019

As humans, we all hold implicit biases which create blind spots that subconsciously affect our understanding and decision-making. Such biases have continue to contribute to low diversity and inclusion rates in law. Paulette Brown, the first woman of color to serve as the president of the American Bar Association, offers concrete examples of biases at play in the legal profession, and what lawyers, firms, and companies can do to mitigate its harmful effects.

Paulette Brown is a senior partner and the Chief Diversity & Inclusion Officer at Locke Lord LLP. She is a member of the labor and employment practice group. She is a past president of the American Bar Association (ABA). Previously, she served as in-house counsel to several Fortune 500 companies and served as a Municipal Court Judge. (0.5 Diversity California MCLE / Implicit Bias and Bias Reducing Strategies)

Using Lawyers to Launder Money Nov 24, 2019

(0.5 Ethics California MCLE)

When criminals use shell companies, offshore bank accounts, and real estate as money laundering vehicles, lawyers, whether knowingly or unknowingly, assist these transactions. Professor William Simon explains how an unwitting lawyer could be complicit in the money laundering enterprise, the basics of money laundering laws and the risk factors, and suggests best practices for lawyers. Simon reviews transcripts from anti-corruption organization Global Witness from their 2016 sting operation where they secretly interviewed a number of New York lawyers seeking advice to launder fictional funds.

William H. Simon is the Arthur Levitt Professor of Law at Columbia Law School. Simon has also been a visiting professor at Harvard Law School and at the University of California, Berkeley, School of Law. From 1981 to 2003, Simon was on the faculty of Stanford Law School, and he is the emeritus holder of the Gertrude and William Saunders Chair there.

From Facebook to Twitter, the Ethics of Social Media Nov 12, 2019

(0.5 Ethics California MCLE) Facebook friending a judge, telling a client to "clean up" his Facebook, or an attorney tweeting, "Who wants to win next?" Nicole Hyland explains the common and uncommon ethical pitfalls in attorneys' social media use.

Nicole Hyland is a partner in the Litigation and Professional Responsibility Groups in the New York office of Frankfurt Kurnit. She counsels attorneys and law firms on a range of issues including conflicts of interest, legal fee disputes, disqualification motions, advertising and social media use, and other professional responsibility issues. In her litigation practice, she focuses on art, literature, and entertainment industry disputes. Hyland has served as the Chair of the Committee on Professional Ethics of the New York City Bar Association.

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