Good Law | Bad Law - Aaron Freiwald

Latest Episodes:

Shadowy Supreme Court: A Conversation w/ Stephen Vladeck Apr 02, 2021

Show notes

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by returning guest and friend of the podcast, professor Stephen Vladeck, of the University of Texas at Austin, School of Law, to discuss the U.S. Supreme Court and the notion of its secretive “shadow docket.”

In today’s episode, Stephen returns to our show to discuss an obscure legal procedure known as, the “shadow docket.” Throughout today’s conversation, Aaron and Stephen explore just what exactly this is, what it means for the country, how it impacts democracy, and how it is being used. Cases on this docket can effectively be decided quickly and quietly – sometimes even without knowing all of the evidence; they can be resolved even when lower cases are still processing them and without providing explanations and/or signed opinions. Stephen and Aaron address the dangers that this type of power can have and whether or not there are any checks and balances in place in our system to keep these powers regulated.

Professor Vladeck holds the Charles Alan Wright Chair in Federal Courts at the University of Texas School of Law and is a nationally recognized expert on the federal courts, constitutional law, national security law, and military justice. Stephen has argued before the U.S. Supreme Court, the Texas Supreme Court, and lower federal civilian and military courts; he has served as an expert witness in both U.S. state and federal courts and in foreign tribunals. Professor Vladeck has received numerous awards for his influential and widely-cited legal scholarship, his popular writing, his teaching, and his service to the legal profession.

Professor Vladeck is also a host of his own podcast, the National Security Law Podcast, which he co-hosts with Professor Bob Chesney. He is CNN’s Supreme Court analyst and a co-author of Aspen Publishers’ leading national security law and counterterrorism law casebooks. He is the executive editor of the Just Security blog and a senior editor of the Lawfare blog.

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To learn more about Professor Vladeck, please click here.

To check out Professor Vladeck’s co-hosted podcast, the National Security Law Podcast, please click here.

To read the Reuters’ article, “The 'shadow docket': How the U.S. Supreme Court quietly dispatches key rulings,” in which Professor Vladeck was quoted, please click here.

Host: Aaron Freiwald

Guest: Stephen Vladeck

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Citizenship Stripping: A Conversation w/ Amanda Frost Mar 26, 2021

Show notes

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by law professor, Amanda Frost, of the Washington College of Law at American University, to discuss the rights of citizenship, citizenship stripping and denaturalization, sexism and xenophobia, as well as Professor Frost’s new book, You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers. What is citizenship? Who is a citizen? And furthermore, who decides the answers to these questions?

In today’s conversation, Aaron and Amanda have an incredibly relevant conversation about citizenship in the United States. Citizenship is invaluable and yet, as Amanda explains, it is always at risk. In her new book, Amanda explores the history of citizenship and citizenship stripping over the last two centuries – she explains that the U.S. government has used revoking citizenship (even from those born on American soil) as a tool to cast out its unwanted, suppress dissent, and deny civil rights to all considered “un-American.” Amanda and Aaron talk about the historical aspects of citizenship challenges but also those of today, touching on the events of the last four years and Trump’s repeated threats of deportation/denaturalization, the issues of race and equality, the notion of political power and the right to vote, as well as the Supreme Court, the civil war, and the idea of community, membership and belonging.

Amanda Frost is the Ann Loeb Bronfman Distinguished Professor of Law. Amanda writes and teaches in the fields of constitutional law, immigration and citizenship law, federal courts and jurisdiction, and judicial ethics. Her scholarship has been cited by over a dozen federal and state courts, and she has been invited to testify on the topics of her articles before both the House and Senate Judiciary Committees. Professor Frost’s non-academic writing has been published in The Atlantic, Slate, The American Project, the Washington Post, the New York Times, and USA Today, and she authors the “American round-up” column for SCOTUSblog. Amanda is a member of the Editorial Board of Oxford University’s Border Criminologies, an Academic Fellow at the Pound Civil Justice Institute, and a member of the National Constitution Center’s Coalition of Freedom Advisory Board; she has been a visiting professor at Harvard Law School, UCLA Law School, Université Paris X Nanterre, and the Johannes Gutenberg University in Mainz, Germany.

Before entering academia, Professor Frost clerked on the U.S. Court of Appeals for the D.C. Circuit and spent five years as a staff attorney at Public Citizen, where she litigated cases at all levels of the federal judicial system.

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To learn more about Professor Frost, please check out her bio at American here.

You can also learn more about Professor Frost by visiting her personal website here.

To check out Professor Frost’s new book, You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers, please click here.

Host: Aaron Freiwald

Guest: Amanda Frost

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Repost: Immigration and the New President: A Conversation w/ Cristina Rodríguez Mar 19, 2021

Show notes

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by Professor Cristina Rodríguez, of Yale Law School, to discuss immigration law, President Joe Biden, executive power and what the future of immigration could look like.

Who controls American immigration policy? In today’s episode, Aaron and Cristina discuss this question and more, as well as Cristina’s new co-authored book on the topic, The President and Immigration Law. The biggest immigration controversies of the last decade have all involved policies produced by the President – policies such as President Obama’s decision to protect Dreamers from deportation and President Trump’s proclamation banning immigrants from several majority-Muslim nations. Cristina and Aaron talk about this idea of executive decision-making and how it has shaped our immigration system. Aaron and Cristina touch on the notions of power, status, oversight, voter suppression, and resentment as they explore the ins and outs of our country’s immigration history, the impact of partisan policies, and the roles of the President and Congress. The President and Immigration Law chronicles the untold story of how, over the course of two centuries, the President became our immigration policymaker-in-chief and offers a blueprint for reform.

Professor Rodríguez is the Leighton Homer Surbeck Professor of Law at Yale Law School. Her fields of research include constitutional law and theory, immigration law and policy, administrative law and process, and citizenship theory. In recent years, her work has focused on constitutional structures and institutional design. She has used immigration law and related areas as vehicles through which to explore how the allocation of power (through federalism, the separation of powers, and the structure of the bureaucracy) shapes the management and resolution of legal and political conflict. Her work has also examined the effects of immigration on society and culture, as well as the legal and political strategies societies adopt to absorb immigrant populations. Professor Rodríguez joined Yale Law after serving for two years as Deputy Assistant Attorney General in the Office of Legal Counsel at the U.S. Department of Justice. She earned her B.A. and J.D. degrees from Yale and attended Oxford University as a Rhodes Scholar. Following law school, Professor Rodríguez clerked for Judge David S. Tatel of the U.S. Court of Appeals for the D.C. Circuit and Justice Sandra Day O’Connor of the U.S. Supreme Court.

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To check out, The President and Immigration Law, please click here.

To learn more about Professor Rodríguez please visit her bio page here.

To learn more about Professor Rodríguez’s co-author, Professor Adam Cox, please visit his bio page here.

Host: Aaron Freiwald

Guest: Cristina Rodríguez

Bankrupt NRA: A Conversation w/ Judge Bruce A. Markell Mar 12, 2021

Show notes

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by former bankruptcy Judge and current Northwestern law professor, Bruce A. Markell, to discuss the recent NRA bankruptcy filings and just how extraordinary this story is, as well as bankruptcy law and the bankruptcy system in general.

In today’s conversation, Aaron and Judge (Bruce) Markell breakdown the evolving story on the NRA’s (the National Rifle Association) recent bankruptcy filings and why this story is so exceptional. Judge Markell offers his opinion and explains what, why, and how things may play out for the NRA. Professor Markell and Aaron discuss senior and junior claims, the bankruptcy mechanism, assuming liabilities, shady corporations and business practices, for profit business requirements vs. non-profit requirements, and more. Is the NRA running away from NY? Why? And what will happen next? Aaron and Judge Markell explore these questions and others as they touch on the notions of “bad faith,” malpractice, reorganization, the bankruptcy code, and debate what possible consequences may result from this developing story.

Judge Markell was appointed the Professor of Bankruptcy Law and Practice at Northwestern in 2015. From 2013 to 2015, Professor Markell was the Jeffrey A. Stoops Professor of Law at Florida State University School of Law, and before that he was a United States Bankruptcy Judge for the District of Nevada. Before taking the bench, Judge Markell practice bankruptcy and business law in Los Angeles for ten years (where he was a partner at Sidley & Austin), and was a law professor for fourteen. After graduating from UC Davis with his JD, Professor Markell clerked for then-judge Anthony M. Kennedy on the Court of Appeals for the Ninth Circuit.

Judge Markell is the author of numerous articles on bankruptcy and commercial law, and is a co-author of four law school casebooks. He has been a visiting professor at, among other schools, Peking University School of Law in Beijing, and Harvard Law School. Professor Markell contributes to Collier on Bankruptcy, and is a member of Collier’s editorial advisory board. He is a conferee of the National Bankruptcy Conference, a fellow of the American College of Bankruptcy, a charter member of the International Insolvency Institute, and a member of the American Law Institute. Judge Markell also consults with the International Monetary Fund on insolvency-related issues, and was the primary drafter of Kosovo’s current bankruptcy law. He is an associate editor of the Bankruptcy Law Letter, and regularly contributes articles to that publication.

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To learn more about Judge Markell, please visit his bio at Northwestern here.

Host: Aaron Freiwald

Guest: Judge Bruce A. Markell

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When Jurors Talk to God: A Conversation w/ Tanya M. Luhrmann & Malcolm E. Whittaker Mar 05, 2021

Show notes

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by Houston attorney, Malcolm E. Whittaker, and Stanford Anthropology Professor, Tanya M. Luhrmann to discuss religious belief systems, human judgment and evaluation, communicating with God, and how all of these notions relate to the criminal trial of the United States v. Brown and one juror’s early dismissal. What does it mean to pray to God in the context of jury deliberations? What does it mean in general to “have a conversation with God”?

In today’s episode, Aaron, Malcolm, and Tanya have a nuanced and highly complex theoretical discussion about the challenges and questions that arose recently in a criminal trial in which a judge dismissed a juror after he was overheard saying that he is communicating with “a higher power.” In the case of United States v. Brown, juror 13 was excused after the judge believed he was not deliberating. Was the judge wrong? Tanya and Malcolm explain why they believe the judge acted too quickly in this decision, not asking all of the right questions before making a ruling; considering that this judgment may be applicable to millions of Americans and their jury responsibility/services, Aaron, Tanya, and Malcolm breakdown whether or not communicating with God is a bias and what exactly this may mean in terms of jury instruction. Throughout today’s conversation, Aaron poses three hypothetical scenarios to Tanya and Malcolm, the three of them try to understand what is meant when someone “hears God,” Professor Luhrmann discusses her fieldwork observations, her research in psychosis and social worlds, as well as how these ideas relate to jury obligations, prayer/praying, and much more.

Dr. Tanya Marie Luhrmann is, in her own words, “an anthropologist studying the mind.” A graduate of both Harvard (B.A.) and the University of Cambridge (M. Phil and Ph.D.), she is the Watkins University Professor in the Stanford Anthropology Department. Professor Luhrmann’s research interests include medical and psychological anthropology, the anthropology of religion, subjectivity, comparative phenomenology, voices and visions, psychosis, spirituality, mixed methods, and public anthropology. She sets out to understand the way people represent thought itself, and the way those culturally varied representations shape the most intimate experience of life itself. Dr. Luhrmann has done ethnography on the streets of Chicago with homeless and psychotic women, worked with people who hear voices in Chennai, Accra and the South Bay. She has also done fieldwork with evangelical Christians who seek to hear God speak back, with Zoroastrians who set out to create a more mystical faith, and with people who practice magic. Professor Luhrmann was elected to the American Academy of Arts and Sciences in 2003 and received a John Guggenheim Fellowship award in 2007.

Malcolm E. Whittaker is primarily a patent attorney in Houston, Texas at the Whittaker Law Firm.

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To learn more about Professor Luhrmann, and to view more of her publications, please visit her bio page here. More information is also available on Professor’s Luhrmann’s personal website.

To check out Professor Luhrmann’s book, When God talks back: understanding the American evangelical relationship with God, please click here.

To review the brief Mr. Whittaker and Professor Luhrmann filed, please click here.

Host: Aaron Freiwald

Guests: Malcolm E. Whittaker and Tanya M. Luhrmann

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Nursing Homes and Safety: A Conversation w/ Michael Kaplen Feb 26, 2021

Show notes

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by New York attorney Michael Kaplen, to discuss brain injuries, nursing home negligence, and what it is loved ones need to know.

Nursing homes can be dangerous places, more than ever during this time of pandemic. In today’s conversation, Aaron and Michael discuss common issues that arise in nursing homes, including specific nursing-home injuries to be on the lookout for, standards and accountability, and what ifamilies can do to protect their loved ones. Michael and Aaron discuss the importance of advocating for nursing home residents and monitoring tips, “never events” and proper care. How has Covid affected nursing homes? How can family members navigate the new challenges of today’s pandemic? Aaron and Michael discuss the rights of individuals in institutional facilities and answer some of the most important questions families need to know.

Michael Kaplen is a senior partner in the New York personal injury law firm, De Caro & Kaplen. His practice focuses on personal injury and medical malpractice with an emphasis on representing individuals who have sustained a traumatic or acquired brain injury and other catastrophic injuries. Mr. Kaplen is a Lecturer in Law at The George Washington University Law School, where he teaches the only course in the nation devoted to traumatic brain injury law. He is board certified as a Civil Trial Advocate by the National Board of Trial Advocacy and is board certified in Medical Malpractice, and a member of the board of governors of the American Board of Professional Liability Attorneys.

Michael has served as president of the Brain Injury Association of New York State, the leading not-for-profit New York State brain injury advocacy dedicated to brain injury education, advocacy, and prevention. Besides his teaching responsibilities at G.W., Mr. Kaplen has taught courses in trial practice and medical malpractice at St. John’s University School of Law and is Clinical Professor of Psychology in the Graduate School of Psychology at Touro College.

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To learn more about Mr. Kaplen, please visit his firm’s website here.

Host: Aaron Freiwald

Guest: Michael V. Kaplen

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Repost: What Is Truth? w/ Sophia Rosenfeld Feb 19, 2021

Show notes

Fake News, the calling card of a presidency?

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by University of Pennsylvania History Professor Sophia Rosenfeld to talk about the tenuousness of the truth in democracy.

In Professor Rosenfeld’s new book, “Democracy and Truth,” she tells readers about the peculiar and fragile relationship between democracy and the truth. While it certainly feels like we live in a very unique time, and, in many senses, we do, Trump’s attacks on the media and his inability to remain truthful may not be that different after all. Just as she does in her book, Professor Rosenfeld walks us through the erosion of trust and truth, which has led to our current political climate and the rise of “Fake News”. Aaron and Professor Rosenfeld go on to discuss the potential solutions to the issues at hand.

This is an extremely timely conversation as President Donald Trump’s former personal attorney, Michael Cohen, takes center stage to provide a deeper look into the President’s past, his campaign and the current administration.

To purchase Professor Rosenfeld’s book visit: https://www.amazon.com/Democracy-Truth-History-Sophia-Rosenfeld/dp/0812250842

Host: Aaron Freiwald

Guest: Sophia Rosenfeld

Regulate Social Media? A Conversation w/ Philip Napoli Feb 12, 2021

Show notes

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by Professor Philip M. Napoli, of Duke University’s Sanford School of Public Policy, to discuss new age media, social media regulation and content filtering, the history of social media, and the First Amendment.

In today’s conversation, Aaron and Phil talk about the relationship between the media and democracy, the “Trump years” and our former President’s unprecedented use of social media platforms, disinformation and misinformation, journalism, the marketplace of ideas, and much more. Should there be regulations on social media? Why? How? And moreover, who? Phil and Aaron delve into the history of social media, the notion of “big internet,” curation algorithms, Section 230, libel and slander, as well as “cancel culture,” audiences, and individual liberties.

Dr. Napoli is the James R. Shepley Distinguished Professor of Public Policy at Duke’s Sanford School of Public Policy; a Senior Associate Dean for Faculty and Research in the Sanford School of Public Policy; Professor of the International Comparative Studies Program; and an Associate of the Duke Initiative for Science and Society. A graduate of U.C. Berkeley (B.A.), Boston University (M.S.) and Northwestern (Ph.D.), Professor Napoli’s areas of expertise are media and democracy and his research focuses on media institutions, media regulation, and policy. He has provided formal and informal expert testimony on these topics to government bodies, such as the U.S. Senate, the Federal Communications Commission, the Federal Trade Commission, and the Congressional Research Service.

Professor Napoli’s research has received awards from the National Business and Economics Society, the Broadcast Education Association, the International Communication Association, and the National Communication Association. His research has been funded by organizations such as the Ford Foundation, the Geraldine R. Dodge Foundation, and the Center for American Progress. Professor Napoli is a firm believer in engaged scholarship, and has engaged in research consultations and collaborations with a wide range of organizations, including the Federal Communications Commission, the New America Foundation, Free Press, the Minority Media & Telecommunications Council, the Center for Creative Voices in Media, the National Association of Broadcasters, and more. He has been interviewed in media outlets such as the NBC Nightly News, the Huffington Post, the Los Angeles Times, Rolling Stone, Politico, and National Public Radio.

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To learn more about Professor Napoli, and to access a full list of his publications, please click here.

To check out Professor Napoli’s book, Social Media and the Public Interest: Media Regulation in the Disinformation Age, please click here.

To explore Duke’s Science and Society Initiative, please click here.

To read the January article from Duke Today, “LESSONS FROM THE U.S. CAPITOL RIOT: Duke faculty discuss domestic terrorism, Trump, disinformation and social media,” please click here.

Host: Aaron Freiwald

Guest: Philip M. Napoli

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Designer Babies? A Conversation w/ Henry (Hank) Greely Feb 05, 2021

Show notes

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by Professor Henry T. (Hank) Greely, of Stanford Law School, to discuss gene editing, the bioethics involved in gene manipulation, the legal considerations of developing new biotechnologies, CRISPR (Clustered Regularly Interspaced Short Palindromic Repeats), the line between good and bad, and quite literally, the future of humanity.

What does the birth of babies whose embryos have gone through genome editing mean—for science and for all of us? Professor Hank Greely explores this question and more in his new book, CRISPR People: The Science and Ethics of Editing Humans. Hank’s new book comes out February 16th and today he and Aaron discuss CRISPR capabilities, the potential “butterfly affect” editing genes may have, and what the ethical concerns are surrounding gene manipulation. In his upcoming book, Professor Greely tells the fascinating story of He Jiankui’s 2018 human experiment and its consequences; he explains what He Jiankui did, how he did it, and how the public and other scientists learned about and reacted to this unprecedented genetic intervention. Today, Hank talks about this further, and the conversation revolves around He Jiankui’s 2018 experiment, today’s COVID vaccines, DNA, RNA, and MRNA. Hank explains how he feels about “slippery slopes” and expresses his opinions and predictions about what will happen with this new technology. Are we playing God?

A graduate of both Stanford University and Yale Law School, Hank Greely is the Dean F. and Kate Edelman Johnson Professor of Law; Director of the Center for Law and the Biosciences; Professor, by courtesy, of Genetics, Chair of the Steering Committee of the Center for Biomedical Ethics; and the Director of the Stanford Program in Neuroscience and Society. Professor Greely specializes in the ethical, legal, and social implications of new biomedical technologies, particularly those related to genetics, assisted reproduction, neuroscience, or stem cell research. He is a founder and immediate past president of the International Neuroethics Society; a member of the Multi-Council Working Group of the NIH’s BRAIN Initiative, whose Neuroethics Working Group he co-chairs; chair of the Ethical, Legal, and Social Issues Committee of the Earth BioGenome Project; and chair of California’s Human Stem Cell Research Advisory Committee.

Before joining the Stanford Law School faculty, Professor Greely was a partner at Tuttle & Taylor, served as a staff assistant to the secretary of the U.S. Department of Energy, and as special assistant to the general counsel of the U.S. Department of Defense. He served as a law clerk to Justice Potter Stewart of the U.S. Supreme Court and to Judge John Minor Wisdom of the Court of Appeals for the Fifth Circuit.

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To learn more about Professor Greely, please click here.

To check out Professor Greely’s 2016 publication, The End of Sex and the Future of Human Reproduction, please click here.

To order Professor Greely’s brand-new book, CRISPR People: The Science and Ethics of Editing Humans, please click here. There are more ordering options available here. *Note: Professor Greely’s new book will be released on Feb. 16th

Host: Aaron Freiwald

Guest: Henry T. (Hank) Greely

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Biden’s Bold Immigration Bill: A Conversation w/ Ilya Somin Jan 29, 2021

Show notes

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by Professor Ilya Somin, of the George Mason University Antonin Scalia Law School, to discuss immigration and the expansive changes proposed by the new Biden Administration. What is included in Biden’s new agenda? How will it affect immigration? What are the major initiatives? What about DACA?

As we post today’s episode, President Joe Biden has only been in the White House for a little more than a week and has already announced an expansive, pro-immigration agenda aimed at not only dismantling the previous administration’s harsh restrictions but also, as Professor Somin explains, to significantly move the political conversation forward. Today Aaron and Ilya are talking about what Biden’s plans seem to be, what they mean for the future, and delve into what some of the key provisions are, touching on governance, executive orders and actions, open borders, and more. What are the pathways to citizenship now and what is likely to change? What is Congress’ role? What is likely to be enacted? Ilya and Aaron discuss illegal immigration and legal immigration, raising the refugee limit, the backlog of immigration courts, and more.

Ilya Somin is a Professor of Law at George Mason; his research focuses on constitutional law, property law, democratic theory, federalism, and migration rights. The author of several publications, Professor Somin’s most recent book, Free to Move: Foot Voting, Migration, and Political Freedom (Oxford University Press, 2020), explores how broadening opportunities for foot voting can greatly enhance political liberty for millions of people around the world. Ilya’s work has appeared in numerous scholarly journals, including the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, Georgetown Law Journal, Critical Review, and others. Professor Somin has also published articles in a variety of popular press outlets, including the Washington Post, Wall Street Journal, Law Angeles Times, CNN, The Atlantic, USA Today, among others. He has been quoted or interviewed by several news channels and his writings have been cited in decisions by the United States Supreme Court, multiple state supreme courts and lower federal courts, and the Supreme Court of Israel.

Professor Somin has served as a visiting professor at the University of Pennsylvania Law School as well as a visiting professor or scholar at the Georgetown University Law Center, the University of Hamburg, Germany, the University of Torcuato Di Tella in Buenos Aires, Argentina, and Zhengzhou University in China. Before joining the faculty at George Mason, Professor Somin was the John M. Olin Fellow in Law at Northwestern University Law School and clerked for the Hon. Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Ilya earned his BA at Amherst College, MA in Political Science from Harvard University and his JD from Yale Law.

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To learn more about Professor Ilya Somin, and to access a full list of his publications, please click here.

To check out Professor Somin’s most recent book, Free to Move: Foot Voting, Migration, and Political Freedom, please click here.

Host: Aaron Freiwald

Guest: Ilya Somin

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