Good Law | Bad Law - Aaron Freiwald

Latest Episodes:

Good Law | Bad Law - Affirmative Enough? A Conversation about Affirmative Action w/ Melvin Urofsky Feb 21, 2020

Show notes

What is affirmative action? Why is it so controversial? And moreover, has there been progress?

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by Melvin I. Urofsky, an author and a professor emeritus of history at Virginia Commonwealth University, to discuss the history and ongoing controversy of affirmative action. Mel’s new book on the topic, The Affirmative Action Puzzle: A Living History from Reconstruction to Today, traces the evolution of affirmative action through the struggle for racial equality from the Civil Rights Act of 1866 through today’s tumultuous times.

In today’s episode, Aaron and Mel discuss the big questions surrounding affirmative action, its historical context, and its implications today, delving deep in to the ideas of diversity, “soft affirmative action” compared to “hard affirmative action,” inequality, cultural biases, and more. Throughout “The Affirmative Action Puzzle,” Mel writes about the affirmative action cases decided by the Supreme Court, cases that either upheld or struck down particular plans that affected both governmental and private entities. Aaron and Mel touch on this and the importance of the courts, specifically the recent lawsuit filed against Harvard University for its admissions process which is likely headed to the Supreme Court for decision.

Who benefits from affirmative action? Who suffers? What is the goal? And has it worked?

A graduate of Columbia, Mel is a professor emeritus of history at Virginia Commonwealth University and was the chair of its history department. He is co-editor of the five-volume collection of Louis Brandeis’s letters, as well as the author of Dissent and the Supreme Court and Louis D. Brandeis.

Listen in now to learn more about the debate over affirmative action.

To learn more about Mel and his other works, please click here.

To check out Mel’s book, The Affirmative Action Puzzle: A Living History from Reconstruction to Today, please click here.

Host: Aaron Freiwald

Guest: Melvin I. Urofsky

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Good Law | Bad Law - Abortion Roadblocks: A Conversation w/ David Cohen Feb 14, 2020

Show notes

Why is it so hard – and getting harder – to get an abortion in the U.S. today?

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by Professor David Cohen, of Drexel University’s Kline School of law, to discuss accessibility of abortion. David’s new co-authored book on the topic, Obstacle Course: The Everyday Struggle to Get an Abortion in America, tells the story of abortion in our country and captures a disturbing reality of insurmountable barriers people face when trying to exercise their legal rights to medical services.

Despite the controversy surrounding this issue, it is a constitutional right that women have access to abortion. Yet getting an abortion can be a monumental challenge in many places throughout the United States, forcing some to risk their lives and livelihoods in the process. Aaron and David dive into these obstacles and their implications, discussing restrictions, fake clinics, health care coverage, protestors and more. David explains his approach to the book and reasons for working on it while talking about state legislation, upcoming Supreme Court cases, and how the law tries to interfere with women’s rights and autonomy.

A graduate of Columbia Law, Professor Cohen’s scholarship explores the intersection of constitutional law and gender, emphasizing how the law impacts abortion provision, including violence against abortion providers, as well as sex segregation and masculinity. In addition to his most recent book, David is also the co-author of Living in the Crosshairs: The Untold Stories of Anti-Abortion Terrorism. Published in 2015, “Living in the Crosshairs” examines how abortion providers are targeted by anti-abortion extremists and how law can better respond.

Professor Cohen has published articles in the Harvard Journal of Law and Gender, Columbia Journal of Gender and Law, University of Pennsylvania Law Review Online, George Washington Law Review, and others. Before coming to Drexel, David was a lecturer-in-law at the University of Pennsylvania Carey School of Law and held adjunct professor positions at Penn and Long Island University. He currently serves on the board of directors for the Women’s Law Project in Philadelphia and the National Abortion Care Network. Professor Cohen also continues to work on pro bono cases affecting abortion access and LGBT rights.

To learn more about Professor Cohen, please visit his bio page at Drexel here.

To check out Professor Cohen’s new book, Obstacle Course: The Everyday Struggle to Get an Abortion in America, please click here.

Host: Aaron Freiwald

Guest: David Cohen

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Good Law | Bad Law - Why Can’t Soldiers Sue? A Conversation w/ Andrew Popper Feb 07, 2020

Show notes

Why can’t members of the military sue the government for their injuries?

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by Professor Andrew Popper, of American University, Washington College of Law, to discuss democracy, the notion of “sovereign immunity,” and the way in which basic civil liberties are being denied to our country’s military service members.

In today’s episode, Aaron and Andy are talking about what is known as the Feres Doctrine. Stemming from a 1950 Supreme Court decision, the Feres Doctrine significantly limits the civil rights of U.S. military members and their abilities to pursue justice as average citizens otherwise could. Andy and Aaron explain the ins and outs of the case while also explaining how and why this law came to be. Andy illustrates his recommendation for overturning the law, providing examples of instances in which Feres has caused extreme suffering, frustration and unfairness. Throughout today’s conversation, Aaron and Andy talk about the effectiveness of our military, the fear of undermining authority, chain-of-command, agent orange, Camp Lejeune, judicial activism and more.

A veteran himself, Professor Popper is the Bronfman Distinguished Professor of Law and Government, teaching torts, administrative law, government litigation, and advanced administrative law. Andy is the recipient of American Bar Association awards for excellence in both tort and administrative law and has received American University’s highest faculty award, Scholar/Teacher of the year. He has served as Associate Dean for Academic Affairs and for nearly two decades has chaired the law school admissions committee.

In addition to his other works, Andy is also a successful fiction writer, having been the recipient of the Maryland Writer’s Association First Place Award for mainstream fiction. He has served as a consumer rights advocate and pro bono counsel for the Consumers Union of America, testified before more than 40 states and federal congressional committees, and authored amicus curiae briefs before the United States Supreme Court. Prior to coming to the Washington College of Law, he held an endowed chair at the University of Denver, School of Law, and before that practiced law in Washington, D.C.

To learn more about Professor Popper, please visit his bio page here.

To read Professor Popper’s article, “Rethinking Feres: Granting Access to Justice for Service Members,” please click here.

To learn more about Feres v. United States, please click here.

To explore the collection of Professor Popper’s literary works, please visit his Amazon page here.

Host: Aaron Freiwald

Guest: Andrew Popper

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Good Law | Bad Law - Can We Survive 2020? A Conversation w/ Rick Hasen Jan 31, 2020

Show notes

Can American Democracy survive the 2020 elections and beyond?

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by Professor Richard L. Hasen, of the University of California, Irvine School of Law, to discuss his latest book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy. In today’s conversation, Aaron and Richard are talking about the integrity of our voting system, the health of our democracy, and the biggest reasons why Americans increasingly distrust the voting process.

As the presidential campaign begins to take shape, Americans on both sides of the political aisle are worrying about how the 2020 elections will shake out. Richard and Aaron breakdown why this is, what there is to worry about, and why it is we have seen such a decline in trust. A leading expert in election law, Richard illustrates the four principle reasons for this increasing mistrust and explains how we got here while offering bipartisan solutions. Throughout today’s episode, Aaron and Richard talk about voter suppression, heightened suspicion, inflammatory rhetoric, incompetence in election administration, cyber security, the myth of voter fraud, and more.

Dr. Richard Hasen is Chancellor’s Professor of Law and Political Science at UC Irvine, and is a nationally recognized expert in election law and campaign finance regulation, writing as well in the areas of legislation and statutory interpretation, remedies, and torts. From 2001-2010 he served as founding co-editor of the quarterly peer-reviewed publication, Election Law Journal and is the co-author of leading casebooks in election law and remedies. Richard is also the author of over 100 articles on election law issues, published in numerous journals including the Harvard Law Review, Stanford Law Review, and Supreme Court Review. He was elected to The American Law Institute in 2009 and serves as Reporter on the ALI’s law reform project: Restatement (Third) of Torts: Remedies and is an adviser on the Restatement (Third) of Torts: Concluding Provisions.

A graduate of both UCLA and Berkeley, Professor Hasen was named one of the 100 most influential lawyers in America by The National Law Journal in 2013, and one of the Top 100 lawyers in California in 2005 and 2016 by the Los Angeles and San Francisco Daily Journal. His op-eds and commentaries have appeared in many publications, including The New York Times, The Washington Post, Politico, and Slate.

What if a blackout happens on election day in one of the country’s swing states? Or what if there was a mistake when calculating electronic ballots? Listen in as Richard and Aaron contemplate these terrifying scenarios and others as they discuss the principle dangers that could threaten the 2020 elections, as well as our voting system as a whole.

To learn more about Richard, please visit his bio page at UCI Law here.

To check out Richard’s book, Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy, please click here.

You can check out Richard’s blog, Election Law Blog, here.

To find more information about Richard’s book and his upcoming book tour, please click here.

Host: Aaron Freiwald

Guest: Richard L. Hasen

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Good Law | Bad Law - Are You Introverted? A Conversation w/ Heidi Brown Jan 29, 2020

Show notes

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by attorney Heidi Brown, to discuss mental health, introversion, and the importance of self-care in the context of law, as well as her most recent book on the subject, The Introverted Lawyer.

After a traumatic life-event made her reconsider everything, Heidi began to self-reflect on what it was she really wanted from her life – and moreover, what she really wanted to do with her life. She began to write about her experiences and through this discovered herself. In her newest book, Heidi champions the valuable gifts that introverted, shy, and socially anxious individuals can contribute to the legal profession. She herself is an introvert and questioned where she stood in the legal field. In today’s conversation, Aaron and Heidi talk about active listening, deep thinking, empathy, careful legal writing, creative problem-solving, thoughtful communication and more.

What is an introvert? What is an extrovert? How do we process what we experience? Heidi and Aaron ask these questions and talk about how everyone has struggles, good and bad personality traits, and what drives us as people and lawyers. Throughout the book, and today’s episode, Heidi offers a seven-step process for empowering our lawyer voices in an authentic manner, touching on the importance of embracing ourselves for who we are and by doing so, transforming the legal profession.

Having suffered from extreme public speaking anxiety throughout law school and law practice, Heidi’s passion lies in researching, studying, and writing about introversion, shyness, social anxiety, and extreme public speaking anxiety in the legal context. Based on her research, she was appointed to serve as a Board Member on the Association of American Law Schools’ Committee on Balance in Legal Education and is leading a Task Force on Law Student and Lawyer Well-Being at Brooklyn Law School. Heidi is the author of four other books on federal litigation and legal writing.

To learn more about Heidi Brown, please visit her about page here.

To learn more about the book, The Introverted Lawyer, please click here.

Host: Aaron Freiwald

Guest: Heidi Brown

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Good Law | Bad Law - A Conservative’s Case for Class Actions: A Conversation w/ Brian Fitzpatrick Jan 24, 2020

Show notes

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by Brian Fitzpatrick, a law professor at Vanderbilt University and self-proclaimed “life-long Republican”, to discuss class action lawsuits, and specifically, Brian’s recent book on the subject, The Conservative Case for Class Actions.

In his new book, Brian makes the case for class action litigation a conservative’s view point. Arguing that conservatives, and even libertarians, believe that markets need at least some policing to thrive, from laws that enforce contracts, to laws that prevent companies from committing fraud, to laws that prohibit price fixing. Aaron and Brian break down what a class-action is, what the requirements are, and just how important they are to protect consumers from corporate wrongdoing.

Brian illustrates the different types of conservatives he sees and explains that there are only two ways of policing the marketplace: 1) private lawsuits filed by private citizens and their lawyers or 2) more government regulation. He argues that, for the same reasons conservatives prefer other private sector solutions to problems, they should prefer private enforcement of the law as well. Acknowledging that the class action is not perfect, Brian shows, in his book and in today’s episode, that our system is working better than one might expect given all the widespread misunderstanding and misinformation about class action lawsuits. He also suggests a few tweaks that he hopes will persuade opponents to keep the class action around for the next generation of consumers, employees, and shareholders alike.

Brian Fitzpatrick’s research at Vanderbilt focuses on class action litigation, federal courts, judicial selection and constitutional law. A graduate of Harvard Law, Brian went on to clerk for Judge Diarmuid O’Scannlain on the U.S. Court of Appeals for the Ninth Circuit and Justice Antonin Scalia on the U.S. Supreme Court. After his clerkships, Professor Fitzpatrick practiced commercial and appellate litigation for several years at Sidley Austin in Washington, D.C., and served as Special Counsel for the Supreme Court Nominations to U.S. Senator John Cornyn. He joined Vandberbilt’s law faculty in 2007 after serving as the John M. Olin Fellow at New York University School of Law and has received the Hall-Hartman Outstanding Professor Award, which recognizes excellence in classroom teaching, for his Civil Procedure course.

To learn more about Professor Brian Fitzpatrick, please visit his bio page at Vanderbilt here.

To check out Professor Fitzpatrick’s book, “The Conservative Case for Class Actions,” please click here.

Host: Aaron Freiwald

Guest: Brian Fitzpatrick

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Good Law | Bad Law - Youth Climate Warriors: A Conversation w/ Philip Gregory Jan 22, 2020

Show notes

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by attorney Philip Gregory, of the Gregory Law Group, to discuss Juliana v. United States and his participation as co-lead counsel in the matter. In today’s bonus episode, Aaron and Philip are talking about what has been dubbed the “biggest lawsuit on the planet,” the case in which 21 young people are seeking to sue the federal government over climate change – and a topic that we covered on this program in episode 70 with Kelsey Juliana herself.

Last Friday, January 17th, a three-judge panel in the U.S. Ninth Circuit Court of Appeals ruled 2-1 to dismiss the case. Philip and Aaron talk about this decision, what it means moving forward, and more. Discussing the Court’s findings, Aaron and Philip talk about due process under the U.S. Constitution, issues of remedy and resolution, the government’s duties to its citizens, as well as what the next steps are. Listen in and enjoy this mini episode on climate change and how it impacts us all.

To learn more about “Youth v. Gov.,” please click here.

To listen to Episode 70, “Is this the biggest lawsuit on the planet? W/ Kelsey Juliana & Julia Olson,” please click here.

To read the U.S. Ninth Circuit Court of Appeals opinion, please click here.

Host: Aaron Freiwald

Guest: Philip Gregory

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Good Law | Bad Law - Trump and the First Amendment: A Conversation w/ Timothy Zick Jan 17, 2020

Show notes

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by Professor Timothy Zick, of William and Mary Law School, to discuss his recent book, The First Amendment in the Trump Era. Aaron and Tim are talking about Democracy, our Constitution, the Press, and the law of the First Amendment – what it is and what it isn’t.

Are facts still facts? Can we find truth in today’s world?

Tim and Aaron address these concerns as they talk about the President’s dramatic, and unique, relationship with the press and his continuous attacks on the media. More than any other modern president, Trump has openly challenged fundamental First Amendment norms and principles relating to free speech and free press. Aaron and Tim break this down throughout the episode and Tim explains that this was one of his main motivations for writing the book. The two discuss Trump’s ability to control the news cycle, Nixon’s “Enemy List,” the pentagon papers, whistleblower protections, and delve deep into various other controversies, the “Twitter case,” alternative facts, as well as whether or not Trump is undermining the press and creating dangerous normalizations.

The First Amendment in the Trump Era catalogs and analyzes the various First Amendment conflicts that have occurred during the Trump presidency. It places these conflicts in historical context – as part of our current digitized and polarized era but also as part of a broader narrative concerning attacks on free speech and press. Tim argues that we must understand what is familiar about Trump’s presidency in terms of the First Amendment but also what is distinctive.

A graduate of Georgetown Law, Tim specializes in Constitutional Law, the 14th Amendment, the First Amendment and Federalism, with teaching interests in the First Amendment, Law and Religion, Constitutional Law, and Constitutional Theory. Following law school, Professor Zick was an associate with the law firms of Williams and Connolly in Washington, D.C., where he assisted in the defense of congressional term limits in the Supreme Court of the United States, and Foley Hoag in Boston. He served as a law clerk to the Honorable Levin H. Campbell of the United States Court of Appeals for the First Circuit and as a Trial Attorney in the Federal Programs Branch of the United States Department of Justice. While at the D.O.J., Professor Zick defended the constitutionality and legality of a variety of federal programs and statutes.

Professor Zick has been a frequent commentator in local, national, and international media regarding public protests and other First Amendment concerns. He testified before Congress on the Occupy Wall Street protests and rights of free speech, assembly, and petition and has been the recipient of the Plumeri Award for Faculty Excellence in 2011, 2013 and 2017.

To learn more about Professor Timothy Zick, please visit his bio page here.

To check out his book, The First Amendment in the Trump Era, please click here.

Host: Aaron Freiwald

Guest: Timothy Zick

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Good Law | Bad Law - Child Soldiers: A Conversation w/ Mark A. Drumbl Jan 10, 2020

Show notes

Children in uniform?

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by Mark A. Drumbl, a Professor of Law at Washington and Lee University and the co-author of a recently published research handbook on child soldiering, to discuss the international problem of children associated with armed groups and/or forces.

An expert in international criminal law, Mark has spent the majority of his career contemplating the complexities surrounding this issue. In his recent works, he hopes to help people reconsider their perspectives of child soldiers – arguing the inherently nuanced nature of today’s topic and the importance of changing our mindset to better appreciate its many challenges and wide-ranging implications. Mark believes that child soldiers remain poorly understood and inadequately protected, despite the considerable media and policy attention they have received. His Research Handbook addresses the troubling gap he and other scholars, professionals and activists see.

How do we begin to think, and talk, about child soldering? Who are these young people? How does our global community regard young people and children? Aaron and Mark delve into these and other questions. They discuss the current recruitment practices of some of the world’s most powerful militaries, including Germany, the U.K., and the United States, as well as the Rwandan Genocide, the G.I.s of World Wars I and II, juvenile rights, categorical understandings of age and more. Mark’s book is a comprehensive showcase of diverse experiences and unique perspectives, unpacking the life-cycle of youth and militarization. Aaron and Mark talk about these concepts and further explore the prevailing assumptions and conceptions of child soldiers, while considering how these ideas can be applied to a broader conversation about young people, volunteerism, individual motivation, and agency.

Mark Drumbl is the Class of 1975 Alumni Professor at Washington and Lee University, School of Law, where he also serves as Director of the University’s Transnational Law Institute. His research and teaching interests include public international law, global environmental governance, international criminal law, post-conflict justice, and transnational legal process. Professor Drumbl has held visiting appointments and has taught intensive courses at law schools world-wide, including Oxford University (University College), Université de Paris II (Panthéon-Assas), Free University of Amsterdam, University of Ottawa, Masaryk University, Trinity College-Dublin, University of Western Ontario, University of Melbourne, Monash University, Vanderbilt University, University of Sydney, and the University of Illinois.

To check out the Research Handbook on Child Soldiers that Mark helped co-edit, please click here.

For more information on Professor Drumbl, please visit his bio page here.

Host: Aaron Freiwald

Guest: Mark A. Drumbl

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Good Law | Bad Law - Re-making Government: A Conversation w/ Robert Glicksman and Alejandro Camacho Jan 03, 2020

Show notes

Aaron Freiwald, Managing Partner of Freiwald Law and host of the weekly podcast, Good Law | Bad Law, is joined by Robert Glicksman, a Professor at the George Washington University Law School, and Alejandro Camacho, a Professor at the University of California, Irvine School of Law, to discuss governmental policy, authority and the dimensions of government, as well as their co-authored book on these subjects, Reorganizing Government: A Functional and Dimensional Framework.

In today’s episode, Aaron, Rob, and Alex talk about how the government works… and moreover, how it doesn’t. What are the ways in which the government works well? And, what are the areas that need improvement? Today’s conversation focuses on how the government could work more effectively and more efficiently. Rob, Alex, and Aaron talk about the structures of government, the day to day tasks, the complexities that need to be considered when discussing reorganization, and more. Throughout, the three talk about regulations, the power of administrative agencies, policy making, the branches of government, as well as the ideas of centralization and decentralization. How should we allocate power to the various agencies in the government? What are the different components of authority? And what are the roles of these agencies?

Alex and Rob assert that regulation is frequently less successful than it could be, arguing that there are often misunderstandings due to the allocation of authority to regulatory institutions and the relationships between them. “Reorganizing Government” explains how past approaches have failed to appreciate the full diversity of alternative approaches to organizing governmental authority. In the book, Rob and Alex illustrate the often neglected dimensional and functional aspects of inter-jurisdictional relations through in-depth explorations of several diverse case studies involving securities and banking regulation, food safety, pollution control, resource conservation, and terrorism prevention. In today’s conversation, Aaron asks Alex and Rob to discuss and expand on these ideas and more.

Robert Glicksman is a nationally and internationally recognized expert on environmental, natural resources and administrative law issues. A graduate of the Cornell Law School, his areas of expertise include environmental, natural resources, administrative, and property law. Before joining the GW law school faculty in 2009, Professor Glicksman taught at the University of Kansas School of Law where he was the Robert W. Wagstaff Distinguished Professor of Law. Professor Glicksman has practiced with law firms in D.C. and New Jersey, focusing on environmental, energy, and administrative law. He has consulted on various environmental and natural resources law issues, including work for the Secretariat of the Commission for Environmental Cooperation in Montreal, Canada. Professor Glicksman has been a member scholar for the Center for Progressive Reform since 2002 and a member of the Center’s Board of Directors since 2008.

Professor Camacho has a joint appointment at UC Irvine in both Law and Political Science. His scholarship explores the goals, structures, and processes of regulation, with a particular focus on natural resources and public lands law, pollution control law, and land use regulation. His writing considers the role of public participation and scientific expertise in regulation, the allocation of authority and relationships between regulatory institutions, and how the design and goals of legal institutions must and can be reshaped to more effectively account for emerging technologies and the dynamic character of natural and human systems. Professor Camacho’s legal scholarship includes articles published or forthcoming in the Yale Journal on Regulation, Washington University Law Review, Vanderbilt Law Review, UCLA Law Review, Stanford Environmental Law Journal, North Carolina Law Review, Harvard Journal on Legislation, Emory Law Journal, Colorado Law, Review, Columbia Journal of Environmental Law, and BYU Law Review.

To learn more about Professor Glicksman, please visit his bio page here.

To learn more about Professor Camacho, please visit his bio page here.

To check out the book, Reorganizing Government: A Functional and Dimensional Framework, please visit the NYU Press website here.

Host: Aaron Freiwald

Guests: Robert Glicksman and Alejandro Camacho

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