Reasonably Speaking

Judges Under Siege: Threats, Disinformation, and the Decline of Public Trust in the Judiciary Aug 08, 2024

This episode addresses the alarming surge of attacks on judges and courts. These attacks range from threats and acts of physical violence to a corrosive rhetoric that undermines public confidence in the judiciary. While criticism of court decisions is a vital aspect of a healthy democracy, dismissing the courts as corrupt or illegitimate threatens the rule of law. ALI President David F. Levi moderates this discussion in which panelists share their perspectives on the increase in attacks on and unfair criticism of judges and propose solutions to protect judicial independence and uphold the integrity of our judicial system.

Empowering Everyday Choices: A Conversation on Philip Howard's "Everyday Freedom" Jul 01, 2024

Is America’s governing framework hindering our ability to make simple choices in daily life? In this episode of Reasonably Speaking, ALI President David F. Levi sits down with author and lawyer Philip Howard to discuss his new book, Everyday Freedom: Designing the Framework for a Flourishing Society.

They’re joined by Judge Edith Jones and Professor Nicholas Bagley for a lively conversation that explores Howard’s critique of complex legal structures and their impact on our sense of agency. They delve into the book’s central theme of "everyday freedom" and how simplifying legal frameworks can empower individuals and revitalize society.

Exploring ALI's History and Influence Mar 05, 2024

On the occasion of ALI’s anniversary, we brought together three of our project Reporters to talk about ALI’s history and a few of our most influential projects. In this discussion, ALI Centennial History Book Editor Andrew Gold is joined by Deborah A. DeMott (Reporter for Restatement of the Law Third, Agency), John C.P. Goldberg (Associate Reporter for Restatement the Law Fourth, Property), and Erin E. Murphy (Associate Reporter for Model Penal Code: Sexual Assault and Related Offenses).

ALI Oral History Series: Roberta Cooper Ramo and Michael Traynor Feb 08, 2024

Mike served as ALI's eighth president from 2000 to 2008, and Roberta as ALI's ninth and first woman president from 2008 to 2017. Both are recipients of ALI's Distinguished Service Award. Beyond the ALI, Mike is senior counsel at Cobalt in Berkeley, California. He's a member of the American Academy of Arts and Sciences and the American Academy of Appellate Lawyers, among others. He's the recipient of the U.S. Court of Appeals for the Ninth Circuit's John P. Frank Award. Mike is an honorary life trustee of Earthjustice as well as on the Environmental Law Institute's Leadership Council and the advisory boards of Sustainable Conservation and the Electronic Frontier Foundation.

Roberta is a shareholder at Modrall Sperling in Albuquerque, New Mexico. In addition to being ALI's first woman president, she was also the first woman president of the ABA from 1995 to 1996. Among other honors, she's an elected member of the American Academy of Arts and Sciences, a fellow of both the American College of Trust and Estate Council and the American Bar Foundation, and has served as a panel member for the American Arbitration Association. Roberta is board chair of Think New Mexico, and a member of the board of the Santa Fe Opera. In 2015, Roberta received the American Bar Association's highest award, the ABA medal. We are so pleased Mike and Roberta have joined us in person to record this dual oral history for the Institute.

Free Speech on Campus Jan 25, 2024

The tension between protecting and promoting freedom of speech is no better exhibited than in the university setting. Historically, colleges have been a place where young minds have been encouraged to exercise true freedom of thought. But to what extent is that freedom protected? Additionally, how does that freedom extend to university faculty?

On this episode of Reasonably Speaking, ALI President David F. Levi is joined by constitutional law expert Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law at The University of Chicago Law School, to discuss speech on campus.

McKeown on the Environmental Legacy of William O. Douglas Jan 24, 2023

ALI President David F. Levi sits down with M. Margaret McKeown, senior judge of the U.S. Court of Appeals for the Ninth Circuit, for a discussion on McKeown’s new book, Citizen Justice: The Environmental Legacy of William O. Douglas—Public Advocate and Conservation Champion.

U.S. Supreme Court Justice William O. Douglas was a giant in the legal world, particularly as the longest-serving justice from 1939 to 1975. His most enduring legacy, however, is perhaps his advocacy for the environment. In a way unthinkable today, Douglas ran a one-man lobby shop from his chambers at the U.S. Supreme Court, bringing him admiration from allies in conservation groups but raising ethical issues with his colleagues. He became a national figure through his books, articles, and speeches warning against environmental dangers. Douglas organized protest hikes to leverage his position as a national icon, he lobbied politicians and policymakers privately about everything from logging to highway construction and pollution, and he protested at the Supreme Court through his voluminous and passionate dissents.

The Public's Confidence in the Supreme Court Sep 07, 2022

The Supreme Court of the United States has historically received criticism from all sides of the political spectrum. However, recent Gallop polls suggest a significant loss in confidence by the American people in several institutions of government, including the Court. These ratings were from June 2022 before the last few controversial decisions of the U.S. Supreme Court were entered, including the abortion case Dobbs v. Jackson Women’s Health Organization and the New York gun case New York State Rifle & Pistol Association Inc. v. Bruen.

This episode brings together U.S. federal judges in a conversation about judging, and the perception of the U.S. Supreme Court in particular, because of the loss of confidence by the American people in the Court.

The conversation is moderated by ALI President David F. Levi, who served on the U.S. District Court for the Eastern District of California from 1990 to 2007, including chief judge from 2003 to 2007. Joining him are Raymond J. Lohier Jr. of the U.S. Court of Appeals for the Second Circuit, Jeffrey S. Sutton, chief judge of the U.S. Court of Appeals for the Sixth Circuit, and Diane P. Wood of the U.S. Court of Appeals for the Seventh Circuit.

Principles to Guide Electoral Count Act Reform May 12, 2022

In April 2022, at the invitation of the leadership of The American Law Institute, a group whose members span a range of legal and political views, came together to consider possible Electoral Count Act (ECA) reforms. Despite holding diverse legal, political, and ideological commitments, the group is united by the belief that Congress should reform the ECA before the 2024 presidential election. The group has agreed on several general principles that should guide ECA reform, as well as specific proposals as to what ECA reform should seek to accomplish. Because of the need for quick action, this project has not gone through the typical ALI bicameral process, which requires approval by both our Council and membership, and therefore cannot be considered the official work of the Institute.

In this episode of Reasonably Speaking, David F. Levi is joined by the project’s co-chairs, Bob Bauer and Jack Goldsmith, who explain the purpose of the project and walk through the General and Specific Principles.

This podcast episode is jointly produced by the ALI and the Bolch Judicial Institute at Duke Law School.

A Conversation with Justice Stephen G. Breyer: The Authority of the Court and the Peril of Politics Jan 27, 2022

U.S. Supreme Court Justice Stephen Breyer spoke about his new book, The Authority of the Court and the Perils of Politics, and his views on judicial decision-making with David F. Levi, director of the Bolch Judicial Institute at Duke Law School and president of The American Law Institute.

During the hour-long conversation, Breyer reflects on his 27 years on the Court and discusses the roots of the Court’s authority and its relationship to the political branches of government. The power of the Court, he says, resides in the people — in their faith in the institution, their belief in the rule of law, and their understanding that the Court operates outside the political realm. The peril of politics, he says, is that if people begin to see judges as nothing more than ‘junior league politicians’ — or as making decisions in order to help a political party or to advance a political agenda — the Court’s power will erode, along with the rule of law.

He recalls that the Chief Justice of Ghana once asked him where the Supreme Court got its power, and why Americans accept and abide by its decisions. After all, as Alexander Hamilton famously noted, the Court has no military or economic power to enforce its decisions. In considering the question, he offers examples of Court decisions that were not enforced — or were actively subverted — by the government: Worcester v. Georgia found that the states did not have the power to impose law on Native American land, yet President Andrew Jackson refused to enforce the decision and the U.S. government ultimately forced Native American tribes off their land. Similarly, states refused to enforce Brown v. Board of Education, and segregation in schools persisted for years despite various efforts by the federal government to force integration.

“I wanted the Chief Justice of Ghana to know that it's not God-given that people would follow what the Court says,” Breyer explains. “If you want a rule of law, if you want it in reality and not on paper, you can't just talk to the judges and you can't just talk to the lawyers. Everybody thinks they want a rule of law. That's how they make their living. But it is the people in the towns, in the villages. Contrary to popular belief, of our 331 million people, 330 million are not lawyers. And they're the ones that have to be convinced that it is in their interest to follow decisions, even when those decisions affect them in a way they don't like, and when those decisions are wrong — because if, after all, it's five to four, somebody's wrong.”

But in America today, Breyer says, very controversial decisions are accepted. Consider a decision as contested as Bush v. Gore, he says. There were no shots fired after Bush v. Gore, he notes, because “Americans have reached a point where they don't even think about the decisions of the Court, not following them. They think it's like the air we breathe. People do. And that doesn't happen by magic. That happens by people understanding the country, by living a history, by having examples.”

That faith in the Court is risked, however, if the public begins to see the Court as a political actor — a perception that the judiciary must counter, he says. He discusses the differences between political decision-making and judicial decision-making, arguing that while judicial philosophies and personal experiences may influence an individual judge’s views, judges must be guided by the law, not political constituents. That doesn’t mean, however, that judges don’t have differing views of what the Constitution means.

“After a while, I began to understand this is a big country, and people think all kinds of different things. And it is not such a terrible thing to have a Supreme Court with nine members where different presidents appoint different judges,” Breyer says. “Ultimately, the country has to suffer from, or rejoice sometimes, or in any case live with the decisions and interpretations of the Court. What Justice Scalia happens to think, or Justice Breyer or Justice O'Connor, about the Constitution is of great interest to many law professors, but not to most people in the United States. It is the Constitution as interpreted by the Court that matters.”

Breyer also discusses the power of deliberation and compromise as a way for the Court to generate public trust and as a way to develop and strengthen common values that can bind the country together in times of division — “remembering that the Constitution has as a basic principle — one of the things that I think is most important — is the principle that it works. The principle that this society does hold together, the principle that this society has certain basic values, and they work. . . . That's our society. We pull together in light of those rather basic constitutional ideas.”

Completing an ALI Project: Lessons from Reporters Apr 22, 2021

Have you ever wondered what exactly goes into completing an ALI project? There’s nobody better to talk about the ALI process than four veteran Reporters whose projects may be completed at the 2021 Annual Meeting. In this episode of Reasonably Speaking, Reporter on one of our newest projects, Lyrissa Lidsky from Restatement of the Law Third, Torts: Defamation and Privacy will moderate the panel of Matthew L.M. Fletcher (American Indian Law), Geoffrey P. Miller (Compliance and Enforcement for Organizations), Kenneth W. Simons (Intentional Torts), and Christiane C. Wendehorst (Principles for a Data Economy), as they discuss their journey from project conception to ALI member approval and completion. They will discuss how they came to be an ALI Reporter, how they work with project Advisers and ALI members, the draft approval process, surprises they learned along the way, and more.

Challenges to the 2020 Election: the Solicitors' Perspective Mar 11, 2021

ALI President David F. Levi is joined by three former Solicitors General, Walter E. Dellinger, Donald B. Verrilli, and Seth P. Waxman, to discuss the topic of election litigation and reflect upon the unconventional challenges faced in the 2020 presidential election.

The U.S. Presidency: Looking Forward Jan 14, 2021

Join us for this episode of Reasonably Speaking where top scholars in U.S. presidency and political science discuss the the history of the U.S. presidency and its future "post–Trump."

Moderated by: ALI President David F. Levi

Panel:

Jack Landman Goldsmith, Harvard Law School
David M. Kennedy, Stanford University
Terry M. Moe, Stanford University
Daphna Renan, Harvard Law School

Children and the Law: Protecting the Vulnerable in a Time of Crisis Dec 15, 2020

The treatment of the children in two distinct areas of the law – child welfare and juvenile justice – is fraught with difficulty even under the best of circumstances. But with the onslaught of the COVID pandemic, the regular challenges and the need to protect children have only been compounded.

In this episode of Reasonably Speaking, juvenile justice scholar and Chief Reporter of the Restatement of the Law, Children and the Law, Elizabeth Scott guides our Children and the Law-exclusive panel through a series of discussions centering on child advocacy and juvenile law during a pandemic. The panel explores how the law defines parental authority, what rights a child has in custody, how lawyers can best represent a child in the system during a pandemic, and more.

Panelists:

Kristin Henning, Georgetown University Law Center
Clare Huntington, Fordham University School of Law
Marsha Levick, Juvenile Law Center

MDLs Go Mainstream: Mass Torts Today Nov 24, 2020

This episode explores the multidistrict litigation (MDL) from their origins to current examples and recommended reforms.

When complex issues effect large numbers of people, MDLs are often seen as the most efficient way to consolidate and manage those cases, recent examples include opioids and Roundup.

Led by MDL expert and scholar Elizabeth Chamblee Burch, participants will discuss the nuances of MDLs and examine how all involved in the process should never lose sight of the human element in these cases. The panel will also explore the role of the MDL judge and address MDL’s pain points as they relate to appellate opportunities, plaintiffs’ attorneys, and more. The episode will conclude with the panel offering some of their own ideas for reform.

Moderator: Elizabeth Chamblee Burch – University of Georgia School of Law

Panelists:

John H. Beisner – Skadden
Abbe Gluck – Yale Law School
Shanin Specter – Kline and Specter

Election 2020: When Are Results Official and What Happens if Results Are Disputed Sep 29, 2020

The 2020 election is seeing unprecedented volatility leading up to November 3. Will this volatility make a difference, helping or hurting the system’s capacity to serve its purpose? This is the first of many questions about the 2020 election that this group of election law experts will tackle.

Every election year presents its own unique set of challenges, but 2020 has been a uniquely challenging year. What can voters expect on and after Election Night? Election results are never final until much later – this year on December 14. On that date, electors will be appointed in all states on the basis of the popular vote in each state, but will we declare success? If not, why not; in other words, what would cause the failure to achieve closure by December 14 in one or more pivotal states? Will the pre-election volatility play a significant role in post-Election Day events?

Moderated by: Steven F. Huefner, The Ohio State University Moritz College of Law

Panelists:

Edward B. Foley, Ohio State University Moritz College of Law
Derek T. Muller, University of Iowa College of Law
Franita Tolson, University of Southern California (USC) Gould School of Law

How Courts Are Addressing Racial Disparities in the Administration of Justice Aug 05, 2020

Since the killings of George Floyd, Breonna Taylor, and Ahmaud Arbery, civil unrest has spread throughout the United States, causing many American citizens to question racial equality in every corner of our society. In this episode we will explore one of those corners, the justice system, to discuss how our courts and judges are addressing the complex topic of racism and racial disparities. The panel also explores racial education programs for federal judges, the disparities in sentencing for Black men in the U.S., and the obligation judges and justices have to provide a justice system that works fairly for all Americans.

Moderated by David F. Levi, ALI President and Director of the Bolch Judicial Center at Duke Law School the panelists are:

Cheri Beasley, Chief Justice of the North Carolina Supreme Court
Charles R. Breyer, U.S. District Court, Northern District of California
Goodwin Liu, California Supreme Court
Raymond J. Lohier, Jr., U.S. Court of Appeals, Second Circuit

Disgorgement or Accounting for Profits? An Analysis of Liu v. SEC Jul 23, 2020

In Liu v. SEC (June 22, 2020), the Supreme Court of the United States held, in an enforcement action by the Securities and Exchange Commission, that a disgorgement order that did not exceed a wrongdoer’s net profits and was awarded for victims constituted “equitable relief” that was permissible under the Securities Exchange Act of 1934, 15 U.S.C. § 78u(d)(5), rather than punitive sanctions, which were historically excluded from the definition of “equitable relief” under the Act.

This episode will discuss the Supreme Court’s decision, both the Securities Act of 1933 and the Securities Exchange Act of 1934, and whether the Court’s reference to “equitable relief” includes the remedy of “disgorgement.” Douglas Laycock, who filed an amiscus brief in support of neither party, will lead this discussion.

Moderated by Douglas Laycock of the University of Virginia School of Law and the University of Texas School of Law.
Panelists:

Andrew Kull, The University of Texas at Austin School of Law
Caprice L. Roberts, The George Washington University Law School

Faithless Electors: SCOTUS Decisions and Implications for November Jul 15, 2020

On July 6, the Supreme Court of the United States held that states may replace and even punish “faithless electors,” the term used for a member of the U.S. Electoral College who does not vote for the presidential or vice presidential candidate they pledged to support. This episode will consider the implications of the Court’s ruling and reasoning for a broader set of questions on the Electoral College system and what might happen in this year’s election.

What if there is a 269-269 tie (hardly impossible given current political climate)? What if the electoral votes from one or more states are disputed in Congress, as might happen if a state’s legislature attempts to repudiate the certification of the state’s popular vote on the ground that it was tainted by some form of fraud (perhaps involving absentee ballots distrusted by the state’s legislature)? Is there anything that can be done now, before voting occurs in the fall, to improve the chances that any such Electoral College anomalies will be handled through the rule of law, in a way publicly perceived as appropriate under the Constitution, rather than perceived as a lawless power grab? S

Moderated by: Steven F. Huefner, The Ohio State University Moritz College of Law

Panelists:

Edward B. Foley, The Ohio State University Moritz College of Law
Franita Tolson, The University of Southern California Gould School of Law
Kate Shaw, Cardozo School of Law

The Plague of Excessive Force - Working Together to Find a Cure Jul 01, 2020

This episode of Coping with COVID shifts attention from one pandemic to another, the plague of excessive force by police officers. This is an old and longstanding problem receiving new attention in the aftermath of the death of George Floyd. Although we have witnessed these atrocities in the past, across the nation, citizens are coming together with a renewed strength to work together to find a solution.

There is much to be done. It is a difficult moment in our history, and yet, amid this intense pain and scrutiny, perhaps there is a new opportunity for consequential reforms. This episode welcomes four experts on policing and police reform who are working toward implementing real change. A lot is riding on how we handle these issues, including the future of our democracy and the realization of a justice system that truly protects and serves all Americans.

Moderated by ALI President David F. Levi, the panelists are:

Lori Lightfoot is the mayor of Chicago. Prior to her election last year, she was a partner at Mayer Brown. She also served on Chicago’s Police Accountability Task Force and as president of the Chicago Police Board.
Art Acevedo is Chief of the Houston Police Department, where he leads 5,200 law enforcement officers and 1,200 civilian support personnel. He has served in law enforcement for more than 30 years. He is an Adviser to The American Law Institute’s Policing Principles project.
Ashley Allison is executive vice president of campaigns and programs at The Leadership Conference on Civil and Human Rights. She previously served as the deputy director and senior policy advisor in the White House Office of Public Engagement.
Barry Friedman is one of the country’s leading authorities on policing. He is the Jacob D. Fuchsberg Professor of Law at NYU and the founding director of the NYU Law School Policing Project. He is also the Chief Reporter for The American Law Institute’s Policing Principles project.

Absentee Balloting: Preparing for the November Election Jun 18, 2020

In its April 2020 primary election, Wisconsin experienced serious problems in its absentee balloting processes, which led to a federal court case (RNC v. DNC) that the U.S. Supreme Court ultimately resolved on election eve. The problem was that in the face of the current pandemic, the number of voters who requested an absentee ballot overwhelmed the election officials’ ability to get the ballots to the voters in time to cast them. The result was the disenfranchisement of tens of thousands of Wisconsin voters, controversy over the federal courts’ ability to remedy this disenfranchisement, and confusion of the voters. But that Supreme Court decision has done little to solve the problem or to reduce the possibility of an analogous controversy in the future. Indeed, this podcast will consider whether the risk of a similar problem in November is every bit as great. For instance, consider the challenge that would confront Pennsylvania – already taxed by having to administer a new mail-in voting law that for the first time will allow any voter to request an absentee ballot – if an outbreak or resurgence of COVID-19 occurs in Philadelphia in the weeks prior to Election Day.

In the face of a surge in requests for absentee ballots that completely overwhelms state election officials, how should our legal system respond? Should a state court order Pennsylvania election officials instead to accept write-in absentee ballots from these voters? Or to accept ballots that arrive up to seven days after Election Day? Or would such an order violate the Due Process Clause? And could a controversy over this scenario result in Pennsylvania submitting two competing slates of presidential electors to Congress?

Moderated by: Steven F. Huefner, The Ohio State University Moritz College of Law

Panelists:

Edward B. Foley, The Ohio State University Moritz College of Law
Justin Levitt, Loyola Marymount University Loyola Law School
Lisa Marshall Manheim, University of Washington School of Law

ALI Oral History Series: Ken Frazier Jun 11, 2020

Featuring one of the series of interviews that ALI is conducting as part of ALI’s Oral History Series, in this episode ALI Council Member Kenneth Frazier of Merck is interviewed by Alfred W. Putnam Jr. of Faegre Drinker Biddle & Reath. This interview was conducted on January 22, 2020.

Ken was elected to ALI membership in 1996, and to ALI’s Council in 2003. He has served as the Chairman of the Board and Chief Executive Officer of Merck since 2011. He joined the company in 1992 and has held positions of increasing responsibility including General Counsel and President. Prior to joining Merck, Ken was a partner with the Philadelphia law firm of Drinker Biddle & Reath, where he and Alfy Putnam met as summer associates.

Coping with COVID: When is it safe to work? Jun 09, 2020

The current public health crisis has raised a variety of new challenges in the workplace. What is the employer's responsibility to keep employees safe? Is an employee able to refuse to work? Can an employee share medical information without adverse consequences? Join us for this episode of Reasonably Speaking when we are joined by lawyers and scholars who are on top of these and other very complex issues of fairness, privacy, safety and the law.

Moderated by:
David F. Levi | President, The American Law Institute; Director, Bolch Judicial Institute

Participants:

Kim J. Askew | Partner, DLA Piper
Patrick S. Casey | Senior Counsel, Sidley Austin
Samuel Estreicher | Dwight D. Opperman Professor of Law and Director, Center for Labor and Employment Law, NYU School of Law; Chief Reporter, Restatement of the Law, Employment Law
Cynthia Estlund | Catherine A. Rein Professor of Law, NYU School of Law
Anton G. Hajjar | Former General Counsel, American Postal Workers Union, AFL-CIO

Coping with COVID: Administering Jury Trials, Mediations, and Complex Litigation May 21, 2020

As we saw in the first episode of Season 2, our state and federal courts have adapted much of their work to digital platforms. But some procedures or litigation events do not easily or obviously translate to digital. In this episode, judges and court administrators reveal how procedures and processes that traditionally rely heavily on in-person interactions, such as jury trials or mediations, can be modified to accommodate social distancing. The panel also explores how complex litigation, including multidistrict litigation (MDL), is coping with COVID.

Moderated by David F. Levi, President of The American Law Institute and Director of the Bolch Judicial Center

Panelists are:

Karen K. Caldwell, United States District Court for the Eastern District of Kentucky
Sherri R. Carter, Superior Court of California, County of Los Angeles
Mark A. Drummond, Civil Jury Project at NYU School of Law, 8th Judicial Circuit of Illinois
Robin L. Rosenberg, United States District Court for the Southern District of Florida
Samuel A. Thumma, Arizona Court of Appeals, Division One
Vaughn R. Walker, United States District Court for the Northern District of California

Robert L. Wilkins v. Maryland State Police May 14, 2020

This episode features a previously un-aired portion of the season one episode “Long Road to Hard Truth: The 100 Year Mission to Create the National Museum of African American History and Culture.” On that episode, Judge Paul Friedman of the U.S. District Court for the District of Columbia sat down with Judge Robert Wilkins of the U.S. Court of Appeals for the District of Columbia Circuit to talk about his book of the same title. During the recording of that episode, Judge Wilkins mentioned a personal experience that he went through in the 1990s, a lawsuit that he filed against the Maryland State Police. This lawsuit ended up being a game changer. Judge Friedman asked Judge Wilkins to share his story, which we now present in this standalone episode.

Coping with COVID: Leading through Uncertainty - Perspectives from the Private Sector May 12, 2020

Don’t miss this episode, as we welcome Katherine Adams, Senior Vice President and General Counsel of Apple; Ivan Fong, Senior Vice President, General Counsel & Secretary of 3M; Ken Frazier, Chairman and CEO of Merck; and Malini Moorthy, Vice President and Chief Deputy General Counsel of Medtronic, as they discuss how their companies are responding to the COVID crisis. Moderated by ALI President David F. Levi, the panel will discuss how companies are pivoting to increase output of critical supplies, compliance and crisis management issues, workplace safety for employees, as well as navigating regulations. Additionally, this episode will take a look toward the future to consider what we have learned that may change the way we do business.

Medical Malpractice in the Restatement Third of Torts May 07, 2020

This episode explores one aspect of our ongoing project, Restatement of the Law Third, Torts: Concluding Provisions. Specifically, we'll be discussing medical malpractice.

Torts was one of the first Restatements completed by The American Law Institute. Now in the Third series, nearly 90 years later, medical malpractice has never been included in any Restatement series until now. Led by Restatement Reporter Michael Green, the participants will discuss why now is a particularly opportune time for ALI to take on this unruly subject.

Moderated by: Michael D. Green, Wake Forest University Law School

Panelists:

Mark Hall, Wake Forest University Law School
Laura Sigman M.D., J.D.; Children’s National Health System
Shanin Specter, Kline & Specter

Coping with COVID: How Law Schools Are Educating Students and Fostering Community Apr 30, 2020

In this third installment of the “Coping with COVID” series, ALI President David F. Levi is joined by six law school deans to discuss how their schools are adjusting to remote learning, including adapting experimental classes, clinics, and other hands-on courses to the online format. The deans also discuss how law schools are responding to the crisis by adjusting their admissions processes and re-allocating resources, all while maintaining a normal level of scholarly exchange and excitement. The panel also looks ahead to when schools may re-open as well as the effects of the pandemic on students outside of the classroom, including views on summer and permanent positions as well as bar exams.
Panelists:

Kerry Abrams, James B. Duke and Benjamin N. Duke Dean and Professor of Law, Duke Law School
Vikram D. Amar, Dean and Iwan Foundation Professor of Law, University of Illinois College of Law
Heather Gerken, Dean and Sol & Lillian Goldman Professor of Law, Yale Law School
John F. Manning, Morgan and Helen Chu Dean and Professor of Law, Harvard Law School
Jenny S. Martinez, Dean and Richard E. Lang Professor of Law, Stanford Law School
Jennifer L. Mnookin, Dean, David G. Price and Dallas P. Price Professor of Law, UCLA School of Law

Coping with COVID: Legal Services Organizations on the Frontlines Apr 23, 2020

"Coping with COVID: Legal Services Organizations on the Frontlines" welcomes several accomplished lawyers who lead legal services organizations and who are working hard to assist people with critical legal needs. Our country has long struggled to meet the needs of people who cannot afford legal services and the COVID crisis has only exacerbated these needs. These leaders discuss how they are persevering in their efforts to serve their clients and how the COVID crisis may be providing a push and a path toward long-term improvements in our system. Featuring panelists:
Ronald S. Flagg - President, General Counsel and V.P. for Legal Affairs, Legal Services Corporation
Lynn A. Jennings - Vice President for Grants Management, Legal Services Corporation
Yvonne Mariajimenez - Executive Director, Neighborhood Legal Services of Los Angeles County
Raun J. Rasmussen - Executive Director, Legal Services NYC
Laura Tuggle - Executive Director, Southeast Louisiana Legal Services

Coping with COVID: How Courts Are Preserving Access to Justice Apr 16, 2020

This is the first installment of a series of episodes on "Coping with COVID." Produced jointly by the Bolch Judicial Institute of Duke Law School and The American Law Institute, this series examines the impact of the COVID-19 pandemic on the legal system. Moderated by David F. Levi, ALI President and Director of the Bolch Judicial Institute, this episode features top state and federal judges as they discuss how our courts are meeting the challenge of continuing to administer our justice system during this crisis.

Panelists:

Chief Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit
Chief Judge Lee Rosenthal of the U.S. District Court for the Southern District of Texas
Chief Justice Nathan Hecht of the Supreme Court of Texas
Chief Justice Bridget McCormack of the Supreme Court of Michigan

May It Please the Court Part II: A Closer Look at Arguing in Front of SCOTUS Jul 16, 2019

In this episode, we spend time with Paul D. Clement, who served as the 43rd Solicitor General of the United States from June 2005 until June 2008. Before his confirmation as Solicitor General, he served as Acting Solicitor General for nearly a year and as Principal Deputy Solicitor General for over three years. He has argued nearly 100 cases before the United States Supreme Court.

The American Law Institute would like to thank Oyez for excerpted portions of Supreme Court oral arguments. This material is released under the Creative Commons license. Oyez is a free law project from Cornell’s Legal Information Institute, Justia, and Chicago-Kent College of Law. Listeners may learn more about Oyez or listen to full oral arguments online at oyez.org.

Why Is Defining Consent So Difficult? Jun 04, 2019

Consent is a concept at the center of criminal law and sexual assault. So, why is it so difficult to accurately define? Sexual assault laws have evolved from requiring the victim to resist toward requiring consent. However, “consent” is defined in many ways.

In this episode, two experts on the topic, Criminal Law Professor Aya Gruber and AEquitas Co-Founder and CEO Jennifer Long, discuss and debate the potential for success and failure of implementing an “affirmative consent” requirement, how we now understand that there is no expected behavior during or after a sexual assault, and how important is to treat every case individually.

Responding to Sexual Assault Allegations on Campus May 14, 2019

Colleges and universities face special challenges in designing and implementing procedures to respond to campus sexual and gender-based misconduct, while maintaining an academic community with equal educational opportunities for all students.

In this episode Suzanne Goldberg, Professor of Law at Columbia Law School and Executive Vice President for University Life at Columbia University, and Gil Sparks, member and past Chairman of the Board of Trustees of the University of Delaware, discuss what schools are doing to implement procedures that are both effective and fair for those who have suffered from such misconduct and for those accused.

Creating a Strong Corporate Compliance Program May 07, 2019

Board members, business owners, employees, and even customers should all be interested in a company’s compliance policies and adherence to them. Why? Because there is much at stake.

Join us for this episode when we ask two compliance experts about the greatest challenges in creating a strong compliance program and establishing a corporate culture that supports it. We welcome Ivan Fong, Senior Vice President of Legal Affairs and General Counsel at 3M. In 2018, 3M was named to Forbes’ list of Most Reputable Companies, Ethisphere’s list of World’s Most Ethical Companies, and Glassdoor’s list of Best Places to Work, among other honors. We are also pleased to have Lori Martin, Partner at WilmerHale, join us. Lori has an extensive compliance practice, where she helps numerous clients audit and strengthen their current compliance programs.

Long Road to Hard Truth: The 100 Year Mission to Create the National Museum of African American History and Culture Apr 30, 2019

On this episode, Judge Paul Friedman of the United States District Court for the District of Columbia sits down with Judge Robert Wilkins of the United States Court of Appeals for the District of Columbia Circuit to talk about his book Long Road to Hard Truth: The 100 Year Mission to Create the National Museum of African American History and Culture.

As his book title indicates, attempts and failures to build a museum dedicated to African American history date back more than 100 years. Judge Wilkins played an integral role in making the museum a reality.

Coming to Terms with Consumer Contracts Apr 16, 2019

Consumer contracts are everywhere. The number of contracts you enter into today may surprise you. Most of the contracts you enter into no longer involve a pen and paper. Purchasing a morning coffee, visiting a website, or scheduling a delivery are just a few daily transactions that more often than not include contract terms.

In this episode, consumer contract experts Omri Ben-Shahar and Florencia Marotta-Wurgler discuss several types of consumer contracts, enforceability of terms, and the potential consequences of agreeing to these terms without reading the fine print.

Race and Policing Part 2: Predictive Policing, Funding Priorities, and Working Toward a Solution Apr 09, 2019

In part two of this two-part episode, Sherrilyn Ifill of the NAACP Legal Defense and Educational Fund, Inc., Barry Friedman, New York University Law professor and director of NYU’s Policing Project, and John Malcolm of the Heritage Foundation continue the discussion about the intersection of race and policing in the United States. The application of new technologies and the danger of doing so without oversight is discussed, as well as some suggestions about what everyone can do to make a positive difference, whether a lawyer, police officer, community leader, or concerned citizen.

Listen as these experts, who currently are on the front lines (an advocate and civil rights lawyer, a civil liberties lawyer whose current work is with communities and police departments, and the director of a think tank tasked with increasing government officials', the media's, and the public's understanding of the Constitution and the rule of law), discuss new policing technologies, as well as new theories about public policy that may help shape the future of race and policing.

Race and Policing Part 1: History, Training Programs, and Police as First Responders Apr 02, 2019

In part one of this two-part episode, Sherrilyn Ifill of the NAACP Legal Defense and Educational Fund, Inc., Barry Friedman, New York University Law professor and director of NYU’s Policing Project, and John Malcolm of the Heritage Foundation begin their exploration of the intersection of race and policing in the United States. They discuss history of race relations in the U.S., and the resulting impact on law enforcement practices; the role of first responders, and if police officers are the right people to fill that role; and implementing effective training programs.

Listen as these experts, who currently are on the front lines (an advocate and civil rights lawyer, a civil liberties lawyer whose current work is with communities and police departments, and the director of a think tank tasked with increasing government officials', the media's, and the public's understanding of the Constitution and the rule of law), discuss new policing technologies, as well as new theories about public policy that may help shape the future of race and policing.

Consent and Sexual Assault in Criminal vs. Civil Law Mar 26, 2019

From start to finish, criminal and tort cases differ in many ways, including how a case is initiated, in which court it is heard and decided, standards of proof, and the consequence if the defendant is found liable (punishment if defendant is convicted of a crime; payment of money damages if defendant is liable for a tort). Some cases [or fact patterns] qualify as both crimes and torts. These differences are especially evident in sexual assault claims where a single legal term, such as “consent,” may be defined quite differently, depending on the type of legal claim asserted.

In this episode, NYU Law’s Erin Murphy and UC Irvine Law’s Ken Simons explore the difference between criminal law and tort law in the United States and then focus on how “consent” is, and should be, defined in sexual assault allegations.

American Indian Law: When Two Sovereigns Collide Mar 19, 2019

In this episode, renowned experts on American Indian law and policy, Matthew Fletcher and Wenona Singel, discuss the nuanced and highly complex field of American Indian Law. Matthew and Wenona begin by exploring the history of tribal sovereignty, and discuss the rights of American Indians as both tribal citizens and U.S. citizens. We then explore jurisdiction across border lines, particularly in a criminal context. Matthew and Wenona discuss the history of violence against native women, and why, until recently, prosecution has been so difficult. The history of and current U.S. court challenges to the Indian Child Welfare Act are also examined.

Protecting Children in Criminal Procedures Mar 12, 2019

Listen as the experienced child advocate and juvenile law scholar talk about the current issues and explore state policies and practices that have been implemented to help protect children.

History of the treatment of children in the justice system

[04:26] Modern trends in how we view children

[17:20] Racial disparities

[21:18] Recent progress

May It Please the Court: SCOTUS Perspectives from Leading Supreme Court Advocates Mar 04, 2019

How does one prepare, and what is it like to argue before the U.S. Supreme Court? In this episode, Douglas Laycock, an experienced Supreme Court advocate himself, moderates an insightful conversation between two prominent Supreme Court appellate lawyers. Former Solicitor General Seth Waxman of WilmerHale and former Assistant to the Solicitor General Nicole Saharsky of Mayer Brown share their personal experiences as well as their unique insight into the nation’s highest court.

The Decline of the Death Penalty Feb 04, 2019

The death penalty in the United States, both new convictions and executions, has declined through recent decades. In this episode, we explore the history of the death penalty and the various factors that are contributing to this decline.

Death penalty expert and author of End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice, Brandon Garrett, talks about this history and the revealing details of his data collection on the demise of capital punishment. We are also joined by ALI’s past President Roberta Cooper Ramo and former Judge Christine Durham, who discuss ALI’s removal of the Death Penalty from the Model Penal Code, perhaps one of the earliest indications of the future of capital punishment.

The History of the U.S. Death Penalty

[04:00] ALI and the decision to remove the death penalty from the Model Penal Code

[24:00] Reasons for the death penalty’s decline

[43:00] Race and the death penalty

[46:00] The future of the death penalty

Protecting Individual Liberties: Recognizing the Value of State and Federal Courts Jan 30, 2019

When U.S. citizens hear “constitutional law,” we tend to think only of the U.S. Constitution, U.S. Supreme Court, and the federal court system, effectively ignoring the power of state constitutional law. In 51 Imperfect Solutions, U.S. Court of Appeals Judge Jeffrey S. Sutton argues that American Constitutional Law should account for the role of the state courts and state constitutions, together with the federal courts and the federal constitution, in protecting individual liberties.

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