Daily Journal Podcast with Howard Miller: Recent Episodes
Daily Journal
Daily Journal Podcast with Howard Miller. Howard is a JAMS mediator and arbitrator, a past president of the State Bar of California, and a former professor of law at the USC Gould School of Law.
The Law of Rebuilding LA Episode 28: Hawaii's unique approach to wildfire litigation settlements by
The Law of Rebuilding LA Episode 26: FEMA, debris removal and transitional housing solutions by
The Law of Rebuilding LA Episode 25: Hawaii Gov. Green on lessons from the Lahaina fire response by
The Law of Rebuilding LA Episode 24: How California's fire maps could reshape rebuilding by
The Law of Rebuilding LA Episode 23: Should California's building code be overhauled after the fires? by
The Law of Rebuilding LA Episode 22: Must the Palisades rebuild include affordable housing? by
The Law of Rebuilding LA Episode 19: What new building codes mean for rebuilding efforts by
The Law of Rebuilding LA Episode 13: Tax extensions and state relief for fire victims by
The Law of Rebuilding LA Episode 9: Navigating living expenses and toxic cleanup costs after disaster by
The Law of Rebuilding LA Episode 7: The process of determining coverage and rebuilding timeframes by
The Law of Rebuilding LA Episode 6: Balancing insurance industry concerns with homeowner needs by
The Law of Rebuilding LA Episode 5 - Underinsurance concerns and rising rebuilding costs by
The Law of Rebuilding LA Episode 3: Personal property claims and the challenge of content valuation by
The Law of Rebuilding LA Episode 2: Insurance timelines and the battle for fair replacement costs by
Has the recent Hollywood strike exerted any influence on the realm of documentaries? Could this strike potentially offer a boost to the documentary genre? Diana Palacios, an attorney at Davis Wright Tremaine LLP, delves into this question and more.
Join podcast host Sunidhi Sridhar and Dykema associate attorney Jasmina Aragon as they delve into California's meal and rest break violations, covering employer challenges, legal consequences, and effective management strategies.
In this episode, attorney David Schnider from Nolan Heimann chats with podcast host Sunidhi Sridhar about the intricacies of deepfake copyright ownership.
DLA Piper employment law partner, Holly Lake, lends her expert insights into how the affirmative action ban shapes diversity initiatives in private workplaces post-Supreme Court rulings.
Parag Amin, founder and attorney at The Law Office of Parag L. Amin, P.C., sits down with podcast host Sunidhi Sridhar to discuss social media influencers in the age of the Hollywood strike and to explore the unique dynamics of influencers' earnings and impact compared to screen actors and writers.
Podcast host Howard Miller talks with Chris Punongbayan, executive director of Change Lawyers (f/k/a California Bar Foundation).
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Podcast Host Howard Miller reviews with Robert Lutz his remarkable lifetime influence in International Law.
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Podcast host Howard Miller talks with leading tax expert Robert Wood on California tax proposals.
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Podcast host Howard Miller talks with Ralph Baxter about legal reform in Utah and Arizona, and the challenges for California.
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Podcast host Howard Miller talks with Andri Iancu about challenges to innovation and IP protection.
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Podcast Host Howard Miller talks with Harvard Professor of Law Richard Lazarus about great climate change lawyering.
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Podcast host Howard Miller talks with Paul Kiesel about impact on clients of court management and lawyer’s technology.
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Podcast Host Howard Miller talks with Judge Jeremy Fogel (ret.), Director Berkeley Judicial Institute, Former Director Federal Judicial Center, on reshaping trial courts.
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Podcast host Howard Miller talks with Jon Eisenberg about appellate delay harms and solutions.
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Podcast host Howard Miller talks with arbitrator Max Factor III about issues raised by the proposed Forced Arbitration Injustice Repeal (FAIR) Act.
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Podcast host Howard Miller talks with author Kathleen Tuttle about her remarkable history of real L.A. lawyers.
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Podcast host Howard Miller talks with former Majority Leader Dario Frommer on the 2021 issues for the California legislature.
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Podcast Host Howard Miller talks with Burford Capital's Christine Azar about the growth of litigation finance.
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Podcast host Howard Miller talks with leading bankruptcy counsel Lei Lei Wang-Ekvall on Covid-19 pressures.
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Podcast Host Howard Miller talks with Judge Daniel Weinstein (Ret.) on the importance of character development in mediators and mediation advocates.
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Podcast host Howard Miller talks with Dean Erwin Chemerinsky on doctrinal issues in the Supreme Court Obamacare argument.
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Podcast host Howard Miller talks with Professor Jay Tidmarsh about an historic model for resolving massive financial disputes.
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Podcast host Howard Miller talks with Dean Mitchel Winick about provisional licensure and other paths to lawyering.
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Podcast host Howard Miller talks with Emily Cook of McDermott, Will & Emery on Covid caused health regulatory changes and pressures.
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Podcast host Howard Miller talks with Daily Journal labor reporter Jessica Mach on new California labor and employee legislation.
Podcast host Howard Miller talks with Les Schiefelbein, CEO of the Silicon Valley Arbitration and Mediation Center.
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Podcast host Howard Miller talks with Daily Journal reporter Henrik Nilsson on Covid-19's stunning impact on law graduates and the bar exam.
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Podcast host Howard Miller talks with Pat Kelly, Judicial Council lawyer representative, about how the Council has navigated decision-making in the COVID-19 pandemic.
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Podcast Host Howard Miller speaks with Arizona Justice Ann Timmer on Pathbreaking Rules and Lawyer Opportunities.
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Podcast Host Howard Miller interviews Daily Journal Capital Bureau chief Malcolm Maclachlan on important bills from the legislative session that ended September 1.
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Podcast Host Howard Miller talks with Judge Peter Lichtman (Ret.) on how to succeed in mediation.
Podcast Host Howard Miller interviews Stacy Phillips on unprecedented family law practice challenges
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Podcast host Howard Miller speaks with Douglas Young, President of the American College of Trial Lawyers, about requirements in jury selection and technology for jury and non-jury trials.
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Podcast host Howard Miller interviews Pankit Doshi on issues of applying employment and labor laws to Covid furloughs and widespread work from home.
Podcast Host Howard Miller interviews Micha Star Liberty, President of Consumer Attorneys of California, on current crisis in courts and justice system.
Podcast host Howard Miller interviews Mark Rosenbaum on Chief Justice Robert's opinion and the Supreme Court judgment that saved the DACA immigration program.
Podcast host Howard Miller interviews Adam Murray of the Inner City Law Center on dramatic need of legal services and policies especially housing and homelessness.
Podcast host Howard Miller interviews Stephen Newman of Stroock about the impact on robocalls and jurisprudence of recent U.S. Supreme Court case Barr v. American Association of Political Consultants.
Podcast host Howard Miller interviews UCLA Law Dean Jennifer Mnookin on current challenges in legal education, bar exam controversies, and generational change in law students and legal practice.
Podcast host Howard Miller interviews retired Chief U.S. District Judge Philip Pro on how courts and dispute resolution procedures can deal with the volume and complexity of cases we now face.
Podcast host Howard Miller interviews Daniel Garrie on the greater cybersecurity risk to everyone with the dramatic increase of work from home.
The second of two podcasts. Podcast host Howard Miller interviews Emily Martin of the National Women's Law Center on the need for protections and remedies for those sexually harassed on campuses.
Leading First Amendments scholar and the Gary T. Schwartz Distinguished Professor at UCLA School of Law, Eugene Volokh joins us on the pod to discuss: whether the government can force citizens to get vaccinated, the Supreme Court precedent that guides his thinking on First Amendment issues related to Covid-19, his scholarship on court forgeries, and why he loves being an academic.
The first of two podcasts with contrasting views. Podcast host Howard Miller interviews Mark Hathaway and Jenna Parker on their representation of students accused of sexual harassment.
Delving into issues and case studies related to business ethics, the first guest in this new podcast is Mark Enrich: Finance Editor for the New York Times and author of the Best Selling book, Dark Towers: Deutsche Bank, Donald Trump, and an Epic Trail of Destruction. He'll discuss the quark in history that allowed Deutsche Bank to survive, why it lent to Donald Trump after he defaulted and sued them, and what might be in the subpoenaed documents at issue in the recent Supreme Court cases involving contested House subpoenas for Trump's financial records at Deutsche Bank.
Podcast host Howard Miller interviews Daniel Kolkey, principal drafter of the California International Arbitration Act, on new opportunities for California lawyers and businesses.
Podcast Host Howard Miller talks with Brian Kabateck of Kabateck LLP about dramatic challenges to our profession.
Podcast Host Howard Miller interviews defendants' counsel Peter Klee and Marc Feldman of SheppardMullin with the arguments for insurers
Podcast Host Howard Miller interviews leading plaintiffs' counsel Michael Bidart and Ricardo Echeverria of Shernoff, Bidart and Echeverria with the arguments for policyholders.
Podcast Host Howard Miller and Jeffrey Benz, a leading international Arbitrator and Mediator based in Los Angeles and London discuss how current disruptions in Sports and Entertainment may be resolved.
In this 2nd hour Judge Rex Heeseman discusses third party liability coverage for coronavirus related issues.
The first of two podcasts with Rex Heeseman on insurance coronavirus issues. This one on Business Interruption Insurance. Second will be on other CGL, O&E, D&O and additional insurance issues.
State and federal regulation of cannabis, and critical difference in law and planning between THC and CBD.
Howard Miller, a thought leader in the California legal community for many decades, is the Daily Journal’s new podcast host. He’ll be speaking once a month with other legal thought leaders on some of the most pressing issues of our time.
This week, Howard Miller talks to Jennifer Hernandez of Holland & Knight about the intersection between land use law, housing, climate change policies, and the constitution and civil rights
What exactly California's newly-enacted, landmark data privacy law means for impacted businesses, compliance attorneys, and consumer advocates remains to some degree uncertain, as regulations attending the statute are still being finalized. Experts in the area John W. Berry and Grant A. Davis-Denny (Munger, Tolles & Olson LLP) discuss ambiguities the forthcoming regulations will resolve, and forecast what those resolutions may look like.
Attorneys on different sides of two pending suits over California's new worker classification law discuss aspects of AB 5 and the challenges it faces. Jim Manley (Pacific Legal Foundation) seeks to enjoin the law on behalf of freelance journalists whose First Amendment rights, he says, the new law violates. Stacey Leyton (Altshuler Berzon LLP) is defending AB 5 on behalf of the International Brotherhood of Teamsters, and says the law should withstand a constitutional and preemption challenge brought by a trucking industry group.
California's new law prohibiting mandatory arbitration clauses in employment contracts is on hold for now due to a Chamber of Commerce suit in the Eastern District. Our guests Cliff Palefsky (McGuinn, Hillsman and Palefsky) and Ryan Derry (Paul Hastings) discuss whether federal courts will find the law preempted by the Federal Arbitration Act.
We consider the upcoming, long-anticipated SCOTUS fight over the Consumer Financial Protection Bureau. Jolina Cuaresma (UC Berkeley Law; Georgetown Law), a former CFPB attorney and industry advisor discusses why the agency should remain independent but how Congress' design of a single bureau director may have backfired; Ilan Wurman (Sandra Day O'Connor Law) will then discuss whether 'Seila Law' may lead the Court to re-consider independent executive agencies altogether, and the longstanding precedent 'Humphrey's Executor v. U.S.'
Munger, Tolles & Olson LLP partners John W. Berry and Elaine Goldenberg, securities experts with experience in the SEC and U.S. Solicitor General's Office, discuss the appeal 'Liu v. SEC,' where defendants who ran a fraudulent investment-for-visa racket claim their $27 million disgorgement order was beyond the agency's authority. Plus, Tom Hiltachk discusses the Cal. Supreme Court's ruling blocking a recent state law that sought to keep presidential candidates from the primary ballot unless they disclosed tax returns.
Cases claiming discrimination on the basis of religion and on the basis of sex are before SCOTUS this term; will the high court a Montana constitutional provision blocking any aid from religious institutions? Will Title VII be read to protect transgender workers from adverse employment actions?
Offering opposing views in the cases of 'Espinoza v. Montana' and 'R.G. & G.R. Harris Funeral Homes v. EEOC,' Frank Ravitch (Michigan State Univ. COL) Anthony Caso (Chapman SOL), Adam Romero (UCLA SOL Williams Institute) and Dean Broyles (Nat'l Ctr for Law and Policy) join the podcast
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Does the Constitution mandate an insanity defense? Or a unanimous jury in criminal cases? And where does the evolving juvenile jurisprudence stand on life-without-parole sentences? Six attorneys - five amici and one counsel who argued before the Court - offer competing views.
Guests include: Rachel Van Cleave (Golden Gate Univ.), Bradley Hubbard (Gibson Dunn), Elizabeth Murrill (Louisiana Solicitor General), Michael Saks (Sandra Day O'Connor COL), John R. Mills (Phillips Black), and Thomas Fisher (Indiana Solicitor General)
Two prominent ERISA cases appear on OT 2019's securities docket, and will determine key parameters of future suits over retirement investment plans. Blaine Evanson (Gibson Dunn & Crutcher) joins us to discuss both appeals, 'Thole v. U.S. Bank' and 'Intel v. Sulyma.'
And Adam Wolfson (Quinn Emanuel Urquhart & Sullivan) explains what's at stake in 'Moda Health v. U.S.,' which, he says, could jeopardize the future of private enterprise cooperation with governmental programs.
Six guests offering competing views on three cases from OT 2019's immigration and border issue docket.
Mark Rosenbaum (Public Counsel) and Josh Blackman (South Texas College of Law) discuss the consolidated DACA appeals set for argument in November.
Regarding Kansas v. Garcia, in which Kansas' high court said a state statute used against unauthorized immigrants seeking employment with fraudulent social security numbers was preempted by federal law, we're joined by Lew Olowski (Immigration Reform Law Institute) and Kevin Johnson (Dean, UC Davis SOL).
And Professor Gregory Sisk (Univ. St. Thomas SOL) and Larry Joseph (APA Watch) offer competing takes on whether the family of a Mexican teenager killed by a federal agent's lethal cross-border shot have a constitutional 'Bivens' claim.
A pitched legal battle has begun over California's Clean Air Act emissions waiver, which allows the state to set its own more stringent vehicle pollution controls irrespective of federal standards. The EPA claims its power to grant that waiver entails an inherent power to revoke it, and moreover says a 1975 law - the Energy Policy and Conservation Act - preempts the Clean Air Act's provision that creates California's carve out.
Three guests join this week's podcast to discuss the issues involved in the matter, and the suit California and several other states now pursue against the Trump administration. Julia Stein (UCLA School of Law) discusses some background on the Clean Air Act section that heretofore has helped California battle its smog, and offers thoughts on the arguments likely to be advanced by the government in defense of its new rule. Greg Dotson (Univ. Oregon School of Law), who has written extensively on the preemption argument, joins the show discuss that, and Jay Himes (Labaton Sucharow) discusses the antitrust angle of the matter, as several automakers have agreed with California to maintain vehicle fleets that meet the state's standards.
Don't forget to claim CLE credit for listening to the show.
Under newly-signed AB 392, law enforcement officers may only use lethal force where it's "necessary." The bill's author, Shirley Weber (D - San Diego), and civil rights attorney and UCLA clinical professor Lisa Holder (L/O of Lisa Holder) describe the new standard.
Plus Sacramento correspondent Malcolm Maclachlan details the last flurry of bills to pass the California legislature, including ones regulating arbitration, the gig economy, vaccines, sexual harassment, and college athletes.
Just-signed SB 27 seeks income tax disclosures from next spring's presidential primary candidates. Will it stand?
Attorneys pressing challenges in state and federal court - Tom Hiltachk (Bell, McAndrew & Hiltachk) and Mark Anchor Albert (Mark Anchor Albert & Associates) - say the law is partisan and violates both the state and federal constitutions. State Senator Scott Wiener (11th Dist) argues the measure falls within California's administrative authority to conduct its elections.
Two cases last term gave SCOTUS a chance to meaningfully curtail administrative agency power; did the Court take it? Jean-Claude André, Sidley Austin LLP partner and chair of the firm's west coast Supreme Court practice, joins the show to discuss the current balance of constitutional power and how the Court may alter it moving forward.
The 9th Circuit is mulling whether a JAMS arbitrator should have disclosed his part-ownership of the company, and whether such an arrangement creates a problematic incentive as to repeat parties. JAMS' Chief Legal and Operating Office Kimberly Taylor, and Prof. Katherine Stone (UCLA Law) offer competing views
A battery of amicus briefs say SCOTUS should overturn a 20-year California rule setting minimum arbitration standards; will the FAA-friendly high court agree? Karla Gilbride (Public Justice), attorney for the plaintiff/respondent, and Fred Hiestand (CJAC), a defense-supporting amicus, offer competing views
After hearing argument the California Supreme Court has ordered additional briefing in a case that could reshape the contours of the state's Private Attorneys General Act. Attorneys involved in the case, Michael Rubin (Altshuler Berzon) and Robert Olson (Greines, Martin, Stein & Richland) offer competing viewpoints.
Several state law enforcement agencies would like to inform prosecutors if officers have misconduct on their records, so prosecutors can seek and give to defendants any potential exculpatory evidence, as required by 'Brady v. Maryland.' But California's 'Pitchess' laws say officer personnel files can only be opened in response to court orders. This week's guests offered arguments Wednesday before the state high court on how to resolve this seeming puzzle. Geoffrey Sheldon (Liebert Cassidy Whitmore) argued on behalf of the information-sharing policy; Judy Posner (Benedon & Serlin) and Elizabeth Gibbons (The Gibbons Firm) represented a union of sheriff's deputies, and argued against it.
Business-owner plaintiffs suffering 'purely economic losses' from the 2015 SoCalGas leak were barred Thursday from recovering their claimed damages. The California Supreme Court, with palpable reluctance, endorsed a strict rule generally denying tort recovery to plaintiffs whose money damages aren't tied to personal injury or property harms. Amicus supporting SoCalGas, Yen-Shyang Tseng (Horvitz & Levy), and the plaintiffs' attorney Leslie Brueckner (Public Justice) offer competing views
Challengers claiming Los Angeles City Council District 10 was racially gerrymandered have asked SCOTUS to step in. On the show are petitioners' counsel Rex Heinke (Akin Gump), and two attorneys opposing review on behalf of Los Angeles, Robin Johansen (Remcho Johansen & Purcell), and Harit Trivedi (LA City Attorney's Office)
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Sally Q. Yates, former U.S. Deputy Attorney General and Acting Attorney General, and now partner with King & Spalding, joins the show, along with Commissioner Eileen Decker (Los Angeles Board of Police Commissioners) and Justice Helen Bendix (2DCA/1), all panelists of this year's California Lawyer Women Leadership in Law conference. They share experiences and insights on the trailblazing paths they've struck, and the course ahead for gender equity at law's highest levels.
Nationwide injunction critics say the remedy prevents lower court percolation; the 9th Circuit will test that thesis after ordering briefing on whether an injunction from Pennsylvania moots the local appeal. Scholars Howard Wasserman (FIU Law) and Alan Trammell (Univ. Arkansas Law) offer competing views.
Can shareholders sue over tender offer misrepresentations and omissions? And is negligence the standard to meet? SCOTUS this week left both questions unresolved, and an unbalanced circuit split intact. Securities experts Matthew Close and Brittany Rogers (O'Melveny & Myers) discuss the implications. And Ron Holland (McDermott Will & Emery) explains the high court's latest 9th Circuit reversal and FAA vindication.
Co-authors of the new book 'The Company They Keep: How Partisan Divisions Came to the Supreme Court,' Lawrence Baum (Ohio State) and Neal Devins (William & Mary SOL), discuss their research on an historically polarized high court, and how divided elite communities drove the Court's partisan schism. Plus, Dr. Adam Feldman (Empirical SCOTUS) queries whether a rightward-shifting Court has driven its chief somewhat leftward.
In one of three bitterly-fought denials for rehearing en banc, the 9th Circuit let stand a ruling protecting homeless individuals from prosecution for sleeping in public spaces, when no shelter is available. But six dissenters called the decision 'badly misguided,' and another order 'absurd.' Professor Arthur Hellman visits first to discuss the use of 'dissentals' in this context, which one judge says is a lamentable 9th Circuit innovation that creates 'distorted presentations' of cases. Then, Public Counsel's Mark Rosenbaum discusses the legal and policy points of the public sleeping ruling, and its impact on LA's approach to its homelessness crisis.
As the Supreme Court seems vexed once again by partisan gerrymandering challenges, we’re joined by Benjamin Fliegel and Brian Sutherland (Reed Smith LLP), who represented amicus California Citizens Redistricting Commission in last year’s gerrymandering challenge 'Gill v. Whitford.' They explain why courts should enter this political fray, and how California’s independent, nonpartisan redistricting body sets an example for SCOTUS and for other states.
District Attorney Todd Spitzer (Orange County), veteran criminal defense attorney Robert Sanger (Sanger Swysen & Dunkle), and state Senator Bill Monning (Dist. 17) reflect on Gov. Newsom's death penalty moratorium, and on the likely future for capital punishment in the state.
Securities and white collar defense veteran Richard Marmaro (Skadden, Arps, Slate, Meagher & Flom LLP) offers insights into his trade, and the marathon securities case that culminated his career last year. Orange County reporter Meghann Cuniff conducts the interview.
The 1st District Court of Appeal is poised to become the first California appellate court to use tentative rulings district-wide. New Rule 15(b) of the district's proposed updated local rules would allow panels to 'on occasion and in their sole discretion' issue tentative rulings in advance of oral argument. Administrative Presiding Justice Jim Humes visits to discuss the proposal, its provenance, and its intended impact. Plus, John Taylor, Jr., and Kirk Jenkins (Horvitz & Levy) offer the appellate attorney perspective.
This week we're joined by four experts to chat through the week's biggest California-related appellate and constitutional news. Arthur Hellman (Pitt Law) and Dan Siegel (Siegel, Yee, discuss SCOTUS' reversal of Stephen's Reinhardt's posthumous gender pay gap ruling; Marc Angelucci (Nat'l Coalition for Men) chats about his Equal Protection Clause win against an all-male draft; and Glenn Danas (Robins Kaplan) describes why PAGA waivers remain unenforceable post-'Epic.' Plus reporter Nick Sonnenburg appraises the 9th Circuit's newest member, Eric Miller
SCOTUS has decided to hear an important 9th Circuit appeal regarding whether the Clean Water Act covers indirect discharges of pollutants. The grant allows the Court to clean up something of a muddy jurisprudence, after the last major water decision, 'Rapanos v. U.S.,' fractured the justices and left uncertainty as to which opinion controls. We present competing views from the attorney for environmental plaintiffs, David Henkin (Earthjustice), and from Andre Monette (Best, Best & Krieger), who represents a cohort of public agency amici.
The fight over a prominent, publicly-maintained cross memorializing war dead gives SCOTUS the chance to clarify a confused Establishment Clause doctrine. What might that look like? We'll hear contrasting viewpoints from First Amendment experts Alan Brownstein (UC Davis School of Law) and Richard Garnett (Notre Dame Law School)
Several 9th Circuit appeals await resolution at the U.S. Supreme Court this term, and some other prominent petitions remain pending. Appellate expert Blaine Evanson (Gibson Dunn) previews how SCOTUS' second half might resolve these matters. Plus, Harsh Voruganti (Voruganti Law Firm; The Vetting Room) discusses the latest 9th Circuit nominees and their various hurdles to confirmation.
In its first chance to construe new First Amendment commercial speech doctrine articulated last spring by SCOTUS in 'NIFLA v. Becerra,' an en banc 9th Circuit panel united to block San Francisco's soda advertisement health warning, but split four ways on why the compelled speech was impermissible. Competing amici Wen Fa (Pacific Legal Foundation) and Ted Mermin (Berkeley Law; Public Good Law Center) unpack the ruling and the emerging doctrine.
As the 46th Securities Regulation Institute convenes in San Diego, we examine three prominent securities law cases under SCOTUS consideration. Peter Henning (Wayne State SOL; formerly SEC) unpacks 'Lorenzo v. SEC' and misstatement liability, Matthew Close (O'Melveny) discusses 'Emulex v. Varjabedian' and tender offer omissions, and Brendan Cullen (Sullivan & Cromwell) chats 'Toshiba v. AIPTF' and the Security Exchange Act's extraterritorial limits.
The government’s plan to add a citizenship question to the 2020 Census hit a judicial impasse Monday, in the form of a stern 277-page district court ruling that questioned the administration’s motives, and which is likely destined for SCOTUS review. Three guests help unpack the sprawling decision: Prof. Justin Levitt (Loyola Law School), Steven Camarota (Center for Immigration Studies), and former Census Bureau Director Vincent Barabba.
When one's speech - rather than criminal activity - prompts an arrest, can a First Amendment retaliatory arrest claim be sustained where there existed some probable cause for the arrest? The Ninth Circuit says yes, but most other circuits hold otherwise, and SCOTUS will soon decide the issue in 'Nieves v. Bartlett.' Opposing parties in the pending case, Lisa Soronen (amicus supporting law enforcement) and Tyler Broker (representing the arrestee plaintiff), present their views.
As U.S. Chief Justice John Roberts tries to minimize perceptions of politically-motivated federal courts, the California Constitution Center has published a quantitative study showing that partisan background is, in fact, a poor predictor of California Supreme Court justice voting behavior. Brandon Stracener, the group's senior research fellow, discusses his study's finding on that and other points. Meanwhile, Professor Richard Abel (UCLA Law) explains how his new scholarship undercuts Roberts' efforts, and whether the 'useful fiction' of a neutral judiciary has merit, anyway. Plus, criminal justice reporter Paula Ewing describes a rare move of the state high court to block several of departing Gov. Brown's grants of clemency.
It's confirmed: Joshua Groban will be the newest California Supreme Court justice. Revisit our conversation on Groban's appointment featuring Associate Justice Therese Stewart (1DCA/2), Presiding Justice Arthur Gilbert (2DCA/6), and former State Bar president Howard Miller (JAMS)
A California appellate court, again, has overturned university discipline rendered after a sexual assault claim, and the Department of Education will likely soon rebalance procedural safeguards in favor of accused students. Prof. Lara Bazelon (USF School of Law) and Kelly Woodruff (Cal. App. Law Group) offer differing views on what level of due process should attend campus sexual assault adjudications.
The California Supreme Court heard arguments Wednesday as to what latitude the state has to revise or reduce public employee pensions. The fight is one of several percolating up the courts over 2013 cost-cutting measures. Amici Dan Kolkey (Gibson Dunn, formerly 3DCA) and David Mastagni (Mastagni Holstedt) offer competing views.
Judge James Donato (ND CA) and former U.S. Ambassador Jeff Bleich, in the second edition of their semi-regular podcast series, consider President Trump's reference to "Obama" judges, Jay-Z's assertion that arbitration panels lacks diversity, and the privacy and antitrust concerns around virtual assistants
Does the Eighth Amendment protect one against excessive fines levied by the state? As SCOTUS mulls this lingering incorporation question, two amici - Beth Colgan (UCLA SOL) and Larry Rosenthal (Chapman Univ. Fowler SOL) - offer competing views on the doctrine and the case's ramifications. Plus reporter Erin Lee previews her profile of California Supreme Court Justice Mariano Florentino Cuellar.
An expert panel reviews Gov. Brown's final high court selection, Joshua Groban. Justices Arthur Gilbert (2DCA/6) and Therese Stewart (1DCA/2), and former State Bar president Howard Miller (JAMS) chat Groban, Brown, and the California Supreme Court to come.
The California Supreme Court is set to answer an open question in anti-SLAPP jurisprudence: What's an 'issue of public interest?' With intermediate courts split on the matter, anti-SLAPP expert Kevin Vick (Jassy Vick Carolan) joins to show to argue that only a broad interpretation of those words advances the law's original intent to protect rigorous public discourse. Plus, Professor Jean Reisz (USC Gould SOL) discusses the 9th Circuit's DACA ruling, and the case's likely future.
Amicus filings at the Supreme Court are at record levels, and seem more influential than ever. They're also increasingly submitted by a small coterie of often-coordinated SCOTUS veterans. Professors Allison Orr Larsen and Neal Devins (William & Mary Law), and Supreme Court practitioners Anthony Franze and Reeves Anderson (Arnold & Porter) discuss the burgeoning "Amicus Machine."
Attorneys using judicial avenues to force action on climate change will confront - for the foreseeable future - a firmly conservative, pro-business Supreme Court. Professor Michael Allan Wolf (Univ. Florida College of Law) explains how attorneys can package environmentally-friendly causes in conservative-friendly arguments; and Philip Gregory (Gregory Law Group), co-counsel in a climate suit currently stayed by SCOTUS, argues that the Fifth Amendment guarantees the right to a stable, secure climate.
For the first time, SCOTUS' law clerk class is majority female; but that milestone follows a bitter confirmation fight that centered on sexual assault and gender parity issues, and comes in part because of the new justice's all-women clerk cohort. Former Supreme Court clerks Tara Kole (Gang Tyre Ramer & Brown) and Prof. Sherry Colb (Cornell Law School)help make sense of the conflicting, gender-suffused events of the past few weeks.
The third episode of the DJ on the J.D., the Daily Journal’s legal education podcast, features two first-year UCLA School of Law students. They were part of the 8 percent rise in law school applicants this past admissions cycle, an increase that has been called the “Trump Bump.” Aspiring lawyers Alberto De Diego Carreras and Tyler Fields, who come from two different political perspectives, joined host Lyle Moran to discuss their decisions to attend law school. Podcast edited by Nick Perez.
Adam Feldman, from the blog Empirical SCOTUS, offers a quantitative-based preview of Brett Kavanaugh’s first term. And Seth Stodder, former Assistant Secretary of Homeland Security for Border, Immigration, and Trade Policy, unpacks Wednesday’s Supreme Court argument in the 9th Circuit immigration appeal 'Nielsen v. Preap.'
Ellis Horvitz, founder of Horvitz & Levy and pioneer of appellate-centered legal practice, was honored Friday as the inaugural inductee to the California Lawyers Association's Appellate Lawyer Hall of Fame; before the ceremony he spoke with us to share thoughts on his life and practice.
Judge James Donato (ND CA) and former U.S. Ambassador Jeff Bleich, on the first of a hopefully ongoing podcast series, provide contrasting views on the Kavanaugh confirmation gauntlet, and the impact it will leave on the Court, the nominee, and future nominees.
As a new Supreme Court term commences, partly overshadowed by a seething political feud surrounding the proposed new ninth justice, two appellate experts - Blaine Evanson (Gibson Dunn & Crutcher) and Justin Levitt (Loyola Law School)- help preview the next act for this new Court.
David Kaplan, 'Newsweek' veteran and Supreme Court chronicler, visits to discuss his new book 'The Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution.'
An en banc 9th Circuit will reconsider whether due process in removal proceedings guarantees undocumented minors government-sponsored counsel; Andrew Arthur (Center for Immigration Studies) and Stephen Kang (ACLU) offer competing views. And Kevin Johnson (UC Davis SOL) describes how “egregious” regulatory violations may terminate deportation actions. Plus, reporter Chase DiFeliciantonio describes Jeff Sessions’ latest move to restrict the discretion of immigration judges.
The 9th Circuit rejected a Koch Industries-backed charity's claim that state-required disclosures of top donor information violate its First Amendment right to free association; might this ruling prompt a newly-constituted SCOTUS to revisit campaign finance regulations and political dark money? Competing amici Tara Malloy and Megan McAllen (Campaign Legal Center) and Jeremy Talcott (Pacific Legal Foundation) discuss.
On the concluding day of confirmation hearings for Judge Brett Kavanaugh, senators heard not from the nominee but rather 26 witnesses offering both support and opposition for Kavanaugh. Anna-Rose Mathieson (Cal. Appellate Law Group) recounts the day's most salient testimony, and other themes from the week.
Senators sparred over - and throughout the day released - documents Democratic members claimed the majority party had designated for committee review only, hoping to shed more light on Brett Kavanaugh's views on, among other things, abortion and executive power; the nominee largely parried a second round of questioning, on issues ranging from LGBT rights, campaign finance, immigration, affirmative action, &c. Ben Feuer (Chairman, Cal. Appellate Law Group) joins to the discuss the day's hearings.
A tumultuous first day of confirmation hearings for Judge Brett Kavanaugh saw senators spar at length over the adequacy of provided documents, amidst frequent verbal protests from the gallery. Democratic senators also previewed likely lines of attack over the next few days, once questioning of Kavanaugh begins. Blaine Evanson (Gibson Dunn) visits to unpack the day's events.
After successive, sudden departures of Judges Pregerson, Kozinski, and Reinhardt, the 9th Circuit's varying approach to deciding pending cases on which the judges worked has drawn attention and some criticism; Professor Arthur Hellman (Pitt Law) and reporter Nick Sonnenburg discuss.
While the Weekly Appellate Report is on a brief summer hiatus, revisit an earlier episode exploring the new test California courts have begun to apply when figuring whether hired workers are employees or independent contractors. The state high court created the "ABC Test" in May; since then a few courts have applied it, while gig-economy titans have fought the new doctrine, which some deem unduly tilted toward "employee" designations, in Sacramento.
In the second episode of Courts & Capital, it discusses attorneys who fight for the Civil Rights of...Sex Offenders. Attorney Janice M. Bellucci has a tough job: suing the Dept. of Corrections and local governments over for infringing on the rights of sex offenders. As the executive director of the Alliance for Constitutional Sex Offense Laws, she has forced cities to drop residency restrictions, defeated an attempt to disenfranchise voters at a state hospital, and is still battling to make sex offenders eligible for early release under Prop. 57. She joins us today to talk about the many types of laws and legal cases involved in this highly varied and sometimes thankless work.
A split 9th Circuit panel Tuesday deemed open public firearm carry a "core" Second Amendment right, and struck down a Hawaii permitting regime limiting public carry to those showing a special need. The plaintiff's co-counselors, Alan Beck (L/O of Alan Beck) and Stephen Stamboulieh (Stamboulieh Law PLLC), explain the majority's reasoning, and Hannah Shearer (Giffords Law Center to Prevent Gun Violence) unpacks Judge Clifton's dissent, and explains how this ruling fits within the broader Second Amendment jurisprudence, as the question of "special need" or "good cause" permitting regimes percolates up to the Supreme Court.
The second episode of the DJ on the J.D., the Daily Journal’s legal education podcast, focuses on hybrid law degrees. Some law schools in California are planning to launch these programs featuring significant online learning components in the near future. Jackie Gardina, dean of the Santa Barbara & Ventura Colleges of Law, and Vermont Law School professor Oliver Goodenough join host Lyle Moran to discuss hybrid degrees. Podcast edited by Nick Perez
Three guests offer a range of views on the potential next U.S. Supreme Court justice, Brett Kavanaugh. Justin Walker (UL Brandeis SOL), a former Kavanaugh clerk, shares why he believes the circuit judge to be both an honorable person and peerless jurist; Gayle Trotter champions the pick and Kavanaugh's originalist bona fides; Sanford Levinson (Univ. Texas SOL)worries that Kavanaugh is a movement conservative whose selection tilts the Court further right than the country as a whole.
In this first episode of Courts & Capital, it'll cover the #MeToo scandal across California, specifically hitting the state's Legislature hard. What are the legal standards in harassment cases? Has the Legislature exempted itself from the laws it applies to other employer? We talk to Wendy Musell (Stuart & Musell) of the California Employment Lawyers Association and plaintiff's attorneys Micha Star Liberty (Liberty Law Office) and Genie Harrison (Genie Harrison Law Firm).
The California Supreme Court will soon decide whether the doctrine of unconscionability renders certain consumer loans unenforceable due to high interest rates; Steven Tindall and Andre Mura (Girard Gibbs LLP) and Catherine Brennan (Hudson Cook) offer competing perspectives.
A range of guests reflect on retiring Justice Anthony Kennedy's legacy and forecast the Court to come: Garrett Epps (Univ. Baltimore SOL) discusses how Kennedy's 'small-town lawyer' roots made him unique on the modern Court; Ilya Somin (Antonin Scalia Law School) offers a libertarian's take on the justice's legacy; John Culhane (Delaware SOL) explains why Kennedy's legacy may quickly 'turn to dust;' Jonathan Adler (Case Western Reserve SOL) addresses the legal doctrine most likely to see added (or removed) gloss in the ensuing terms, and previews the president's potential nominees; and former Kennedy clerk Joshua Matz (Gupta Wessler PLLC) predicts a Court potentially facing a legitimacy crisis after the retirement of its median justice.
As nearly $4 million in fees hang in the balance, the California Supreme Court debates whether and how firms can effectively use advance conflict-of-interest waivers, particularly with sophisticated clients. Amici Stephen Raucher (Reuber Raucher & Blum), Jennifer LaGrange (Spertus, Landes & Umhofer), and Richard Painter (U Minn. Law) offer competing views, and describe the potential ramifications on law firm practice and the availability of legal representation as momentous.
California appellate courts have split on the question of whether overlap between two consumer protection statutes renders one of them impermissibly vague; the California Supreme Court will soon decide that question, of keen interest to individuals, the state, and agencies that purvey consumer background information, as well parties - like prospective employers and landlords - reliant on those agencies. Implicated also are other areas of law, e.g. labor and environmental, where statutory overlap is not infrequent.
We'll hear a range of views from Hunter Pyle (Hunter Pyle Law), Catha Worthman (Feinberg Jackson Worthman & Wasow), Ted Mermin (Public Good Law Center; Berkeley Ctr. for Consumer Law and Economic Justice), and Montserrat Miller (Arnall Golden Gregory LLP).
After arguments last week, and an appellate ruling parting ways with a decades-long line of caselaw, the California Supreme Court will consider whether industry custom evidence can be admitted in strict liability actions; amici Brian Chase (Bisnar Chase) and Fred Hiestand (L/O of Fred Hiestand) offer opposing views.
The first episode of the DJ on the J.D., the Daily Journal’s legal education podcast, focuses on the significant increase in law school applicants this admissions cycle. The renewed interest has been a bright spot for the schools amid other pressing challenges. Stephen Ferruolo, dean of the University of San Diego School of Law, and Law School Transparency Executive Director Kyle McEntee join host Lyle Moran to give their reactions to the nearly 9 percent surge in applicants. Podcast edited by Nick Perez
Is donating to charity surplus class action settlement funds a logical, efficient solution for unclaimed damages, or a Due Process and First Amendment violation that incentivizes collusion and self-dealing? The U.S. Supreme Court will consider the practice next term, reviewing a Ninth Circuit affirmance of a Cy Pres-based settlement. Guests Jeremy Kidd (Mercer Univ. SOL) and Jay Tidmarsh (Univ. Notre Dame SOL) offer differing views on the doctrine's utility, defects, and future.
A new three-step test distinguishing employees from independent contractors stands to tilt worker misclassification suits toward plaintiffs, and reshape many modern, independent contractor-centric business models. Michael Rubin (Altshuler Berzon LLP) and Gina Roccanova (Myers Nave) unpack the new ‘ABC Test,’ articulated last week by the California Supreme Court, and its implications.
To what extent should the president's statements (on social media, the campaign trail, or in office) bear on judicial review of enacted policy? As SCOTUS weighs the third travel ban, Rory Gray (Sr. Counsel, Alliance Defending Freedom) argues the Court shouldn't look past the policy's professed purpose of national security, while Professor Richard Primus (Univ. of Michigan Law School) contends statements hinting at religious animus should be given their full probative weight.
Three guests weigh the implications of Justice Neil Gorsuch's swing vote last week with his more liberal colleagues in an immigration case; John McGinnis (Northwestern SOL) gleans aspects of Gorsuch's 'modern' originalism, Mark Pulliam (Contributing Editor, Law and Liberty; Misrule of Law blog proprietor)Latham & Watkins, ret.) wonders whether the new justice has already 'gone wobbly,' and Eric Segall (Georgia St. Univ. Law) speculates on what extra-judicial influences might prompt another surprise vote from Gorsuch this term.
SCOTUS seems poised to invalidate compelled public union dues on First Amendment grounds, but some argue the Court's skeptical eye overlooks an implicit doctrine unifying much of its historic jurisprudence, namely that compelled transfers of money (e.g. taxes, minimum wage laws) are regular governmental functions not meriting heightened scrutiny. Nikolas Bowie (Harvard Law School) explains the argument, and his forthcoming paper on the 'Government Could Not Work' doctrine.
After another SCOTUS summary reversal of a Qualified Immunity denial, Jay Schweikert (Cato Institute) discusses what he sees as the doctrine's suspect legal grounding and adverse policy implications, and Professor James Pfander (Pritzker School of Law) describes how QI's application stagnates constitutional tort law doctrine, and how nominal damage claims could provide a solution.
Constitutional law scholar and former clerk for the late Liberal Lion Stephen Reinhardt, Michael Dorf (Cornell Law School), reflects on Reinhardt's tenure and legacy; then, he details the current, somewhat uncertain Second Amendment doctrine that post-Parkland gun control measures may meet.
Timothy Meyer (Vanderbilt Law) explains how Congress' near-plenary power over international trade gradually shifted to the executive branch, and argues that domestic economic and political conditions recommend a return to the Constitution's original, legislative-centered trade power alignment.
Four amici from the First Amendment challenge to a California abortion disclosure law discuss what they consider the case's most salient constitutional points: the (non-existent?) Professional Speech Doctrine; potentially diluted strict scrutiny; the ubiquity of disclosures like California's, and the sweeping implications were it felled; and what is meant by 'informed consent?' Guests include Robert McNamara (Institute for Justice), Brianne Gorod (Constitutional Accountability Center), Steven Aden (Americans United for Life), and John Baker (Greene Espel)
Professor Josh Blackman (South Texas College of Law) takes measure of the DOJ's constitutional arguments in its suit challenging California's laws protecting undocumented immigratns; plus, Gerald Maatman (Seyfarth Shaw) assesses Tinder's arguments that its variable pricing model isn't a civil rights violation, as the dating app company seeks Cal. Supreme Court review.
With social media evidence increasingly used at criminal trials, do defendants have a constitutional right to subpoena relevant online records while building their case? Don Landis (L/O of Don Landis) says yes, as the California Supreme Court mulls the question. Plus, Steve Hirsch (Keker & Van Nest) unpacks the high court's decision on who owns the rights to hourly work when law firms dissolve.
SCOTUS considered Wednesday whether concerns over voter intimidation and polling place decorum justify a broad Minnesota prohibition against political apparel at the ballot box. Dan Weiner (Brennan Center for Justice) says the law should stand, or perhaps be narrowed to alleviate overbreadth concerns. Plus, reporters Chase DeFeliciantonio and Nick Sonnenburg catch us up on recent immigration filings.
May a capital defense counsel constitutionally concede his client's guilt, against the client's wishes, where such an admission may be the best chance at avoiding the death penalty? Amicus Albert Giang (Boies Schiller Flexner LLP) argues that the U.S. Supreme Court should answer that question in the negative, and also discusses the tricky line-drawing problems this case presents the high court.
Can required warning labels on soda advertisements pass First Amendment muster? An en banc 9th Circuit will reconsider the question, after striking such a San Francisco ordinance last year. Our guests Ted Mermin (Public Good Law), Ben Winig (Changelab Solutions) and Bob Corn-Revere (Davis Wright Tremaine) offer opposing viewpoints.
Professor Zachary Price (UC Hastings College of the Law) discusses why courts should be wary of overstating the reliance interests that arise from federal non-enforcement regimes, and says that - whatever one's views on the underlying policy - separation of powers concerns recommend reversal of the Northern District's DACA injunction.
What does the 9th Circuit's unwinding of a multi-state class action settlement against Hyundai augur for future nationwide suits, or for already concluded claims like the ND CA's $15B Volkswagen settlement? Andrew Trask (McGuire Woods; Class Action Countermeasures) discusses.
SCOTUS will soon consider whether Securities and Exchange Commission administrative law judges have been duly appointed, casting doubt on years of (and billions of dollars in) past, pending and future enforcement actions, says former SEC senior counsel Peter Altman (now a partner with Akin Gump)
As SCOTUS considers Ohio's program to notice and then purge inactive voters from the state's registry, opposing amici Robert Popper (Judicial Watch) and Aderson Francois (Georgetown Law) offer competing takes on whether Ohio's approach violates federal law. Plus, reporter Nick Sonnenburg explains how the Department of Justice hopes to leapfrog 9th Circuit review of the Northern District's DACA injunction.
A violent chemistry lab stabbing prompts California's high court to reconsider whether state universities owe their students a duty of care; a split 2DCA said no, but Sharon Arkin (Arkin Law Firm) argues a limited duty is proper. Plus, Niels Frenzen (USC Law) unpacks the likely Ninth Circuit-bound block of the Trump administration's DACA rescission
As the California Supreme Court mulls whether compelled DNA swabs of felony arrestees are constitutional, Michael Risher (ACLU of Northern California) contends our state's heightened protections (and the Fourth Amendment, too) forbid such seizures
SCOTUS should use 'China Agritech v. Resh' to clarify that 'American Pipe' tolling does not protect successive class claims, says amicus Rachel Brass (Gibson Dunn & Crutcher), as she unpacks one of the high court's latest cert grants; plus, a run down of this week's notable appellate rulings
SCOTUS takes on a second partisan gerrymandering case, signaling a willingness to finally brave the thorny legal thicket this term, says election law expert Richard Pildes (NYU Law); plus 9th Circuit reporter Nick Sonnenburg unpacks oral arguments in a novel constitutional challenge by youth plaintiffs over the government's handling of climate change
As California's aquifers diminish, the state high court clarified Monday just what latitude groundwater management districts have when setting pumping fees, explains Adam Hofmann (Hanson Bridgett LLP). And, immigration reporter Chase DiFeliciantonio details Wednesday's 9th Circuit oral argument on the latest travel ban, and what Monday's SCOTUS order fully enforcing it signals for a likely-imminent Supreme Court review on the merits.
As SCOTUS considers the constitutionality of Inter Partes Review, an administrative adjudication meant to streamline patent challenges, Ben Davidson (Davidson Law Group) explains the case, the process, and the competing legal and policy arguments.
Alex Abdo (Knight First Amendment Institute) says the Fourth Amendment can't adequately protect essential freedoms imperiled by modern government surveillance, and explains why SCOTUS should adopt a First Amendment framework in surveillance cases like 'Carpenter v. U.S.' Plus, David Luban (Georgetown Law; Just Security) describes how a Guantanamo Bay prosecution saw the (brief) detention of a Marine general lawyer after the general raised ethics concerns.
Under Article III Congress may 'ordain and establish' lower federal courts , but can it direct them to 'promptly dismiss' certain pending cases? As SCOTUS considers the question, Ben Feuer (Cal. App. Law Group) says its answer might skew the balance of federal power and lead to a more politicized judicial process. Also, Mitchell Keiter (Keiter Appellate Law) argues that SCOTUS should reverse the 9th Circuit in 'NIFLA v. Becerra,' a free speech and abortion case granted cert Monday
In 'Hernandez v. Restoration Hardware,' argued Tuesday, Ryan Wu (Capstone Law APC) says the California Supreme Court has a chance to deter bad faith objectors from hijacking class action resolutions, but the court must untangle a knot of conflicting precedent bearing on unnamed class members' rights on appeal.
Various historical drivers created our near-absolute free speech protections; will contemporary forces - fake news, terrorism, hateful rhetoric - weaken them? UC Hastings' Zachary Price discusses doctrinal weak points these phenomena could threaten
Loyola Law School professor Justin Levitt unpacks this week's SCOTUS arguments on political gerrymandering, and UC Davis School of Law Dean Kevin Johnson offers insights on the case considering constitutional rights of detained non-citizens
Ryan Bounds’ colleague and chair of the 9th Circuit Appellate Lawyer Representatives, James Azadian, discusses the nominee’s credentials, qualities, and impending confirmation gauntlet; plus, Peter Henning (Wayne State Law) discusses how insider trading prosecutions just became appreciably easier, and Eric Segall (Georgia State Law) offers a temperate take on the exchange between Dianne Feinstein and Seventh Circuit nominee Amy Coney Barrett
Original airdate: September 15, 2017
Many agree that public safety, more than a defendant's wealth, should determine his access to pre-trial release; but after a computer-generated public safety assessment recommended release for a San Francisco defendant who has subsequently been arrested for murder, debate over the role algorithms should play in determining risk has raged. San Francisco Public Defender Jeff Adachi and Los Angeles Deputy District Attorney Eric Siddall discuss.
Original airdate: September 8, 2017
Substantial suits set to shape class action, employment and consumer law jurisprudence await appellate rulings on threshold jurisdictional questions: Brian Kabateck (Kabateck Brown Kellner) and Chris Baker (Baker Curtis & Schwartz) discuss the NLRA-based argument against individual arbitration pending before the 9th Circuit and SCOTUS, and Jim Sturdevant (Sturdevant Law Firm) contends the California Supreme Court can decide when steep loan interest rates become illegal
Original airdate: August 31, 2017
A unanimous California Supreme Court deems discovery of fellow employee contact information in PAGA claims permissible, as lead counsel Glenn Danas explains (Capstone Law APC); and Bryan Wenter (Miller Starr Regalia) discusses how SCOTUS passed up a perfect opportunity this term to clarify Takings law, and instead rendered it even more complex
Original airdate: July 14, 2017
Does a state provision meant to protect residents from new taxes apply when voters themselves initiate the tax? The Cal. Supreme Court debates, and Adam Hofmann (Hanson Bridgett) explains. And, Cory Andrews (Washington Legal Foundation) discusses SCOTUS' latest enunciation of a strictly-construed general personal jurisdiction doctrine.
Original airdate: June 2, 2017
Legal educators and commentators Frank Wu (UC Hastings) and Stephen Diamond (Santa Clara) revisit Whittier Law School's closure, offering differing takes on its causes, its debated inevitability, and what it augurs for the evolution of legal education.
Original airdate: June 16, 2017
Kedar Bhatia (Greenberg Traurig), curator of SCOTUSBlog’s annual statistical analysis of U.S. Supreme Court terms, visits to review the quantitative term that was; and, Paul Bland (Public Justice) discusses a recent rule reversal that relaxes federal restrictions on mandatory arbitration clauses in nursing home contracts.
Original airdate: August 18, 2017
The California Supreme Court upholds much of Prop 66 but undercuts its central provision requiring death penalty appeals to culminate within five years, as Professor Elisabeth Semel (UC Berkeley Law) explains. Brian Turner (Nat'l Trust for Historic Preservation) and Elly Benson (Sierra Club) visit to review two circuit court environmental cases.
Original airdate: August 25, 2017
Will SCOTUS modernize Fourth Amendment doctrine in 'Carpenter v. U.S.,' involving warrantless searches of modern tech-generated information? Amici Andrew Crocker (Electronic Frontier Foundation) and Jim Harper (Competitive Enterprise Institute) preview. Plus, Jean-Paul Jassy (Jassy Vick Carolan) explains why First Amendment challenges may await the LA City Council-backed proposal to require city contractors disclose ties to President Trump’s border wall.
Original airdate: August 11, 2017
Paul Levy (Public Citizen) says the 1DCA should have placed a higher burden on defamation plaintiffs seeking identities of anonymous online reviewers in 'ZL Technologies v. Doe'; David Kopel unpacks a D.C. Circuit gun ruling striking down 'good cause' requirements for public carry permits not unlike those approved of recently by the 9th Circuit.
Original airdate: July 28, 2017
Guests discuss two lesser-known pieces of federal law gaining prominence in recent suits against the current administration; Professor Zachary Clopton (Cornell Law) addresses the threshold inquiry of whether Emoluments Clause questions are justiciable, and Sophia Lakin and Theresa Lee (ACLU) discuss their Federal Advisory Committee Act claims just filed against President Trump's Committee on Election Integrity.
Original airdate: July 21, 2017
How a split Cal. Supreme Court leaves uncertainty about Prop 36 resentencing discretion, and a unanimous Texas high court queries the 'constellation of benefits' guaranteed same-sex marriages by 'Obergefell;' plus, commentary on a liberal-justice-driven pro-business SCOTUS term, and what dicta nuances foretell for next term's immigration battles
Original airdate: July 7, 2017
This week's guests address the biggest issues ruled on in this last week of SCOTUS activity before the summer recess, and preview a couple of looming cases granted for next term.
SCOTUS slaps down California's 'sliding scale' approach to specific personal jurisdiction, explains Blaine Evanson (Gibson Dunn & Crutcher); and as Justice Thomas expresses 'skepticism' over qualified immunity in Ziglar v. Abbasi, Professor William Baude (Univ. of Chicago Law) argues that the doctrine's uncertain legal foundations are ripe for reconsideration.
Original airdate: June 23, 2017
This week the state high court debates Prop 66, passed narrowly in November and designed to quicken California's criminal executions; Professor Elisabeth Semel (UC Berkeley Law) and LA Deputy District Attorney Michele Hanisee (President, LA Assn of DDAs) offer opposing views on the legal and policy considerations that surround a swifter death penalty
Original airdate: June 9, 2017
49: SCOTUS' Turn on Net Neutrality? SCoCA on Long-Range Climate Targets' Impact on CEQA by
Professor David Engstrom explains CalPERS v. ANZ Securities, which entails Neil Gorsuch's first day of oral argument and represents SCOTUS' latest treatment of class action procedure; Audra Ibarra discusses why, after abran v. Sharp Memorial Hospital, not all mandatory rules are jurisdictional, and how that impacts your next motion for new trial
Is it a tax or a fee? Adam Hofmann (Hanson Bridgett LLP) explains how the answer in Jacks v. City of Santa Barbara could dramatically impact California cities; Ben Davidson (Davidson Law Group) discusses why SCOTUS' decision rendering the laches defense unavailable in patent claims makes defendants unduly vulnerable
Presiding Justice of the 2nd District Court of Appeal's 6th Division, Arthur Gilbert offers wit and wisdom from his decades on the bench, guidance on best appellate practices, and an explanation of how he's maintained his mirthful monthly Daily Journal column for nearly 30 years.
For the first time, Cal. Supreme Court says black market goods have "fair" market value, for purposes of Prop 47 valuation, explains Laura Arnold (Riverside County Dep. Public Defender); Matthew Blackburn (Diamond McCarthy) details a critical SCOTUS fight over patent venue that's attracted more than 30 high-profile amici
Josh Patashnik (Munger, Tolles & Olson) explains the 9th Circuit's significant determination that Winters rights apply to groundwater; Jeffrey Aaron (Office of the Federal Public Defender) describes a narrow evidence rule exception SCOTUS has created allowing impeachment of verdicts influenced by jurors' racial animus.
Vikram Amar (Dean, University of Illinois College of Law) and David Dorsen (Of Counsel, Sedgwick LLP, and author of The Unexpected Scalia: A Conservative Justice's Liberal Opinions dissect the Gorsuch confirmation hearings: their partisan rancor, frustrating paucity of substance, and potential generational impact
Luke Wake (NFIB Small Bus. Legal Center) argues why plaintiffs' claims in a pending Cal. Supreme Court employment case stretch Labor Code "day of rest" protections too far; Will Jay Pirkey (Dep. City Atty, LA) explains how the court's recent decision in Perry v. Bakewell Hawthorne LLC makes untimely expert disclosure more likely to torpedo your summary judgment defense
Tony François (Pacific Legal Foundation) discusses Monday's state high court ruling that clarified procedural elements of the California Endangered Species Act, settling an area of administrative law Francois described in an amicus brief as 'in disarray' after a convoluted intermediate court decision.
Gary Kinder, noted legal writing instructor, founder of the editing software WordRake, and New York Times bestselling author of the true crime classic Victim: The Other Side of Murder, visits to share his thoughts on how attorneys can make their writing more compelling, concise, and effective
Veteran immigration attorney Carl Shusterman, with experience as an INS trial attorney and more than 30 years at his eponymous firm, joins the podcast for a wide-ranging discussion about the many aspects of immigration policy beginning and soon to change under President Trump
Anna-Rose Mathieson (California Appellate Law Group) discusses U.S. Supreme Court arguments over disparaging trademarks and free speech in Lee v. Tam; John Whitesides (Angelo, Kilday & Kilduff) chats qualified immunity and interlocutory appeals, after a terse Supreme Court reversal critiques lower courts' consistent misapplication of the doctrine.
Neal Marder (Akin Gump) explains the Ninth Circuit's decision that administrative feasibility is not a prerequisite for class certification; Laura Reathaford (Venable), Richard Bridgford and Mike Artinian (Bridgford, Gleason & Artinian) debate the CASC's new bright-line rule regarding on-call employee rest breaks.
Donald Verrilli reflects on his time as U.S. Solicitor General under Barack Obama, revisiting salient victories for marriage equality and healthcare, and a defeat on voter protections. He also shares thoughts on Merrick Garland's neglected nomination, present political hostility, the future of healthcare, and his new role as founding partner of Munger, Tolles & Olson's Washington, D.C., office.
Original airdate: Jan. 27, 2017
Professor Arthur Hellman (Univ. of Pittsburgh Law) and Benjamin Shatz (Manatt, Phelps & Phillips) assess the new administration and Republican Congress' likely impacts on the 9th Circuit, where four vacancies await Trump nominees. Professor Hellman and Mr. Shatz ponder a potential circuit schism, and just how much GOP appointees will influence a court often thought to lean left.
California Supreme Court Chief Justice Tani Cantil-Sakauye offers insight on effective appellate advocacy; Michael Risher (ACLU) describes why the state high court should rule that PRA requests can reach info on private devices of public employees.
Don Willenburg (Gordon & Rees) on tort liability of raw materials suppliers in light of Webb v. Special Electric, and Rex Heinke (Akin Gump) speaks on whether anti-SLAPP protects city council votes. Brian also relays developments in other appellate cases, including Vergara v. California and People v. Franklin
Justice Nora Manella (2nd App. Dist.) advises on effective appellate advocacy; Mark Haddad (Sidley Austin) offers insight on surmounting the particular challenges of SCOTUS appeals
Mark Haddad (Sidley Austin) on the exacting demands, particular strategies, and gratifying reward of SCOTUS appeals; Peter Altman (Akin Gump) chats "friends and family" insider trading liability after Salman v. U.S.
Justice Nora Manella chats life, law, and best appellate practices; Lisa Von Eschen (Lamb and Kawakami) on why the permissibility of class action statistical sampling needs clarity after Lubin v. Wackenhut
Wen Fa (Pacific Legal Foundation) contends carve outs in a California labor statute violate the U.S. Constitution's bill of attainder clause by targeting agriculture giants Gerawan and Fowler Packing; Myron Moskovitz (Moskovitz Appellate Team) on the benefits of taking a generalist's approach in specialized appeals
Kirk Jenkins (Sedgwick LLP) chats about his firm's new blog quantitatively analyzing 16 years of state appellate rulings; Prof. Scott Dodson (UC Hastings) discusses his recent book The Legacy of Ruth Bader Ginsburg
Mitchell Keiter (Keiter Appellate Law) on why Prop 57's passage threatens public safety and 'fundamental notions of democracy and justice;' Royal Oakes (Hinshaw & Culbertson) describes how Nickerson v. Stonebridge foretells higher punitives in insurance bad faith actions
Benjamin Shatz (Manatt) reviews Monday's CASC habeas ruling in Maas v. Superior Court, an appeal the court heard on its own motion; David Balabanian (Morgan, Lewis & Bockius) offers advice on how to write your best brief
Kirk Jenkins (Sedgwick LLP) discusses his firm's new blog quantitatively analyzing 16 years of state appellate rulings; Luke Wake (NFIB Small Bus. Legal Center) addresses the limits of administrative power, after CASC arguments in Assn. of CA Ins. Companies v. Dave Jones
William Meronek (Riverside Cnty. Pub. Def.) discusses Harris v. Sup. Ct., and why successful Prop 47 petitions shouldn't re-open prosecutions; Professor Richard Marcus (UC Hastings Law) chats Picasso, French remedies, and foreign law in the Ninth Circuit
Michael Singer (Cohelan Khoury & Singer) voices CAFA concerns as the 9th Circuit applies state labor standards to "call-in" shifts; Neal Marder (Akin Gump) discusses Brazil v. Dole and potentially wider liability for companies labeling foods "All Natural."
Ian Fein (Orrick) chats the Ninth Circuit's new review standard for FOIA appeals after ALDF v. FDA; Prof. Scott Dodson (UC Hastings) discusses his recent book The Legacy of Ruth Bader Ginsburg as SCOTUS' new term opens
Kiran Seldon (Seyfarth Shaw) chats on-call rest breaks after CASC arguments in Augustus v. ABM; John Cannon (Stradling) considers the 9th's SEC v. Jensen and expansion of CEO/CFO liability after financial restatements
Attorney Jamie Lee Williams (Electronic Frontier Foundation) advocates for en banc review in a broad computer fraud ruling, Facebook v. Power Ventures; Jeffrey Melching (Rutan & Tucker) chats a state appellate ruling of first impression, considering the value of municipal aesthetics
Laura Reathaford (Venable LLP) on conflicting class action waiver jurisprudence after Morris v. Ernst & Young; Ben Feuer (Cal. App. Law Grp.) concludes our summer SCOTUS series, previewing NLRB v. SW General
M.C. Sungaila (Haynes & Boone) chats CASC arguments over take-home asbestos liability; Anna-Rose Mathieson (Cal. App. Law Grp.) continues our SCOTUS preview series, with Rodriguez v. Jennings
Sharon Arkin (Arkin Law Firm) chats specific jurisdiction after Monday's Bristol-Myers CASC ruling; Michael Newman (Hinshaw & Culbertson) on a hotel worker wage order escaping NLRA preemption; and Gerry Mooney (Rutan & Tucker) on quiet title actions of void ab initio deeds
A special CAALA convention compilation episode regards three vital recent CASC rulings, on arbitrability of class actions, attorney fee recovery, and raw material tort liability and the sophisticated intermediate defense
Aaron Lachant (Nelson Hardiman) discusses federal medical marijuana prosecutions post-McIntosh, and Glenn Danas and Ryan Wu (Capstone Law APC) chat class action plaintiff compensation, as clarified by Laffitte v. Robert Half Int'l
Rex Heinke (Akin Gump) discusses class arbitration after 'Sandquist;' Ben Feuer (Cal. App. Law Grp.) previews an OT2016 case considering the separation of church and state
Jean-Paul Jassy (Jassy Vick Carolan) discusses how a law against disparaging trademarks might fall; Anna-Rose Mathieson (Cal. App. Law Grp.) previews 'Moore v. Texas,' an OT2016 case considering when a defendant's mental handicap renders execution cruel and unusual
Brian Morris discusses prosecutorial immunity after 'Garmon v. County of LA;' Ben Feuer previews an OT2016 case that regards race and capital punishment
Ben Feuer (Cal. App. Law Grp.) previews a Supreme Court copyright battle over cheerleading outfits, and Rex Heinke (Akin Gump) dissects the CASC's balancing of landowner rights and government agency access.
Justin Brown (Brown & Nieto), appellate counsel to Adnan Syed, chats long-shot criminal appeals; Ben Feuer (Cal. App. Law Group) previews OT2016's design patent rumble between Samsung and Apple
John Sledd (Kanji & Katzen, Seattle), lead attorney in a recent landmark environmental case from the Ninth Circuit, describes the ruling and its impact; and David Balabanian (Morgan, Lewis & Bockius) offers valuable brief-writing insights
Professor Jeffrey Fisher, co-director of Stanford Law's Supreme Court Litigation Clinic, helps wrap the show's coverage of SCOTUS' just-completed term, considering Utah v. Strieff's impact on the Fourth Amendment and the exclusionary rule. Hon. Jeffrey Winikow (Ret.) considers a recent employment ruling that renders summary judgment a less reliable resort for employer defendants, and David Gammill, of Geragos & Geragos discusses Ninth Circuit oral arguments in an appeal regarding the LA Sheriff's Department's obstruction of an FBI jailhouse investigation.
Professor Eileen Boris (UCSB) and Daralyn Durie (Durie Tangri) regard SCOTUS' momentous abortion rights ruling, and Peder Batalden and Felix Shafir (Horvitz & Levy) consider recent oral arguments in class actions against ride-share giant Uber
This week, Erwin Chemerinsky (UCI Law) reviews a 9th Circuit en banc ruling upholding California's concealed carry restrictions; Cheryl Burgess and Joe Cianfrani (Knobbe Martens) consider the future of enhanced patent damages after a U.S. Supreme Court ruling Monday; and Myron Moskovitz (Moskovitz Appellate Team) discusses the art of oral argument
This week's guests, M.C. Sungaila (Haynes and Boone), Gerald Sauer (Sauer & Wagner), and James Wagstaffe (Kerr & Wagstaffe) weigh in on two Cal. Supreme Court cases that have opin-ions filing imminently; one with massive stakes for defense attorneys involving the component parts doctrine, and the other further outlining anti-SLAPP contours.
Presiding Justice Anthony Kline reacts to the CASC's depublication rule change, Donald Falk explains what's at stake in a personal jurisdiction-related case up on argument Thursday, and Asst. Head Dep. District Attorney (LA) Bill Woods chats Batson/Wheeler after last week's USSC ruling in Foster v. Chatman
Michael Romano (Stanford Law), Adam Winkler (UCLA Law), Dale Carpenter (SMU Law), and John Eastman (Chapman Law) discuss a roundup of state and U.S. high court rulings
This week's show considers guns, religion, contraception, and constitutional standing after three notable rulings issued from the U.S. Supreme Court and the Ninth Circuit. Dean Erwin Chemerinsky (UCI Law), M.C. Sungaila (Haynes and Boone), and Professor Leslie Griffin (UNLV Law) offer commentary.
Jessica Di Palma, Hon. Steven Brick (Ret.), and Professor Heidi Rummel discuss the constitutionality of California's juvenile offender sentencing scheme, and a major proposed change to appellate opinion publication rules
Professors Catherine Fisk (UCI Law) and Hadar Aviram (UC Hastings Law), and Jeremy Rosen of Horvitz and Levy join Rulings Editor Brian Cardile