Federal Courts

Life on the Bench - Event Audio/Video

2015 National Lawyers Convention
Brett M. Kavanaugh, Alex Kozinski, Diarmuid F. O'Scannlain, Jerry E. Smith, David Stras, David B. Sentelle, Dean A. Reuter November 19, 2015

Many attorneys see a judgeship as the pinnacle of professional achievement in the legal world. It could be the visibility of judges, their unquestioned decision-making authority, the absence of clients, life tenure, or some other aspect of being a judge. Our panel of judges will discuss the realities of a career on the bench. The panelists will share their thoughts on topics as diverse as the role of the judiciary, judicial philosophy, stare decisis and precedent, opinions and dissents, the judicial appointment process, the state of the legal profession, and much more.

This panel was presented at the 2015 National Lawyers Convention on Saturday, November 14, 2015, at the Mayflower Hotel in Washington, DC.

Special Session: Life on the Bench
2:30 p.m. – 4:00 p.m.
State Room

  • Hon. Brett Kavanaugh, U.S. Court of Appeals, D.C. Circuit
  • Hon. Alex Kozinski, U.S. Court of Appeals, Ninth Circuit
  • Hon. Diarmuid F. O'Scannlain, U.S. Court of Appeals, Ninth Circuit
  • Hon. Jerry Smith, U.S. Court of Appeals, Fifth Circuit
  • Hon. David Stras, Associate Justice, Supreme Court of Minnesota
  • Moderator: Hon. David B. Sentelle, U.S. Court of Appeals, D.C. Circuit
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The Mayflower Hotel
Washington, DC

Prosecutors Run Amok? - Event Audio/Video

2015 National Lawyers Convention
Alex Kozinski, John G. Malcolm, George J. Terwilliger, Darpana Sheth, Keith Blackwell, John J. Park, Jr. November 19, 2015

The Supreme Court has instructed in clear terms that the duty of the Federal prosecutor in a criminal prosecution "is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935). Yet the news pages are filled with examples of Federal prosecutorial overreach. In its term just ended, the Supreme Court reversed six of seven criminal convictions that reached it, several all involving some form of over criminalization that can lead to prosecutorial overreach. And large categories of prosecutorial overreach never reach the Supreme Court, from dozens of convictions of "insider trading" by non-insiders (now found not to be a crime by the Second Circuit); to civil forfeitures of property of legitimate small businesses never charged with a crime; to multi-billion dollar settlements of the thinnest of charges with large banks, pharmaceutical companies, and individuals that cannot take any risk of a criminal conviction; to what one jurist has described as an “epidemic of Brady violations abroad in the land." 

The panel will explore whether prosecutorial overreach has become epidemic. It will also explore potential remedies ranging from reducing the number of crimes, to sentencing reform, plea bargain reform, civil forfeiture reform, and more. Finally, it will ask who should take action to control prosecutorial overreach? Should it be the state bars? Should the courts be more aggressive? Or, is the task primarily one for Congress? If so, what are the most promising avenues of reform?

Professional Responsibility: Prosecutors Run Amok?
11:00 a.m. – 12:30 p.m.
Chinese Room

  • Hon. Alex Kozinski, U.S. Court of Appeals, Ninth Circuit
  • Mr. John G. Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation
  • Hon. George J. Terwilliger III, Partner, McGuireWoods LLP
  • Ms. Darpana M. Sheth, Constitutional Litigator, Institute for Justice
  • Moderator: Hon. Keith R. Blackwell, Associate Justice, Supreme Court of Georgia
  • Introduction: Mr. John J. Park, Jr., Of Counsel, Strickland Brockington Lewis LLP

The Mayflower Hotel
Washington, DC

OBB Personenverkehr AG v. Sachs - Post-Argument SCOTUScast

SCOTUScast 11-18-15 featuring Edwin Williamson
Edwin D. Williamson November 18, 2015

On October 5, 2015, the Supreme Court heard oral argument in OBB Personenverkehr AG v. Sachs. This case involves a dispute regarding whether federal courts have jurisdiction over a lawsuit brought by Carol Sachs against OBB Personenverkher--the Austrian national railroad--when her legs were crushed by a train in Austria while she was using a Eurail Pass that she had purchased in the United States. 

The question before the Supreme Court is twofold: (1) whether common law principles of agency apply in determining whether an entity is an “agent” of a foreign state under the Foreign Sovereign Immunities Act of 1976 (FSIA); and (2) whether, under the first clause of the commercial activity exception of the FSIA, a tort claim for personal injuries suffered in connection with travel outside of the United States is “based upon” the allegedly tortious conduct occurring outside of the United States, or the preceding sale of the ticket in the United States for the travel entirely outside the United States.

To discuss the case, we have Edwin D. Williamson, who is Of Counsel at Sullivan & Cromwell LLP.

Wellness International Network v. Sharif - Post-Decision SCOTUScast

SCOTUScast 6-22-15 featuring Thomas Plank.
Thomas Plank June 22, 2015

On May 26, 2015, the Supreme Court delivered its opinion in Wellness International Network, Limited v. Sharif.  This case relates to the Court’s 2011 decision in Stern v. Marshall, in which the Court held that Congress violated Article III by authorizing bankruptcy judges to decide certain claims for which litigants are constitutionally entitled to an Article III adjudication. Here the question is whether Article III allows bankruptcy judges to adjudicate such claims with the parties’ consent. 

In an opinion delivered by Justice Sotomayor, the Court held by a vote of 6-3 that Article III permits bankruptcy judges to adjudicate Stern claims with the parties’ knowing and voluntary consent. The judgment of the Seventh Circuit was reversed and the case was remanded. 

Justice Sotomayor’s opinion was joined by Justices Kennedy, Ginsburg, Breyer, and Kagan, and by Justice Alito in part.  Justice Alito filed an opinion concurring in part and concurring in the judgment. The Chief Justice filed a dissenting opinion, joined by Justice Scalia and by Justice Thomas as to Part I.  Justice Thomas also filed a dissenting opinion. 

To discuss the case, we have Thomas Plank, who is the Joel A. Katz Distinguished Professor of Law at the University of Tennessee College of Law.

Direct Marketing v. Brohl - Post-Decision SCOTUScast

SCOTUScast 4-14-15 featuring Kristin Gutting
Kristin Gutting April 14, 2015

On March 3, 2015, the Supreme Court decided Direct Marketing Association v. Brohl.  This case involves a Colorado law requiring retailers who do not collect Colorado sales or use tax to notify Colorado customers of their use-tax liability and to report tax-related information to customers and the Colorado Department of Revenue.  A trade association of online retailers filed suit in federal district court to challenge the law, and obtained an injunction against its enforcement.  On appeal, however, the Tenth Circuit reversed that judgment, holding that the Tax Injunction Act deprived the district court of jurisdiction over the case.  The question before the Supreme Court is whether the Act did indeed bar the online retailers’ suit.

In a unanimous opinion delivered by Justice Thomas, the Court held that the Tax Injunction Act did not bar the trade association's lawsuit.  The judgment of the Tenth Circuit was therefore reversed and the case remanded.  Justice Kennedy filed a concurring opinion.  Justice Ginsburg filed a concurring opinion, which Justice Breyer joined, and which Justice Sotomayor joined in part. 

To discuss the case, we have Kristin Gutting, an associate professor of law at the Charleston School of Law.