SCOTUScast 11-24-15 featuring Michael T. Morley Michael T. Morley November 24, 2015
On November 4, 2015, the Supreme Court heard oral argument in Shapiro v. McManus. In this case several Maryland citizens sued state election officials claiming that a 2011 redistricting plan violated their rights to political association and equal representation under the First and Fourteenth Amendments. Although federal law normally requires such claims to be heard by a three-judge federal court, a single judge dismissed the suit for failure to state a claim, and the U.S. Court of Appeals for the Fourth Circuit affirmed.
The question before the Supreme Court is whether a single-judge federal district court may determine that a claim governed by the Three-Judge Court Act is insubstantial, and that three judges therefore are not required--not because it concludes that the complaint is wholly frivolous, but because it concludes that the complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6).
To discuss the case, we have Michael T. Morley, who is Assistant Professor at Barry University School of Law. 2015 National Lawyers Convention
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.
- 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 SCOTUScast 11-18-15 featuring Edwin Williamson
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. 2015 National Lawyers Convention
If we accept the premise that government, and government power, is growing, then the stakes for elective office have never been higher. With the levers of power at stake, are we seeing an increase in the use of the criminal justice system to attack legitimate political activity? Or are we perhaps seeing the proper policing of increased fraud and abuse by those in the political sphere? In a media climate in which a mere investigation can be fatal to a political campaign or career, what actions are political and what actions are criminal, and who should decide?
Criminal Law: Free Speech, Anti-Corruption, and the Criminalization of Government Affairs
12:00 noon – 2:15 p.m.
- Mr. Todd P. Graves, Partner, Graves Garrett LLC
- Mr. Edward T. Kang, Partner, Alston & Bird LLP
- Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
- Mr. Peter R. Zeidenberg, Partner, Arent Fox LLP
- Moderator: Hon. Raymond W. Gruender, U.S. Court of Appeals, Eighth Circuit
- Introduction: 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
The Mayflower Hotel 2015 National Lawyers Convention
The Securities and Exchange Commission (SEC) has recently increased its use of administrative proceedings, before Administrative Law Judges (ALJs), to seek civil penalties, as an alternative to proceeding in an Article III court. Other federal regulatory and enforcement agencies use ALJs for various purposes at various rates. Although no single set of rules governs all ALJs, they typically differ from Article III courts in important ways, bringing their use under recent criticism. As two examples, ALJs do not enjoy life tenure and they are sometimes employed by and answerable to the agency itself. Our panel will discuss the pros and cons of the use of ALJs at the SEC and other agencies.
Corporations: Constitutionality of Administrative Law Judges at the Securities and Exchange Commission and Elsewhere
2:00 p.m. – 3:30 p.m.
- Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center
- Mr. Stephen J. Crimmins, Shareholder, Murphy & McGonigle PC
- Prof. Todd E. Pettys, H. Blair and Joan V. White Chair in Civil Litigation, University of Iowa College of Law
- Prof. Tuan Samahon, Villanova University School of Law
- Moderator: Hon. F. Scott Kieff, Commissioner, International Trade Commission
The Mayflower Hotel