MENU

Litigation

The Least Dangerous Branch? Reflections on Bickel’s Classic

Professional Responsibilities & Legal Education Practice Group Teleforum Monday, July 11, 03:00 PMFederalist Society Teleforum Conference Call

The Federalist Society's Teleforum series, Legal Classics Revisited, will consider Professor Alexander Bickel's 1962 book, The Least Dangerous Branch. In a life cut short just before his 50th birthday, Professor Bickel contributed to our understanding of American constitutional law. Among his more provocative concepts was the "counter-majoritarian difficulty." It is not unique to observe that in a nation governed by elected representatives, an unelected Federal judiciary with lifetime tenure represents an anomaly. Alexander Hamilton penned Federalist No. 78 to explain and defend the idea. Professor Bickel takes Hamilton's idea and his title and spends his book exploring the questions: How can an unelected branch of government be a co-equal branch of government? How can society enjoy the benefits of an impartial judiciary without seismic jolting along the fault line between majoritarian and counter-majoritarian institutions? Professor Bickel's questions are still extremely relevant today.

Featuring:

  • Dean Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine
  • James A. Haynes, Attorney and Alternate Judge, U.S. Dept of Labor, Employees Compensation Appeals Board
  • Prof. Ronald Rotunda, Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University Dale E. Fowler School of Law

Speech Code for Lawyers?

Free Speech & Election Law, Litigation, and Professional Responsibilities & Legal Education Practice Groups Teleforum Friday, June 03, 01:00 PMFederalist Society Teleforum Conference Call

The American Bar Association (ABA) model rules of conduct have long wrestled with regulating the intersection of discrimination and the law of lawyering. The current model rules forbid discrimination in the practice of law only as a comment to the prohibition on lawyer conduct prejudicial to the administration of justice. After much discussion and pressure, the ABA has proposed expanding the language to become new model rule 8.4 (g). If enacted, this rule would prohibit (in its own right) discrimination or harassment by a lawyer engaged in the practice of law against a list of protected classes, including ethnicity, gender identity, and marital status. Perhaps anticipating a challenge, the new rule's comment states that the new rule does not apply to non-lawyer conduct or activities protected by the first amendment and also exempts times when references to such protected groups and facts are needed to effectively represent a client. However, this new rule would apply to all conduct at primarily firm and legal events, including firm related social events.

What is discrimination or harassment over socioeconomic status? Since this rule applies to social settings, where is the line to be drawn and what chilling effect might be created? What about free speech and free association? To aid in our understanding, this Teleforum welcomes free speech expert Eugene Volokh of UCLA law who has written extensively on this subject.

Featuring:

  • Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law

House of Representatives Wins Round One of Obamacare Challenge: U.S. House of Representatives v. Burwell - Podcast

Administrative Law & Regulation Practice Group Podcast
Josh Blackman May 20, 2016

On Thursday, May 12, a United States District Court Judge upheld a constitutional challenge to the Affordable Care Act by finding that the monies for two programs that reimburse insurance companies for providing health coverage at lower costs to low-income consumers and provide tax credits to help these consumers afford their premiums were never appropriated by Congress, and that the programs were thus unconstitutional. Judge Rosemary M. Collyer stayed her decision pending appeal. Our expert discussed the opinion as well as its outlook on appeal.

Featuring:

  • Prof. Josh Blackman, Assistant Professor of Law, South Texas College of Law

Class Action Reform?: Spokeo v. Robins Decided - Podcast

Administrative Law & Regulation Practice Group Podcast
Alan C. Raul May 18, 2016

In a 6-2 decision issued on Monday, May 16, the United States Supreme Court vacated and remanded Spokeo, Inc. v. Robins for re-argument in the Ninth Circuit Court of Appeals. Thomas Robins filed a suit under the Fair Credit Reporting Act against Spokeo, a company that operates a “people search engine,” for publishing incorrect information about him, information that he claimed harmed his employment prospects by falsely making him appear overqualified for the types of employment he was seeking at the time. The Supreme Court rejected the Ninth Circuit’s analysis finding that Mr. Robins had standing to sue, and instructed the Ninth Circuit to consider the question again. Spokeo raises big questions about big data, class action litigation, and the legitimacy of certain statutorily authorized private rights of action. Our expert offered his analysis of the opinion, the case’s prospects going forward, and its potential broader impact on the law.

Featuring:

  • Hon. Alan C. Raul, Partner, Sidley Austin LLP

Little Sisters of the Poor Case Decided: Zubik v. Burwell - Podcast

Religious Liberties Practice Group Podcast
Roger Severino May 17, 2016

On Monday, May 16, the United States Supreme Court issued a per curium opinion resolving, for the time being, Zubik v. Burwell, the contraceptive mandate case. The decision is causing no small amount of confusion. Who won, and who lost? What is required of the plaintiffs in the case? What are the next steps in the litigation? Our expert answered these and other questions.

Featuring:

  • Roger Severino, Director, DeVos Center for Religion and Civil Society, The Heritage Foundation