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FACULTY DIVISION

International & National Security Law Practice Group Podcast

The Chinese Supreme People’s Court and the Chinese government have denounced the Permanent Court of Arbitration at the Hague’s recent ruling. According to The United Nations Convention on the Law of the Sea (UNCLOS) provisions, island-building activity and territorial claims in the South China Sea violated international and environmental law. Was China bound by this ruling, although China objects to The Hague Arbitration Court’s jurisdiction, and claims that consent was not given? When international law, agreements, and norms are summarily voided by a losing nation, what should be the international legal and political response? Regarding international agreements specifically, does this case provide warnings for signatories to treaties and agreements? Are there lessons for the United States in the consideration of potential reservations, opt-outs, alternate venues, or waivers, and whether they were given proper regard by the Court?

Featuring:

  • Prof. James Kraska, Howard S. Levie Professor in the Stockton Center for the Study of International Law at the U.S. Naval War College in Newport, Rhode Island
  • Prof. Julian Ku, Maurice A. Deane Distinguished Professor of Constitutional Law and Faculty Director of International Programs, Hofstra University School of Law
Litigation Practice Group Podcast

A “requester pays” amendment to the Federal Rules of Civil Procedure (FRCP) would require that those seeking discovery pay for its costs, moving federal civil litigation away from the current “American rule” that requires all parties to bear their own litigation expenses, including the costs of responding to discovery requests. Supporters of “requester pays” argue that discovery requests can be so broad and costs can be so high that they become a disincentive to defend. Opponents claim that the amendment would make legal proceedings even more expensive for individual litigants, who would be unable to pay for the discovery necessary to make a case against larger and more powerful defendants. Here to discuss this idea are Alex Dahl of Brownstein Hyatt Farber Schreck LLP and Professor Benjamin Spencer of UVA School of Law.

Featuring:

  • Alexander R. Dahl, Shareholder, Brownstein Hyatt Farber Schreck
  • Prof. A. Benjamin Spencer, Earle K. Shawe Professor of Law, University of Virginia School of Law
SCOTUScast 8-18-16 featuring Richard E. Myers II

On June 23, 2016, the Supreme Court decided Mathis v. United States. The Armed Career Criminal Act (ACCA) imposes a 15-year mandatory minimum sentence on a defendant convicted of being a felon in possession of a firearm who also has three prior state or federal convictions “for a violent felony,” including “burglary, arson, or extortion.” To determine whether a prior conviction is for one of those listed crimes, courts apply a “categorical approach”—they ask whether the elements of the offense forming the basis for the conviction sufficiently match the elements of the generic (or commonly understood) version of the enumerated crime.

Here, petitioner Richard Mathis pleaded guilty to being a felon in possession of a firearm. Because he had five prior Iowa burglary convictions, the Government argued for the 15-year minimum.  Generic burglary requires unlawful entry into a “building or other structure.” The Iowa statute under which Mathis was convicted, however, also extended to “any... land, water, or air vehicle.”  The District Court determined based on the case record that Mathis had burgled structures and imposed the 15-year ACCA minimum. The U.S Court of Appeals for the Eighth Circuit affirmed. 

By a vote of 5-3, the Supreme Court reversed the judgment of the Eighth Circuit. Justice Kagan delivered the opinion of the Court, which held that because the elements of Iowa’s burglary law – which applies to “any building, structure, [or] land, water, or air vehicle” – were broader than those of generic burglary, Mathis’ prior convictions under the Iowa burglary law could not give rise to an ACCA sentence. Justice Kagan’s majority opinion was joined by the Chief Justice and Justices Kennedy, Thomas, and Sotomayor. Justice Kennedy also filed a concurring opinion. Justice Thomas filed a concurring opinion. Justice Breyer filed a dissenting opinion, in which Justice Ginsburg joined. Justice Alito also filed a dissenting opinion.

To discuss the case, we have Richard E. Myers II, who is Henry Brandis Distinguished Professor of Law at University of North Carolina School of Law.

SCOTUScast 8-18-16 featuring Zachary Price

On June 23, 2016, the Supreme Court decided Dollar General Corporation v. Mississippi Band of Choctaw Indians. This case concerns a dispute over tribal court jurisdiction relating to allegations that the non-Indian manager of a Dollar General store on Choctaw tribal land sexually molested an Indian minor who interned at the store. When the minor’s parents sought to hold Dolgencorp--the subsidiary that operated the store--vicariously liable for the manager’s conduct, Dolgencorp petitioned in federal district court for an injunction barring tribal court proceedings, on the grounds that the tribal court lacked jurisdiction. The district court denied relief, concluding that while tribal courts typically lack civil authority over the conduct of non-members on non-Indian land within a reservation, Dolgencorp’s situation fell within a “consensual relationship” exception to the rule. The U.S. Court of Appeals for the Fifth Circuit affirmed, and denied rehearing en banc over the dissent of five judges.

The question before the Supreme Court was whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against non-members, including as a means of regulating the conduct of non-members who enter into consensual relationships with a tribe or its members.

In a per curiam opinion, the judgement of the Fifth Circuit was affirmed by an equally divided court.

To discuss the case, we have Zachary Price, who is Associate Professor of Law at University of California, Hastings College of Law.

SCOTUScast 8-18-16 featuring David Kopel

On June 27, 2016, the Supreme Court decided Voisine v. United States. Stephen Voisine was convicted in 2003 of assaulting a woman with whom he was in a domestic relationship--a misdemeanor violation of a Maine statute. In 2009 Voisine turned a rifle over to federal officials who were investigating him for a separate alleged crime. When investigators discovered Voisine’s 2003 misdemeanor assault, they charged him under 18 U.S.C. § 922(g)(9), which makes it a federal crime for a person “who has been convicted in any court of a misdemeanor crime of domestic violence” to “possess in or affecting commerce[] any firearm or ammunition.” In turn, a "misdemeanor crime of domestic violence" is defined in § 921(a)(33)(A) as an offense that (1) is a misdemeanor under federal, state, or tribal law, and (2) “has, as an element, the use or attempted use of physical force … committed by a current or former spouse, parent, or guardian of the victim” or by a person in a similar domestic relationship with the victim.

Voisine challenged the § 922(g)(9) charge, arguing that under his Maine conviction offensive physical contact, as opposed to one causing bodily injury, was not a “use of physical force” and thus not a “misdemeanor crime of domestic violence” within the meaning of § 921(a)(33)(A). The district court rejected this argument and Voisine pled guilty on condition that he be able to appeal the court’s ruling. The U.S. Court of Appeals for the First Circuit affirmed the district court’s judgment, but the Supreme Court subsequently granted Voisine’s petition for certiorari, vacated the First Circuit’s judgment, and remanded the case for reconsideration in light of the intervening 2014 Supreme Court decision United States v. Castleman. That decision held the requirement of “physical force” satisfied, for purposes of § 922(g)(9), by the degree of force that supports a common-law battery conviction--but it did not resolve whether a conviction with the mens rea of reckless--as under the Maine statute--would qualify. On remand, the First Circuit again rejected Voisine’s challenge and held that his Maine conviction qualified as a “misdemeanor crime of domestic violence.”

The Supreme Court again granted certiorari, and affirmed the judgment of the First Circuit by a vote of 6-2. Justice Kagan delivered the opinion of the Court, which held that a reckless domestic assault qualifies as a "misdemeanor crime of domestic violence" that prohibits firearms possession by convicted felons under 18 U.S.C. § 922(g)(9). The majority opinion was joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Alito. Justice Thomas filed a dissenting opinion, in which Justice Sotomayor joined as to Parts I and II.

To discuss the case, we have David Kopel, who is Adjunct Professor at University of Denver, Sturm College of Law.