In life, we are often judged by the company we keep. But is that fair when it comes to judging a lawyer by the clients he represents? Does it matter whether the attorney is so successful that she has her choice of clients, an abundance of whom are not unsympathetic or controversial, and can thrive professionally even if not representing unsympathetic clients? Can a lawyer reasonably argue that our legal system requires representation, that even the least sympathetic among us deserve their day in court, which implicitly means solid legal representation?
Gene C. Schaerr, Principal, Schaerr Law Group
Hon. Sarah L. Wilson, Partner, Covington & Burling LLP
Somewhat overlooked at the end of the United States Supreme Court’s October 2014 term was a contentious 5-4 decision on the application of the death penalty in Glossip v. Gross. On Wednesday, October 7, the second day of oral arguments for the term, the Supreme Court wasted no time in turning its attention back towards the death penalty in Kansas v. Gleason and Kansas v. Carr. The cases ask the Court to decide whether the Eighth Amendment requires that capital juries be “affirmatively instructed” that mitigating circumstances need not be proved beyond reasonable doubt. Will the October 2015 term be remembered, as some commentators are predicting, for its remarkable Eighth Amendment focus?
Is Clay v. United States, argued on October 2 in the 11th Circuit, a case study of overcriminalization and abusive federal prosecution? The case raises basic notions of due process, fair notice, the rule of lenity, mens rea, and actus reus. What began as a highly publicized raid by some 200 FBI agents on a Florida health care company over an accounting dispute of how to interpret a provision in Florida’s Medicaid reimbursement statute with no clarifying administrative regulations, led to the indictment, conviction, and prison sentences for the company’s top executives for fraud. This case is particularly important for all regulated industries, where there are numerous and ambiguous laws and complex regulations governing conduct subject to administrative, civil, and criminal enforcement.
Paul D. Kamenar, Senior Fellow, Administrative Conference of the United States
John J. Park, Jr., Of Counsel, Strickland Brockington Lewis LLP
The Houston Equal Rights Ordinance (HERO) ballot initiative, which extends to housing & employment, has been described as an expansive LGBT anti-discrimination measure. The Texas Religious Freedom Restoration Act and the new Pastor Protection Act are intended to provide rights of conscience protection and some assurance of employment accommodation for religious objectors, in light of initiatives like HERO and the anti-discrimination ordinance in San Antonio. After the Supreme Court Obergefell v. Hodges decision, more and more states will face the conundrum encountered by states like Indiana, Kentucky, and now Texas, where the recently affirmed LGBT constitutional privacy interest is in tension with state and federal RFRA laws and other constitutional religious objector protections. Will states that desire to carve out religious conviction protections be eclipsed by the momentum of locally based anti-discrimination measures? Do federal laws provide sufficient public office and private party religious expression protection?
Prof. John Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law
Prof. Josh Blackman, Assistant Professor of Law, South Texas College of Law
Kathleen Hunker, Senior Policy Analyst with the Center for Economic Freedom, Texas Public Policy Foundation
Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
In Horne v. U.S. Department of Agriculture, eight justices of the Supreme Court agreed that a governmental taking of personal property, just like real property, was a compensable taking under the Fifth Amendment. In Horne, the government took physical control of parts of the Horne's raisin crop, withholding it from the market in order to influence raisin prices. Under other agricultural programs, growers are permitted to send to market only certain quantities of the produce, though the government never takes physical control of the goods. Just how sweeping is the Horne decision? Does it apply to all forms of personal property? What level of control must the government exercise over personal property in order for there to be a compensable taking? Are these other agricultural programs now suspect?
Prof. John D. Echeverria, Vermont Law School
Hon. Michael W. McConnell, Professor of Law and Director, Stanford Constitutional Law Center, Stanford Law School