Adam J. White, Research Fellow at the Hoover Institution, and Director of the Center for the Study of the Administrative State at George Mason University's Antonin Scalia Law School, offered his analysis of the administrative state and discussed possible legislative solutions. 

SCOTUScast 9-12-17 featuring Josh Skinner

On January 9, 2017, the Supreme Court decided White v. Pauly, a petition involving a denial of qualified immunity to law enforcement officers in a civil rights dispute. In October 2011, officers Kevin Truesdale and Michael Mariscal went to the home of Daniel and Samuel Pauly to investigate a complaint made by several drivers that Daniel had been driving erratically that evening. The officers entered the Pauly property while a third officer, Ray White, remained near the highway in case Daniel returned there. Truesdale and Mariscal did not find Daniel’s truck, but they did notice lights on in one of two houses on the property. Upon approaching the building covertly they spotted two men moving around inside, and then requested that Officer White join them. When the Paulys became aware that strangers were present outside there was a verbal confrontation; according to the officers, the officers self-identified as police and threatened to enter the house if the brothers did not come out. It appears however, that neither Pauly heard the self-identification. Just as White was arriving the brothers warned that they had firearms. Upon hearing the warning, White took cover behind a stone wall fifty feet from the house. Daniel then fired two shotgun blasts out the back door and when Samuel pointed a handgun out the window in White’s direction, Mariscal fired at him but missed. Several seconds later White also fired and hit Samuel, killing him. Samuel Pauly’s estate and Daniel Pauly sued the officers under 42 U.S.C. § 1983, alleging an excessive use of force in violation of the Fourth Amendment. The district court denied qualified immunity to the officers and a divided panel of the U.S. Court of Appeals for the Tenth Circuit affirmed. The majority reasoned that, taking the plaintiffs’ version of the facts as true, a reasonable person in the position of Officers Mariscal and Truesdale should have understood that their conduct might cause the Paulys to use deadly force in defense of their home. As to Officer White, the majority concluded that while he did not participate in much of the lead up to the shootout, a reasonable officer in his position would have believed a verbal warning was required given that the stone wall afforded him secure cover.

The Supreme Court granted the officers’ petition for certiorari, vacated the judgment of the Tenth Circuit, and remanded the case. Qualified immunity attaches when an official’s conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” On the record described by the Tenth Circuit, the Supreme Court held, Officer White did not violate clearly established law. But because the parties disputed whether White actually arrived on the scene several minutes before the shooting started and should have known that the other officers had not properly identified themselves, the Court left this potential alternative ground for affirmance--as well as whether Truesdale and Mariscal were entitled to qualified immunity in light of the Supreme Court’s ruling--for further consideration by the Tenth Circuit on remand. Justice Ginsburg issued a concurring opinion.

To discuss the case, we have Josh Skinner, Of Counsel with Fanning, Harper, Martinson, Brandt & Kutchin, P.C.

Intellectual Property Law Practice Group Podcast

Recent developments in US patent law, particularly the Americans Invents Act (AIA) and the Supreme Court’s jurisprudence on patent-eligible subject matter, have raised questions of whether, and to what extent, the Constitutional directive to promote technological innovation has been undermined or frustrated. The panel discussed whether the U.S. is shifting from a view of patents as private property, to one of public rights, and, if so, whether concepts from antitrust law will begin to color, if not dominate, patent enforcement jurisprudence. The practical implications of a public rights view of patents and the imposition of antitrust issues on the enforcement of patent rights were discussed as well.


  • Mr. Philip Johnson, Senior Vice President, Intellectual Property Strategy & Policy, Johnson & Johnson (ret).
  • Prof. Kristen Osenga, Professor of Law, University of Richmond School of Law
  • Mr. Robert G. Sterne, Director, Sterne Kessler Goldstein Fox
  • Moderator: Mr. Howard J. Klein, Attorney, Klein O'Neill & Singh LLP
Labor & Employment Law Practice Group Podcast

On Thursday, August 31, Judge Mazzant of the Eastern District of Texas invalidated the Department of Labor’s Overtime Rule, which would have increased the minimum salary level for overtime-exempt employees from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). Maury Baskin and Tammy McCutchen of Littler Mendelson joined us to discuss the decision and its significance.


  • Maury Baskin, Shareholder, Littler Mendelson, PC
  • Tammy D. McCutchen, Shareholder, Littler Mendelson, PC
Labor & Employment Law Practice Group Podcast

On April 8, 2016, the Department of Labor (DOL) published the Fiduciary Rule, which greatly expanded the universe of entities and persons that DOL deems to be fiduciaries with respect to retirement plans under the Employment Retirement Income Security Act of 1974 and with respect to Individual Retirement Accounts under the Internal Revenue Code. The Rule was originally scheduled to become applicable on April 10, 2017. However, in February of 2017, President Trump issued a memorandum directing DOL to reexamine the Rule to consider whether it would reduce access to investment services or increase litigation. Two months later, shortly before the April deadline, DOL extended the applicability date of some of the Rule’s requirements until June 7, 2017 and others until January 1, 2018. Then, in July of this year, DOL invited public comments on possible changes to the Rule and on whether the January 1 deadlines should be extended further. In the meantime, litigation has been waged over the Fiduciary Rule’s legality.

Jason Mendro, Partner at Gibson Dunn, discussed the past, present, and future status of the Fiduciary Rule


  • Jason Mendro, Partner, Gibson, Dunn & Crutcher