Reasonably Speaking

The treatment of the children in two distinct areas of the law – child welfare and juvenile justice – is fraught with difficulty even under the best of circumstances. But with the onslaught of the COVID pandemic, the regular challenges and the need to protect children have only been compounded.

In this episode of Reasonably Speaking, juvenile justice scholar and Chief Reporter of the Restatement of the Law, Children and the Law, Elizabeth Scott guides our Children and the Law-exclusive panel through a series of discussions centering on child advocacy and juvenile law during a pandemic. The panel explores how the law defines parental authority, what rights a child has in custody, how lawyers can best represent a child in the system during a pandemic, and more.

Panelists:

• Kristin Henning, Georgetown University Law Center
• Clare Huntington, Fordham University School of Law
• Marsha Levick, Juvenile Law Center

This episode explores the multidistrict litigation (MDL) from their origins to current examples and recommended reforms.

When complex issues effect large numbers of people, MDLs are often seen as the most efficient way to consolidate and manage those cases, recent examples include opioids and Roundup.

Led by MDL expert and scholar Elizabeth Chamblee Burch, participants will discuss the nuances of MDLs and examine how all involved in the process should never lose sight of the human element in these cases. The panel will also explore the role of the MDL judge and address MDL’s pain points as they relate to appellate opportunities, plaintiffs’ attorneys, and more. The episode will conclude with the panel offering some of their own ideas for reform.

Moderator: Elizabeth Chamblee Burch – University of Georgia School of Law

Panelists:

• John H. Beisner – Skadden
• Abbe Gluck – Yale Law School
• Shanin Specter – Kline and Specter

The 2020 election is seeing unprecedented volatility leading up to November 3. Will this volatility make a difference, helping or hurting the system’s capacity to serve its purpose? This is the first of many questions about the 2020 election that this group of election law experts will tackle.

Every election year presents its own unique set of challenges, but 2020 has been a uniquely challenging year. What can voters expect on and after Election Night? Election results are never final until much later – this year on December 14. On that date, electors will be appointed in all states on the basis of the popular vote in each state, but will we declare success? If not, why not; in other words, what would cause the failure to achieve closure by December 14 in one or more pivotal states? Will the pre-election volatility play a significant role in post-Election Day events?

Moderated by: Steven F. Huefner, The Ohio State University Moritz College of Law

Panelists:

• Edward B. Foley, Ohio State University Moritz College of Law
• Derek T. Muller, University of Iowa College of Law
• Franita Tolson, University of Southern California (USC) Gould School of Law

Since the killings of George Floyd, Breonna Taylor, and Ahmaud Arbery, civil unrest has spread throughout the United States, causing many American citizens to question racial equality in every corner of our society. In this episode we will explore one of those corners, the justice system, to discuss how our courts and judges are addressing the complex topic of racism and racial disparities. The panel also explores racial education programs for federal judges, the disparities in sentencing for Black men in the U.S., and the obligation judges and justices have to provide a justice system that works fairly for all Americans.

Moderated by David F. Levi, ALI President and Director of the Bolch Judicial Center at Duke Law School the panelists are:

• Cheri Beasley, Chief Justice of the North Carolina Supreme Court
• Charles R. Breyer, U.S. District Court, Northern District of California
• Goodwin Liu, California Supreme Court
• Raymond J. Lohier, Jr., U.S. Court of Appeals, Second Circuit

In Liu v. SEC (June 22, 2020), the Supreme Court of the United States held, in an enforcement action by the Securities and Exchange Commission, that a disgorgement order that did not exceed a wrongdoer’s net profits and was awarded for victims constituted “equitable relief” that was permissible under the Securities Exchange Act of 1934, 15 U.S.C. § 78u(d)(5), rather than punitive sanctions, which were historically excluded from the definition of “equitable relief” under the Act.

This episode will discuss the Supreme Court’s decision, both the Securities Act of 1933 and the Securities Exchange Act of 1934, and whether the Court’s reference to “equitable relief” includes the remedy of “disgorgement.” Douglas Laycock, who filed an amiscus brief in support of neither party, will lead this discussion.

Moderated by Douglas Laycock of the University of Virginia School of Law and the University of Texas School of Law.
Panelists:

• Andrew Kull, The University of Texas at Austin School of Law
• Caprice L. Roberts, The George Washington University Law School

On July 6, the Supreme Court of the United States held that states may replace and even punish “faithless electors,” the term used for a member of the U.S. Electoral College who does not vote for the presidential or vice presidential candidate they pledged to support. This episode will consider the implications of the Court’s ruling and reasoning for a broader set of questions on the Electoral College system and what might happen in this year’s election.

What if there is a 269-269 tie (hardly impossible given current political climate)? What if the electoral votes from one or more states are disputed in Congress, as might happen if a state’s legislature attempts to repudiate the certification of the state’s popular vote on the ground that it was tainted by some form of fraud (perhaps involving absentee ballots distrusted by the state’s legislature)? Is there anything that can be done now, before voting occurs in the fall, to improve the chances that any such Electoral College anomalies will be handled through the rule of law, in a way publicly perceived as appropriate under the Constitution, rather than perceived as a lawless power grab? S

Moderated by: Steven F. Huefner, The Ohio State University Moritz College of Law

Panelists:

• Edward B. Foley, The Ohio State University Moritz College of Law
• Franita Tolson, The University of Southern California Gould School of Law
• Kate Shaw, Cardozo School of Law

This episode of Coping with COVID shifts attention from one pandemic to another, the plague of excessive force by police officers. This is an old and longstanding problem receiving new attention in the aftermath of the death of George Floyd. Although we have witnessed these atrocities in the past, across the nation, citizens are coming together with a renewed strength to work together to find a solution.

There is much to be done. It is a difficult moment in our history, and yet, amid this intense pain and scrutiny, perhaps there is a new opportunity for consequential reforms. This episode welcomes four experts on policing and police reform who are working toward implementing real change. A lot is riding on how we handle these issues, including the future of our democracy and the realization of a justice system that truly protects and serves all Americans.

Moderated by ALI President David F. Levi, the panelists are:

• Lori Lightfoot is the mayor of Chicago. Prior to her election last year, she was a partner at Mayer Brown. She also served on Chicago’s Police Accountability Task Force and as president of the Chicago Police Board.
• Art Acevedo is Chief of the Houston Police Department, where he leads 5,200 law enforcement officers and 1,200 civilian support personnel. He has served in law enforcement for more than 30 years. He is an Adviser to The American Law Institute’s Policing Principles project.
• Ashley Allison is executive vice president of campaigns and programs at The Leadership Conference on Civil and Human Rights. She previously served as the deputy director and senior policy advisor in the White House Office of Public Engagement.
• Barry Friedman is one of the country’s leading authorities on policing. He is the Jacob D. Fuchsberg Professor of Law at NYU and the founding director of the NYU Law School Policing Project. He is also the Chief Reporter for The American Law Institute’s Policing Principles project.

In its April 2020 primary election, Wisconsin experienced serious problems in its absentee balloting processes, which led to a federal court case (RNC v. DNC) that the U.S. Supreme Court ultimately resolved on election eve. The problem was that in the face of the current pandemic, the number of voters who requested an absentee ballot overwhelmed the election officials’ ability to get the ballots to the voters in time to cast them. The result was the disenfranchisement of tens of thousands of Wisconsin voters, controversy over the federal courts’ ability to remedy this disenfranchisement, and confusion of the voters. But that Supreme Court decision has done little to solve the problem or to reduce the possibility of an analogous controversy in the future. Indeed, this podcast will consider whether the risk of a similar problem in November is every bit as great. For instance, consider the challenge that would confront Pennsylvania – already taxed by having to administer a new mail-in voting law that for the first time will allow any voter to request an absentee ballot – if an outbreak or resurgence of COVID-19 occurs in Philadelphia in the weeks prior to Election Day.

In the face of a surge in requests for absentee ballots that completely overwhelms state election officials, how should our legal system respond? Should a state court order Pennsylvania election officials instead to accept write-in absentee ballots from these voters? Or to accept ballots that arrive up to seven days after Election Day? Or would such an order violate the Due Process Clause? And could a controversy over this scenario result in Pennsylvania submitting two competing slates of presidential electors to Congress?

Moderated by: Steven F. Huefner, The Ohio State University Moritz College of Law

Panelists:

• Edward B. Foley, The Ohio State University Moritz College of Law
• Justin Levitt, Loyola Marymount University Loyola Law School
• Lisa Marshall Manheim, University of Washington School of Law

Featuring one of the series of interviews that ALI is conducting as part of ALI’s Oral History Series, in this episode ALI Council Member Kenneth Frazier of Merck is interviewed by Alfred W. Putnam Jr. of Faegre Drinker Biddle & Reath. This interview was conducted on January 22, 2020.

Ken was elected to ALI membership in 1996, and to ALI’s Council in 2003. He has served as the Chairman of the Board and Chief Executive Officer of Merck since 2011. He joined the company in 1992 and has held positions of increasing responsibility including General Counsel and President. Prior to joining Merck, Ken was a partner with the Philadelphia law firm of Drinker Biddle & Reath, where he and Alfy Putnam met as summer associates.

The current public health crisis has raised a variety of new challenges in the workplace. What is the employer's responsibility to keep employees safe? Is an employee able to refuse to work? Can an employee share medical information without adverse consequences? Join us for this episode of Reasonably Speaking when we are joined by lawyers and scholars who are on top of these and other very complex issues of fairness, privacy, safety and the law.

Moderated by:
David F. Levi | President, The American Law Institute; Director, Bolch Judicial Institute

Participants:

• Kim J. Askew | Partner, DLA Piper
• Patrick S. Casey | Senior Counsel, Sidley Austin
• Samuel Estreicher | Dwight D. Opperman Professor of Law and Director, Center for Labor and Employment Law, NYU School of Law; Chief Reporter, Restatement of the Law, Employment Law
• Cynthia Estlund | Catherine A. Rein Professor of Law, NYU School of Law
• Anton G. Hajjar | Former General Counsel, American Postal Workers Union, AFL-CIO