They’re joined by Judge Edith Jones and Professor Nicholas Bagley for a lively conversation that explores Howard’s critique of complex legal structures and their impact on our sense of agency. They delve into the book’s central theme of "everyday freedom" and how simplifying legal frameworks can empower individuals and revitalize society.

Roberta is a shareholder at Modrall Sperling in Albuquerque, New Mexico. In addition to being ALI's first woman president, she was also the first woman president of the ABA from 1995 to 1996. Among other honors, she's an elected member of the American Academy of Arts and Sciences, a fellow of both the American College of Trust and Estate Council and the American Bar Foundation, and has served as a panel member for the American Arbitration Association. Roberta is board chair of Think New Mexico, and a member of the board of the Santa Fe Opera. In 2015, Roberta received the American Bar Association's highest award, the ABA medal. We are so pleased Mike and Roberta have joined us in person to record this dual oral history for the Institute. 

On this episode of Reasonably Speaking, ALI President David F. Levi is joined by constitutional law expert Geoffrey R. Stone, Edward H. Levi Distinguished Service Professor of Law at The University of Chicago Law School, to discuss speech on campus.  

U.S. Supreme Court Justice William O. Douglas was a giant in the legal world, particularly as the longest-serving justice from 1939 to 1975. His most enduring legacy, however, is perhaps his advocacy for the environment. In a way unthinkable today, Douglas ran a one-man lobby shop from his chambers at the U.S. Supreme Court, bringing him admiration from allies in conservation groups but raising ethical issues with his colleagues. He became a national figure through his books, articles, and speeches warning against environmental dangers. Douglas organized protest hikes to leverage his position as a national icon, he lobbied politicians and policymakers privately about everything from logging to highway construction and pollution, and he protested at the Supreme Court through his voluminous and passionate dissents.

This episode brings together U.S. federal judges in a conversation about judging, and the perception of the U.S. Supreme Court in particular, because of the loss of confidence by the American people in the Court.

The conversation is moderated by ALI President David F. Levi, who served on the U.S. District Court for the Eastern District of California from 1990 to 2007, including chief judge from 2003 to 2007. Joining him are Raymond J. Lohier Jr. of the U.S. Court of Appeals for the Second Circuit, Jeffrey S. Sutton, chief judge of the U.S. Court of Appeals for the Sixth Circuit, and Diane P. Wood of the U.S. Court of Appeals for the Seventh Circuit.

In this episode of Reasonably Speaking, David F. Levi is joined by the project’s co-chairs, Bob Bauer and Jack Goldsmith, who explain the purpose of the project and walk through the General and Specific Principles.

This podcast episode is jointly produced by the ALI and the Bolch Judicial Institute at Duke Law School.

During the hour-long conversation, Breyer reflects on his 27 years on the Court and discusses the roots of the Court’s authority and its relationship to the political branches of government. The power of the Court, he says, resides in the people — in their faith in the institution, their belief in the rule of law, and their understanding that the Court operates outside the political realm. The peril of politics, he says, is that if people begin to see judges as nothing more than ‘junior league politicians’ — or as making decisions in order to help a political party or to advance a political agenda — the Court’s power will erode, along with the rule of law.

He recalls that the Chief Justice of Ghana once asked him where the Supreme Court got its power, and why Americans accept and abide by its decisions. After all, as Alexander Hamilton famously noted, the Court has no military or economic power to enforce its decisions. In considering the question, he offers examples of Court decisions that were not enforced — or were actively subverted — by the government: Worcester v. Georgia found that the states did not have the power to impose law on Native American land, yet President Andrew Jackson refused to enforce the decision and the U.S. government ultimately forced Native American tribes off their land. Similarly, states refused to enforce Brown v. Board of Education, and segregation in schools persisted for years despite various efforts by the federal government to force integration. 

“I wanted the Chief Justice of Ghana to know that it's not God-given that people would follow what the Court says,” Breyer explains. “If you want a rule of law, if you want it in reality and not on paper, you can't just talk to the judges and you can't just talk to the lawyers. Everybody thinks they want a rule of law. That's how they make their living. But it is the people in the towns, in the villages. Contrary to popular belief, of our 331 million people, 330 million are not lawyers. And they're the ones that have to be convinced that it is in their interest to follow decisions, even when those decisions affect them in a way they don't like, and when those decisions are wrong — because if, after all, it's five to four, somebody's wrong.”

But in America today, Breyer says, very controversial decisions are accepted. Consider a decision as contested as Bush v. Gore, he says. There were no shots fired after Bush v. Gore, he notes, because “Americans have reached a point where they don't even think about the decisions of the Court, not following them. They think it's like the air we breathe. People do. And that doesn't happen by magic. That happens by people understanding the country, by living a history, by having examples.”

That faith in the Court is risked, however, if the public begins to see the Court as a political actor — a perception that the judiciary must counter, he says. He discusses the differences between political decision-making and judicial decision-making, arguing that while judicial philosophies and personal experiences may influence an individual judge’s views, judges must be guided by the law, not political constituents. That doesn’t mean, however, that judges don’t have differing views of what the Constitution means. 

“After a while, I began to understand this is a big country, and people think all kinds of different things. And it is not such a terrible thing to have a Supreme Court with nine members where different presidents appoint different judges,” Breyer says. “Ultimately, the country has to suffer from, or rejoice sometimes, or in any case live with the decisions and interpretations of the Court. What Justice Scalia happens to think, or Justice Breyer or Justice O'Connor, about the Constitution is of great interest to many law professors, but not to most people in the United States. It is the Constitution as interpreted by the Court that matters.”

Breyer also discusses the power of deliberation and compromise as a way for the Court to generate public trust and as a way to develop and strengthen common values that can bind the country together in times of division — “remembering that the Constitution has as a basic principle — one of the things that I think is most important — is the principle that it works. The principle that this society does hold together, the principle that this society has certain basic values, and they work. . . . That's our society. We pull together in light of those rather basic constitutional ideas.”

Moderated by: ALI President David F. Levi

Panel:

• Jack Landman Goldsmith, Harvard Law School
• David M. Kennedy, Stanford University
• Terry M. Moe, Stanford University
• Daphna  Renan, Harvard Law School

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

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

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

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

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

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

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 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

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.

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

Moderated by David F. Levi, President of The American Law Institute and Director of the Bolch Judicial Center

Panelists are:

• Karen K. Caldwell, United States District Court for the Eastern District of Kentucky
• Sherri R. Carter, Superior Court of California, County of Los Angeles
• Mark A. Drummond, Civil Jury Project at NYU School of Law, 8th Judicial Circuit of Illinois
• Robin L. Rosenberg, United States District Court for the Southern District of Florida
• Samuel A. Thumma, Arizona Court of Appeals, Division One
• Vaughn R. Walker, United States District Court for the Northern District of California

Torts was one of the first Restatements completed by The American Law Institute. Now in the Third series, nearly 90 years later, medical malpractice has never been included in any Restatement series until now. Led by Restatement Reporter Michael Green, the participants will discuss why now is a particularly opportune time for ALI to take on this unruly subject.

Moderated by: Michael D. Green, Wake Forest University Law School

Panelists:

• Mark Hall, Wake Forest University Law School
• Laura Sigman M.D., J.D.; Children’s National Health System
• Shanin Specter, Kline & Specter

• Kerry Abrams, James B. Duke and Benjamin N. Duke Dean and Professor of Law, Duke Law School
• Vikram D. Amar, Dean and Iwan Foundation Professor of Law, University of Illinois College of Law
• Heather Gerken, Dean and Sol & Lillian Goldman Professor of Law, Yale Law School
• John F. Manning, Morgan and Helen Chu Dean and Professor of Law, Harvard Law School
• Jenny S. Martinez, Dean and Richard E. Lang Professor of Law, Stanford Law School
• Jennifer L. Mnookin, Dean, David G. Price and Dallas P. Price Professor of Law, UCLA School of Law

Panelists:

• Chief Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit
• Chief Judge Lee Rosenthal of the U.S. District Court for the Southern District of Texas
• Chief Justice Nathan Hecht of the Supreme Court of Texas
• Chief Justice Bridget McCormack of the Supreme Court of Michigan

The American Law Institute would like to thank Oyez for excerpted portions of Supreme Court oral arguments. This material is released under the Creative Commons license. Oyez is a free law project from Cornell’s Legal Information Institute, Justia, and Chicago-Kent College of Law. Listeners may learn more about Oyez or listen to full oral arguments online at oyez.org.

In this episode, two experts on the topic, Criminal Law Professor Aya Gruber and AEquitas Co-Founder and CEO Jennifer Long, discuss and debate the potential for success and failure of implementing an “affirmative consent” requirement, how we now understand that there is no expected behavior during or after a sexual assault, and how important is to treat every case individually.

In this episode Suzanne Goldberg, Professor of Law at Columbia Law School and Executive Vice President for University Life at Columbia University, and Gil Sparks, member and past Chairman of the Board of Trustees of the University of Delaware, discuss what schools are doing to implement procedures that are both effective and fair for those who have suffered from such misconduct and for those accused.

Join us for this episode when we ask two compliance experts about the greatest challenges in creating a strong compliance program and establishing a corporate culture that supports it. We welcome Ivan Fong, Senior Vice President of Legal Affairs and General Counsel at 3M. In 2018, 3M was named to Forbes’ list of Most Reputable Companies, Ethisphere’s list of World’s Most Ethical Companies, and Glassdoor’s list of Best Places to Work, among other honors. We are also pleased to have Lori Martin, Partner at WilmerHale, join us. Lori has an extensive compliance practice, where she helps numerous clients audit and strengthen their current compliance programs.

As his book title indicates, attempts and failures to build a museum dedicated to African American history date back more than 100 years. Judge Wilkins played an integral role in making the museum a reality.

In this episode, consumer contract experts Omri Ben-Shahar and Florencia Marotta-Wurgler discuss several types of consumer contracts, enforceability of terms, and the potential consequences of agreeing to these terms without reading the fine print.

Listen as these experts, who currently are on the front lines (an advocate and civil rights lawyer, a civil liberties lawyer whose current work is with communities and police departments, and the director of a think tank tasked with increasing government officials', the media's, and the public's understanding of the Constitution and the rule of law), discuss new policing technologies, as well as new theories about public policy that may help shape the future of race and policing.

Listen as these experts, who currently are on the front lines (an advocate and civil rights lawyer, a civil liberties lawyer whose current work is with communities and police departments, and the director of a think tank tasked with increasing government officials', the media's, and the public's understanding of the Constitution and the rule of law), discuss new policing technologies, as well as new theories about public policy that may help shape the future of race and policing.

In this episode, NYU Law’s Erin Murphy and UC Irvine Law’s Ken Simons explore the difference between criminal law and tort law in the United States and then focus on how “consent” is, and should be, defined in sexual assault allegations.

History of the treatment of children in the justice system

[04:26] Modern trends in how we view children

[17:20] Racial disparities

[21:18] Recent progress

Death penalty expert and author of End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice, Brandon Garrett, talks about this history and the revealing details of his data collection on the demise of capital punishment. We are also joined by ALI’s past President Roberta Cooper Ramo and former Judge Christine Durham, who discuss ALI’s removal of the Death Penalty from the Model Penal Code, perhaps one of the earliest indications of the future of capital punishment.

The History of the U.S. Death Penalty

[04:00] ALI and the decision to remove the death penalty from the Model Penal Code

[24:00] Reasons for the death penalty’s decline

[43:00] Race and the death penalty

[46:00] The future of the death penalty