Reasonably Speaking

In this episode, we spend time with Paul D. Clement, who served as the 43rd Solicitor General of the United States from June 2005 until June 2008. Before his confirmation as Solicitor General, he served as Acting Solicitor General for nearly a year and as Principal Deputy Solicitor General for over three years. He has argued nearly 100 cases before the United States Supreme Court. 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.

Consent is a concept at the center of criminal law and sexual assault. So, why is it so difficult to accurately define? Sexual assault laws have evolved from requiring the victim to resist toward requiring consent. However, “consent” is defined in many ways. 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.

Colleges and universities face special challenges in designing and implementing procedures to respond to campus sexual and gender-based misconduct, while maintaining an academic community with equal educational opportunities for all students. 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.

Board members, business owners, employees, and even customers should all be interested in a company’s compliance policies and adherence to them. Why? Because there is much at stake. 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.

On this episode, Judge Paul Friedman of the United States District Court for the District of Columbia sits down with Judge Robert Wilkins of the United States Court of Appeals for the District of Columbia Circuit to talk about his book Long Road to Hard Truth: The 100 Year Mission to Create the National Museum of African American History and Culture. 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.

Consumer contracts are everywhere. The number of contracts you enter into today may surprise you. Most of the contracts you enter into no longer involve a pen and paper. Purchasing a morning coffee, visiting a website, or scheduling a delivery are just a few daily transactions that more often than not include contract terms.

In part two of this two-part episode, Sherrilyn Ifill of the NAACP Legal Defense and Educational Fund, Inc., Barry Friedman, New York University Law professor and director of NYU’s Policing Project, and John Malcolm of the Heritage Foundation continue the discussion about the intersection of race and policing in the United States. The application of new technologies and the danger of doing so without oversight is discussed, as well as some suggestions about what everyone can do to make a positive difference, whether a lawyer, police officer, community leader, or concerned citizen.

In part one of this two-part episode, Sherrilyn Ifill of the NAACP Legal Defense and Educational Fund, Inc., Barry Friedman, New York University Law professor and director of NYU’s Policing Project, and John Malcolm of the Heritage Foundation begin their exploration of the intersection of race and policing in the United States. They discuss history of race relations in the U.S., and the resulting impact on law enforcement practices; the role of first responders, and if police officers are the right people to fill that role; and implementing effective training programs.

From start to finish, criminal and tort cases differ in many ways, including how a case is initiated, in which court it is heard and decided, standards of proof, and the consequence if the defendant is found liable (punishment if defendant is convicted of a crime; payment of money damages if defendant is liable for a tort). Some cases [or fact patterns] qualify as both crimes and torts. These differences are especially evident in sexual assault claims where a single legal term, such as “consent,” may be defined quite differently, depending on the type of legal claim asserted.

In this episode, renowned experts on American Indian law and policy, Matthew Fletcher and Wenona Singel, discuss the nuanced and highly complex field of American Indian Law. Matthew and Wenona begin by exploring the history of tribal sovereignty, and discuss the rights of American Indians as both tribal citizens and U.S. citizens. We then explore jurisdiction across border lines, particularly in a criminal context. Matthew and Wenona discuss the history of violence against native women, and why, until recently, prosecution has been so difficult. The history of and current U.S. court challenges to the Indian Child Welfare Act are also examined.

In this episode, Juvenile Law Center’s Co-Founder Marsha Levick and Columbia Law Professor Elizabeth Scott discuss the vulnerability of children when they enter the justice system. Marsha and Elizabeth agree that much has improved since the “adult time for adult crime” 1990s mentality – today youth are recognized as developmentally different from adults, and with care, may be more easily rehabilitated. However, they argue that there are still improvements to be made, and the problems become obvious when you look at statistics comparing the race of children entering the system.

How does one prepare, and what is it like to argue before the U.S. Supreme Court? In this episode, Douglas Laycock, an experienced Supreme Court advocate himself, moderates an insightful conversation between two prominent Supreme Court appellate lawyers. Former Solicitor General Seth Waxman of WilmerHale and former Assistant to the Solicitor General Nicole Saharsky of Mayer Brown share their personal experiences as well as their unique insight into the nation’s highest court.

The death penalty in the United States, both new convictions and executions, has declined through recent decades. In this episode, we explore the history of the death penalty and the various factors that are contributing to this decline. 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

In this episode, Judge Goodwin Liu of the California Supreme Court talks to Judge Jeffrey Sutton about the distinct yet parallel importance of the State Court systems and the Federal Court system, including how we came to value so highly the federal system; why we should pay more attention to our state courts and constitutions; and what we as citizens, educators, and advocates should do going forward.