Reasonably Speaking

This episode addresses the alarming surge of attacks on judges and courts. These attacks range from threats and acts of physical violence to a corrosive rhetoric that undermines public confidence in the judiciary. While criticism of court decisions is a vital aspect of a healthy democracy, dismissing the courts as corrupt or illegitimate threatens the rule of law. ALI President David F. Levi moderates this discussion in which panelists share their perspectives on the increase in attacks on and unfair criticism of judges and propose solutions to protect judicial independence and uphold the integrity of our judicial system.

Is America’s governing framework hindering our ability to make simple choices in daily life? In this episode of Reasonably Speaking, ALI President David F. Levi sits down with author and lawyer Philip Howard to discuss his new book, Everyday Freedom: Designing the Framework for a Flourishing Society.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.

On the occasion of ALI’s anniversary, we brought together three of our project Reporters to talk about ALI’s history and a few of our most influential projects. In this discussion, ALI Centennial History Book Editor Andrew Gold is joined by Deborah A. DeMott (Reporter for Restatement of the Law Third, Agency), John C.P. Goldberg (Associate Reporter for Restatement the Law Fourth, Property), and Erin E. Murphy (Associate Reporter for Model Penal Code: Sexual Assault and Related Offenses).

Mike served as ALI's eighth president from 2000 to 2008, and Roberta as ALI's ninth and first woman president from 2008 to 2017. Both are recipients of ALI's Distinguished Service Award. Beyond the ALI, Mike is senior counsel at Cobalt in Berkeley, California. He's a member of the American Academy of Arts and Sciences and the American Academy of Appellate Lawyers, among others. He's the recipient of the U.S. Court of Appeals for the Ninth Circuit's John P. Frank Award. Mike is an honorary life trustee of Earthjustice as well as on the Environmental Law Institute's Leadership Council and the advisory boards of Sustainable Conservation and the Electronic Frontier Foundation.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. 

The tension between protecting and promoting freedom of speech is no better exhibited than in the university setting. Historically, colleges have been a place where young minds have been encouraged to exercise true freedom of thought. But to what extent is that freedom protected? Additionally, how does that freedom extend to university faculty?  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.  

ALI President David F. Levi sits down with M. Margaret McKeown, senior judge of the U.S. Court of Appeals for the Ninth Circuit, for a discussion on McKeown’s new book, Citizen Justice: The Environmental Legacy of William O. Douglas—Public Advocate and Conservation Champion.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.

The Supreme Court of the United States has historically received criticism from all sides of the political spectrum. However, recent Gallop polls suggest a significant loss in confidence by the American people in several institutions of government, including the Court. These ratings were from June 2022 before the last few controversial decisions of the U.S. Supreme Court were entered, including the abortion case Dobbs v. Jackson Women’s Health Organization and the New York gun case New York State Rifle & Pistol Association Inc. v. Bruen.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 April 2022, at the invitation of the leadership of The American Law Institute, a group whose members span a range of legal and political views, came together to consider possible Electoral Count Act (ECA) reforms. Despite holding diverse legal, political, and ideological commitments, the group is united by the belief that Congress should reform the ECA before the 2024 presidential election. The group has agreed on several general principles that should guide ECA reform, as well as specific proposals as to what ECA reform should seek to accomplish. Because of the need for quick action, this project has not gone through the typical ALI bicameral process, which requires approval by both our Council and membership, and therefore cannot be considered the official work of the Institute. 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.

U.S. Supreme Court Justice Stephen Breyer spoke about his new book, The Authority of the Court and the Perils of Politics, and his views on judicial decision-making with David F. Levi, director of the Bolch Judicial Institute at Duke Law School and president of The American Law Institute.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.”  

Have you ever wondered what exactly goes into completing an ALI project? There’s nobody better to talk about the ALI process than four veteran Reporters whose projects may be completed at the 2021 Annual Meeting. In this episode of Reasonably Speaking, Reporter on one of our newest projects, Lyrissa Lidsky from Restatement of the Law Third, Torts: Defamation and Privacy will moderate the panel of Matthew L.M. Fletcher (American Indian Law), Geoffrey P. Miller (Compliance and Enforcement for Organizations), Kenneth W. Simons (Intentional Torts), and Christiane C. Wendehorst (Principles for a Data Economy), as they discuss their journey from project conception to ALI member approval and completion. They will discuss how they came to be an ALI Reporter, how they work with project Advisers and ALI members, the draft approval process, surprises they learned along the way, and more.

ALI President David F. Levi is joined by three former Solicitors General, Walter E. Dellinger, Donald B. Verrilli, and Seth P. Waxman, to discuss the topic of election litigation and reflect upon the unconventional challenges faced in the 2020 presidential election.

Join us for this episode of Reasonably Speaking where top scholars in U.S. presidency and political science discuss the the history of the U.S. presidency and its future "post–Trump." Moderated by: ALI President David F. LeviPanel:Jack Landman Goldsmith, Harvard Law SchoolDavid M. Kennedy, Stanford UniversityTerry M. Moe, Stanford UniversityDaphna  Renan, Harvard Law School

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 CenterClare Huntington, Fordham University School of LawMarsha 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 LawPanelists:John H. Beisner – SkaddenAbbe Gluck – Yale Law SchoolShanin 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