26 APR 2024 · John Ream, an engineer and owner of Trek Brewing Company which creates craft beers in Newark, Ohio, is suing the U.S. Department of Treasury over the regulations that prohibit distilling spirits and hard alcohols at home. Mr. Ream asserts that he would like to pursue the hobby of distilling spirits at home for his personal use but cannot because of federal legislation. The federal law, passed under the Commerce Clause of the Constitution, makes it a felony punishable by $10,000 in fines and five years in prison, to distill hard alcohol, even for personal use. Mr. Ream, represented by The Buckeye Institute, alleges that this prohibition is unconstitutional and exceeds the powers granted Congress by the Commerce Clause, since it seeks to regulate non-commercial activity. The case was filed in the United States District Court for the Southern District of Ohio, early in 2024, and is currently making its way through the litigation process. Join us for a litigation update on Ream v. U.S. Department of Treasury featuring Robert Alt, lead attorney at The Buckeye Institute representing Mr. Ream. Featuring: Robert Alt, President and CEO, The Buckeye Institute (Moderator) Andrew Grossman, Partner, BakerHostetler LLP

26 APR 2024 · In February 2022, a District of New Jersey court in United States v. Coburn compelled a private company to produce internal investigation materials to two of its former executives, who had been indicted by the U.S. Department of Justice ("DOJ") relating to an alleged foreign bribery scheme. This panel will explore the implications that this decision, and its legal reasoning, might have on attorneys and clients who are attempting to cooperate with DOJ as part of a self-disclosure strategy with the intent to earn "cooperation credit," while at the same time protecting the attorney-client and work product privileges emanating from internal investigations conducted on behalf of one's corporate client. Featuring: Hon. Don Cochran, Professor of Law, Belmont University College of Law Hon. Mike Hurst, Partner, Phelps Dunbar LLP Hon. John C. Richter, Partner, King & Spalding (Moderator) Hon. David C. Joseph, United States District Court Judge, Western District of Louisiana

23 APR 2024 · Generally, when Congress strips courts of jurisdiction, it does so by implementing broad, forward-looking, statutory bars that insulate agency decisions or foreclose appeal. In response to the protracted litigation surrounding construction and operation of the Mountain Valley Pipeline, Congress passed a unique statutory provision which (1) granted all required approvals for the pipeline to proceed and (2) stripped every court’s jurisdiction to review the pipeline’s permit approvals. Simultaneously, the amendment granted the United States Court of Appeals for the D.C. Circuit exclusive jurisdiction over all constitutional challenges to the jurisdiction stripping provision. The case-specific impact of this legislation prompted much public concern and Supreme Court review. Petitioners unsuccessfully argued that Congress exceeded its constitutional authority by intervening to effect a specific outcome in a specific case Respondents prevailed on the counterargument that Congress merely made new underlying law without directing any decision of an Article III court. In this panel, academic commentators and amici from the case discussed the careful distinctions between amendments to substantive law and case-specific jurisdiction stripping, sharing insights on the separation-of-powers questions both behaviors raise.

23 APR 2024 · In July of 2023, the Fifth Circuit reversed the district court's decision in Clarke v. CFTC, and remanded with instructions to enter a preliminary injunction against the Commodity Futures Trading Commission. The case is one concerning the CFTC's revocation of its "no-action letter" concerning PredictIt Market. PredictIt Market is an online marketplace for people to trade contracts predicting important political events, started as a research tool by Victoria University of Wellington in New Zealand. Before going into operation, PredictIt sought a "no-action letter" from the CFTC to operate in the US without registering under the Commodity Exchange Act as a designated contract market, which the CFTC issued in 2014. However, in August 2022, the CFTC withdrew the letter and issued notice to PredictIt to cease operations within 6 months, which led to suit being filed by supporters of PredictIt. Questions included whether the revocation was arbitrary and capricious, whether the letter constituted "final action" on the part of the agency, and whether the plaintiffs had standing to sue. Join us as a panel of experts discuss this interesting case. Featuring: Michael Edney, Partner, Hunton Andrews Kurth LLP Hon. David Mason, General Counsel and Chief Compliance Officer, Aristotle International Connor Raso, Deputy General Counsel, Public Company Accounting Oversight Board (Moderator) Russ Ryan, Senior Litigation Counsel, New Civil Liberties Alliance

23 APR 2024 · City of Grants Pass, Oregon v. Johnson concerns whether the sections of the Grants Pass Municipal Code which prohibit sleeping/camping on public property like parks and streets constitute "cruel and unusual punishment" as prohibited by the Eighth Amendment. The codes in question only impose civil penalties, which can, in certain circumstances develop into criminal penalties. The case parallels the 2018 case Martin v. City of Boise, in which the Ninth Circuit held that criminal penalties for sleeping/camping on public property violated the Eighth Amendment. Grants Pass raises the question of whether that extends to civil penalties. The case was originally filed in 2018 by a group of individuals including Gloria Johnson affected by the Grants Pass Municipal Codes, and in 2022 the Ninth Circuit decided in favor of the group. The city appealed and it is set to be heard at the Supreme Court on Monday, April 22. Supporters of the city of Grants Pass have argued that these codes and those like them are important for addressing issues of local governance and public health and safety. They contend having courts meddle in issues that pertain to local matters is dangerous and preempts local law enforcement and governments from serving their communities. Detractors claim that the codes endanger those who are involuntarily homeless and impose disproportionate punishment for a non-criminal status. Join us for a Courthouse Steps preview on this interesting case at the intersection of Criminal Law, Federalism and Separation of Powers, and Property rights. Featuring: Mark Miller, Senior Attorney, Property Rights, Pacific Legal Foundation

17 APR 2024 · Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below. - https://www.scotusblog.com/case-files/cases/snyder-v-united-states/ (April 15) - Whether section 18 U.S.C. § 666(a)(1)(B) criminalizes gratuities, i.e., payments in recognition of actions a state or local official has already taken or committed to take, without any quid pro quo agreement to take those actions. - https://www.scotusblog.com/case-files/cases/chiaverini-v-city-of-napoleon-ohio/ (April 15) - Whether Fourth Amendment malicious-prosecution claims are governed by the charge-specific rule, under which a malicious prosecution claim can proceed as to a baseless criminal charge even if other charges brought alongside the baseless charge are supported by probable cause, or by the “any-crime” rule, under which probable cause for even one charge defeats a plaintiff’s malicious-prosecution claims as to every other charge, including those lacking probable cause. - https://www.scotusblog.com/case-files/cases/fischer-v-united-states/ (April 16) - Whether the U.S. Court of Appeals for the District of Columbia Circuit erred in construing 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence. - https://www.scotusblog.com/case-files/cases/thornell-v-jones/https://www.scotusblog.com/case-files/cases/truck-insurance-exchange-v-kaiser-gypsum-company-inc/ (April 17) - Whether the U.S. Court of Appeals for the 9th Circuit violated this court’s precedents by employing a flawed methodology for assessing prejudice under Strickland v. Washington when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the state’s rebuttal when it reversed the district court and granted habeas relief. - https://www.scotusblog.com/case-files/cases/city-of-grants-pass-oregon-v-johnson/ (April 22) - Constitutional Law, First Amendment - It explores the standards required for a plaintiff alleging an arrest in retaliation for speech protected by the First Amendment, focusing on what evidence must be shown to prove such a claim, especially in light of exceptions outlined in precedent cases. - https://www.scotusblog.com/case-files/cases/smith-v-spizzirri/ (April 22) - Whether Section 3 of the Federal Arbitration Act requires district courts to stay a lawsuit pending arbitration, or whether district courts have discretion to dismiss when all claims are subject to arbitration. - https://www.scotusblog.com/case-files/cases/department-of-state-v-munoz/ (April 23) - (1) Whether a consular officer's refusal of a visa to a U.S. citizen's noncitizen spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible under 8 U.S.C. § 1182(a)(3)(A)(ii) suffices to provide any process that is due. - https://www.scotusblog.com/case-files/cases/starbucks-corp-v-mckinney/ (April 23) - Whether courts must evaluate the National Labor Relations Board’s requests for injunctions under Section 10(j) of the National Labor Relations Act using the traditional, stringent, four-factor test for preliminary injunctions or some other more lenient standard. - https://www.scotusblog.com/case-files/cases/moyle-v-united-states-2/ (April 24) - Whether the Supreme Court should stay the order by the U.S. District Court for the District of Idaho enjoining the enforcement of Idaho’s Defense of Life Act, which prohibits abortions unless necessary to save the life of the mother, on the ground that the Emergency Medical Treatment and Labor Act preempts it. - https://www.scotusblog.com/case-files/cases/trump-v-united-states-3/ (April 24) - Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office. Featuring: - Anya Bidwell, Attorney, Institute for Justice - G. Roger King, Senior Labor and Employment Counsel, HR Policy Association - Harry Graver, Associate, Jones Day  - Timothy Sandefur, Vice President for Litigation, Goldwater Institute - Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute; Visiting Fellow, Hoover Institution - Moderator: Danielle Thumann, Partner, McGuireWoods

27 MAR 2024 · Over the past decade, the tension between First Amendment rights and public accommodations laws has grown, as wedding vendors have refused to serve same-sex weddings pursuant to their consciences. On June 30, 2023, the U.S. Supreme Court issued its decision in 303 Creative LLC v. Elenis, which held that the free speech clause prohibits a state from forcing a website designer to create messages with which the designer disagrees. That said, the Court has yet to issue a clear decision that resolves these issues under the free exercise clause, even though wedding vendors almost invariably object to providing services on religious grounds. Indeed, when the free exercise question was addressed in Masterpiece Cakeshop Ltd. V. Colorado Civil Rights Commission, the Court largely punted on the issue and resolved the case on very narrow procedural grounds. Wedding-vendor litigation continues to percolate throughout the country and raises important questions for First Amendment jurisprudence, including whether the Supreme Court should reconsider Employment Division v. Smith, whether the free exercise clause extends protection to wedding vendors in a similar way to the free speech clause, and whether the so-called “hybrid rights doctrine” is a viable theory for analyzing religious claims to exemptions. Please join us as we discuss these issues and others with some of the leading scholars and practitioners in this space. Featuring: Prof. Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law Prof. Douglas Laycock, Robert E. Scott Distinguished Professor of Law Emeritus, University of Virginia School of Law Jonathan Scruggs, Senior Counsel and the Director for the Center for Conscience Initiatives, Alliance Defending Freedom (Moderator) Austin Rogers, Chief Counsel at Senate Judiciary Committee

26 MAR 2024 · In Gonzalez v. Trevino, Petitioner Sylvia Gonzalez is a 72 year-old city councilwoman from Castle Hills, Texas. Ms. Gonzalez believed that the city's mayor and city manager were ignoring her constituents and her own frustrations with the city. The mayor and other allies of the city manager in turn planned to unseat the councilwoman. The mayor and police chief next filed charges with a rarely-used law to have the councilwoman arrested, booked, and put in jail. Ms. Gonzalez maintains that she did nothing wrong. After a day in jail, local media picked up the story and the local prosecutor dropped the charges. Petitioner is represented by the Institute for Justice and she filed a 2020 lawsuit against the city officials. The city filed a motion to dismiss claiming qualified immunity, which the district court denied. An appeal followed to the Fifth Circuit, which reversed the district court over a dissent from Judge Oldham. The Supreme Court granted certiorari this past fall. On March 20, 2024, the Supreme Court heard oral argument in Gonzalez v. Trevino. This was a discussion with Anya Bidwell, Attorney at the Institute for Justice, as she broke down the case and its developments after oral argument.

26 MAR 2024 · Professor Zack De Piero was an English professor at the Pennsylvania State University Abington campus before resigning and filing a lawsuit against the University in 2023 alleging that administrators and faculty members discriminated against him because of the color of his skin. Professor De Piero claims the University's diversity, equity, and inclusion (DEI) initiatives created a hostile work environment with a race-essentialism focus. Professor De Piero was required to attend professional development meetings to view videos such as “White Teachers Are a Problem”, and was directed to “assure that all students see that white supremacy manifests itself in language and in writing pedagogy.” He took the prescribed course of action and filed a bias report, to no avail. Professor De Piero has now filed suit against Penn State in federal court, alleging violations of his civil rights under federal and Pennsylvania law. Penn State initially argued that De Piero's disparate treatment claim must be dismissed because he resigned from his job at Penn State, and, thus, did not suffer an adverse employment action. On January 11, 2024, the United States District Court for the Eastern District of Pennsylvania denied Penn State’s motion to dismiss the discrimination claim against it by Professor De Piero. The case has now entered the discovery phase. This was a Litigation Update on De Piero v. Pennsylvania State University with Michael Allen, one of Professor De Piero's attorneys and Partner at Allen Harris Law, and moderator William Trachman, General Counsel at the Mountain States Legal Foundation.

22 MAR 2024 · In Pulsifer v. United States, the Supreme Court considered an Eighth Circuit case that raised the question: "Must a defendant show he does not meet any of the criteria listed in 18 U.S.C. § 3553(f) to qualify for a sentence lower than the statutory minimum?". Key to that question was the meaning of the word "and" in the statute, as the Court was asked to consider whether text and context required "and" in this case be read to mean "or". Oral argument was heard on October 2, 2023, and judgment was rendered in favor of the government (affirming the 8th Circuit's decision) on March 15, 2024. The decision split the Court 6-3, with Justice Kagan authoring the majority opinion. Justice Gorsuch authored a dissent, which Justices Sotomayor and Jackson joined.In the wake of this decision, join us for a Courthouse Steps Decision Forum as we discuss its potential ramifications. Featuring: Vikrant P. Reddy, Senior Fellow, Stand Together Trust