Georgetown Law Supreme Court Institute Annual Press Briefing:
Anticipating the Supreme Court’s October Term 2008: What to Expect

Monday, September 22, 2008
9:00 – 11:00 a.m. (Continental breakfast served at 8:30 a.m.)

Georgetown University Law Center
Gewirz Student Center, 12th Floor
120 F Street, NW
Washington, D.C.  20001

Professor Susan Low Bloch, Georgetown University Law Center

GEORGETOWN LAW
PANELISTS & TOPICS:

TOPIC NOTES:                   

Professor Lederman will discuss two of the most significant cases before the Court this Term, FCC v. Fox Television Stations and Pleasant Grove City v. Summum.  FCC v. Fox Television Stations tests the Federal Communications Commission’s power to ban even a single use of an expletive on television radio broadcasts.  The FCC’s previous policy had been to ignore isolated expressions of a four-letter-word, but after a series of entertainers used four-letter-words during awards ceremony broadcasts on TV, the FCC changed their policy to discipline networks for "fleeting expletives."   In Summum the issue is the scope of the right of a private group to display a permanent religious monument on government property, including a public park, if the government entity responsible has accepted other objects donated by other private individuals or groups. 

Professor Heinzerling will discuss Winter v. Natural Resources and Summers v. Earth Island Institute.  The Court has granted review and scheduled oral argument in Winter on an expedited basis in response to a request from the Solicitor General.  This case tests the Navy’s use of sonar transmissions during training exercises, which may interfere with marine mammals.  The case was granted on June 23, 2008, and under normal scheduling would not have been heard before December 2008 or January 2009.  In Summers, the Court will consider the justiciability of challenges to the regulations which would exclude certain Forest Service projects from statutory provisions that would otherwise require the Forest Service to make available administrative appeals and notice-and-comment procedure, as well as whether the Ninth Circuit erred in affirming a nationwide injunction prohibiting the Forest Service from applying the regulations.

Professor Forman will discuss several search cases pending before the Court that raise a variety of civil rights issues.  His primary case for discussion will be Pearson v. Callahan, which is a test of police authority to search a house without a warrant, if they enter right after an undercover agent has gone in.  In granting review, the Court asked the lawyers to argue whether it should overrule its 2001 decision in Saucier v. Katz, laying down a method for analyzing whether officials accused of violating someone’s constitutional rights have limited immunity to lawsuits for their actions. The two-step inquiry first asks whether a constitutional right is at stake, and, if so, whether it was clearly established at the time of the incident involved.  Professor Forman will also be ready to discuss and answer questions about two other cases: (1) Arizona v. Gant, which raises the question of whether the Fourth Amendment requires law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence related to the crime of arrest in order to justify a warrantless vehicular search incident to arrest conducted after the vehicle’s recent occupants have been arrested and secured; and (2) Herring v. United States, which raises the question of whether the Fourth Amendment requires evidence found during a search incident to an arrest to be suppressed when the arresting officer conducted the arrest and search in sole reliance upon facially credible but erroneous information negligently provided by another law enforcement agent.

Professor Vladeck will discuss several cases before the Court that raise a variety of issues concerning constitutional limits on federal and state governmental regulation of drugs.  His primary case for discussion will be Wyeth v. Levine.  The Court granted review of whether the prescription drug labeling judgments imposed on manufacturers by the Food and Drug Administration (FDA) pursuant to FDA's comprehensive safety and efficacy authority under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. Sec. 301 et seq., preempt state law product liability claims premised on the theory that different labeling judgments were necessary to make drugs reasonably safe for use. Professor Vladeck will also discuss Altria Group, Inc. v. Good, a case concerning the right of individual smokers to sue tobacco companies under state law over the marketing of so-called "light" cigarettes.  The Petitioner argues that such lawsuits are barred expressly by federal law, or at least by implication drawn from the Federal Trade Commission’s actions, and Philip Morris USA Inc. v. Williams, where the Court for the third time, agreed to review a $79.5 million punitive damages award against the giant tobacco firm, Philip Morris USA.  This case poses a significant constitutional conflict between the Supreme Court’s authority to have its rulings applied, and a state court’s authority to manage its own state procedural rules.  The tobacco company appeal contends that the state court defied the Supreme Court’s most recent ruling that was a clear victory for Philip Morris. 

Professor Bloch will discuss the latest developments in Kennedy v. Louisiana, as well as the Court’s increased argument calendar.

BIOGRAPHICAL INFORMATION ON PANELISTS:

Professor Bloch teaches constitutional law, federal courts, communications law and a seminar on the Supreme Court.  She is the author of numerous articles in the areas of constitutional and administrative law and is the co-author of "Supreme Court Politics: The Institution and Its Procedures."  Before joining Georgetown Law, she served as a law clerk for U.S. Supreme Court Justice Thurgood Marshall.  In addition to teaching, Bloch is a member of the American Law Institute, a participant on the Twentieth Century Fund Project on the Judiciary and a fellow of the American Bar Foundation.  She is a member of the District of Columbia Judicial Evaluation Committee, has been a Commissioner on the Judicial Nominating Commission for the District of Columbia Courts and has worked with the United States Court of Appeals for the District of Columbia Circuit in numerous capacities.

Professor Lederman joined the Georgetown Law faculty this fall after serving for three years as a visiting professor.  With David Barron, he has recently published a comprehensive two-part article in the Harvard Law Review examining the question of Congress's authority to regulate the commander in chief's conduct of war.  He is a regular contributor to several blogs, including "SCOTUSblog," "Opinio Juris," "Slate" and "Balkinization," where he has published several hundred posts since January 2005, principally on issues relating to separation of powers, war powers, torture, detention, interrogation, international law, treaties, executive branch lawyering, statutory interpretation and the First Amendment.  He was an Attorney Advisor in the Department of Justice’s Office of Legal Counsel from 1994 to 2002.  Before that, he was an attorney at Bredhoff & Kaiser, where his practice focused on federal litigation, including appeals, on behalf of labor unions, employees and pension funds.  A graduate of the University of Michigan and Yale Law School, he served as law clerk to Chief Judge Jack B. Weinstein of the U.S. District Court for the Eastern District of New York and to Judge Frank M. Coffin of the U.S. Court of Appeals for the First Circuit.  He has taught constitutional law, religion and law, and the legal justice seminar.  This year, he will be teaching seminars on executive branch lawyering and separation of powers, as well as the first-year elective in lawmaking. 

Professor Heinzerling graduated from the University of Chicago Law School, where she served as editor-in-chief of the University of Chicago Law Review.  After law school, she clerked for U.S. Supreme Court Justice William J. Brennan, Jr. and Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit.  She was a Skadden Fellow at Business & Professional People for the Public Interest in Chicago, and for three years practiced environmental law in the Massachusetts Attorney General's Office.  She has been a visiting professor at Harvard and Yale Law Schools.  Her scholarship in environmental law has been published in the Yale Law Journal, Harvard Law Review, University of Chicago Law Review and Georgetown Law Journal.  With economist Frank Ackerman, she is the author of "Priceless: On Knowing the Price of Everything and the Value of Nothing" (The New Press, 2004).  She received Georgetown Law’s faculty teaching award in 2003.  In 2006, she served as lead author of the petitioners' briefs in the Supreme Court case of Massachusetts v. EPA.

Professor Forman is a graduate of Brown University and Yale Law School.  After law school, he served as a judicial clerk for both U.S. Supreme Court Justice Sandra Day O'Connor and Judge William Norris of the U.S. Court of Appeals for the Ninth Circuit.  Forman worked for six years with the Public Defender Service in Washington, D.C., where he represented juveniles and adults in serious felony cases.  In 1999, he was promoted to training director for new attorneys at the agency.  Forman's interest in educational programs for at-risk and court-involved youth led him to establish, along with a colleague, the Maya Angelou Public Charter School in 1997.  The school is recognized as one of the most successful programs of its kind in the country, combining rigorous education, job training, counseling, mental health services, life skills, and dormitory living for school dropouts and youth who have previously been incarcerated.  Forman teaches and writes in the areas of criminal procedure and education law.

Professor Vladeck, a highly acclaimed Supreme Court advocate and legal scholar, joined the Georgetown Law faculty after more than twenty years of legal practice at the Public Citizen Litigation Group, a nationally-prominent public interest law firm, where he served as director of Public Citizen’s Supreme Court litigation program.  He has represented parties in numerous cases before the Court.  At Georgetown Law, he co-directs the Institute for Public Representation, a clinic law program, and serves as director of the Center on Health Regulation and Governance of the O’Neill Institute for National and Global Health Law.  In addition to his clinic teaching, Vladeck teaches federal courts, civil procedure and government processes.  He was recently named among the "90 Greatest Washington Lawyers of the Last 30 Years" in the 30th anniversary issue of the Legal Times.

About Georgetown University Law Center

Georgetown University Law Center is one of the world's premier law schools. It has the largest faculty in the nation and is preeminent in several areas, including constitutional, international, tax and clinical law. Drawing on its Jesuit heritage, it has a strong tradition of public service and is dedicated to the principle that law is but a means, justice is the end. With this principle in mind, Georgetown Law has built an environment that cultivates an exchange of practical ideas and the pursuit of academic excellence. It brings together an extraordinarily varied group of teachers, scholars and practitioners, as well as an outstanding student body representing more than 60 countries.

Twenty-three members of the Georgetown Law full-time faculty have served as U.S. Supreme Court law clerks.