From February 2 to February 6, 2025, members of the Federal Bar Council met at the St. Regis Kanai Resort, Riviera Maya, Playa del Carman, Mexico, for the 2025 Winter Bench & Bar Conference. Second Circuit Judge Eunice C. Lee was the judicial chair, while Michael Tremonte and Joanna Riesman co-chaired the meeting. Three mornings were spent in CLE courses and the afternoons were free. Rodge Cohen of Sullivan & Cromwell received the Whitney North Seymour Award for public service by a private practitioner.
In addition to the CLE programs described below, participants at the Winter Meeting enjoyed themselves on the beautiful beach at the St. Regis and took several excursions including a sail on a catamaran and a trip on the underground river Rio Secreto. Continuing the format from last year, the conference was shorter than in the past. The shorter conference was filled with warm moments and collegial get togethers. The uniformly excellent CLE programs covered a variety of current topics.
Wrongful Convictions
Eastern District Judge Nina R. Morrison moderated a panel on “Wrongful Convictions.” Panel members included Jabbar Collins, New York City Commission to Combat Corruption; Professor Patricia Cummings, New York University School of Law; David B. Shanies, Shanies Law Office; and Alan Vinegrad, Covington & Burling LLP.
Jabbar Collins spent 16 years in prison before he won his freedom. Collins was convicted of murdering Abraham Pollack, a rabbi from the Williamsburg section of Brooklyn, in 1994. It was a high-profile case, and then-Brooklyn District Attorney Charles Hynes was under pressure to solve it. As Collins explained, to obtain the conviction the D.A. pressured three witnesses, holding them without bail and threatening them, until they agreed to testify. Collins also claimed ineffective assistance of counsel. As a result, while he was in prison, Collins vowed to become his own attorney because he no longer trusted anyone. He spent day and night studying law. In 1999 he found evidence that had been coerced but that had not been disclosed.
After denial of his motions in state court, in 2008 Collins filed a habeas petition in the U.S. District Court for the Eastern District of New York, which was denied. Collins was finally granted an unconditional writ of Habeas Corpus by Eastern District Judge Dora Irizarry and was released in 2010. Following his release, Collins worked for defense attorney Joel Rubin. In 2013, he settled his civil lawsuit against the City of New York for $13 million. With the money, he formed Horizon Research Services, which works on wrongful convictions. In 2023 he was appointed to serve on the New York City Commission to Combat Corruption. His advice to lawyers is to check everything out because evidence can be false.
Professor Cummings said that there was no universal definition of either “wrongful conviction” or “exoneration.” When discussing wrongful conviction, people need to make sure they are on the same page. Texas has done a phenomenal job of passing legislation creating a cause of action for “wrongful conviction.” The Texas statute defines “wrongful conviction” broadly. The Texas definition includes an individual deprived of the right to facts guaranteed by the Constitution. The U.S. Supreme Court says that there is no right not to be convicted, just a right to a fair trial, so that a person can be wrongfully convicted without being innocent. Innocent people should not be in prison. Wrongfully convicted people should be released, too, because they deserve a new fair trial, but they may be convicted in a second, fair trial. Some wrongful convictions are based on guilty pleas that defendants may take back when there is evidence, such as DNA, that demonstrates that they are innocent.
Alan Vinegrad laid out the six factors that lead to wrongful convictions:
(1) Misidentification by eyewitnesses;
(2) Junk science;
(3) False confessions;
(4) Brady violations;
(5) Cooperating witnesses who lie; and
(6) Ineffective assistance of counsel.
Often the factors occur in tandem accompanied by government misconduct by police and prosecutors.
According to David Shanies, plaintiffs in civil cases arising from a wrongful convictions are entitled to more discovery than a defendant in a criminal case. In a New Orleans rape case, the defendant received police reports the morning of trial. Those police reports were not evaluated until 37 years later by the New Orleans Innocence Project. DNA results showed that the defendant could not have committed the rape, and the prisoner was exonerated. When problematic evidence appears in civil cases, the government rushes to settle.
Collins said that the Brooklyn D.A. also revealed police reports when he was on the stand, which is typical. In the civil case it took five years to get the information, which is a common practice because the D.A. is reluctant to release information. The role of the prosecutor’s office is central to conviction and later litigation.
Vinegrad said that Model Rule of Criminal Procedure 3.8 lays out the special responsibilities of a prosecutor. When a prosecutor knows of “new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted,” the prosecutor shall:
(1) Disclose that evidence to the court and the defendant;
(2) Undertake further investigation; and
(3) When the prosecutor knows clear and convincing evidence of the defendant’s innocence, the prosecutor must take steps to vacate the conviction.
Cummings talked about Conviction Integrity Units (CIUs), saying they are not new. There have been concerns that putting all the effort to locate the wrongly convicted in the hands of the Innocence Project was not the solution. For a CIU to work, there must be a buy-in by prosecutors. The solution is either to have the prosecutor’s office set up a unit or establish an independent commission. It became clear that states were not going to fund independent commissions, so over 100 units established within prosecutors’ offices are doing the work. There was not much faith that prosecutors could do it, but to everyone’s surprise the number of CIUs has exploded. Some are not doing much, and were created only for show and do not deserve any credit. But some CIUs are really getting the job done. In 2023, 60 or 70 of 125 exonerations were done by CIUs.
The hardest part of representing a client who seeks exoneration is sitting down with the prosecutor to talk about evidence of innocence. Some prosecutors are good and help to clear out wrongful convictions, others are not so helpful.
Shanies said that often clients have a difficult choice regarding whether to approach the CIU or go to court. The CIU ceases review when a litigant files a state post-conviction lawsuit. The litigation generally takes years; a conviction vacated in 2022 took nine years of litigation. Post-conviction litigation is difficult, particularly if prosecutors are not willing to seek a just result. In federal court, the Anti-Terrorism and Death Penalty Act sets a one-year time limitation, and applying to the CIU does not toll the statute of limitations. In New York, using Freedom of Information Act requests and then litigation can take a year, and litigation to get access to documents that must be done before a litigant can file a claim can take years.
Trends in the Power of Bankruptcy Courts to Resolve Mass Tort Cases After Purdue and Other Cases
Southern District Bankruptcy Judge David S. Jones moderated a program on “Trends in the Power of Bankruptcy Courts to Resolve Mass Tort Cases after Purdue and Other Cases.” Panel members included Corinne Ball, Jones Day; Jayne Conroy, Simmons Hanly Conroy; Bankruptcy Judge Melanie L. Cyganowski (Ret.), Otterbourg P.C.; and Kenneth H. Eckstein, Kramer Levin Naftalis & Frankel LLP.
Judge Jones introduced the panelists and provided a preview of the bankruptcy procedure. After a company files a bankruptcy petition, all property and rights of the debtor become property of the estate, including possible litigation recoveries. The filing brings everyone into the bankruptcy forum, including litigations against non-debtors that could affect the bankruptcy estate. Creditors either try to get out of the bankruptcy forum or file a claim within the bankruptcy. The goal of reorganization is to reach a uniform resolution that provides the debtor with a fresh start going forward. In Harrington v. Purdue Pharma L.P., 603 U.S. 204 (2024), the Supreme Court ruled out non-consensual third-party releases for non-debtors, but not consensual non-debtor releases.
Melanie Cyganowski said that mass tort cases outside of bankruptcy involve numerous plaintiffs against one or more defendants. For example, there are 2,400 federal and state court actions against Purdue Pharmacy, along with other related cases against distributors and others. Other mass tort cases involve defective earplugs leading to hearing loss against 3M; ovarian cancer cases involving talc against J&J; asbestos cases; and cases involving abuse against various Catholic Dioceses and the Boy Scouts.
Judge Jones explained that with mass torts you have one actor who hurt massive numbers of people. In class actions, every class member is paid the same whereas with mass torts everyone gets a different amount of money based on specific injuries. With MDL litigation, individual plaintiffs file cases arising from a product or defect, and either the plaintiff or defendant asks for the cases to be consolidated before an MDL judge who oversees the cases for the whole country.
Jayne Conroy said that in mass tort litigation plaintiffs’ lawyers fight to determine who will be the lead plaintiff’s lawyer. These cases usually resolve in one of three ways:
(1) Settlement, maybe following a trial or two resulting in individual resolutions;
(2) One or more plaintiffs loses a case and the cases are dismissed as to all plaintiffs; or
(3) The plaintiffs prevail.
Purdue Pharmaceuticals was the face of the opioid litigation, but within the MDL, Purdue was not the focus because there were 25 or more defendants. The defendants reached a consensual settlement for $60 billion with the county, city and state plaintiffs.
Corinne Ball explained that an MDL settlement does not affect state court litigation unless the plaintiff agrees. In bankruptcy the goal is corporate restructuring. Corporations turn to bankruptcy court because they need resolution and to move on from the litigation. The pending claims can impair the mission of a not-for-profit or the business of a corporation. Insurance companies also push for resolution. The bankruptcy process provides a place where parties are brought together to discuss resolution. In the MDL cases, the leading plaintiff’s attorney is in charge of the push to resolution, while in bankruptcy the creditors’ committee drives the process. Conroy noted that it is hard to get discovery in bankruptcy cases.
Kenneth Eckstein explained that the bankruptcy and MDL processes are co-dependent in dealing with mass torts. The 1978 Bankruptcy Code created a radical change for corporations. Reorganization became a tool to facilitate resolutions. In 1982, Johns Manville filed a Chapter 11 petition for reorganization, and the case became a lab for mass torts. In the Johns Manville case, Bankruptcy Judge Burton R. Lifland created a process to manage mass torts. He oversaw confirmation of a plan that set out how to handle future claims and provided for a broad range of releases that was approved by the district court and in 1988 by the U.S. Court of Appeals for the Second Circuit. The plan provided for granting releases against persons beyond the debtor with consensus.
The Dalkon Shield reorganization plan was confirmed in 1989. That plan set out standards for release of third-party non-debtors and received overwhelming overall consensus. In 1994, the Bankruptcy Code was amended to codify the case law setting forth the standard for granting third-party releases. The Second, Third, Fourth, Sixth, Seventh, and Eleventh Circuits allowed non-consensual third-party releases under Bankruptcy Code Section 1123(b)(6), the catchall provision. In Purdue, the Bankruptcy Court for the Southern District of New York allowed non-consensual releases of members of the Sackler family, which owned Purdue Pharma. The plan called for $11 billion to be distributed over ten years.
Cyganowski explained that in Purdue, plaintiffs/claimants came from all 50 states and included cities and counties, individuals, hospitals and physicians, many of whom lived abroad. The U.S. Department of Justice had a billion dollar judgment, and the states submitted a proof of claim in the amount of $2 trillion. Purdue was in an MDL until it filed its bankruptcy petition, while other defendants stayed in the MDL.
Judge Jones said the Purdue plan released non-debtors without the consent of all creditors under Bankruptcy Code Section 1123(b)(6), which states that a plan may “include any other appropriate provision not inconsistent with the applicable provisions of this title.” The bankruptcy court confirmed the plan, but Southern District Judge Colleen McMahon reversed on appeal. The Second Circuit reversed Judge McMahon. All economic stakeholders wanted the releases to go through.
The U.S. Supreme Court reversed, 5-4, rejecting non-consensual third-party releases. Justice Neil Gorsuch focused on the Sacklers and the fact that there had not been any robust discovery of their assets, and they did not have any property before the court. The Court did not disturb consensual third-party releases.
Following the Supreme Court decision, there was a moratorium on litigation and intense mediation to preserve the reorganization. It was very complex because there were ten to twelve separate creditor groups, but all parties wanted to reach a resolution. The expectation was that the releases would ultimately be totally consensual and that everyone would opt in.
Ball looked at what is next, noting that debtors such as the Catholic Church need discharge from bankruptcy and releases. Parishes file and confirm plans piggybacking on the relevant diocese’s case, going in and out of bankruptcy in a day.
The U.S. Trustee initially objected to discharge of derivative claims but was convinced to approve based on the fact that without a consensual release, insurers were not going to pay and survivors needed releases to obtain money. The insurers required a defense reserve, so a fund was set up and as releases were signed, the reserves went down.
Cyganowski said that there is a push and pull between debtors and creditors as to whether the Article 1 route, bankruptcy, or the Article 3 route, MDL, is the best way to reach a resolution. Eckstein said that it is inevitable that the bankruptcy process will continue to play a major role. Purdue provides a roadmap for resolution in bankruptcy court. New and interesting techniques will evolve. Today, the major risk is opt outs. To counteract that risk, a reserve or set aside is necessary. The only way these cases work is with overwhelming consensus. Ball noted that the cases need to be brought into a single forum – bankruptcy court or MDL – which will provide structure for negotiation purposes.
Intersection of Antitrust Law and Environmental, Social and Governance (ESG) Objectives
Southern District Judge Margaret Garnett moderated a panel entitled “Intersection of Antitrust Law and Environmental, Social and Governance (ESG) Objectives.” Panel members included Professor Christopher R. Knittel, MIT School of Management; Nicole Veno, Lowey Dannenberg P.C.; and Dr. Lawrence Wu, National Economic Research Associates.
Nicole Veno began by describing illegal agreements under Antitrust Law. These include:
(1) Price fixing;
(2) Output restrictions, i.e., restricting quantities produced which have a price impact; and
(3) Group boycotts.
But is an agreement with sustainability goals, i.e., where fishermen agree to stop fishing to pursue such a goal, illegal? Another example is when competitors sign an agreement that has a goal of limiting impacts on the climate, such as an agreement to reduce emissions by a certain date. Conservative U.S. Senators have called these agreements “cartels” and claim that they violate antitrust laws. There is no specific antitrust exemption for ESG goals. The First Amendment does protect non-commercial boycotts and efforts to petition the government, for example women boycotting businesses in connection with the failure to enact the Equal Rights Amendment.
Professor Christopher Knittel has done research on how firms make decisions, how decisions impact the market and how regulation can impact decision making. His conclusions include:
● Standard Correlation Is Not Causation. A party can sign an ESG agreement, which is not causal because it is not tied to output. For example, a coal user enters into an agreement to reduce greenhouse gas emissions. Coal cannot be burned without releasing carbon dioxide, so to reduce emissions a company buys offsets resulting in carbon capture and sequestration capture and putting carbon dioxide into the ground. Oil is similar but more difficult. OPEC as a cartel reduced output to raise prices, but OPEC is not reducing output to reduce pollution, even though the reduced output will lead to reduced pollution.
● Industries Need Policy. The Montreal Protocol, an international environmental treaty, regulates the production and consumption of almost 100 synthetic chemicals, known as ozone-depleting substances.
● Firms Are Reducing Pollution for All Sorts of Reasons. Oil companies have found that they attract better employees by adopting better environmental practices.
Professor Knittel said that he could imagine one of the agreements he described being found anticompetitive.
Dr. Lawrence Wu described the underlying principles of anticompetitive agreements, including what harms the consumer, higher prices, lower quality, and a slowdown in innovation. In examining collaborations for anticompetitive purposes, look at the rational of a joint venture, i.e., is it creating new product and cost savings; is there potential for anticompetitive side effects through information sharing; what are the expected outcomes in terms or price, quality, innovation and output. Ask if a collaboration is really necessary.
The question is whether ESG joint ventures can be evaluated the same way as other joint ventures and whether each company can act on its own to be more environmentally friendly. Societal goals can drive the analysis. Mergers of companies that sell alcohol or tobacco are treated like any other consumer product merger, whereas the National Resident Matching Program has an antitrust exemption from Congress because it efficiently allocates medical graduates to training programs. In United States v. Brown University, which looked at coordination of schools over need-based financial aid, the district court held that MIT violated the antitrust laws because coordination would be necessary only if the school intended to compete. The court of appeals ordered a new trial, saying that the district court erred by not looking at MIT’s reasons for entering into the agreement. Thus, there is room in the antitrust context to think about consumer goals.
As a result of an agreement to reduce output of oil, Professor Knittel said that $4 trillion less oil was burned resulting in the corresponding reduction of carbon dioxide. The problem is that the amount of benefit is not tied directly to the consumer, but to general welfare. In November 2024, Texas and ten states sued the companies, claiming that they violated the antitrust laws because their goal was not to reduce carbon dioxide. Investors in coal companies were using their investment to restrict coal producers’ output by imposing restrictions. The investors entered into agreements to acquire complementary assets. While coal assets were pumping carbon dioxide into the air, that carbon dioxide would be absorbed by a large carbon dioxide network. The plaintiffs contended that the investors were not really interested in the environment, and were merely trying to diversify their risk. However, with climate change the only way to mitigate risk is to reduce it.
In State of Nebraska v. Daimler Truck North America, the Attorney General of Nebraska, along with Energy Marketers of America and Renewable Fuels Nebraska, sued truck manufacturers, alleging that they were colluding to phase out medium and heavy-duty internal combustion engine vehicles to comply with a California Air Resources Board action to switch to all electric vehicles.
In Europe, the European Commission issued guidelines regarding collaboration for sustainability, agreeing that there is a need for guidance on sustainability issues. In the United States there has been no such guidance. They see the states as providing rules and enforcing them.
Wu said that there are three directions for clarifying what type of collaboration is acceptable when setting sustainability goals:
(1) The courts can determine whether climate goals can be used for collaboration;
(2) Policy makers can step up and provide guidance; and
(3) Agencies can provide guidance.
Knittel said that what is acceptable is uncertain, especially for firms investing in long-run assets. Investors want to reduce regulatory and market uncertainty. Globally, more than half of Ford and GM sales outside the United States must comply with regulation regarding EVs. If the United States does not provide guidance, the Chinese will take over the market.
Powers of the President: From Watergate to the Trump Immunity Decision
District of Connecticut Judge Vernon D. Oliver chaired a program entitled “Powers of the President: From Watergate to the Trump Immunity Decision.” The program began with a reenactment of the Supreme Court argument about the Nixon tapes, using the transcript of the argument that had been put together by Second Circuit Judge Denny Chin and Kathy Chin. Prepared statements from September 24, 2024, made before the Senate Judiciary Committee Hearing, were read following the reenactment. Afterwards there was a panel discussion with Russell Anello, former Deputy White House Counsel; Miguel A. Estrada, Gibson, Dunn & Crutcher LLP; and Morgan L. Ratner, Sullivan & Cromwell LLP.
Some of the issues raised in the Supreme Court argument in the Nixon case were:
(1) The courts’ jurisdiction over Nixon;
(2) Investigation of Nixon with the issuance of a subpoena at the same time as impeachment;
(3) Executive privilege, absolute or conditional;
(4) Whether it was a political question, not subject to judicial authority, or did the issuance of the subpoena convert it into a judicial question; and
(5) Whether the president is above the law.
As set forth in the synopsis of the decision, United States v. Nixon, 418 U.S. 683 (1974):
Mr. Chief Justice Warren Burger held the dispute was justiciable; that the District Court was not shown to have erred in determining that the special prosecutor’s showing of relevancy, admissibility and specificity was sufficient to warrant issuance of order; and that the President’s generalized interest in confidentiality, unsupported by claim of need to protect military, diplomatic, or sensitive national security secrets, could not prevail against the special prosecutor’s demonstrated, specific need for the tape recordings and documents.
In the Trump immunity decision, Trump v. United States, 603 U.S. 593 (2024), the Court held that then-former President Donald J. Trump was immune from criminal prosecution for official acts.
Morgan Ratner stated that the Nixon decision constitutionalizes executive privilege. Without a lot of reasoning, a unanimous court agreed that executive privilege was in the Constitution because it affects the effectiveness of the president’s duties. This is a very important holding. In Trump v. United States, the special prosecutor does not disavow the Nixon constitutional protection.
Russell Anello said that the Nixon holding is very pro-president. It set up a balancing test to determine when executive privilege can be overcome. Where there is a showing of need, executive privilege can be overcome as it was in the Nixon case. This was a sea change. It set up an accommodation process between Congress and the White House. Trump v. United States in contrast provided a president with broad immunity with no balancing test.
According to Miguel Estrada, Trump provided functional immunity. One, the president is absolutely immune when performing Constitutional duties but there is an outer perimeter of duties in which there is no absolute immunity. Two, the most radical part of the decision is that Trump gives the president immunity even when he or she could otherwise be prosecuted.
In Trump, the former president is being charged for what he did while president. The Court takes few cases. There was really no need for the Court to take the case on and meddle in the election and delay the prosecution.
Ratner noted that the Nixon and Trump cases are similar and use the same framework. Each looks at the president’s core duties, official conduct, and then moves to the outer ring of actions in their personal capacity. The difference between the two lies in the middle ring. The focus in Nixon is on federal power and in Trump on executive power, moving from outward facing to inward facing actions.
Anello said that Chief Justice Roberts’ Trump decision looks at a president’s need to be energetic, decisive, and speedy. In Nixon, law enforcement is seen as the exclusive province of the presidency, but that power can be abused, while the Trump decision makes it much easier to abuse that power. Already in the current Trump administration that power has been abused by the firing of people at the DOJ because of cases they worked on and in the executive order directing examination of private companies to root out DEI actions.
Estrada said that the bridge between the Nixon and Trump is that the Court recognizes a common law immunity defense to civil liability and that this immunity arises from function. However, impeachment expressly contemplates prosecution after impeachment. The Speech and Debate Clause provides for immunity for members of Congress.
Trump was sued in civil cases arising from January 6 where the allegation is that Trump was exercising private and not presidential powers. The Court left open the potential for criminal prosecution in the outer fringes of presidential actions, but there is no absolute immunity for civil cases. There is an assumption that the person in office may be motivated by malign intent, but the expectation is that presidents will not be crooks.
Ratner said that Nixon may not still be viable today because if a president cannot be convicted, the judiciary should not go through the president’s stuff. In Nixon the justices were just looking at evidence. Anello agrees that the Trump decision on immunity will have an impact beyond criminal law.
Congress cannot investigate when the president is acting under core Constitutional powers, including the pardon power, nomination of officers, and relations with other nations. But most of presidential power is supervising the Executive Branch and executing laws passed by Congress. In these areas, Congress has the power to investigate.
The Death of Chevron Deference: Implications Across the Legal Spectrum
Southern District Judge Dale E. Ho moderated a panel entitled “The Death of Chevron Deference: Implications Across the Legal Spectrum.” Panel members included Judge Thomas B. Griffith (Ret.), Hunton Andrews Kurth; Russell Anello; Professor Raymond H. Brescia, Albany Law School; and Miguel Estrada.
Professor Brescia explained the state of administrative law prior to Loper Bright Enterprises v. Raimondo, 114 S. Ct. 2244 (2024), which overruled Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Chevron was the last New Deal decision. In the first days of the republic the entire federal government workforce was 2,000, including the military (Army and Navy). The largest agency was Customs. The late Nineteenth Century saw the emergence of the administrative state, which expanded through the New Deal.
In Chevron, the Natural Resources Defense Counsel challenged regulatory action by the EPA under the Clean Air Act. Justice John Paul Stevens wrote a unanimous 6-0 decision (Justices Marshall and Rehnquist were ill and Justice O’Connor recused). Justice Stevens, a strong supporter of the New Deal, was able to convince the Court to adopt a discussion about the separation of powers, specifically the judiciary vis-à-vis the other branches. The decision held that it was not the role of the judiciary to supplant the elected branches. Thus, the Court would give deference to agency interpretation if the statute was ambiguous. Chevron was not seen as a landmark decision when it came down. Ruth Bader Ginsburg wrote the decision below to protect the administrative agencies and insulate administrative action.
In West Virginia v. Environmental Protection Agency, 142 S. Ct. 2587 (2022), the EPA under President Obama used the Clean Air Act to restructure energy to clean energy, i.e., solar and wind. After the re-election of Trump, however, the administration asserted that the case was moot because the EPA would not enforce the regulation and planned to issue a new regulation. Chief Justice Roberts, writing for the Court, found standing. In a 6-3 decision, the Court held that under separation of powers principles, the agency must point to clear Congressional intent of delegation of regulatory decisions of such far-reaching magnitude.
Miguel Estrada talked about SEC v. Jarkesy, 114 S. Ct. 2117 (2024), where the Court held in a decision by Chief Justice Roberts that when the SEC seeks civil penalties for securities fraud, the defendant is entitled to trial by jury in an Article III court, not trial without a jury in an SEC Division of Enforcement in-house forum. The Dodd-Frank Act gave agencies the power to impose penalties. The penalty at issue in Jarkesy was $200,000. Jarkesy challenged the power of the SEC court to impose penalties. The Fifth Circuit found that the imposition of penalties without a jury trial was unconstitutional. The issue was how much power the president had to remove people who make the decisions. The Supreme Court focused on the “public rights” exception to Article III, which it concluded did not apply. Fraud under the securities laws resembles a common law cause of action because the SEC sought monetary relief in the form of civil penalties. The statute could only be enforced in courts of law and implicated the Seventh Amendment right to a jury trial. Similarly, bankruptcy courts are allowed by Congress to oversee core cases but cannot oversee cases rooted in common law. In Jarkesy the Court has created uncertainty as to what cases the SEC may adjudicate in-house.
Anello discussed Loper Bright and the clear repudiation of deference by the courts to an agency’s interpretation of the law. In Chevron, the Court showed judicial humility, whereas in Loper Bright, the Court acted more confidently. There is a very clear, unequivocal overruling of Chevron and its underlying theories. Congress, to protect from overfishing, provided for monitors on fishing vessels, but forgot to say who would pay for it. In 2020, the National Marine Fisheries Service (NMFS) promulgated a rule approving an amendment to fishery management plans empowering it to require fishermen to pay for observers.
In the Loper Bright decision, Chief Justice Roberts cited judicial history back to Marbury v. Madison affirming that the judicial branch says what the law is. Chief Justice Roberts sees statutory construction as a continuation of the Article III role of the courts. To the extent necessary, the reviewing court decides what statutes mean. He rejected and dismantled the theory behind Chevron, including that interpreting statutes is a policy decision, and the court defers to agencies because they are part of the policy-making arm of government, and they have expertise. Justice Kagan in her dissent said that agencies have expertise and have knowledge the courts do not have. She said that Congress would want the agency’s expertise. Chief Justice Roberts disagreed and said that agencies have no special expertise because these are decisions based on statutory interpretation. Chief Justice Roberts did set some limits: (1) Congress can specifically state that they are delegating authority to an agency, and (2) the Court is not disturbing any prior case which the Supreme Court decided. Anello, however, thinks that the Court will disturb prior decisions.
Judge Griffith said that the most important aspect of the case is that Chief Justice Roberts really cares about separation of powers. Here, he said that the system does not call for experts. Congress needs to do its job and specify delegation of authority. He said that by the time Loper Bright was decided, Chevron was mostly dead.
According to Estrada, the assumption is that this shift to the judiciary will not work. The system is constructed to make it difficult to change. People have to agree on the big items. This decision shows a very human reaction by federal judges. Chief Justice Roberts skipped step 1, which would be to find the statute ambiguous, and step 2, the analysis under Chevron. Justice Scalia was comfortable with Chevron and thought it would work just fine; progressives were uncomfortable with Chevron.
Professor Brescia said that the Loper Bright decision grants powers to the courts beyond their lane of power. The Court should not have overruled Chevron. For example, in connection with the Biden student loan forgiveness program, the statute allowed the Secretary of Education to forgive student loans. The Court stepped in and reversed it. The Court knows that Congress is paralyzed, so is reaching out for these cases and stretching. In the student loan case there was no standing. Nor was there standing in West Virginia v. EPA. These are political decisions.
The panel turned to the implications of Loper Bright for various constituencies. Professor Brescia opined that for litigants, it will be open season on the regulatory state. There will be a lot of movement to eliminate every regulation. Judge Griffith said that we will now have an administration on the warpath against the administrative state. Estrada said that for now: (1) the cases decided under Chevron are not overruled and the lower courts cannot overrule old Supreme Court cases, and (2) circuit court cases are only binding on the circuit. There will be lots of different challenges.
Estrada noted that two major cases are coming next. First is the question of the extent of presidential control of the administrative branch. Second, Congress has said that the president can get rid of an SEC commissioner only for cause. Can Congress create statutes that curb presidential power?
Supreme Court Review
Second Circuit Judge Eunice C. Lee moderated a Supreme Court Review panel with Neal K. Katyal, Hogan Lovells, and Morgan L. Ratner, Sullivan and Cromwell as panelists.
Ratner and Katyal both remembered their first Supreme Court arguments. Ratner represented a bank and said that her argument involved the standard of review in a bankruptcy case. Katyal represented Osama bin Laden drivers in Guantanamo Bay and won.
Katyal gave an overview of the Court term. Chief Justice Roberts was in the majority the most at 78% followed by Justices Kavanagh and Barrett, while liberal Justices Kagan and Sotomayor were in the minority 71% of the time. There were a lot of 6-3 splits, but half of the cases – 22 – were not ideological. Justices Thomas and Jackson each wrote 21 opinions, including 11 concurrences, while the Chief Justice wrote 9 opinions. Justices Sotomayor and Kagan agreed 97% of the time, while the Chief Justice and Justice Kavanagh agreed 95% of the time. Justices Kagan and Sotomayor disagreed with Justice Thomas 51% of the time. The Second Circuit with seven cases before the Court was reversed the most, and the Fifth Circuit was reversed a lot with nine cases before the Court.
Gender Transition for Minors
Ratner explained that United States v. Skrmetti, No. 23-477, arose from a challenge under § 1983 to a Tennessee law banning healthcare providers from performing gender-affirming surgeries and administrating hormones or puberty blockers to transgender minors, arguing that the law violated equal protection and due process. The United States joined private litigants against the State of Tennessee, contending that this was a sex discrimination case, and transgender individuals were a suspect class entitled to heightened scrutiny. The federal government argued that the case involved sex discrimination because a person assigned female at birth can take estrogen, while a person assigned male cannot. And in the reverse situation, a person assigned female cannot take male hormones while a person assigned male can.
At argument, there were a lot of questions as to how this case fits into the scrutiny framework. The other issue was parental rights to make medical decisions for their children.
The government has been silent in this case since the change in administration, but has not been silent in other cases that the government has moved to put on hold. This is perhaps because the oral argument went well.
Katyal said that the position of the Solicitor General’s Office usually does not change from one administration to the next. Trump is different, but in this case the oral argument has occurred and the United States is a party. Katyal would have thought that the administration would have sent a letter by now. He believes that the sex discrimination/strict scrutiny argument is likely to prevail.
Free Speech and National Security
Next, Katyal looked at TikTok v. Garland, No. 24-656. This case, involving a social media platform that uses a key algorithm that sets the ways videos are shown, was argued on January 10, 2025, and decided on January 17, 2025. TikTok concerns free speech and national security. Congress passed a statute that would ban distribution or maintenance of “foreign adversary controlled applications” like TikTok on January 19, 2025, unless they were no longer controlled by a foreign adversary. The algorithm was developed in China under Chinese laws. TikTok was subject to Chinese intelligence surveillance. A 2020 executive order under Trump acknowledged that the United States was concerned about the app and that the Chinese would manipulate the algorithm. 170 million people use TikTok. The algorithm is considered speech but the government argued that government security was at risk. The argument was that even if the algorithm was free speech protected by the First Amendment, it was eclipsed by national security concerns. The U.S. District Court for the District of Columbia Circuit agreed with the government and denied TikTok’s petition for injunctive relief, and the Supreme Court unanimously affirmed. The focus was on the scale of threat to national security. The Court deferred to Congress.
The Trump administration Solicitor General wrote a brief, asking the Court not to decide the case because Trump might take measures to avert the case. The Supreme Court decided it anyway, and as soon as he was in office Trump issued an executive order instituting a 75-day period of non-enforcement of the ban.
Ratner said that it will be interesting to see if the case goes back to court. The problem here is that Congress passed a law and the president is responsible to make sure the law is faithfully executed. There is a robust tradition of giving the president authority not to enforce laws. Here, the president is seeking deference in connection with actions regarding national security.
Free Speech and Minors’ Access to Obscenity
The next case discussed by Ratner, was Free Speech Coalition, Inc. v. Paxton, No. 23-1122, from the Fifth Circuit. Ratner said that a trade association of adult pornography producers, sellers and hosts challenged under First Amendment grounds Texas legislation that required commercial pornographic websites to verify the age of their visitors and to display health warnings about the effects of consumption of pornography. The plaintiffs said that the legislation would drive adults away. The case is tricky because the content is protected as to one group – adults – but not protected as to minors. Applying strict scrutiny could result in all pornography being banned. The issue is the level of scrutiny to apply to the analysis. Some part of the litigation will survive.
The Fourth Amendment and Excessive Force
As Katyal described, in Barnes v. Felix, No. 23-1239, Officer Roberto Felix, Jr., a traffic enforcement officer in Texas, fatally shot Ashtian Barnes following a lawful traffic stop for a speeding violation. The officer asked Barnes for his driver’s license and proof of insurance, which Barnes said might be in the trunk. At the same time, the officer claimed he smelled marijuana. As Barnes opened the door, the taillights went on, and as the car started to move, the officer shot and killed Barnes, claiming the force was justified. Barnes’ family filed a § 1983 action alleging that the officer used excessive force.
Judge Patrick E. Higginbotham wrote the decision and a concurrence in the Fifth Circuit. He affirmed the dismissal of the complaint based on binding precedent in the circuit that uses a “moment of threat” test. In his concurrence, Judge Higginbotham stated that the more reasonable standard is to look to the totality of the circumstances pursuant to Supreme Court instruction.
The case was argued before the Court on January 22, 2025. The Solicitor General argued on the side of the victim. The Solicitor General did not change position following the change in administrations.
Gun Cases
In Garland v. VanDerStok, No. 23-852, firearms manufacturers and distributors and others challenged an ATF rule including ghost guns in the definition of firearms. The Fifth Circuit held that the ATF exceeded its statutory authority by including these definitions in the rule. Ratner said that many of the justices seem to see ghost guns as firearms in contrast to the decision on bump stocks.
In Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, No. 23-1141, the government of Mexico sued gun manufacturers and distributors, alleging illegal trafficking of guns into Mexico. The First Circuit held that the Mexican government had plausibly pled that the gun manufacturers and distributors aided and abetted trafficking of their guns to Mexico. Ratner said that there must be intentional criminal action and that the actions are the foreseeable proximate cause of the injuries to the Mexican government. The argument took place on March 4, 2025. Ratner opined that it will be interesting to see what the government does.
The Nondelegation Doctrine
In Federal Communications Commission v. Consumers’ Research, No 24-354, at issue was allowing the FCC to rely on a private entity to levy “contributions” from telecommunications carriers for a universal service fund intended to support rural telecommunications services. The Fifth Circuit found the delegation from Congress to the agency to a private body to be a problem. Ratner said that it is some sort of violation setting the stage for a large or narrow decision by the Court. The more consequential decision would be a reconsideration of the public non-delegation doctrine. This would have a bigger impact than overturning Chevron. On the other hand, the Court could replace the current test with another one, putting additional power behind the test.