| 00:00:06 |
Unidentified Speaker, -
TO THE 70TH SIXTH CIRCUIT CONFERENCE. I AM QUITE SURE I AM RIGHT ABOUT THIS, THE BIGGEST ONE WE HAVE EVER HAD. IF YOU DON'T ALL FIT IN THE ROOM, WE ARE...
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| 00:05:22 |
Unidentified Speaker, -
OF THE UNITED STATES ADDRESSING US LATER ON IN THE DAY. WITH THAT, IT'S TIME TO BEGIN THE FIRST SESSION OF THIS 70TH SIXTH CIRCUIT JUDICIAL CONFERENCE....
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| 00:06:18 |
Unidentified Speaker, -
DID YOU AT SOME POINT DURING
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| 00:06:20 |
Unidentified Speaker, -
THAT PROCESS SHE SAW HER FUTURE AS A FEDERAL JUDGE AT LEAST AT THAT POINT DISAPPEAR. SO I SUSPECT THAT SHE WOULD HAVE BEEN ENTIRELY ABLE TO SYMPATHIZE...
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| 00:08:33 |
Unidentified Speaker, -
DELIVERED WITHOUT INCIDENT OR DELAY TO THEN SOLICITOR GENERAL ROBERT JACKSON, WHICH WAS ADDRESSED, THE SLESTIAL GENERAL, WASHINGTON, D.C. >> THAT WOULD...
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| 00:08:53 |
Unidentified Speaker, -
WROTE A ACCIDENTING >> DISSENTING OPINION AS A WIN FALL AS ANYTHING LEFT TO THE
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| 00:09:06 |
Unidentified Speaker, -
TAXPAYER. IN ANY EVENT. SLESTIAL OR NOT, SHE NOW FINDS HERSELF ON THE SHORT LIST TO FILL THE VACANCY LEFT BY JUSTICE STEVENS. THIS IS A MIXED BLESSING...
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| 00:10:08 |
Unidentified Speaker, -
GOING TO ATTEMPT TO BE THAT FUNNY. WE HAVE TWO TERRIFIC PANELISTS HERE TO DISCUSS THE SUPREME COURT TERM SO FAR. AND AS THE JUDGE SAYS, I WILL MODERATE...
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| 00:12:41 |
Unidentified Speaker, -
HE WAS THE 43RD SOLICITOR GENERAL OF THE UNITED STATES FROM JUNE OF 2005 UNTIL JUNE OF 2008. THREE YEARS IS ACTUALLY A PRETTY GOOD STINT IN THE SOLICITOR...
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| 00:13:39 |
Unidentified Speaker, -
THE SECOND BEST LEGAL JOB IN AMERICA. HE WENT ON TO SAY THE FIRST BEST LEGAL JOB IN AMERICA WAS TO BE THE DEPUTY SOLICITOR GENERAL, AND PAUL CLEMENT...
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| 00:14:30 |
Unidentified Speaker, -
MORE THAN THE NUMBER, PAUL COMPLEMENT IS KNOWN
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| 00:14:34 |
Unidentified Speaker, -
AT THE SUPREME COURT AND ACROSS THE SUPREME COURT BAR AS SIMPLY THE GOLD STANDARD IN SUPREME COURT ARGUMENT. THE SOLICITOR GENERAL'S FOLLOWING POOL IS...
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| 00:16:24 |
Unidentified Speaker, -
THIS
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| 00:16:25 |
Unidentified Speaker, -
CONFERENCE AGAIN, AND AN HONOR BEING HERE SITTING BETWEEN THE CURRENT SOLICITOR GENERAL AND THE PREVIOUS SOLICITOR GENERAL. I FEEL LIKE THE ANSWER TO...
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| 00:19:41 |
Unidentified Speaker, -
THIS PANEL. LET ME PICK UP WHERE HE LEFT OFF AND SAY THERE IS CERTAINLY A GREAT DEAL OF TRUTH TO THE IDEA THAT IN SO MANY CASES, JUSTICE KENNEDY HOLDS...
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| 00:24:42 |
Unidentified Speaker, -
ASK A QUESTION? NO, JUSTICE STEVENS. [LAUGHTER] BUT THIS REMARKABLE POLITENESS, COURTESY. HE HAS THIS INCREDIBLY LOVELY MANNER ON THE BENCH. HIS...
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| 00:26:18 |
Unidentified Speaker, -
QUESTION OF HOW YOU APPROACH ONE OF THESE CASES WHERE YOU THINK JUSTICE KENNEDY HOLDS THE BALANCE, I THINK THE KEY IS TO OBVIOUSLY TRY TO CRAFT AN ARGUMENT...
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| 00:28:56 |
Unidentified Speaker, -
UNITED PRINCIPALLY, BUT STEVENS AND THE HUMANITARIAN LAW PROJECT. >> NO MATTER WHAT ELSE THE SUPREME COURT DECIDES THIS YEAR, CITIZENS UNITED VERSUS
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| 00:29:10 |
Unidentified Speaker, -
THE FEDERAL ELECTION COMMISSION WILL BE THE MOST IMPORTANT DECISION. ELENA ARGUED IT WELL. IF MY 11-YEAR-OLD DAUGHTER HAD ARGUED THE CASE, IT WAS GOING...
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| 00:34:44 |
Unidentified Speaker, -
BEEN REPLACED BY JUSTICE ALITO, AND THAT LED TO THE REVERSAL. >> WE ARE GOING TO HEAR A LOT OF DISCUSSION IN THE NEXT COUPLE OF MONTHS ABOUT LIBERAL
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| 00:34:58 |
Unidentified Speaker, -
JUDICIAL ACTIVISM. I HAVE BEEN SKEPTICAL OF THAT PHRASE. I THOUGHT IT WAS A PHRASE THAT PEOPLE USE FOR DECISIONS THEY DON'T LIKE THAT. IF WE COME UP...
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| 00:36:59 |
Unidentified Speaker, -
CITIZENS UNITED, THAT MAYBE IT IS SUCH AN IMPORTANT CASE, WE SHOULD YOU COULD R TALK ABOUT THAT. >> SURE. MY OWN INVOLVEMENT IN THE COURT'S CAMPAIGN...
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| 00:37:12 |
Unidentified Speaker, -
PRUNES GOES BACK WHITE A WAY. THIS ASPECT OF CITIZENS UNITED GOES ON THE INCREASING LIST OF CASES THAT I ARGUED AND PREVAILED IN A CASE ONLY TO HAVE...
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| 00:41:56 |
Unidentified Speaker, -
WAS THE UNITED STATES VERSE STEVENS. IT INVOLVED A PROVISION OF FEDERAL LAW
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| 00:42:01 |
Unidentified Speaker, -
THAT OUTLAWS SELLING, POSSESSING OR DISTRIBUTING PICTURES OF ANIMAL CRUELTY. THE FIRST CIRCUIT FOUND THAT VIOLATED THE FIRST AMENDMENT. THE SUPREME COURT...
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| 00:44:19 |
Unidentified Speaker, -
LIKE FEREBE, THAT IT WAS MEANT TO ADDRESS AND INDEED THE ONLY WAY OF ADDRESSING THE UNDERLYING CONDUCT, AS OPPOSED TO THE DEPICTIONS OF THAT CONDUCT....
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| 00:44:57 |
Unidentified Speaker, -
COMPELLING DIFFERENCE IN PROTECTING CHILDREN. THERE IS NO WAY TO BE ABLE TO DRY UP THE MARKET FOR CHILD PORNOGRAPHY WITHOUT PUNISHING POSSESSION. THE...
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| 00:45:34 |
Unidentified Speaker, -
THE KNOWING PROVISION OF ANY SERVICE, TRAINING, EXPERT ADVICE, ASSISTANCE TO PEOPLE ENVAGING IN TARIFFS ACTIVITIES. IN 2004, CONGRESS AMENDED THE STATUTE...
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| 00:47:08 |
Unidentified Speaker, -
PROJECT. IF YOU THINK ABOUT
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| 00:47:10 |
Unidentified Speaker, -
THE GOVERNMENT'S RESPONSE TO TERRORISM IN THE WAKE OF 9/11, BOTH WAS WAS DONE ON THE MILITARY DETENTION SIDE OF THE LEDGER, BUT ALSO WHAT CONGRESS DID...
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| 00:49:19 |
Unidentified Speaker, -
OUT? >> YOU CAN ASK ME, BUT THAT DOESN'T MEAN I HAVE TO ANSWER. I HONESTLY DON'T KNOW. I WOULD LOVE TO KNOW YOUR
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| 00:49:27 |
Unidentified Speaker, -
PERSPECTIVE SINCE YOU ARGUED IT. MY READ OF THE TRANSCRIPT IS YOU DID A WONDERFUL JOB AND THAT THE COURT WAS HARD TO READ. I REALLY DON'T KNOW HOW...
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| 00:49:45 |
Unidentified Speaker, -
ARGUES. SOME OF THOSE CASES ARE THE TYPICAL 5-4 CASES WHERE ONE PART OF THE COURT IS GIVING ONE LAWYER A HARD TIME AND THE OTHER PART OF THE COURT IS...
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| 00:50:30 |
Unidentified Speaker, -
HAS HEARD THIS YEAR NOT INVOLVING PURE SPEECH QUESTIONS. >> I WOULD BE HAPPY TO DO THAT, AND I WANT TO START WITH ANOTHER CASE YOU ARGUED VERY
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| 00:50:42 |
Unidentified Speaker, -
WELL, THE SALAZAR CASE. CONGRATULATIONS FOR PREVAILING 5-4. THE SALAZAR CASE IS A CASE ABOUT THE WAR MEMORIAL CROSS IN THE DESERT. THE MOST OBVIOUS POINT...
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| 00:56:12 |
Unidentified Speaker, -
COULD SAY IS IN CONSTITUTIONAL AVOIDANCE TERMS THAT THERE'S A NONCONSTITUTIONAL GROUNDS TO REVERSE THE DECISION MAYBE THAT'S THE ROUTE THAT HE CHOSE....
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| 00:56:44 |
Unidentified Speaker, -
THE ESTABLISHMENT CLAUSE CONTEXT WHERE JUSTICE KENNEDY SEEMED TO BE THE ONLY JUSTICE WHO CONTINUED TO LIKE THE DISTINCTION BETWEEN COWEN AND VALLEY...
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| 00:58:25 |
Unidentified Speaker, -
I THINK THEY'RE VERY INTERESTING. ONE IS THE
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| 00:58:27 |
Unidentified Speaker, -
CHRISTIAN LEGAL SOCIETY AGAINST MARTINEZ CASE. THIS IS A CASE THAT HAS A FASCINATING MIXTURE OF FREEDOM OF ASSOCIATION RIGHTS, NONDISCRIMINATION PRINCE...
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| 01:04:07 |
Unidentified Speaker, -
TERMED "CIVIC COURAGE" AND THE NEED FOR CIVIC COURAGE IN A DEMOCRACY. SO I THINK PEOPLE WERE SURPRISED AND STRUCK BY IT. IRWIN. >> LET ME START WITH...
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| 01:04:25 |
Unidentified Speaker, -
IN THE SPRING OF 2005, PAUL AND I WERE ON OPPOSITE SIDES ARGUING A CASE IN THE SUPREME COURT, VAN ORDEN VERSUS TERRY WHICH INVOLVED A 10 COMMANDMENTS...
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| 01:10:02 |
Unidentified Speaker, -
CONSTITUTIONALLY BE IMPOSED ON JUVENILES. LET'S TALK ABOUT THOSE CASES, SULLIVAN AND GRAHAM. >> THEY'RE IMPORTANT ON SO MANY LEVELS. JOE SULLIVAN WAS...
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| 01:10:15 |
Unidentified Speaker, -
RAPED A 72-YEAR-OLD WOMAN. FOR THAT CRIME HE WAS SENTENCED TO LIFE IN PRISON WITHOUT THE POSSIBILITY OF PAROLE. TERRENCE GRAHAM WAS 16 IN THE YEAR...
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| 01:12:50 |
Unidentified Speaker, -
STATUTE OF LIMITATIONS, BUT MAYBE WAS A CASE THAT YOU ARGUED WHICH CAME IN THE GUISE OF AN ATTORNEY FEE CASE. SO TALK A LITTLE ABOUT KENNY A. >> I...
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| 01:13:07 |
Unidentified Speaker, -
AS I DID ARGUE THE CASE. THE QUESTION HERE BEFORE THE COURT WAS THE AVAILABILITY OF ATTORNEYS FEES UNDER SECTION 1988 FOR A SUCCESSFUL ACTION BROUGHT...
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| 01:18:49 |
Unidentified Speaker, -
THE DECISIONAL ARC IS TOWARD SIMPLE RELIANCE ON THE LODESTAR AND AGAINST ANY ENHANCEMENTS UPWARD. AND ALTHOUGH HE ACKNOWLEDGES THAT COURT DOESN'T REJECT...
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| 01:19:22 |
Unidentified Speaker, -
DID A GREAT JOB ARGUING BEFORE THE COURT IN THAT CASE. THE ARGUMENT IS THERE CAN BE ADJUSTMENTS IN THE LODESTAR BUT I THINK IT'S ALSO CLEAR THAT'S...
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| 01:19:47 |
Unidentified Speaker, -
THERE WAS A REAL QUESTION GOING INTO THIS CASE WHETHER HAINS WOULD EVER BE AVAILABLE. AND DESPITE WHAT HIMSELF ABOUT AN OPINION THAT FOUR OTHER JUSTICES...
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| 01:20:20 |
Unidentified Speaker, -
SURE. AND WE REALLY HAVE BOTH ACTIONS OF THE STRUCTURE OF GOVERNMENT BEFORE THE COURT THIS
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| 01:20:26 |
Unidentified Speaker, -
YEAR, BOTH THE FEDERALISM AXIS AND THE SEPARATION OF POWERS AXIS. ALL OF THE CASES I WANT TO TALK ABOUT BRIEFLY HAVE NOT BEEN DECIDED YET SO THAT WILL...
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| 01:24:13 |
Unidentified Speaker, -
THEORIZING. >> ESPECIALLY FROM JUSTICE SCALIA. >> I THINK HE SAID AT ONE POINT TO THE ATTORNEY FROM McDONALDS, ARE YOU TRYING TO BE
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| 01:24:21 |
Unidentified Speaker, -
OUT FOR A LAW PROFESSOR HERE?
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| 01:24:23 |
Unidentified Speaker, -
I WASN'T SURPRISED BY THAT. SINCE 1873, THERE'S ONLY ONE SUPREME COURT CASE THAT HASN'T BEEN OVERRULED THAT USED THE PRIVILEGE IN USE CLAUSE. AND THAT...
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| 01:25:35 |
Unidentified Speaker, -
LOOK AT IT AS BEING AN ISSUE ABOUT THE SCOPE,
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| 01:25:38 |
Unidentified Speaker, -
THE PRACTICAL SCOPE OF THE SECOND AMENDMENT. BUT OBVIOUSLY INCREASES IS AT THE BOTTOM A FEDERAL ISSUE. THERE'S A RADICAL DIFFERENCE IN THE POWERS...
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| 01:32:37 |
Unidentified Speaker, -
THINK THE KEY UNANSWERED QUESTION WITH REGARD TO THE
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| 01:32:40 |
Unidentified Speaker, -
SECOND AMENDMENT IS WHAT'S GOING TO BE THE STANDARD OF REVIEW? WHAT'S GOING TO BE THE LEVEL OF SCRUTINY? IN DISTRICT OF COLUMBIA VERSUS HELLER JUSTICE...
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| 01:36:20 |
Unidentified Speaker, -
FLIES UNDER THE RADAR SCREEN EVEN THOUGH IT'S A VERY SUBSTANTIAL PART OF WHAT THE SUPREME COURT DOES. WHAT THE SOLICITOR GENERAL'S OFFICE I SUSPECT I...
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| 01:37:01 |
Unidentified Speaker, -
CODE SECTION 1346 IN THE FALROD STATUTE. IT WAS TO MAKE CRIME THE INTANGIBLE RIGHT OF HONOR SERVICES. WHAT'S STRIKE SOMETHING THREE SEPARATE CASES BEFORE...
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| 01:43:26 |
Unidentified Speaker, -
BE RECALIBRATED AFTER THESE DECISIONS. BECAUSE I DO THINK WHETHER
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| 01:43:30 |
Unidentified Speaker, -
IT'S UNSTATUTORY OR CONSTITUTIONAL GROUNDS, THE HONEST SERVICES STATUTE WILL NOT HAVE THE BREADTH AT THE END OF THIS TERM THAT IT HAD AT THE BEGINNING...
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| 01:46:02 |
Unidentified Speaker, -
AN OVERVIEW FASHION. I THINK IF YOU THINK ABOUT THE FIRST COUPLE OF YEARS OF THE ROBERTS COURT, THERE WAS
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| 01:46:07 |
Unidentified Speaker, -
A POPULAR CONCEPTION THAT THE ROBERTS COURT WAS A VERY PROBUSINESS COURT. AND IN A COUPLE OF DIFFERENT AREAS, INCLUDING SOME OF THE EARLY PRE-EMPTION...
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| 01:48:05 |
Unidentified Speaker, -
THINK THIS IS A CASE WHERE THE ANTITRUST DEFENDANTS CLAIM THAT THEY'RE A SINGLE ENTITY TO WHICH THE ANTITRUST LAWS DO NOT ATTACH ROBUSTLY IS GOING
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| 01:48:13 |
Unidentified Speaker, -
TO RUN INTO SOME SKEPTICISM AND MAYBE THE FIRST CASE IN THE ROBERTS COURT WHERE THE ROBERTS COURT RULE INS FAVOR OF THE ANTITRUST PLAINTIFF. ANOTHER...
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| 01:51:32 |
Unidentified Speaker, -
ON THE DOCKET. BECAUSE YOU'VE ALREADY TALKED ABOUT
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| 01:51:35 |
Unidentified Speaker, -
ANTITRUST PATENT SECURITIES. THERE ARE SEVERAL BANKRUPTCY CASES ON THE DOCKET THIS TERM WHEREAS FOR MANY YEARS THE COURT WASN'T HEARING BANKRUPTCY...
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| 01:52:05 |
Unidentified Speaker, -
ASK IRWIN ABOUT -- [INAUDIBLE]
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| 01:52:12 |
Unidentified Speaker, -
IN THE ABSENCE OF OFS SYSTEM UNITED DECISION, AN INCORPORATION CALLED GENERAL ELECTRIC SAYS [INAUDIBLE] AN INCH CORPORATION CALLED "WASHINGTON POST"...
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| 01:52:53 |
Unidentified Speaker, -
WORD "PRESS" IN THE FIRST AMENDMENT? AND DO YOU BELIEVE THAT IN ORDER TO BE ABLE TO HAVE
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| 01:52:58 |
Unidentified Speaker, -
FREE PRESS THERE'S AN ABILITY OF THE PRESS TO BE ABLE TO HAVE A TELEVISION STATION THAT EDITORIALIZES OR A NEWSPAPER THAT EDITORIALIZES. AND DOES IT...
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| 01:54:07 |
Unidentified Speaker, -
A QUESTION ON HOW THE COURT DECIDES THEIR
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| 01:54:15 |
Unidentified Speaker, -
CASES. [INAUDIBLE] SALAZAR ALL THE WAY TO WASHINGTON, AND THE P.L.S. CASE THERE'S A DISPUTE ABOUT FACTUAL RECORDS USED IN [INAUDIBLE] >> WELL, LET ME...
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| 01:54:49 |
Unidentified Speaker, -
LIKE THE PARTICULAR VEHICLE THE COURT HAD CHOSEN TO TAKE A CASE WAS NOT OPTIMAL. THERE WERE SOME WHAT WE AFFECTIONATELY REFER TO AS VEHICLE PROBLEMS...
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| 01:57:19 |
Unidentified Speaker, -
IT IS A REQUIREMENT THAT EEOC CHARGES BE FILED TO AVOID UNLAWFUL DISCRIMINATION.
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| 01:57:54 |
Unidentified Speaker, -
WHEN DOES THE STATUE OF ELIMINATIONS -- ONE IS THE STATUTE OF LIMITATIONS -- WHEN DOES THE STATUE LIMITATIONS COMMISSION ON THIS? THIS CITY DIVIDED THE...
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| 01:59:14 |
Unidentified Speaker, -
A KEY DIFFERENCE IN THE ARGUMENT. IN LEDBETTER, SHE REALISTICALLY COULD NOT HAVE FILED A DISCRIMINATION CLAIM BECAUSE SHE DID NOT KNOW WHAT THE SALARIES...
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| 01:59:47 |
Unidentified Speaker, -
WRESTLING WITH THE DIFFERENCE BETWEEN DISPARATE IMPACT AND DISPARATE TREATMENT. WHEN YOU THINK ABOUT TITLE 7, YOU INSTINCTIVELY THINK THAT DISPARATE...
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| 02:00:58 |
Unidentified Speaker, -
TWO OF YOU ONE FINAL QUESTION. [LAUGHTER] OR YOU COULD NOT ANSWER THAT. [LAUGHTER] >> I WILL GO FIRST BECAUSE SOMEBODY HAS TO. I DO NOT KNOW THAT THERE...
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| 02:01:17 |
Unidentified Speaker, -
THERE IS NOT WHERE I AM THINKING THAT THERE WILL BE A COUNTERINTUITIVE RESULT. I WILL ANSWER A SLIGHTLY DIFFERENT QUESTION. OF ALL THE CASES THAT WILL...
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| 02:02:07 |
Unidentified Speaker, -
THE ONLY THING I WOULD ADD TO THAT IS THAT, IN THE PUBLIC ACCOUNTABILITY
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| 02:02:16 |
Unidentified Speaker, -
OVERSIGHT, THAT COULD BE INCREDIBLY IMPORTANT. THOSE COULD BE THE SLEEPER CASES OF THE TERM. >> YOU CAN SEE WHY THEY ARE VIEWED BY EVERYBODY AS TWO OF...
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| 02:02:31 |
Unidentified Speaker, -
YOU , ERWIN CHEMERINSKY AND PAUL CLEMENT. [APPLAUSE] >> SOLICITOR GENERAL INDICATE IN WAS ON CAPITOL HILL TO MEET WITH
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NOTE: The transcript for this program was compiled from uncorrected Closed Captioning.