Howard Wigg, I think Tecawaii Code Green gives me huge pleasure this afternoon to have as my guest, Melissa Miyashiro, Chief of Staff Blue Planet Foundation. I'm sure that the audience is so enlightened that they have an in-depth understanding of Blue Planet Foundation, but we're going to give you an even deeper understanding. So welcome and thanks for joining me here, Melissa. Thank you so much, Howard. It's a pleasure to be here. And before we get started with you, I was watching Matt Geo, the television program just a few nights ago and it was about the 80s, the transformative decade of the 80s and they went in chronological progression and as they got towards the late 80s and the Soviet empire was beginning to fall apart, here comes this name, Hank Rogers. And I say, what? And it turns out that the video game, remember Tetris was really, really, really big worldwide and Hank was a video game connoisseur, I guess one of the leading video gamers in the world and it turned out that Tetris did not have a patent. Why? Because it was conceived in the Soviet Union and I guess Soviet Union doesn't believe in patents or something. So Hank got a tourist visa to Moscow, made his way to this high-tech building in Moscow where the inventor of Tetris was housed and somehow talked his way in to this highly secure building as an American and met the Tetris founder and they got along absolutely perfectly because finally the founder could talk to somebody intelligently about game creation and he agreed to let Hank take the patent out and they just made enormous amounts of money. And the founder got 50% of the accrual but that's how Hank made his money and the reason he was on this Nat Geo program is it was the first really high-level big bucks agreement between the Soviet Union and America who were still officially very much in the Cold War. I think to something like ping-pong diplomacy where Nixon arranged for ping-pong games between communist China and America. So you didn't know it but Hank very probably helped bring down the Berlin Wall. Yeah, I definitely didn't know all of that story. But I think that's an example of how Hank has really been a visionary his whole life and as he sits on the board he's on our board of directors as the chair of our board of directors and he brings that vision and you know that forward-thinking thought into strategy for the organization along with our other board members as well. And how often does the board meet once a month or? Our board meets quarterly so we have more meetings a year. Okay and I won't ask who's on us probably a bunch of very, very, very highly qualified people. Yeah and it's really you know well-rounded so we have a lot of great expertise across all different industries. Former Governor George Ariyoshi sits on our board and Christine Kemp, Crystal Rose. We have yeah we have 11 members total now. Very good. Yeah. Okay so on that very cheery note why don't we start by you're giving sort of an overview of what Blue Planet Foundation is all about. Sure so we are going to be coming up on our 10-year anniversary. Oh I had no idea. Yeah in 2018 we're going to be celebrating all year long our 10-year anniversary. So we are a 501c3 non-profit organization and therefore people who write checks are it's deductible. Yep it's a we're a public charity so it's contributions are tax deductible and we really rely on those contributions to support the work that we do. Our mission is to clear the path for 100% clean energy and we do that in a number of ways. We aim for bold advocacy so adopting smart energy policies that are really going to help us you know get off of fossil fuels and move to 100% clean energy future. We also do community awareness campaigns so we educate students and educate members of the community about ways that they can be smarter about their energy use. And we'll be seeing a great slideshow very quickly about that education effort.  And then we also try to do community action campaigns and we're actually helping people lower their electric bills and actually getting out there and helping people learn how to be more energy efficient. And that warms the cockles of my heart because as a state employee I am if there's a hard core efficiency person within the Hawaii State Energy Office it's myself. And everybody always talks PV panels PV panels PV panels and I say no no no that PV panels are the bright shiny object and yes they're making a huge impact on clean energy but the other side of the coin is energy efficiency where you simply bring down down down down down down down the amount of energy used in the first place. And incidentally even with all the high rises going up in Kakaako and all the new buildings coming in on the Everplanes electricity use is still going down. Yeah quite quite the miracle there. Yeah we definitely recognize the importance of energy efficiency and always keep that in as a piece of our portfolio and the programs that we deliver because it is so important and you know as we try to get to 100% clean energy that's you know fewer fossil fuels that we're going to need on the path to get there. And the other thing that we really love about energy efficiency is that really anybody can be a part of that and there are actions that individuals individual businesses individual residents can take to help us create a cleaner future for everyone. And we are it sounds impossible and certainly when Governor Ighe signed the document people said that's outlandish but it's we're very carefully tracking it and we're actually ahead of schedule. Yeah. Yeah and we but we can't talk about those broad things why don't why don't we get into a couple of very of your pet projects here. Number one I think is education. Yeah yeah so I mentioned that Blue Planet Foundation has been kind of growing our education our programs and the portfolio of efforts that we do in the education area. Maybe we should bring up the first slide. Sure yeah so one of the ways we do that is through our Student Energy Summit and we have been hosting this event this is our third year we just had our third annual Student Energy Summit a few weeks ago. And on the next slide we'll see some look at those happy kids wow. Yeah so so we had close to 200 students from all across the state so we had it was middle and high school students and we had close to 50 schools represented and that includes students from the neighbor islands so thanks to sponsors and donors we're able to provide the summit free for students including neighbor island students so we rely on sponsorships to be able to pay for their travel and they're lodging so that they so the neighbor island students are incorporated into the conversation. Yeah because generally on the neighbor islands they're kind of isolated and small now we're getting into the big picture here that that's great for them yeah and then they I mean it's really important that their voices are incorporated into the conversation about you know what's our 100% clean energy future going to look like. And how did you select these students? We so we had worked on we have a number of partnerships with teachers in schools across the state so we you know reached out to our teacher contacts and those that had participated in past summits and we tried something different this year and had the students enter as teams so they came as a team of four to five students from their individual school and then we also did something new this year and had two different tracks the middle school track and a high school track. Yeah very very intelligent I've been involved in a lot of student education things you I was going to separate the middle from from the high school kids it's amazing what what differences there are. Yeah and I think it worked out really well there's another slide here that shows some of the the workshops that they did but first shout out to our sponsors yeah so we were fortunate to link up with some really great sponsors that made the student energy summit possible so NRG also junior dev league who works on coding so they teach they deliver coding workshops to students and show the power of using coding and web development to solve the world's challenges and then we also had a gracious host this year the Mililani High School so they hosted us and they they were they were wonderful hosts and it was great to bring the summit out into that community because that's a community that's you know impacted by some of the clean energy projects that are happening. Absolutely wow that's great yeah yeah really great host and the reason that we do this work is because these students are the ones that are going to inherit the consequences of our choices today so that's why Blue Planet Foundation has seen the need to really you know devote more of its time and resources. And this generation of kids is probably much much much better prepared for this message than was my generation I mean we actually toss things out in color windows and things like that and the first environmental initiative was don't litter it's just part of the culture now and then recycle I hope found the Hawaii recycling association in 1987 and it was a revolutionary idea at the time and now everybody recycles and the kids just grew up with this yeah so they have this solid environmental foundation already and now you're building on it. Yeah and when I was growing up at the issues of the time were recycling and also deforestation of you know rainforest rainforest abroad so these students this is the issue that they're going to grow up learning about and need to be equipped with the skills and resources to be able to to tackle this enormous challenge and it'll probably get them thinking about what they want to major in in college also yeah yeah exactly so some of the missions that we had there's another slide that shows some of the pictures of the students actually doing the missions so we divided the students into middle school and high school tracks and they had different lessons or interactive exercises that they worked through on the first day so they did things like comparing clean charge clean transportation options so battery electric cars versus hydrogen cars versus biking they also looked at cooling their classrooms so what what are some clean energy alternatives to cooling overheated classrooms topic right topic hopefully a cool topic with my one of my pet passions is get cool moves on on those schools yeah the students actually had constructed houses and then explore different ways to kind of cool and insulate which is something that I know you you know lots about so it's really neat to see the students kind of exploring that and playing with that and then let me do a shout out for ceiling fans instead of air conditioning in the classroom ceiling fans consume about five percent as much energy as do air conditioners now yeah yeah so they you know the students need to be aware of these different options and they you know they're empowered to either advocate for for different changes in their their schools and their communities on the high school side they explored legislative advocacy so helping the youth get more engaged in that process and feeling empowered to you know reach out to their legislators and really be involved in shaping that process even though you're a kid even though you can't vote the legislators still they'd be gratified to hear from from kids yeah yeah exactly and then there's another slide of what we did on day two so this was a two-day summit so they got they they worked hard all weekend it was a holiday weekend so these are really enthusiastic students and so we tried to bring it down to a local level on the second day so their task for the second day was developing community-based campaigns so they worked with their school team and identified either an energy efficiency issue or a clean energy issue that impacted their school or their community and we had them workshop that idea wow and and they all presented at the end yeah to different to their different school groups and so it was really neat to see the just the things that they come up with so possible follow-up for them yeah yeah yeah and we hope that you know we had some students that this was their third time attending the summit their veterans yeah yeah yeah that continuation and they could help bring along the newcomer type of students yeah yeah and then another neat feature that we had maybe we'll pull up the last slide yeah we better you know what we better why don't you go go through this and then we'll do it yeah just really quickly another new feature that we had at this year's summit is we offered a workshop for teachers so we partnered with up Tara and Hawaii energy to deliver a professional development training for teachers that were attending with their students so we were you know working on the helping educators as well yeah and then they can pull that into their curriculum because I'm sure there's not a principal in the state of Hawaii who would not say no you can't do that yes yes yes yes yes we need this for the kids we need this for the kids exactly wow inspiring stuff so on that very cheery note we will take a break back in one minute think take Hawaii Code Green Melissa Mayor Shiro of Blue Planet Foundation back in a minute this is think tech Hawaii raising public awareness oh I am John why he a long time host of talk story with John why he a think tech Hawaii is important to our community because it gives people the opportunity to voice their opinions and to take an active part in our development for the first time think tech Hawaii is participating in an online web-based fundraising campaign to raise $40,000 give tanks to think tech will run only doing the month of November and you can help please donate what you can so that think tech Hawaii can continue to raise public awareness and promote civic engagement through free programming like mine I've already made my donation and I look forward to your please send in your tax deductible contribution by going to this website thanks with think tech dot cause Vox dot com on behalf of the community enriched by think tech Hawaii's 30 weekly shows mahalo for your generosity good afternoon again Howard Wigg code green think tech Hawaii I have as my guest Melissa Mayor Shiro the chief strategist no chief of staff chief of staff for Blue Planet Foundation and we just heard this incredible tale of reaching out to kids and teachers and they are really really ripe for the message because there's been a whole culture shift since since I was a kid but now we have an even more exciting program I think where we literally Hawaii is going nationwide reaching out to legislatures so what in the world is how come a teeny little state isolated make a nationwide impact like this what's going on here yeah well all eyes are on Hawaii and everyone's watching very closely what we do and it's in you know our setting a target for 100% renewable energy is really inspiring we were the first state to do that we're the first state and currently still the only state that has that law but there are folks that want to follow Hawaii's lead and see how how it's changed the conversation and really got many things going in motion that you know probably wouldn't be in motion if it weren't for the law so we this is a new project so it's kind of just just up and running it's called project repower and it's a partnership with the National Caucus of environmental legislators and they're a group that supports legislators from across the country so they legislators that's the these are our partners so they support legislators from across the country in passing and introducing legislation various types of environmental legislation and they had heard from their legislators that they work with that they were interested in doing what Hawaii had done and passing 100% renewable energy target so we got approach done kind of how how can we share Hawaii's story and how can we help other places do the same thing that Hawaii's doing so that is the the genesis of the project another partner for the project is Rocky Mountain Institute sure so we had participated in their elab accelerator program so we had this big idea asked and you know in CEL the National Caucus of Environmental Legislators but we weren't really sure how best to kind of bring that into into action so we went through their kind of like a boot camp where you workshop so you actually traveled the Colorado and got training there it was in Sundance Utah so it was great and then so we had a really great team that we compiled a core team to really figure out okay what is it that legislators in other states need what do they feel like that you know what resources do they feel like they they don't have in new in order to be able to do something like that so was this a confluence of many many states then it was so it was just kind of an idea in our minds as is initial phase so there's a couple phases that we we walked through so the first was participating in elab the elab accelerator program it was I was a representative from Blue Planet Foundation we had two former legislators and one sitting legislator and then we had an energy analyst from NREL weighing in so all this core team kind of shaped the strategy going forward and what we decided on and what we came up with as a group is developing a toolkit for legislators and then there's a slide that outlines kind of the various elements of that toolkit if we can get that up yeah so this is the kind of strategy that we work through so first was that elab accelerator that I mentioned and then we introduced this project in this comp this concept to over a hundred and twenty legislators from all different states in August to kind of get an initial interest and then now in just next week actually we're bringing legislators from eight different states who are really interested in introducing legislation in this next coming session so they're gonna be coming here learning the Hawaii you know what Hawaii did and then really developing that pure pure network of legislators and I saw reference I see see reference to Big Island will they be meeting on Hanks Ranch or anything or yeah they're gonna be meeting at and the reason we wanted to have the meeting there is to really inspire people about the possibilities for renewable energy so you know at at the ranch they have they're doing research on hydrogen it's off the grid so it's a really great illustrative example of what's possible so we wanted the setting to really you know we wanted to kind of bring them out of their their everyday setting and really think about what's possible because it's a really big it's a big bold goal right and and for virtually anybody from the mainland this is going to be a really exotic sitting up in the North North Kohala lush green warm by their standard I was wondering it's been it's been a little bit chilly so I wonder and then up there it's it's even chillier I'm not sure if they're what they're expecting but I think the people coming from Minnesota will appreciate it yeah I know right it's December so yeah it'll be December when we do the workshop wow that's that's exciting stuff yeah so we're gonna be again sharing always 100% story you know what we did so not only how did the the law get passed but also what's happened since the law was passed and then also what pieces of that story are applicable to other places precisely yeah because each state has its own you know its own challenges its own opportunities its own networks its own stakeholders so it's not we're not really trying to create something that's like a formula for places it's really about developing that network and in providing yeah and the exchange cards and I imagine you'll put up the follow-up report on that and give everybody's email address it and so forth so yeah it will be a network and say how did you do this how did you do that and I have had the pleasure of being with Governor Iggy twice in the last six weeks or so and he really really is proud of the his 100% clean energy initiative yeah that's one of his accomplishments yeah and then you know Hawaii really stepped out there and is really setting the example and you know other states if you look at California they had legislation this past session to set a target for 100% renewable energy by 2045 so the same date as as Hawaii so really you know we as a state we really did wow that an example yeah that's that's the most moving the elephant yeah yeah yeah hmm yeah so we're hoping that even long-term so after this strategy session we want to learn more about you know what resources the legislators need and then hopefully you know long-term in in the project we can you know develop even in a bigger bigger support network wow this is gonna take some coordination because there's this is probably very imaginative people who are gonna be there and the ideas are gonna be flying around like mad and yeah who's gonna keep track of all that makes sense is that gonna be you well I'm tasked with facilitating that and the legislators are a very passionate group of people and you know really love talking story and sharing their ideas so it'll be it'll be a very dynamic yeah I hope you can heard the cats or at least yeah because of report that would come out of that it just be lots of ideas that need to be categorized and yeah distilled yeah and then really base you know place-based and then it's really relevant to their particular states and again not trying to do this global platform or formula and then our partners I mentioned Rocky Mountain Institute so they're very still very much involved in helping with the agenda design so they are experts in facilitation yeah they have so many exciting huge conferences yeah and that would they be there in person also they will be there in person but I've been working with them directly leading up to the agenda design will be using and implementing the ideas that they have for incredible facilitation yeah little old Hawaii yeah is there any other sites here because we're there I had a slide yeah this is the core team that I mentioned so some pretty this is the team that met at elab accelerator so you'll see Fran Pavley former senator in California and she was really instrumental in introducing a number and passing a number of landmark and environmental bills and then what is in cell even I don't know the national caucus of environmental those are our partners there and then there's another slide I mentioned the toolkit although I didn't dive into too many of the details but we're really structuring it in tiers based on a legislator's level of commitment so we really we really want to find legislators that are committed to actually doing this they will self-select exactly yeah yeah yeah so we you know the team that's meeting next week in Hawaii is kind of in this tier two so they'll get kind of additional resources it's all about identifying and working with legislators that are really committed and again I can just imagine the networking that'll go on yeah will they all be staying at one place overnight they will yeah so it's a workshop of two days so they'll be staying together networking together and they can you imagine the dinner party and talk to other conversations that are gonna go out wow yeah and then one thing that we've learned is that they really you know those that network of legislators is really important because they're you know lobby to all of the time so to have that network of peers is really important and in that feeling of support also exactly yeah and I'm not a voice in the world in this with everybody calling me a blankety-black tree and all that yeah and just the challenges that they face over the course of a session and they're working on so many different issues so to be able to have this you know support network and then we have some faculty members and experts coming to support the conversation as well well on that really really cheery note we have to wrap it up ourselves it says think take away cold green Howard Wig Melissa may as she wrote chief of staff Blue Planet Foundation thank you so much this has been a really inspiring session Melissa thank you so much for having me Howard this was a lot of fun yeah yeah


The Federal Judicial Center presents Supreme Court 1997-98 The Term in Review, an FJTN program for judges, staff attorneys and law clerks. Now from the television studios of the Federal Judicial Center in Washington, D.C., your moderator, Russell Wheeler. Hello, and welcome to this third and final part of the Federal Judicial Center's review of the Supreme Court's just completed term. We're dealing, all told, with 52 cases from the over 90 decided this term. Cases we think will most affect the litigation in your courts. Your written materials have summaries of the cases we'll discuss, in the order we'll discuss them, and brief biographies of the law professors who will be describing and commenting on the cases. This third part of our review will last about 30 minutes. Petitions by prisoners, including those seeking habeas review, are a substantial part of federal court dockets. Let's turn to seven cases the court decided involving habeas procedure or substance. Like last term, several aspects of the habeas reform act were before the court. Joining us are Susan Herman of Brooklyn Law School, and Evan Sunlee of the University of California, Hastings College of the Law. Evan. In this term's habeas case, as we see the act, as I mentioned, we also see procedural default issues. Some cases we see both. Some people think the court made it a little easier for habeas petitioners to get into federal court under the act, and they point to this case of Stuart V. Martínez-Viel-Rial. Here you have an opinion by the Chief Justice and dissents by Justices Thomas and Scalia. Justices Scalia, really, quite a forceful dissent. Yes. I think it's probably true that this case does make it a little bit easier to get into federal court on habeas corpus. This case holds that a habeas claim is not a second or successive application within the meaning of the habeas reform act if it was previously dismissed without prejudice. As you know, the new habeas statute places pretty severe restrictions on when a federal habeas court can entertain a second or successive habeas corpus application. The death row inmate in this case had presented a number of claims to the federal district court, including a claim that he was incompetent to be executed. At that time, the district court refused to dismiss the claim because it was premature. So the inmate went back, and after further state habeas corpus proceedings returned to federal district court, at which time he presented the incompetency claim, and this time the federal district court said, well, now it's a second or successive application within the meaning of the act, and therefore it can't be heard. The Supreme Court disagreed and analogized the second or successive application provision of this habeas reform act to what it referred to as a modified race judicata rule. When applying principles of preclusion law, it was able to say, well, since this was not an adjudication on the merits, it is not a second or successive application within the meaning of the act. Well, you, Stuart, was really almost caught in a very strange kind of catch 22, or you might say a catch 2254, if he had been too early and then too late to raise the claim, but the holding really goes beyond the unusual facts of Stuart's claim, doesn't it? Oh, yes, because if you think about it, and the court actually brought this up in the opinion, is every time a court dismisses for failure to exhaust, this case is going to apply. It's not a second or successive application. That's a dismissal without prejudice, right? That's right. Thanks, Evan. And Susan, I mentioned procedural default issues as well. We had this case of trust v. Cain in which the Court of Appeals, Sue Esponte, took on the procedural question. What did the court say there? Well, they said, very limited holding. They said that the courts are not required to Sue Esponte raise procedural default, not answering the more difficult and interesting question, a longstanding question of what kind of defense procedural default really is. Is it an affirmative defense that's waived if not raised by the state? What happened in this case? Trust petition was dismissed in the district court, and then the Fifth Circuit ruled against him on procedural default, even though the state of Louisiana had not raised that defense, either in the Court of Appeals or in the court below. Now, the Supreme Court thought that there was some suggestion in the Fifth Circuit opinion that they thought they were required to do that, and therefore didn't get to the question of, is it permissible? A question which you can note would apply not only to appellate judges, but also to district judges and magistrate judges considering habeas petitions. Is there anything in the, this rather cryptic line of justice briars opinion where he seems to chide the Court of Appeals a bit for not letting the parties argue the case, and then he says, refers to that somewhat longer and often fairer way round, which is the shortest way home. Is that a, we know it's coming from that at all? Well, I think one thing that comes from that that also appears in another case, this term, home versus United States, where the Supreme Court essentially lets the Courts of Appeals know that it's watching. Home was a case, a petitioner who raised a claim under Bailey, which seems to keep coming up, claiming that his sentence for using a firearm should be vacated once the law had changed. He lost below, and then the government claimed that he shouldn't be able to get a certificate of appealability, as is required under the Reform Act, because he hadn't shown yet a substantial constitutional claim. So the Court of Appeals denied the certificate. The government then changed its position and conceded that he did have a substantial constitutional claim, and the question was whether the Supreme Court had certiorari jurisdiction to review the Court of Appeals denial of the certificate, and the Court, in a really, you know, narrowly split decision five to four overruling an old case, held that they did have jurisdiction. So they'll be watching. As part of the softening of the Act, perhaps, that we've been talking about. I think, yeah, a little bit. Evan, could you very quickly, just in a sentence or two, tell us whether this case of Calderon v. Ashmus, it came from California and involved Chapter 154? That's right. And all the Court did here was to refuse to decide whether California qualified for the fast-track procedure under the, for capital cases under the Habeas Reform Act. This just wasn't a proper case for him. Okay. We can spend a little more time on Spencer v. Chemna. That's the next case in our list. And this case further restricts who can raise Habeas Corpus claims in federal court. It also further explicates the relationship between Habeas Corpus and Section 1983. What the Court held in this case was that a Habeas petitioner who has served his entire sentence, his entire prison term, generally cannot challenge a prior parole revocation on federal Habeas Corpus because it's moot. Now in this case, the former inmate argued that, well, it's not really moot in my case because I continue to suffer actual negative consequences from my parole having been revoked. But the Supreme Court didn't buy that argument. It said it was too speculative as to whether he would suffer future parole revocations on the basis of this parole revocation because after all there's only one factor to be taken into account by the parole board. And also said it was too speculative as to whether he would have to stand trial in the future and suffer the use of the parole revocation as impeachment evidence. Another consequence that Spencer was trying to argue was that he wouldn't be able to bring a 1983 action as he was mentioning because he wouldn't be able to satisfy the favorable termination rule of HEC versus Humphrey. And another very notable part of the Spencer holding is that there are now five justices in the concurring and dissenting opinions who now agree with Justice Souter's position in HEC versus Humphrey that that termination rule shouldn't apply to people who aren't in custody. Well, watch that one. Thanks, Evan. And Susan, just in a word, the case of Hopkins v. Rees from Nebraska. From Nebraska. This case was about the rule from Beck versus Alabama where the court said that a jury in a capital case should be permitted to consider lesser included offenses, which are consistent with some view of the evidence. Reeves wanted the jury charged a lesser offense that was a non-capital offense. But the court looked at the Nebraska statutory scheme and found that, in fact, what he was asking for in the instructions was not technically a lesser included offense and that therefore the rule of Beck didn't apply. And the Nebraska law. Because of the Nebraska law. Thanks. Evan, when we were in part one, we said we'd be getting to the Bowsley case. Right. And we're there now. We'll spend a little time on that because this is probably going to have a lot of impact, day-to-day impact on federal courts. Came down the same day as Stuart, May 18th. Same lineup. The Chief Justice wrote the opinion, and again, Justice Scalia and Justice Thomas dissented. What can we anticipate coming from this case? Well, this case is the first time that the Supreme Court has extended the actual innocence exception to the procedural default rule to a guilty plea situation. And Justice Scalia in his dissent sounded a strong warning that this might open the floodgates because the Supreme Court, because this may come up every time the Supreme Court narrowly construes a federal criminal statute. What the court specifically held in this case was that people who pleaded guilty to using a firearm, but who did not actively employ a firearm and pleaded guilty prior to Bailey v. United States in 1995, that these people can attack their guilty pleas as involuntary even if they procedurally defaulted those claims during direct appeals. But so this is a situation that's not covered by Teague v. Lane? No, and in fact, that was argued before the Supreme Court, and the court said that Teague does not apply because Bailey v. United States did not create a new rule of criminal procedure. It was a narrowing construction of a substantive federal criminal statute. So the bottom line is that if a petitioner can demonstrate actual innocence to the firearm charge, he can attack the guilty plea. But establishing actual innocence is enough of a problem, but there's also some dicta by Chief Justice Rehnquist where he says that it's possible that the defendant might have to prove not only that he's innocent of the particular charge, but also of charges that the government has foregone as part of the plea bargain. I think what's important there is that it's dicta. I don't think it is clear from the totality of the opinion that really a petitioner has to prove his actual innocence of charges that might have been brought, but were in fact not brought. And in fact, kind of playing off of Muscarello, the government here wanted to go back and charge Kerry and the Supreme Court said, but that's not the indictment you can't charge. That's true. But the court does make it clear that the government can adduce any evidence of guilt whether or not it was brought up in the plea colloquy, whether or not it would have been brought up in a pre-Bailey trial. Good enough. Thanks, Evan. Thanks, Susan. We'll watch how those things develop in the Courts of Appeals and the District Courts. And in a moment, we'll take up the court's decisions that fall generally within the area of civil and commercial litigation. Standing, jurisdiction, Daubert questions. Federal judges face these issues regularly, at least where criminal cases haven't crowded them out. Bankruptcy cases, too, are an important element of federal court work. To conclude this review of the 1997 term, we'll look at 14 cases starting with the trilogy interpreting the removal statute. Joining us again are Erwin Chemerinsky of the University of Southern California, John Garvey of Notre Dame, and Susanna Sherry of the University of Minnesota. Susanna, I referred to this removal trilogy. Let's talk about those three cases. Rivet v. Regions Bank is the first of them. Yes, and I think Rivet is the most important of them. In Rivet, the court cut back on federal, lower court federal jurisdiction. Federal courts had been taking jurisdiction in what are called reverse removal cases, where a federal court had issued a ruling, and then the losing party filed again in state court, but only raising state questions, but the federal court would be race judicata. The federal court ruling would have preclusive effect. And instead of enjoining the state suit under the re-litigation exception to the Anti-Injunction Act, sometimes lower federal courts would instead allow the case to be removed to federal court, even though it apparently raised no federal question, and then they would dismiss the case. And in Rivet, the Supreme Court cut that off. They said, no, you cannot take jurisdiction unless there is a federal question in the well-pleaded complaint. And since preclusion is an affirmative defense, it's not part of the well-pleaded complaint, and there is no jurisdiction. Susanna, what are district judges going to do in these cases? Is enjoining their only option now? Well, some lower courts have been using the All Rits Act to allow removal. And in fact, the Eighth Circuit recently reaffirmed a case that it had decided before Rivet using the All Rits Act. The case was remanded after Rivet and the Eighth Circuit reaffirmed its decision. And several other circuits have done it as well. And eventually the Supreme Court, I think, is going to have to decide that issue. Okay, so that issue can come back at some point. We want to talk briefly about Wisconsin Department of Corrections v. Shack. Now, this was an easier case, I think. Yes, I think this was much easier. The question in Shack is a case that the lower courts have been using for some time. What happens if a case removed from state to federal court has some claims that are barred by the Eleventh Amendment sovereign immunity doctrine? Does the federal court still have jurisdiction over the remaining claims? And in Shack, the court said, yes, it does. It was a very straightforward, common-sense interpretation of the removal statute. Though I think there's an interesting question of whether a state's removal of a case from state to federal court is a wave of its Eleventh Amendment immunity. Do you think the majority raised this in a concurrence? Ultimately, I think whether or not its waiver is determined by state law, but the Supreme Court's yet to clarify that. So we can watch for that, also. Definitely. I said we had a trilogy. The third case is Chicago v. College of Surgeons. And this wasn't a medical dispute. College of Surgeons had a building. They wanted to tear down the Chicago Landmark Commission. Wouldn't let them do it for historic preservation reasons. Justice Ginsburg said in the dissent that this case was going to open the floodgates of removal cases into federal courts. Should district courts be worried about that? I don't think so. I think Justice Ginsburg was worrying unnecessarily. This was really a fairly routine case. The only question was whether you can remove from state court to federal court a state suit that just happens to be a review of a state administrative decision. There were straightforward constitutional questions on the face of the complaint so it met all the requirements for federal jurisdiction and for removal. The only question was whether you can remove from state court a state suit that were reviewing administrative state administrative decisions and the Supreme Court majority said no, there doesn't need to be an exception. And presumably not a flood of litigation coming in, we can assume. I don't think so because these cases have pretty routinely been before the federal courts. Okay. Thanks, Suzanna. Irwin. The judicial panel on multi-district litigation. That's not a household word, but every judge knows about the panel because as more litigation goes national, the panel recognizes judges for pre-trial, but transfer judges have been keeping these cases. The Supreme Court had to decide in lexicon whether the statute allowed her to do that. There was exactly the issue in lexicon versus Milberg. The question there was, when a case is transferred by the multi-district panel, can the receiving court conduct the trial what is only of jurisdiction for the pre-trial proceedings? And the Supreme Court said it only has authority for the pre-trial proceedings. This is a case that arose out of the securities and loan problems of the 1980s. The case was filed in Illinois. It was transferred by the multi-district panel from the northern district of Illinois to a federal district court in Arizona. After the pre-trial proceedings were completed, the Arizona court over the plaintiff's objection said it was going to keep the case for trial. The Supreme Court looked at the literal language of section 1407a said the federal district court that receives the case only can handle the pre-trial proceedings, not the trial proceedings. This happens fairly often, too. I was very surprised at how often there were statistics in the case that indicated that over 200 times a year, the receiving case court keeps the case for the trial proceedings. Irwin, if this happens so often and if now the Supreme Court has told the district courts they can't do this, do you think this might be something Congress would be interested in fixing? In fact, there's already legislation that's gone through the House of Representatives that would give the authority for the receiving court to keep the case for trial proceedings. We'll keep an eye on that, obviously. Thanks, Susanna. Thanks, Irwin. And, John, Susanna made the point earlier that we seem to see the court this term, her phrase, reigning in the lower courts in certain areas. We have this case of steel company versus citizen for a better environment, which that appeared to happen again. This involves when courts have to take up and decide the jurisdictional issue before they get to the substantive issue. This was a case sort of like Rivet, the case that Susanna was discussing a minute ago where lower courts had been finding jurisdiction in Rivet. It was race-judicata removal jurisdiction. In this case, it was an issue of what we call hypothetical jurisdiction. The lower courts had been finding it, and the Supreme Court said you can't do it anymore. It was a suit under an environmental statute, the emergency planning and community right to no act. And the claim on the merits the issue was whether the act provided a cause of action for purely historical violations. This was a failure to file some environmental forms that citizens was complaining about. The closely related standing question was whether a plaintiff like citizens had a right to sue when the violation was already over and they couldn't get any fees, the fines were paid to the federal government. So the question, the jurisdictional or a standing question was could they, what were they suing about. Now, Justice Stevens, who decided was willing to go ahead and answer the question on the merits, which he viewed as an easier question than the jurisdictional question. So there's some efficiency in doing things that way, but the Supreme Court said that that was a violation of Article 3, that you have to decide these cases, these questions in the right order. You got to do jurisdiction first because hypothetical jurisdiction produces hypothetical judgments and that's a violation of Article 3. You mentioned the efficiency argument. Justice Breyer concurred only in part and resided the rather dreary statistics about appellate court caseload and said it just doesn't make any sense in some cases not to let them go ahead and spend their time deciding the issue, avoid the jurisdictional issue, it's obvious how it's going to come out anyway. And tell me this, Justice O'Connor seemed to indicate that the few exceptions to this rule that Justice Scalia mentioned in the opinion actually were there to be exploited and there might be other exceptions. Is there much there? I'm not sure what Justice O'Connor had in mind. The possibilities that she was pointing to weren't things that are going to happen all the time. There was a case called Norton against Matthews and another one called Secretary against Avrak where the court in fact passed over the jurisdictional question but in each of those cases there was a companion case where the merits was decided so there was really literally no point in going ahead and deciding the jurisdictional thing. But I don't think that something's going to happen all the time. So Susanna's reigning in probably was reigning in. Yeah, right. Thanks, John. Irwin, the media gave a fair amount of attention to the case of National Credit Union Association versus First National Bank because obviously it has implications for the credit industry and the banking industry. There were some jurisdictional questions though and we might spend our time on those. Specifically what the Supreme Court had to consider was standing and in particular the zone of interest prong of the standing doctrine. In that sense I think it was an unremarkable reaffirmation and application of the zone of interest test. Specifically what was involved here was that bankers and bankers associations brought a suit against the National Credit Union for its decision to allow credit unions to cover employees of small businesses even though the business had no affiliation with the credit union. The question was that bankers and bankers associations have standing under the Administrative Procedures Act and the Supreme Court said bankers and bankers association were within the zone of interest that the statute was intended to protect and thus they had standing. That's why I say it was a reaffirmation and application that the zone of interest test is a prudential standing requirement. Erwin I think this case and the case last term Bennett V. Speer on standing are very interesting because they seem to be reversing the recent trend toward cutting back on standing. In both this case and in Bennett the court applied the zone of interest test to find standing and not only to find standing but to find it for plaintiffs we might not ordinarily have thought the statutes were designed to benefit. In this case it was the competitors of the credit unions and in Bennett V. Speer it was people who were opposing environmental regulations. That's a good point. And more of that may happen. We'll watch it. Thanks very much. John while we're on jurisdictional matters say a word about the text run case. This involves a jurisdictional provision in the labor management relations area. Right. The labor management relations act as you know has a provision that says that gives the federal courts jurisdiction in section 301 over suits for violation of contracts between an employer and a labor union. And in this case the United Auto Workers sued not because anybody had breached the collective bargaining agreement but because they said they'd been induced by fraud to enter into the agreement and they wanted to declare it voidable and the Supreme Court said that's not what we mean by suits for violation. It's got to be you can't undo the agreement. That's what the statute says. I also said at the very start of this program we're going to talk about the line item veto case Clinton v. New York but we should just make a brief mention of the jurisdictional issue there especially because the court threw it out on the state. There is an interesting procedural point that's related to the observation that Suzanne and Erwin were making about expanding jurisdiction or expanding standing in a few of the cases this term. Last term you remember in Reigns Against Bird they threw out a challenge to the line item veto. This year they found plaintiffs that they were satisfied with that had standing but oddly enough they were plaintiffs who in the past might not have been given standing. They were plaintiffs who were making a complaint about some third party's tax liability. There was a farmer's co-op that wanted to acquire a food processing group and their claim was that the line item veto had canceled had imposed capital gains taxes on their seller and so the purchase was going to be more expensive than they had intended so that's they were complaining about the taxes that someone else was going to have to pay and the court said they could go ahead. So that's how they got in. These are all separation of these issues we've been discussing. We're going to turn to the federalism case not a really big case but it's the full faith and credit clause of Baker v. General Motors, Michigan State Court case and the federal diversity case. It's a case that received a lot of media attention but it's a factual situation that's unlikely to come up very often. Specifically the issue is the state trial court issues in order that precludes somebody from being a witness against a particular defendant does the federal court have to give full faith and credit to that order. What was involved here was a Michigan trial court. It's part of a settlement issued in order that a former General Motors employee could not testify against General Motors in the future. Turns out there was a federal district court case in Missouri, person to diversity jurisdiction where this individual was going to come testify against General Motors. The issue is should the federal court give full faith and credit to the state trial court ruling? In the United States Supreme Court reversed the court of appeals and the United States Supreme Court said full faith and credit doesn't apply here. The enforcement of the Michigan trial court should be in Michigan court. So the individual could testify in federal court that he's likely to face another court date in Michigan state court when it goes about enforcing its order. We may not see that case cited an awful lot, but one case we have seen a lot of is this case, the 1993 case of Dow versus Merrill Dow, and the court revisited that issue or part of it in the case of GE versus Joyner this term. I think GE versus Joyner is one of the more important cases of the term. The issue is when a federal court of appeals is reviewing a district court decision with regard to the admissibility of scientific evidence, what's the standard of review? The Supreme Court said it's an abusive discretion standard of review. What was involved here was an individual who got small cell lung cancer and he sued his employer saying exposure to PCBs on the job caused him to get the lung cancer. I wanted to introduce expert testimony that the trial court judge precluded. The district court said there's two graded variants between the testimony and the data for it to be admissible. The United States Court of Appeals reversed and said under Daubert it should have been admitted. The United States Supreme Court reversed the Court of Appeals. The Supreme Court said that it's an abuse of discretion standard. Only if the trial court decision is unreasonable or unsupported by any view of the record should it be reversed. It's great discretion granted to the trial courts in this area. Which plays right into the phrase in Daubert, the gatekeeping function of the district court. There was allusion to that, John, also in a case from the Military Appeals Court involving polygraphs. Spend less time on that than the references to the Daubert question in that case. Right. This is consistent with the gatekeeping function of the district courts, I think, in a funny way. The Military Rules of Evidence say that you can't use polygraph evidence. And this case involved an airman who was charged with having methamphetamines after they were found in a urine test, and he wanted to introduce... Sheffer, I'm sorry. He wanted to introduce favorable polygraph evidence on his own behalf, and the Military Rules kept it out. So his claim was that this was unconstitutional, that it violated his sixth amendment, right, to put on a fair trial. And the Court said that that wasn't so. That at least the admission of polygraph evidence wasn't compelled by the Constitution. So the admission of polygraph evidence is not a constitutional right. You have no constitutional right to admit this, but is it admissible if both parties want to? In a sense, Sheffer wanted to take a step too far because I think that there are some pretty clear indications in the opinion, although it doesn't hold this, that it's in the discretion of the district courts. There's an opinion by Justice Kennedy in which there were four members of the Court voting for that, an opinion by Justice Stevens dissenting, all of which can point to the discretionary authority of the district courts to allow this in. Finally, John, you recall we talked in the first part of the program about Bragg and the Abbott, and that part of the, we reserve that part of the opinion that dealt with how courts assess the objective reasonableness of health care providers' decisions that to treat someone with a disability may threaten the health and safety of others. Did you pick up on that discussion? Right. You remember me saying questions in the Braggdon case, one of them was whether asymptomatic HIV was a disability, and the other one was whether it was one of those infections that posed a direct threat to health and safety, and so there was an exemption or an exception from the ADA. And on that second question, the Court said whether it poses that kind of threat is a question of objective reasonableness. The Court didn't decide whether, in fact, the dentist's action in Braggdon was objectively reasonable, but the interesting evidentiary point about it was that they sent it back to the Court of Appeals for a review of that question and suggested that the Court of Appeals should give special weight to the evidence offered by public health authorities like the National Institute of Health, the Center for Disease Control, the Public Health Service, and groups like that. A majority of the courts seemed to think that it was appropriate. There were four dissents on that point, and the dissenters said, look, what kind of weight this scientific evidence ought to get should depend on how good the science is, not whether these people are hired by the public or not. In fact, Chief Justice Rink was made a reference to politically appointed heads of these agencies. We'll see. Thanks, John. We'll see additional developments in this whole Dobber area. I should mention, first, the Court granted certain a case involving the testimony of a tire safety expert. In the last term, the District Court excluded the testimony because it satisfied none of Dobber's criteria. The Court of Appeals reversed holding that the testimony, the tire safety expert testimony, wasn't scientific and thus not subject to Dobber. That case is Kumbotire Company versus Carmichael. Second, the Judicial Conference's Advisory Committee on Evidence Rules has approved for public comment and amendment to Rule 702, which would extend Dobber's gatekeeping function to all expert testimony. Finally, Congress is considering two proposals that would essentially codify Dobber. The Evidence Advisory Committee believes that its proposed rule change would accomplish the same goal without some serious problems that it sees in the legislation. Let me add that next year, the Senate will publish the second edition of its scientific evidence reference manual and includes a forward by Justice Breyer. It's important to know two straightforward unanimous opinions that resolve conflicts and discharge. Cohen v. Adela Cruz involved 523A2A, which accepts from discharge any debt for money to the extent obtained by fraud. Does that exception reach treble damages? Yes. Justice O'Connor had little trouble concluding that the provision reached treble damages of 90,000 awarded under a state fraud statute and not just the 30,000 that a landlord owed in overcharged rent. If Congress would have covered the recovery, it would have said so. The other case, Cahu gained a malpractice judgment against Geiger, a physician for inadequate treatment that eventually required her leg's amputation. Geiger who didn't have any malpractice insurance filed for bankruptcy and sought to have the malpractice term parsed the statutory language held that willful modifies injury and thus that debt was dischargeable because Dr. Geiger did not intend the injury that his malpractice caused. She pointed out that to read section A6 otherwise would render superfluous the drunk driving exception in section 523. That concludes our third and final program on the subject. Thank you helpful and we hope that you will complete the evaluation forms to tell us how we might improve future programs. Many thanks to the faculty for their summary and analysis and thanks to you for joining us. Good day.


Hello Facebook. Hello YouTube. We are live at Portland Mini Maker Faire here in Portland, Oregon. Portland at the Omsi. My name is Dr. Kiki and this is... And I'm Shardul Gholwalker from Intel. And we're here hanging out and I've been podcasting with people all day long and Shardul has been in and out here and tell me what you're doing here today at the Maker Faire. Yeah, so today we're showing off some of the technologies that Intel has. My main job is to actually show off the Intel Edison platform that we're displaying here. So we're showing off our classic Edison project, the Intel Dancing Spider robots. So they dance to music. We've shown them off for I think two or three years now at different Maker Faires and it's been a great people pleaser. Kids love it, parents love it. It's just amazing. So what is the Edison project exactly? Yeah, so the Edison is a one of our platforms that we have for our different microprocessors. So it's one of our interactive things projects that we've basically decided is our best and brightest thing that we've put out. So it has a Wi-Fi, it has BLE, it's got my audio going off. No, it's probably, is it going off? It's like lopsided, maybe it's just that. I think it's this. It's the live feed over here. Here, hold on one second. I'm going to interrupt it for a second. Okay. And I'm going to go over here. This is live. Okay. Technical difficulties. For those of you not watching, this is how you know things are live because we're not actually cutting at all. We're just going while we're fixing on the flight. There we go. Audio is back. See, so easy. Yeah, that was awesome. Great fixing. I'm a troubleshooter. Move quickly. Okay, back to the Edison platform. Edison has its own Wi-Fi, so in Bluetooth, it's got a Yachto-based Linux operating system on it. So you can actually do any types of robotics and implementations that you want to, or you can do something super simple like Christmas lights. Wow, okay. And how easy is it for somebody to access the Edison platform? Super easy. So they're available for retail. They're on the Intel retail store. They're on any major distributors. If you Google Intel Edison, the first thing will be an option to buy it. They're $50. You can also get them with an Arduino expansion board. That expansion board is $20. So you can get the whole package for $70 at any major retailer. And then you can just get started on your robotics project or whatever you want to do. Hopefully we can see you guys maybe next year or at the next Maker Faire that we're going to have here. Yeah, so I've got a five-year-old and I've been thinking about, okay, I want to get him into, you know, Arduinos and little basic like LED light programming and stuff.  And I just looked at it and I was like, what? Yeah. So the cost to entry was really high, but $70. Like, what can you do with that? $70 gets you a lot of stuff. So the way that I recommend kids start, especially when we're showing things off at Maker Faires, there's a lot of kids that come by. And a lot of parents have that same question of how can I get my kids started and how can they get interested in science and technology or just robotics in general, right? The thing that I'd recommend, and this is how I've kind of mentored some of the kids that I've talked to is buy an Arduino. An Arduino is $30. Download the Arduino development environment. And I'm a strong proponent for that being the simplest way to learn how to program. I work at Intel. I don't work at Arduino. So it's an unbiased opinion. That said, marketing would definitely want me to say buy the Intel Edison and buy the Arduino 101 and the Curie module. But to get started with just regular programming, it's really just learning how to follow a recipe, how to follow a different logic. So the Arduino is the best way to start. It's $30 and then you can just run simple sketches on it. So the second you see just an LED blinking on the Arduino is that kind of moment of joy where you get feedback, right? And you say, I actually did this. I wrote this code and I see something on my hardware. From there you can go as far as you want. So you can go as simple as just putting another LED on there. You can put a motor, whatever you want to do, you can just start building things. The way that I started way back in the day was in high school I did a robotics class and then I joined the underwater robotics club and we didn't have the Edison at that time, but we used some other things where I just learned how motors worked, how electronics worked. And when I was very young, I had my father to rely on to kind of teach me how things worked around the house. So we took apart a computer, put it back together. We figured out how does current flow work, how do capacitors and resistors work. The basics, the most important components. Exactly, yeah. They're all just building blocks, right? So once you learn a very simple concept, you just take that and apply it as many times as you want. And I'm a very proponent for fail fast, fail often, and learn all the time. Yeah, learn from those failures, but keep trying. Exactly, yeah. That's the one thing like, I mean I graduated college a year ago, but I work in computer science, but I don't have a computer science degree. I'm trying to become a YouTuber, but I don't have a film school degree. Oh, I do YouTube and video production, no film degree. I've been picking it up. I watch YouTube videos. Yeah, no, it's getting out and doing it and learning from the mistakes and seeing how other people put things together and going, oh, that's a really great idea. I'm going to try that myself or see what I can do that's similar with the equipment that I have. Yeah, and that's the beauty of one of these maker fairs or any of these maker fairs. I've been to like Bay Area one, I've been to China, I've been to a bunch of different maker fairs and that's the beauty of these things is everything that you see here is things that people have made, and it's all customized and it's all someone started with an idea and said, I want to build this for myself and then show it off to other people. Some of the workshops here are great, some of the people that you meet here are people that have been making for years and years. It's funny when you, when I was younger, I'd see my mentors and my, they've not become my friends, and it's kind of going full circle. Yeah, and it's just, it's weird when you're young and you're like, I don't really know how to build a prosthetic hand, I don't really know how to build a spider bot, but two, three years down the road, you're the one giving the talks to the rest of the kids, and you kind of flip, the tables are flipped and it's kind of that paid forward mentality. So it's super cool being on the other end and kind of inspiring the next generation of makers. Well, I'm glad you're out here and I'm glad that Intel is, I mean Intel, as long as I've been working in science communications and tech, the tech communications world, Intel has always been a very positive force for science and for helping the next generation. You know, there's the science, Intel, the Intel science and technology, fair, the international fair. Yeah, I think it's STEAM, STEAM, yeah, STEAM, science, technology, engineering, arts, and math. And that whole acronym, that whole area is super important to us as Intel and super important to me as a person, just because that's where the future is, right? And that's where people should start learning and contributing and making their own ideas become a reality. Yeah, and I think the STEAM acronym is something for a long time people have been focusing just STEM, STEM, STEM, with, with is the science, technology, engineering, and math, but adding the A for the arts, I think is really one of the most brilliant steps forward because where are we without the arts and our culture and our expression using the basis, the science, technology, engineering, math to express ourselves? Yeah. And that's where life really happens. I think like arts, arts is so broad that it can apply to any facet of those other four letters, right? Yeah. Arts is not just painting a canvas or drawing a picture on a piece of paper, it's 3D printing, it's sculptures, it's figuring out how things are going to look. Like the MacBook that we're using for broadcasting right now is a piece of art. Right. The camera that's been beat up that I'm using for recording my YouTube channel stuff that's been dropped and put in places that... It's a very durable piece of art. Yeah, it's a very durable piece of art.  I think it's super important, especially for young kids, to know that arts is not just what you see in school. It's all around you. Yeah. Thanks for taking the time to talk with me. Thanks for having me. Nice to meet you. It's been great. Thanks so much. All right, everybody. We'll see you later. This is the Portland Maker Fair. Oh my gosh, it's almost 4.30. It's almost five o'clock the end of Saturday. It's going to be happening tomorrow, Sunday also with Paul Colligan, who's right over here. He's ready. He's waiting in the wings. There he is. He's going to be man in the booth tomorrow for most of the day. I'll be here a little bit, but...