DISCOVERY presented by UW Law

To open season seven of Discovery, we’re discussing voter suppression through a social science lens with UW Law faculty member Danieli Evans. The 2024 U.S. Presidential Election is just weeks away and concerns around preserving voters’ rights are ever-present as Americans begin casting their ballots. Poll taxes, strict voter ID laws and restrictions on mail voting are examples of policies limiting voting rights. But the carceral state — loosely defined as citizens' encounters with any type of criminal system — also inflicts harm on voters that can ultimately cause them to voluntarily withdraw from the voting process. Professor Evans joins Discovery to discuss her paper “Carceral Socialization as Voter Suppression” and why it’s important not to ignore this phenomenon.

Some scholars call our politically fraught and hyper-partisan times “the age of impeachment.” They claim the increased use of impeachment and removal proceedings signals an erosion in institutional norms, perhaps that we’ve even “overwhelmed” the use of impeachment and diluted impeachment of any significance. What does U.S. impeachment history tell us? The Constitution provides that treason, bribery, and other high crimes and misdemeanors are impeachable offenses. A common thread that runs throughout presidential impeachment proceedings is an effort by legal counsel to try and define the scope of impeachable misconduct.  On this episode of Discovery, we discuss the history of impeachment with Professor Michael Gerhardt from the Carolina Law faculty, whose teaching and research focuses on constitutional conflicts between presidents and Congress. He has authored nine books, testified more than 20 times before Congress, and has served as an expert commentator for CNN, Fox and MSNBC. Gerhardt joined the Carolina Law faculty in 2005 and serves as the Burton Craige Distinguished Professor of Jurisprudence. Gerhardt's new book, The Law of Presidential Impeachment, provides a comprehensive and nonpartisan explanation of impeachment's role in presidential accountability.

In 2023, the U.S. Supreme Court held that the Fourteenth Amendment’s guarantee to personal liberty does not include the right to abortion and returned the power to regulate abortion to individual states. Justice Samuel Alito said in the Court’s majority opinion that the decision in Dobbs v. The Jackson Women's Health Organization would end the abortion controversy once and for all. However, in overruling both Roe v. Wade and Planned Parenthood v. Casey, an unprecedented new landscape interfering with human rights has emerged, factors which intersect with rights related to environmental justice, contraception, marriage equality and private sexual conduct, among others. In this episode of the Discovery podcast, we address the new “patchwork quilt” of state legislation on abortion with UW Law alumnus Elisabeth Smith, the director of state policy and advocacy at the Center for Reproductive Rights. She recently visited her alma mater to give students in the 1L Perspectives class series an overview of how the Dobbs decision affects the terrain for reproductive justice across the country.  Elisabeth Smith is director of state policy and advocacy at the Center for Reproductive Rights in New York, where she was formerly Chief Counsel starting in 2018. She moved to New York from Washington state where she was legislative director for the ACLU. She graduated from Davidson College and the University of Washington School of Law.

Beginning with the tale of an unsolved mystery, and expanding to the U.S. Capitol riots on January 6, 2021, UW Professor of Law Mary D. Fan takes us through a look at how crimes are being solved through the use of digital searches. Keyword and geofence warrants are now tools helping law enforcement identify unknown perpetrators. However, courts are split over their constitutionality. Search and arrest warrants are in the text of the Fourth Amendment, but how do we apply constitutional rights with “technological probable cause” and the deployment of big data searches? Twice recognized as the large section Professor of the Year at UW Law, Mary D. Fan is the Jack R. MacDonald Endowed Chair and teaches criminal law. She has a J.D. from Yale, a master's from Cambridge and is a Ph.D. candidate in epidemiology at the University of Washington.

The Supreme Court has categorically ruled that the application of neuroscience research to the legal culpability of minors committing crimes, no matter how serious, must be considered in the criminal justice system. In addition to maintaining public safety, the primary goals of the juvenile justice system include rehabilitation and successfully reintegrating youth into the community after time is served. But what if just going to prison as a young person ends up working against you when you seek parole? Parole systems, the back end of criminal justice reform, often do not receive much attention. In this episode, assistant professor of law David Garavito, who teaches Criminal Law and Criminal Procedure at UW Law, explains the different kinds of parole systems with a particular lens on South Carolina’s discretionary parole system, which disproportionately applies prejudice against minors who commit crimes.  Garavito’s area of expertise is juvenile law. In addition to a J.D., Garavito holds M.A. and Ph.D. degrees in Human Development, all from Cornell University, and is a New York attorney. His ability and insight to write on legal and policy matters relating to criminal law, human development, and the application of psychology and neuroscience make this a riveting conversation. Garavito’s paper with John Blume and Amelia Hritz, “Caged Birds and Those That Hear Their Songs: Effects of Race and Sex in South Carolina Parole Hearings,” will be published in the Journal of Legal & Social Change in April 2024.

In this episode of “Discovery,” we interview our first return guest, Professor Robert Tsai of the Boston University School of Law. Tsai visited the UW Law Faculty Colloquium to discuss his forthcoming (and fourth) book, Demand the Impossible: One Lawyer’s Pursuit of Equal Justice, a historical thriller about the decline of the death penalty adjacent to the career of attorney Stephen Bright, executive director of the Southern Center for Human Rights. Bright argued four Supreme Court cases following the McCleskey v. Kemp ruling in 1987. The ruling declared that, even if the death penalty has a racially disproportionate impact in a state, it does not violate the Eighth Amendment of the U.S. Constitution unless a racially discriminatory purpose can be proved. The disappointing ruling mobilized a group of civil rights advocates, led by Bright, to actually double down on their efforts to fight the death penalty and tough-on-crime policies through the courts. Tsai, who attended Yale Law School, grew up in Port Townsend, Washington, and is now a Law Alumni Scholar at Boston University. Join us as he takes us through the journey of Stephen Bright’s fight for justice.

If fishing in international waters is legal, what about mining asteroids and the moon for water ice and precious metals? Turns out in-situ resource utilization (ISRU) is lawful, as governed by the Outer Space Treaty and Artemis Accords, and embraced as advancing the cause of space exploration. Of interest to NASA and other civil space agencies around the globe, as well as a number of companies and academic organizations, ISRU actually offers lucrative opportunities for the rise of the world’s first trillionaire. So what laws govern the pursuit of commercial space exploration, and what legal prohibitions or safeguards exist against disputes over resources?  In this New Year episode of Discovery, we explore the legal landscape of ISRU with Austin Murnane, Senior Legal Counsel at Blue Origin, a rocket launch and human spaceflight business based in Kent, Washington. In 2023, Murnane spoke at UW Law’s Space Course: “The Case for Space Stations” and inaugural Space Law Diplomacy Symposium. Murnane is a former U.S. Marine with a J.D. from Fordham University and published The War Storytellers in 2015. He also holds a master's degree in Space Resources and is currently working on his Ph.D.   Murnane shares insights about the regulation of space mining as well as multiple parties’ interests, the continued evolution of the partnership between government and commercial parties, and an anticipated timeline for the development of technology that will make ISRU possible in outer space.

On June 29, 2023, the U.S. Supreme Court ruled against race-based admissions at college campuses nationwide after hearing companion cases by Students for Fair Admissions (SFFA) that challenged admissions programs at Harvard and the University of North Carolina (UNC). SFFA overturned the 2003 ruling by a more liberal Supreme Court in the case Grutter v. Bollinger, which affirmed that a student’s race could be used as one of multiple factors in admissions decisions at the University of Michigan.  Affirmative action was rejected by the conservative majority on the bench, which agreed that UNC’s policies violate the equal protection clause of the 14th Amendment and that Harvard’s affirmative action plan discriminates against Asian American students, a violation of Title VI of the Civil Rights Act of 1964. But did it really change the way campus admissions will operate?  In their forthcoming paper in the Texas Law Review, “The Goose and the Gander: How Conservative Precedents Will Save Campus Affirmative Action,” Professor Guha Krishnamurthi of the University of Maryland Carey Law School contends (along with his co-author Peter Salib) that though affirmative action is legally dead, race will still figure into holistic admissions procedures-- just not as a check-box item. In this episode of Discovery, we speak with Prof. Krishnamurthi about the previous state of play in race-based admissions and his opinion that the U.S. Supreme Court’s ruling against campus affirmative action has no practical effect on the way schools operate. He argues that due to the Supreme Court’s decades-old rulings that statistical proof cannot carry a constitutional discrimination claim, universities will only be liable in litigation if they admit that they practice affirmative action, so most schools will pursue diversity by other means, simply by operating in the shadows.

Over the last half century, Congress has passed strong laws relating to environmental protection, covering a range of resources and industries. Despite these bold and comprehensive laws, implementation can be challenging, especially when it comes to the court system’s interpretation of them. Sanne Knudsen, the Stimson Bullitt Endowed Professor of Environmental Law at UW Law, calls out the United States Supreme Court as being hostile or apathetic towards environmental laws, despite their often-strong language. She believes environmental law is a rational response to the fact that earth has finite resources and they need to be protected. In this episode, Professor Knudsen calls on Congress to enact the Environmental Judicial Review Act — as she calls it — to remind the courts that Congress passes environmental legislation to ensure environmental protection. By passing a comprehensive act, Congress could reaffirm the values and strength of existing environmental laws, while also addressing pressing issues such as climate change.

On March 20, 2023, the U.S. Supreme Court will hear oral arguments for Arizona v. Navajo Nation, a case in which UW Law professor Monte Mills, director of the Native American Law Center, filed an amicus brief with other professors and the Native American Rights Fund on February 8, 2023. The brief requests that the Court acknowledge that the Winters water rights doctrine, established in 1908, enforces the fiduciary duty of the federal government to reserve adequate water, in this case the entire Colorado River, at the creation of an Indian reservation in one of the driest parts of the country.  In this episode, we discuss with Professor Monte Mills how the Winters doctrine is a foundational component to water resource management in the West and foundational to the exercise of the United States’ trust duties to protect and secure tribal reserved water rights. Arizona v. Navajo Nation dwells at the intersection of Native treaty rights and water rights, and the court’s decision could have serious ramifications. Monte Mills joined the UW Law faculty in 2022 as the Charles I. Stone Professor of Law and director of the Native American Law Center (NALC). Monte's research and writing focuses on the intersection of Federal Indian Law, Tribal sovereignty, and natural resources as well as race and racism in the law and legal education.

As part of UW Law’s storytelling around Black History Month, the Discovery podcast interviewed Dr. Kara Swanson, professor of law and affiliate professor of history at Northeastern University in Boston, about the Tulsa Race Massacre of 1921. This lesser-known event, which Dr. Swanson calls the “racially motivated wholesale destruction of a community,” details the tragedy that befell the lives and property of the residents of the Greenwood area of Tulsa, Oklahoma – otherwise known as Black Wall Street – on May 31 and June 1, 1921. The Tulsa Race Massacre is not part of the property law curriculum in legal education but has much to teach us. History shows us that racial identity is significant to questions of property, so there are costs and consequences to excluding such events. The basic principle of trespass failed to withstand anti-Black racism. In this episode, Dr. Swanson takes the listeners on her journey of discovery and reflection of what we might learn if property law was taught with knowledge of the Tulsa Race Massacre and other events connected to race.  Dr. Swanson shares her scholarship on the law of trespass from a 2021 symposium, “The Tulsa Race Massacre: What’s Race Got to Do With It?” which marked the tragedy’s 100th anniversary. Dr. Swanson will be speaking with the 1L Perspective students at UW Law in March. A property law professor with interests in legal history, intellectual property law, gender and sexuality, and the history of science, medicine, and technology, Dr. Swanson has a Ph.D. in the history of science from Harvard University. Before entering law school, she was a published research scientist.

U.S. Attorney Nicholas Brown is the first black U.S. attorney in Washington state history and the chief law enforcement officer in Western Washington. He chairs the Civil Rights subcommittee for all U.S. attorneys in the country. Brown recently visited UW Law as part of the Innovative Justice Speaker Series. A former “Survivor” alumnus from one of the first seasons, U.S. Attorney Brown is a Morehouse and Harvard Law School graduate who has served as General Counsel to Governor Inslee, as well as Assistant U.S. Attorney in western Washington. Before his current appointment He was also a partner with Pacifica Law Group. In this episode kicking off Black History Month at UW Law, U.S. Attorney Brown defines the meaning of justice and how he works with communities and federal partners to improve public safety and to ensure civil rights for Western Washington residents.

Many of the performers and composers in legacy Black music have never been compensated for their cultural production, despite longstanding acceptance of their formative influence on the music industry. Copyright law doctrine includes formalities that continue to divest what is due to Black artists, widening the racial justice gap in the entertainment industry. A Yale Law School graduate and U.S. Marine Corps veteran, Kevin J. Greene is changing the industry and the legal academy on the issue of racial justice in intellectual property. He is the John J. Schumacher Chair and Professor of Law at Southwestern Law School in Los Angeles. Prof. Greene has represented artists like George Clinton, Spike Lee, Harry Connick Jr., Bobby Brown and rap group Public Enemy. He has been featured in the Netflix show “Explained” and quoted by media outlets such as Bloomberg, Wired, The Daily Beast and Rolling Stone magazine. In this episode, Prof. Greene tells us about “The New Copyright Manifesto,” a proposal to overturn outdated and unjust practices and appeal to the U.S. Copyright Office to advocate for reparations. He outlines how copyright registrations and copyright terminations divest Black cultural production and explains why this is not just an American copyright law problem, but a global one.

In 2020, the police-involved killings of Manuel Ellis in Tacoma and George Floyd in Minneapolis were two cases among many incidents across the nation which led to the recent establishment of the Office of Independent Investigations (OII) earlier this summer in Olympia. Signed into law by Governor Inslee, the OII is a civilian-led agency that conducts investigations into police-involved incidents of serious harm or death. The agency’s creation offers an opportunity to improve public faith in police accountability.   In June 2022, Roger Rogoff became director of the new OII. Rogoff’s career in the criminal justice system spans 27 years, including roles as judge in King County Superior Court as well as in the juvenile courts, and as both prosecuting and criminal defense attorney. In addition to serving as assistant U.S. attorney, Rogoff most recently served as legal counsel for Microsoft on matters of data privacy and public safety. As Gov. Inslee stated, “Roger’s experiences make him exceptionally suited to lead an agency, independent of law enforcement or the governor’s office, to investigate cases.”  In this episode, Rogoff details how the OII is working thoughtfully and efficiently to fulfill its mission. He explains the office’s priorities for its first six months, law enforcement’s response to the agency’s creation, the way the OII will work with other parties, employment prospects, and how OII roles like family liaisons and community liaisons address the need for transparency around investigations of police use of force.

Sexual assault affects many Washingtonians, but justice does not always come to survivors and their families. In many cases these violent felonies and sexually motivated offenses become cold cases. As a participant in the National Sexual Assault Kit Initiative (SAKI), Washington’s Office of the Attorney General received multiple grants ꟷ totaling $5.5 million ꟷ from the U.S. Department of Justice (DOJ) to address the state’s rape kit backlog languishing in the evidence rooms of local agencies, law enforcement's need for trauma-informed training and assistance in identifying and contacting offenders who owe DNA samples as part of their sentence. In 2020, the Office worked with the DOJ to re-purpose nearly $300K to create sub-grants for forensic genetic genealogy testing through which cold cases constituting violent felonies and have been solved. The goal is to test every backlogged rape kit in the state by the end of 2022. Washington's Attorney General Bob Ferguson serves the people and state of Washington as the 18th attorney general. He was first elected in 2012 and reelected in 2016 and 2020. Prior to serving as attorney general, Ferguson was a member of the King County Council. As the state's chief legal officer, he directs attorneys and professional staff in 27 divisions that provide legal services to more than 230 state agencies, boards and commissions.

The Seattle Mariners have a three-pronged mission: to win championships, create unforgettable experiences for fans, guests and employees, and to serve their communities. In the first episode of Season Five, we take you out to the proverbial ball game for a discussion with Mariners’ Executive Vice President/General Counsel Fred Rivera about how the Mariners are delivering on their mission. We hear about the Mariners’ new lease at T-Mobile Park, the $80M in the ballpark’s capital improvements, and the Club’s community programs.  Fred Rivera visited UW Law in the spring as a special guest of our Entertainment Law Association. He shared with students, and now shares with us, how he pivoted to sports law after time as a civil rights lawyer for the Department of Justice and 18 years at Perkins Coie, where he was Managing Partner of the Seattle office.   In 2017, Rivera became the Executive Vice President, Corporate Secretary and General Counsel for the Seattle Mariners. He oversees the club’s legal and government affairs department, leads new business initiatives relating to real estate development, and manages the club's external functions like community relations and the Mariners Care Foundation.

Copyright law is written in such a way that suggests copyright is a grant of rights to authors, rewarding them with the commercial advantages of producing original work. However, upon closer examination, consumers who want to build on existing works of authorship also have rights that are protected.  Pamela Samuelson is the Richard M. Sherman Distinguished Professor of Law and Information at the University of California at Berkeley. She is recognized as a pioneer in digital copyright law, intellectual property, cyber law and information policy. She recently visited UW Law to give the 2022 Toni Rembe lecture on copyright law and consumer protection.  In this final episode of Season Four, Professor Samuelson, also the co-founder and chair of the Authors Alliance, shares how the primary goal of copyright law is to induce people to write and disseminate creative work so the public has access to knowledge. Many people might be surprised that rewards to the author is actually a secondary consideration in the overall goal of copyright law.

Deep systemic issues leading to a culture of punishment in our criminal justice system often seal the fates of children who end up incarcerated. The case of Kimonti Carter, a model prisoner who grew up as a “baby gangster” in the redlined, 1990s neighborhoods of Tacoma, Washington, is a prototype for many others like him. Sentenced two months after his eighteenth birthday to a life without parole, Mr. Carter has transformed inmates’ lives through education and his leadership of the Black Prisoners’ Caucus. Though he is a counternarrative to his fate, he was viewed as irredeemable and charged as a “super predator.” Dr. Gilda Sheppard, an award-winning filmmaker whose documentary “Since I Been Down” highlights the redemption story of Kimonti Carter and our need for deep systemic change, recently screened the film for UW Law’s Public Interest Law Association. Gilda is a member of the faculty at The Evergreen State College's Tacoma Program. She has taught sociology classes in Washington state prisons for over a decade. In this episode, Dr. Sheppard tells us how “Since I Been Down” creates much-needed discussion around systemic change for children and a call to revisit state sentencing laws. Dr. Sheppard also appeals to the hope and healing which comes with prison-initiated programs.

Public interest attorneys are charged with advancing justice for all, but according to Washington Supreme Court Justice G. Helen Whitener, the practice of public interest law has lost its focus since the 1960s. Solving the intersecting inequities that face underrepresented communities requires that we reckon with our history and commit to creating new solutions together. Justice Whitener was appointed by Governor Inslee to the Washington State Supreme Court in April 2020 and retained by voters in November 2020. Honored by the American Bar Association with the 2022 Stonewall Award, Justice Whitener uses her lived experiences as a multiple minority to continually raise awareness of matters of race, justice and equity and act as a voice for marginalized communities. In April 2022, Justice G. Helen Whitener gave opening remarks at UW Law’s Public Interest Law Association gala in support of the theme, “Personal Identity in Public Interest Law: How Me Becomes We.” In this episode, Justice Whitener shares her poetry and wisdom on the importance of transcending the biases and stereotypes that come with labels, unlocking our individual and collective potential by creating action plans for our dreams, and developing a new movement to solve old problems, so we can move forward as a society.

On March 19, 2022, the Washington Fish and Wildlife Commission held a second vote regarding a proposed spring bear hunting season, this time deciding 5-4 against the seasonal hunt, after a 4-4 vote in November 2021. Before the March vote, Washington’s spring bear hunt was just one of eight in the nation allowed by state environmental agencies. The controversial vote has brought concerns to the surface by both hunters and conservationists.  Claire Davis, managing partner of Animal & Earth Advocates and president of Washington Wildlife First, recently spoke with UW Law students as part of the school’s Social Justice Tuesday series.  A former journalist turned attorney, Claire brings public interest litigation on behalf of animals and wildlife.  In this episode, Claire Davis explains why the spring bear hunt is a symbolic issue for wildlife policy reform, particularly in that it does not reflect the values and ethics of most of the 7.7 million residents of Washington state, less than 3 percent of whom hunts overall.