A LITTLE-KNOWN LEGAL nonprofit backed by groups linked to powerful sources of conservative funding—Leonard Leo and the Koch network—has quietly become a successful US Supreme Court litigator, Lydia Wheeler reports.

• The New Civil Liberties Alliance identifies as nonpartisan, but its work is animated by a long-held conservative goal: limiting the reach of the federal administrative state. Three of its cases are on the high court’s docket this term, after it prevailed last term in a case challenging the Securities and Exchange Commission’s administrative proceedings.
• All three are potential blockbusters, but the biggest of the bunch is the most consequential case the group has brought before the justices— one of two challenges to the Chevron doctrine that directs courts in regulatory fights to defer to an agency’s reasonable interpretation when the governing law is ambiguous.
• Next month, NCLA lawyers will return to the court in Garland v. Cargill to fight a Trump-era rule criminally banning bump stock attachments that let semiautomatic rifles fire like a machine gun. And in Murthy v. Missouri, the justices agreed to hear the government’s appeal in a case NCLA brought to stop Biden administration officials from directing social media platforms to censor Covid-19 misinformation.
• “A lot of the cases we’ve brought could have been brought five or 10 years ago, or more, and no one was bringing them,” said Mark Chenoweth, NCLA’s president and chief legal officer. “The thing that sets NCLA apart is the fact that this is not a side hustle for us. This is all we do.”
• Lydia confirmed some of the many ties—both through people and money—that link NCLA to top conservative donors who’ve worked to shape the court’s composition and agenda. For instance, NCLA received $2.06 million from 2020 to 2022 from Donors Trust Inc.; that group got $175.6 million in funding during that time from The 85 Fund that’s linked to Leo, the Federalist Society’s former vice president, who’s had direct influence over the court’s conservative makeup. Read More

ENACTED BY CONGRESS in 2008 and backed by $200 million in federal funds, the Emmett Till Unsolved Civil Rights Crime Act empowers federal investigators to reopen cases to seek justice for those whose loved ones were victims of the Civil Rights Era’s signature horrors.

• But, as Ronnie Greene reported in a must-read deep dive, the Department of Justice has closed investigations in more than 120 cases revived since the law took effect, without bringing new federal charges in any of them—though two convictions were secured shortly before the measure became law. Read More
• “Injustice was so entrenched in those times that even the best efforts to find answers today will often come up short,” Ronnie said when asked to share impressions from his reporting for this newsletter. “In the 1950s and 1960s, local police and courts sometimes paid little heed to racially motivated killings. When the cases did go to court, the laws at the time were so meek they rarely brought steep punishment. When cases went to trial, they often went before all-White juries.”
• During interviews with family members, Ronnie said he was struck by how the pain of loss, still evident decades later, was compounded by the pain of justice denied. “Different people have different views of success,” he added. “For some, having agents and prosecutors digging into the details of their loved one’s killing has meaning. It says the person has not been forgotten. Even legal sources disappointed by the lack of prosecutions say the investigations must continue.”
• Hear more from Ronnie as he discusses his reporting on the latest episode of our On The Merits podcast. Listen Here

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NEXT WEEK AstraZeneca will square off with the Justice Department over the pharmaceutical company’s challenge to the new federal drug price negotiation program.

• Oral arguments are scheduled for Jan. 31 in US District Court for the District of Delaware. They will feature arguments that are unique compared to the eight other industry challenges to the program now pending in federal trial courts across the country. Review the Docket Here. Read Earlier Coverage.
• AstraZeneca’s approach mainly rests on claims that the program’s implementation violates the Administrative Procedure Act, taking a swing at implementation guidance and definitions from the Centers for Medicare and Medicaid Services. Other challenges allege the negotiations violate the US Constitution, such as the First, Fifth, and Eighth amendments. Challenges are expected to reach the US Supreme Court.
• The arguments will come a day before a Feb. 1 deadline for the Medicare agency to send an initial offer of the maximum fair price for drugs selected under the program. Companies will have 30 days to respond to those offers by either accepting or making a counteroffer.
• The battle over drug pricing is also spilling over into the Senate, where the Health, Education, Labor, and Pensions Committee is planning to hear testimony on pricing from the CEOs of Johnson & Johnson, Merck, and Bristol Myers Squibb. The CEOs on Friday agreed to testify in person at a Feb. 8 committee hearing, after the panel had threatened to subpoena them. All three companies are involved in lawsuits over the program. Read the Latest

“THE ECO-MARKETING PARTY is about to end,” Rob Chesnut writes in his latest Good Counsel column. A proposed law to prohibit deceptive environmental marketing practices is nearing final approval in the EU, and the US Federal Trade Commission is expected to soon issue its first guidance in years on environmental advertising.

That means businesses will need to ensure accuracy by reviewing their full range of marketing materials—from packaging to social media. “This work will all begin with the legal department, so in-house divisions should start budgeting some legal time now for the work that’s coming,” Rob writes. Read More

GENERATIVE ARTIFICIAL INTELLIGENCE comes with a paradox for lawyers: One of the sources of its power—the ability to learn from questions humans ask it—makes it a minefield for attorneys trying to use the technology while protecting confidential and privileged client information.

• Public-facing models could repeat information in a user’s query when a different user subsequently asks a similar question. The mere risk that client data could be seen by a third party means that putting the information into public-facing tools could be a legal ethical breach.
• Caution about the risks generative AI poses to attorney-client privilege has filtered to the top of the American legal system, with Chief Justice John Roberts mentioning the issue in his year-end report. Soon—likely in the next year or two, as more lawyers start using generative AI—questions about the technology’s implications for legal work will be litigated, allowing courts to weigh in, said James McPhillips, a partner in Clifford Chance’s global technology group.
• Even enterprise models of AI tools that train only on a business’ data could pose risks, as could outside vendors offering AI products, lawyers said.
• “An emerging practice is going to be: ‘How far are you layering the way you store your data?’” said Megan Ma, assistant director of the Stanford Program in Law, Science, and Technology and the Stanford Center for Legal Informatics. Read More

More News on AI:

• Alphabet, Amazon, Microsoft Face FTC Inquiry on AI Partners
• US Wants Cloud Firms to Report Foreign Users Building AI

A GROWING CULTURAL SHIFT toward removing employment barriers for people with criminal backgrounds is changing the legislative landscape and—perhaps—the nature of enforcement efforts, Khorri Atkinson and Chris Marr report.

• Seventeen states, the District of Columbia, and numerous cities have ban-the-box measures, which bar public and private employers from inquiring about job applicants’ criminal histories on the initial application. But advocates contend that leaves ample opportunity for employers to discriminate, as alleged in bias claims that spurred millions of dollars in settlements with companies such as DHL Supply Chain, Macy’s Inc., and Target Corp.
• The need for stronger protections has fueled proliferation of “fair chance” hiring laws like the Clean Slate Act—legislation adopted in varying forms by several states that generally requires a person’s criminal records for certain crimes to be sealed or expunged once a specific number of years pass after completion of a prison term. The effects of these measures, particularly California’s stringent version, are bleeding into jurisdictions without such laws, attorneys said. Many multi-state companies are adopting a nationwide compliance approach by defaulting to California’s standard, said Jared Speier of Stradling Yocca Carlson & Rauth LLP, who counsels employers on fair-chance hiring issues.
• Employers could also see increased federal and state enforcement of policies such as ban-the-box, said Emily S. Borna, a management-side labor lawyer at Jackson Lewis PC in Atlanta. A first-of-its-kind enforcement lawsuit in California could provide a preview. Read More

Speaking Out: Lawyers Defending American Democracy’s Jamie Conrad says mandatory bar associations shouldn’t shy away from speaking out on subjects like the rule of law and democracy, as a recent Fifth Circuit decision confirms.

Outsource Enforcement: O.H. Skinner, former solicitor general of Arizona, lays out best practices state and local governments should implement to stop outside counsel from unethically profiting by representing other governments and private plaintiffs.

On Judge-Shopping: Microsoft’s Erin Caldwell argues the practice of judge-shopping in single-judge divisions undermines basic tenets of our court system, and should be reformed—for now, by the judges themselves.

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