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FedSoc Forums — Business
FedSoc Forums

*This series was formerly known as Teleforums.

FedSoc Forums is a virtual discussion series dedicated to providing expert analysis and intellectual commentary on today’s most pressing legal and policy issues. Produced by The Federalist Society’s Practice Groups, FedSoc Forum strives to create balanced conversations in various formats, such as monologues, debates, or panel discussions. In addition to regular episodes, FedSoc Forum features special content covering specific topics in the legal world, such as:

Courthouse Steps: A series of rapid response discussions breaking down all the latest SCOTUS cases after oral argument or final decision

A Seat at the Sitting: A monthly series that runs during the Court’s term featuring a panel of constitutional experts discussing the Supreme Court’s upcoming docket sitting by sitting

Litigation Update: A series that provides the latest updates in important ongoing cases from all levels of government

The Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Latest Episodes:

New Labor Department Rule: Taking on ESG Investment Risk to American Retirement Security Jul 20, 2020

Show notes

A sustained effort by activist investors to align corporate policy and investing with a progressive policy agenda could be shortchanging the retirement savings of millions of Americans. Data shows that investments tied to perceived environmental, social, and governance principles, or ESG, generally offer lower yields than the S&P 500 benchmark, but activists are pushing to use trillions of dollars in pension and retirement plans to discriminate against various industries. The trend could have profound implications for public and private pensions programs and other retirement savings plans. ESG investing might also pose a challenge to the fiduciary responsibility of asset management professionals to act in the best financials interests of the people they serve, a bedrock concept in financial planning.
The U.S. Department of Labor is preparing to ensure ESG investing does not undermine protections enshrined in the Employee Retirement Income Security Act (ERISA). A proposed rule would codify in law that asset managers must uphold their fiduciary responsibility when considering ESG investment decisions. The rule states: “It is unlawful for a fiduciary to sacrifice return or accept additional risk to promote a public policy, political, or any other nonpecuniary goal.” A comment period ends on July 30.
At this teleforum George Mason University Antonin Scalia Law School Professor JW Verret will discuss the Labor Department’s proposed rules and the implications for retirement security. Verret serves on the Investor Advisory Committee of the Securities and Exchange Commission, where he advises the Chairman of the SEC on legal and policy reform.
Featuring:
Prof. J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University
This call is open to the public - please dial 888-752-3232 to access the call.

Innovation in Diagnostics and Patent Subject Matter Eligibility Jul 20, 2020

Show notes

This teleforum will focus on patent subject matter eligibility issues highlighted by the COVID-19 pandemic, particularly as they relate to patentability of medical diagnostic tests. The panel will provide a brief review of Section 101 case law, particularly the recent line of subject matter eligibility cases from the Supreme Court stemming from Alice Corp. v. CLS Bank and Mayo Collaborative Services v. Prometheus Laboratories, and will analyze the impact of these Supreme Court cases on innovation and investment in medical diagnostic technology. The panel will comment on the lessons to be learned from the COVID-19 pandemic, and provide recommendations for administrative and legislative actions that would assure the continuation of US leadership in medical diagnostics.
Featuring:
-- Prof. Paul R. Gugliuzza, Professor of Law, Temple University Beasley School of Law
-- Hon. David J. Kappos, Partner, Cravath Swaine & Moore LLP
-- Prof. David O. Taylor, Robert G. Storey Distinguished Faculty Fellow, Associate Professor of Law, Co-Director, Tsai Center for Law, Science and Innovation
-- Moderator: Mr. Andrew F. Halaby, Partner, Snell & Wilmer

COVID-19 Labor and Employment Teleforum Series #1 Jul 20, 2020

Show notes

Employers are increasingly being faced with difficult issues with respect to COVID-19, including challenging labor and employment issues. Various federal and state statutes present compliance issues for employers, particularly given the recent enactment of the First Families Act and the CARES Act at the federal level. Existing federal statutes such as the National Labor Relations Act and Title VII of the Civil Rights Act also present labor and employment law challenges for employers. This three-part teleforum series will review federal and state labor and employment issues and options for employers to consider. Federalist Society Labor and Employment Executive Committee member, G. Roger King will be the speaker for this first teleforum. Mr. King is Senior Labor and Employment Counsel for the HR Policy Association and previously a Partner at the Jones Day law firm.
Featuring:
-- G. Roger King, Senior Labor and Employment Counsel, HR Policy Association

COVID-19 Business Closures, Firearms Dealers, and the Second Amendment Jul 17, 2020

Show notes

As the United States faces the spread of COVID-19, officials in many jurisdictions have ordered the closure of "non-essential" or "non-life-sustaining" businesses. These shut-down orders have differed, including in their treatment of gun dealers, with officials in several jurisdictions ordering gun dealers to cease operations. Do these closures unduly burden the public's ability to acquire firearms for self-defense during an emergency, raising serious questions under the Second Amendment? What about heightened background-check requirements that operate in tandem with gun store closures as a categorical bar to firearm purchases? In addition, some officials have made public statements suggesting hostility toward the firearms trade, and some closure orders appear to single out gun-related businesses for disfavored treatment, leaving open, for example, marijuana dispensaries and liquor stores.
As jurisdictions continue to respond to the COVID-19 pandemic, many are poised to issue similar business closure orders and will face the decision whether those closures should apply to gun-related businesses. This teleforum call will address the potential Second Amendment implications of these exercises of emergency executive power.
Featuring:
Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law Houston
Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC
This call is open to the public - please dial 888-752-3232 to access the call.

Courthouse Steps Decision: Department of Homeland Security v. Thuraissigiam Jul 17, 2020

Show notes

On June 25, Justice Alito, writing for a five justice majority of the Supreme Court, issued the opinion in Department of Homeland Security v. Thuraissigiam, which is the Court's first Suspension Clause case in over a decade. The decision not only has implications for the way Suspension Clause questions will be decided in the future, but also for the immigration context in particular, given that the case involved the ability of an unlawful alien to access habeas proceedings upon his detention. The implications of the decision and its effect going forward will be the focus of this teleforum.
Featuring:
-- O.H. Skinner, Arizona Solicitor General

Prosecuting Dictators: The Indictment of Nicolas Maduro Jul 17, 2020

Show notes

The U.S. Department of Justice recently announced indictments of Venezuelan strongman Nicolas Maduro and several of his regime allies for drug trafficking and money laundering. This Teleforum will address the unique legal and political challenges involved in prosecuting a foreign dictator and will feature former Assistant Secretary of State for Western Hemisphere Affairs, Roger F. Noriega, and Professor Manuel A. Gomez, Professor of Law and Associate Dean for Graduate Studies and Global Engagement at Florida International University.
Featuring:
-- Professor Manuel A. Gomez, Professor of Law and Associate Dean for Graduate Studies and Global Engagement at Florida International University
-- Hon. Roger F. Noriega, Visiting Fellow, American Enterprise Institute, and former Assistant Secretary of State for Western Hemisphere Affairs
-- Moderator: Harout Jack Samra, Associate, DLA Piper

Courthouse Steps Decision: McGirt v. Oklahoma Jul 15, 2020

Show notes

On July 9, the Supreme Court released its decision in McGirt v. Oklahoma. By a vote of 5-4, the judgment of the Oklahoma Court of Criminal Appeals was reversed. Justice Gorsuch's majority opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The Chief Justice dissented, joined by Justices Alito and Kavanaugh, and by Justice Thomas except as to footnote 9. Justice Thomas also filed a dissent. Our group of experts joins us to discuss the decisions and implications moving forward.
Featuring:
A.J. Ferate, Of Counsel, Spencer Fane LLP
Andy Lester, Partner, Spencer Fane LLP
Prof. Taiawagi “Tai” Helton, W. DeVier Pierson Professor of Law, University of Oklahoma College of Law
This call is open to the public - please dial 888-752-3232 to access the call.

Capital Conversations: Michael R. Pompeo, U.S. Secretary of State Jul 14, 2020

Show notes

The Problems of Preservation: How Much Evidence is Too Much? Jul 13, 2020

Show notes

In today’s digital age, businesses create seemingly infinite quantities of data. And when the mere prospect of litigation looms, current rules require businesses to assume significant costs to store and maintain any data that might be relevant to that litigation. This seemingly boundless duty to preserve, unmoored from our legal traditions, all but abandons the common law of discovery.
At common law, the duty attached only upon the filing of a suit (or when filing was imminent), and generally required only that parties not destroy evidence directly related to litigation. But today’s duty casts aside these originalist common-law pillars—the duty not only attaches earlier, but is broader in scope. What’s more, recent judge-made preservation obligations make obtaining spoliation sanctions far easier by removing the common-law requirement that the spoliator acted in bad faith. Such a broad duty and simple path to sanctions has led, predictably, to over-preservation, placing significant burdens on corporate litigants.
This teleforum dives into this topic, and will discuss whether courts have strayed too far from the historical common law, changing the traditional balance and equity in discovery.
Featuring:
Michael Buschbacher, Counsel, U.S. Department of Justice
Suzanne H. Clark, Discovery Counsel, eDiscovery CoCounsel, pllc
Robert Keeling, Partner, Sidley Austin LLP
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Courthouse Steps Decision: Trump v. Mazars USA and Trump v. Vance Jul 13, 2020

Show notes

May grand juries or congressional oversight committees obtain the personal tax records and other financial information about the President, even from third parties? This is the question presented in Trump v. Mazars USA and Trump v. Vance, two cases decided today by the Supreme Court, and discussed in today’s Courthouse Steps Teleforum call.
Devin Watkins of the Competitive Enterprise Institute will join us to discuss the results in these cases and the implications on separation of powers and the future of the presidency.
Featuring:
Mr. Devin Watkins, Attorney, Competitive Enterprise Institute
This call is open to the public and press. Please dial 888-752-3232 to access this call at 3:30 p.m. ET.

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