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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:

Litigation Update: New York's "Rent Stabilization Act" Part III Aug 09, 2023

Show notes

Does New York’s “rent stabilization” law violate the federal Constitution? The law, which regulates approximately 1 million apartments in New York City, was enacted more than fifty years ago and remains in effect based on an every-three-year declaration of a housing “emergency.” The law does not merely regulate rent levels. It also limits a property owner’s right to determine who uses an apartment, to convert the property to new uses or to replace the existing building with a new structure, and to occupy the property for use by the owner and his or her family.
A lawsuit filed in 2019, Community Housing Improvement Program v. City of New York, asserted that the New York law—including 2019 amendments that significantly increased the restrictions on property owners— violates due process and affects both physical and regulatory takings of the property that it regulates. The case was first dismissed at the District level. Earlier this year, the United States Court of Appeals for the Second Circuit affirmed the District Court's ruling and found the 2019 amendments compliant with the Fifth Amendment to the U.S. Constitution. The case now moves to the Supreme Court as plaintiffs—armed with 14 amicus briefs—petition the Court to reverse the Second Circuit’s decision.
Rent regulation is not just a New York phenomenon. Other cities across the country have enacted, or are considering, rent regulation legislation. Andrew Pincus, lead counsel for the plaintiffs, discussed the constitutional challenge in the context of the Supreme Court’s evolving property rights jurisprudence.
Featuring:
--Andrew Pincus, Partner, Mayer Brown

A Conversation on the Right: The Current State of Presidential Power Aug 08, 2023

Show notes

In this recorded webinar, John Malcolm and John Yoo revive their discussion of presidential power, prosecution, impeachment, and separation of powers with the prosecution of former President Donald Trump for the events surrounding the January 6, 2021 attack on the U.S. Capitol. They discussed the facts and law of Trump’s indictment, the developments in the Hunter Biden investigations, and the intersection between criminal law, presidential elections, and the Constitution.
Featuring:
--John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
--Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute; Visiting Fellow, Hoover Institution

Can States Leverage Their Local Market to Force Out-Of-State Regulations? Aug 01, 2023

Show notes

How far can states use their local economy to put economic pressure on other states to change their policies? In National Pork Producers Council v. Ross (2023), the Supreme Court considered this question, and had a very unusual split 5-4 with Justices Gorsuch, Thomas, Sotomayor, Kagan, and Barrett in the majority. The Court rejected a challenge to a California regulation that prohibited the in-state sale of pork which was previously out-of-state “confined in a cruel manner.”
This panel will discuss the decision and the originalist foundations, if any, of the dormant Commerce Clause jurisprudence. Additionally, even if it properly exists, what is its extent and the impact of the Court’s decision?
Featuring:
--Jack Fitzhenry, Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
--Prof. Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law
--Prof. Michael S. Greve, Professor of Law, Antonin Scalia Law School
--Moderator: Elizabeth Slattery, Senior Legal Fellow, Pacific Legal Foundation

Newman v. Moore: Intra-Federal Circuit Dispute Raises Multiple Cross-Disciplinary Issues Jul 28, 2023

Show notes

In 1984, Hon. Pauline Newman became the first judge appointed directly to the United States Court of Appeals for the Federal Circuit. Judge Newman has served on that court since, and serves to this day. Reports surfaced in April of this year that Federal Circuit Chief Judge Kimberly Moore had initiated a complaint against Judge Newman under the Judicial Conduct and Disability Act of 1980. On May 10, 2023, Judge Newman filed suit in the United States District Court for the District of Columbia against Chief Judge Moore; two other Federal Circuit judges in their capacities as members of the special committee appointed by Chief Judge Moore to investigate the complaint; and the Judicial Council of the Federal Circuit and its members. Judge Newman's federal lawsuit raises issues not just of judicial conduct (given the underlying complaint) and patent law (which are interesting given Judge Newman's and the court's history as well as what some view as its drift away from innovation-protective jurisprudence), but also separation of powers (since Judge Newman was appointed by the President and confirmed by the Senate), and even age/disability discrimination (Judge Newman is 95 years old). Our panel discussed these and related issues arising from this most-unusual set of circumstances.
Featuring:
--Prof. Paul R. Gugliuzza, Professor of Law, Temple University Beasley School of Law
--Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston
--Prof. Arthur Hellman, Professor Emeritus of Law, University of Pittsburgh School of Law
--Cheryl Stanton, Chief Legal and Government Affairs Officer, BrightStar Care
--Moderator: John J. Park Jr., Of Counsel, Strickland Brockington Lewis LLP

Artificial Intelligence, Anti-Discrimination & Bias Jul 25, 2023

Show notes

Artificial intelligence (AI) technologies are not new, but they have made rapid advances in recent years and attracted the attention of policymakers and observers from all points on the political spectrum. These advances have intensified concerns about AI’s potential to discriminate against select groups of Americans or to import human bias against particular ideologies.
AI programs like ChatGPT learn from internet content and are liable to present opinions – specifically dominant cultural opinions – as facts. Is it inevitable that these programs will acquire and reproduce the discriminatory ideas or biases we see in humans? Because AI learns by detecting patterns in real world data, are disparate impacts unavoidable in AI systems used for hiring, lending decisions, or bail determinations? If so, how does this compare to the bias of human decision-making unaided by AI?
Increasingly, laws and regulations are being proposed to address these bias concerns. But do we need new laws or are the anti-discrimination laws that already govern human decision-makers sufficient? Please join us as an expert panel discusses these questions and more.

Litigation Update: Buettner-Hartsoe v. Baltimore Lutheran High School Association Jul 24, 2023

Show notes

Buettner-Hartsoe v. Baltimore Lutheran High School Association d/b/a Concordia Preparatory School poses a question of whether Title IX applies to schools that do not receive federal financial aid.
Former students of Concordia Preparatory School, a private school, sued Concordia Prep. under Title IX alleging that the school had not adequately addressed complaints of sexual assault and sexual harassment. Concordia Prep. argued the lawsuit should be dismissed because, as a private school that did not receive federal financial assistance, it was not subject to Title IX.
Judge Bennett of the United States District Court for the District of Maryland rejected that argument, instead holding that, because the school received a federal tax exemption as a 501(c)(3) organization, it was therefore subject to Title IX because it is a 501(c)(3) organization, regardless of the fact the school does not otherwise receive direct federal aid, nor any financial aid from the U.S. Department of Education.
Traditionally, independent schools that do not receive federal financial aid have not been considered to be subject to Title IX’s requirements. This decision could substantively expand the number of schools which are interpreted to be subject to Title IX. The case is currently on appeal. Mary Margaret Beecher of Napa Legal Institute, which filed an amicus brief in the case, joined us to discuss the case, the nature of the litigation, and the possible effects of this decision.
Featuring:
--Mary Margaret Beecher, Vice President and Executive Director, Napa Legal Institute
--(Moderator) Amanda Salz, Associate, Morgan, Lewis, & Bockius LLP

On "Regulatory Whiplash" Jul 19, 2023

Show notes

The regulatory environment in the United States is often complex. State and federal laws sometimes contradict each other. The transition of the American Presidency from one political party to another can lead to rapid and dramatic changes in the regulatory landscape. Even transfers of power between administrations of the same party or shifting priorities of one administration can cause significant changes in regulation.
This phenomenon of swift changes in regulatory policy is sometimes referred to as regulatory whiplash. In this recorded webinar, an expert panel discussed regulation and regulatory whiplash in the context of civil rights.
Featuring:
--Will Trachman, General Counsel, Mountain States Legal Foundation
--Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University
--[Moderator] Alison Somin, Legal Fellow, Center for the Separation of Powers, Pacific Legal Foundation

Litigation Update: Missouri v. Biden Jul 19, 2023

Show notes

On July 4, 2023, a preliminary injunction was issued in Missouri v. Biden (Western District of Louisiana, 3:22-CV-01213). At issue is the constitutionality of alleged collusion between various federal government agencies and social media companies.
Plaintiffs allege that Defendants – including President Biden, White House Press Secretary Karine Jean-Pierre, Secretary Xavier Becerra, Secretary Alejandro Mayorkas, and numerous other key federal officials – violated the First Amendment by attempting to suppress protected speech. Defendants have described the speech in question as disinformation, misinformation, and malinformation.
Some observers are calling the case a major battleground for the future of internet speech. In this recorded webinar Harmeet K. Dhillon and Casey Mattox delivered an update on recent events.
Featuring:
--Harmeet K. Dhillon, CEO, Center for American Liberty & Founding Partner, Dhillon Law Group Inc.
--[Moderator] Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity

Talks with Authors: We May Dominate the World: Ambition, Anxiety, and the Rise of the American Colossus Jul 13, 2023

Show notes

In his newly released book We May Dominate the World: Ambition, Anxiety, and the Rise of the American Colossus, Sean A. Mirski tells the story of how the United States asserted its growing power in the Western hemisphere in the century following the Civil War. Sean Mirski joined us to discuss this chapter of America's history and to share the lessons that we can draw from it as China and other states seek hegemony within their own regions today.
Featuring:
--Sean A. Mirski, Senior Associate, Arnold & Porter
--Moderator: Daniel G. West, Director, SCF Partners

Federal Spectrum Coordination: Pitfalls and Progress Jul 13, 2023

Show notes

As wireless devices become critical to our daily lives, the process of allocating and managing electromagnetic spectrum rights has become more important but also more contested. Breakdowns in the federal spectrum coordination process and the inability to free up enough spectrum for commercial use threaten American leadership in wireless technology and limit the benefits Americans can get from their wireless devices.
Two former National Telecommunications and Information Administration (NTIA) administrators joined us for a discussion of how the NTIA makes spectrum policy and what reforms are needed to ensure effective federal policy that advances both federal and commercial interests.
Featuring:
--Hon. John Kneuer, President and Founder, JKC Consulting LLC; Former Administrator, NTIA
--Hon. David Redl, Founder and President, Salt Point Strategies; Former Administrator, NTIA
--Moderator: Scott D. Delacourt, Partner, Wiley Rein LLP
--Moderator: Joe Kane, Director of Broadband and Spectrum Policy, Information Technology and Innovation Foundation

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