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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:

Courthouse Steps Decision: Allen v. Milligan Jun 15, 2023

Show notes

On Thursday, June 8, 2023, the Supreme Court issued its decision in Allen v. Milligan. The case considered whether the districting plan adopted by the State of Alabama for its 2022 congressional elections violated §2 of the Voting Rights Act. §2 of the Voting Rights Act reads – “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.”
In a 5-4 decision with one concurring and two dissenting opinions, the Court held that “plaintiffs demonstrated a reasonable likelihood of success on their claim that HB1 violates §2,” 598 U.S. ___ (2023). The 112-page opinion is complex; it examines a considerable body of court precedent and law. Some court watchers and media outlets have described the Court’s opinion as a surprise.
In this recorded webinar, Professor Michael R. Dimino discusses the Court’s opinion and what might come next.
Featuring:
--Professor Michael R. Dimino, Professor of Law, Widener University Commonwealth Law School

City Hall and Chevron: Administrative Deference at the Local Government Level Jun 14, 2023

Show notes

Most of the public debate about administrative deference has been focused on federal agencies and the Chevron and Auer doctrines. There is an old adage though that “You can’t fight City Hall.” This panel discussion among current and former local government attorneys took a critical look at this adage through the lens of administrative deference at the local level. Topics included an evaluation of Chevron and Auer-type deference at the local level when interpreting municipal ordinances (noting, for example, that Florida has recently barred Chevron deference for localities), whether the lack of separation of powers within local governments alters how administrative deference should be assessed, whether deferential standards of appellate review for local government decisions provides an adequate judicial check, and what procedural due process safeguards have been effective in ensuring that “you can fight City Hall” when a litigant has a meritorious case.
Featuring:
--Amanda Conn, General Counsel, WSSC Water; Professorial Lecturer in Law, George Washington Law School
--Craig E. Leen, Partner, K&L Gates; Professorial Lecturer in Law, George Washington Law School; Former OFCCP Director and Former Coral Gables City Attorney
--Michael Murawski, Executive Director, City of Naples Commission on Ethics and Government Integrity
--(Moderator) Hon. Alexander S. Bokor, Judge, Florida Third District Court of Appeal; Former Assistant County Attorney for Miami-Dade County

New Voices in Administrative Law: The Emerging Debates on AI Regulation Jun 13, 2023

Show notes

Artificial intelligence is a remarkable, disruptive force. AI services like ChatGPT already perform tasks once thought impossible for computers to complete. And AI's capabilities are growing exponentially. Although AI promises many benefits, it also carries risks and potential for abuse, which has led some commentators across the ideological spectrum to call on the government to regulate AI. What is the government's role, if any, in the AI revolution? Is the government capable of regulating AI without creating excessive externalities? Join three new voices in administrative law for a framing of the key debates emerging around AI regulation.
Featuring:
Eli Nachmany, Law Clerk to Hon. Steven J. Menashi, U.S. Court of Appeals for the Second Circuit
Laura Stanley, Law Clerk to Hon. Stephen Schwartz, U.S. Court of Federal Claims
Seanhenry VanDyke, Law Clerk to Hon. Gregory Katsas, U.S. D.C. Circuit Court of Appeals
[Moderator] Prof. Aram Gavoor, Associate Dean for Academic Affairs; Professorial Lecturer in Law, The George Washington University Law School

504 Regulations Under the Current Administration Jun 08, 2023

Show notes

Section 504 of the Rehabilitation Act of 1973 protects qualified "individuals with disabilities" from discrimination by "programs or activities" that receive federal funding. The word disability is defined in Title 42 USC Section 12102, and it is noted that the definition "shall be construed in favor of broad coverage." Similarly, 504 regulations cover a wide array of "programs or activities" - colleges, corporations, state government entities, even local government entities, including public schools, can meet the definition of a covered "program or activity."
The Biden Administration has wrestled with Section 504 on issues like remote learning, masking, transgender status, child welfare, and more. Additionally, there has been increased discussion surrounding Section 504's applicability to private schools. Some disability advocates have argued that Section 504 is outdated and needs to be revamped before the end of President Biden's first term.
What updates to Section 504 can we expect? What trends have experts observed in 504 regulations before and after President Biden took office? Does Section 504 inadequately address disability discrimination today? Please join us as Kim Richey and Professor Robert Dinerstein consider these questions and more.

What is the Future of Textualism? Jun 01, 2023

Show notes

Recently, the application of Textualism by the Supreme Court of the United States--the predominant method of statutory interpretation that favors the plain meaning of text over legislative intent, statutory purpose, or legislative history--has given rise to rich debate as to its legitimacy, vitality, and future application. This webinar explored and advanced that debate with some of the leading minds in the field.
Featuring:
--Prof. Nicholas Bagley, Professor of Law, University of Michigan Law School
--Prof. William Baude, Professor of Law, University of Chicago Law School
--Prof. Emily Bremer, Associate Professor of Law, University of Notre Dame Law School
--Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School
--[Moderator] Hon. Gregory G. Katsas, Circuit Judge, U.S. Court of Appeals for the District of Columbia Circuit
Related Links:
The 2023 Scalia Lecture: Beyond Textualism?, Harvard Journal of Law and Public Policy, Vol. 46, 2023, available at https://papers.ssrn.com/sol3/p...
Interpreting the Administrative Procedure Act: A Literature Review, 98 Notre Dame L. Rev. (forthcoming 2023), available at https://ssrn.com/abstract=4340363.

Courthouse Steps Decision: Amgen Inc. v. Sanofi May 30, 2023

Show notes

On May 18, the Supreme Court ruled unanimously in favor of Sanofi in its dispute with Amgen over alleged patent infringement. The case involved the application of the statutory enablement requirement of Section 112 of the patent laws to what is referred to as a "genus claim" as it applies in the context of pharmaceutical applications. The two patents in dispute relate to antibody drugs that reduce low-density lipoprotein (“LDL”) cholesterol.
Specifically at issue was "whether enablement is governed by the statutory requirement that the specifications teach those skilled in the art to 'make and use' the claimed invention, or whether it must instead enable those skilled in the art 'to reach the full scope of claimed embodiments' without undue experimentation—i.e., to cumulatively identify and make all or nearly all embodiments of the invention without substantial 'time and effort.'"
Robert Rando, an intellectual property attorney who filed an amicus brief in the case, joined us to unpack the decision.
Featuring:
--Robert J. Rando, Partner, Greenspoon Marder LLP

Courthouse Steps Decision: Tyler v. Hennepin County, Minnesota May 30, 2023

Show notes

On Thursday, May 25, 2023, the Supreme Court issued a unanimous decision in Tyler v. Hennepin County, Minnesota, a landmark case addressing property rights under the Takings Clause. The case specifically focuses on the issue of "home equity theft," which refers to a practice of local governments seizing a property’s entire value to settle a much smaller delinquent property tax debt.
Hennepin County foreclosed on Geraldine Tyler's home to cover her delinquent property taxes, having sold the home for $40,000 and retained the $25,000 surplus as profit. Tyler argued that the county could not take the equity in her home and asked the Supreme Court to declare the forfeiture of her home's equity as an unconstitutional taking and excessive fine. The county maintained that Tyler had sufficient time to pay her taxes and was not entitled to any refund.
The Court unanimously ruled that such practices qualify as takings requiring the payment of "just compensation" under the Takings Clause of the Fifth Amendment. It also concluded that state law is not the sole source of the definition of property rights under the Takings Clause, and therefore state governments cannot seize private property without compensation simply by redefining it as the state's property.
Listen to Tony Francois's analysis of the decision and discussion the potential implications from this landmark ruling.
Featuring:
--Tony Francois, Partner, Briscoe Ivester & Bazel

Courthouse Steps Decision: Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith May 30, 2023

Show notes

On May 18, the Supreme Court ruled in favor of rock and roll photographer Lynn Goldsmith in a dispute between Goldsmith and the Andy Warhol Foundation regarding Warhol’s works based on Goldsmith’s photo of the musician Prince. The fair use doctrine excuses from liability certain unlicensed uses of copyrighted works, and the question before the Court was whether Warhol’s creation of a series of paintings copied from the photo, and the licensure of those paintings to periodicals, constituted a fair use. In a 7-2 decision, the Court ruled that it did not.
Intellectual property law professor Zvi Rosen, who filed an amicus brief in the case in support of Goldsmith, joined us to break down the decision and answer audience questions.
Featuring:
--Zvi Rosen, Assistant Professor, Southern Illinois University School of Law

Courthouse Steps Decision: Gonzalez v. Google & Twitter, Inc. v. Taamneh May 22, 2023

Show notes

On Thursday, May 18, 2023, the Supreme Court issued opinions in Gonzalez v. Google and Twitter v. Taamneh. In the Twitter case, the Court unanimously reversed the Ninth Circuit and held that plaintiffs “failed to state a claim under [18 U.S.C.] §2333(d)(2).” Justice Thomas wrote for the Court and Justice Jackson issued a concurring opinion. In Gonzalez, the Court issued a per curiam opinion vacating and remanding the case to the Ninth Circuit for reconsideration in light of the Twitter holding.
The Gonzalez and Twitter cases were of great interest to some Court watchers because of their potential ramifications for Section 230 and social media platforms’ liability for bad outcomes connected to hosted content.
In this recorded webinar Erik Jaffe discussed the Court’s opinions and what comes next.
Featuring:
--Erik Jaffe, Partner, Schaerr | Jaffe LLP

Higher Ed & DEI May 18, 2023

Show notes

In recent years, American organizations of all kinds have dedicated resources towards diversity, equity, and inclusion (DEI) initiatives. These initiatives have become a staple of policy, hiring practices, personnel training, organizational structure, and more. Educational institutions, and higher education in particular, have shown a commitment to DEI.
Do DEI practices in colleges and universities result in a better product for students? Do they improve campus communities?
Some argue that, yes, DEI is integral to a high-functioning university. These practices improve viewpoint diversity, make students feel more at home on their campuses, and help marginalized groups attain a quality education. Others argue that commitment to DEI has resulted in bloated administrations that increase tuition costs without delivering a better product. Moreover, DEI initiatives support some identity groups at the cost of others, and a fervent commitment to DEI can produce exclusive and unfair outcomes.
In this program, Ilya Shapiro and Professor Todd Clark discussed the merits of DEI initiatives and how state-level policy could shape the future of DEI on campus.
Featuring:
--Ilya Shapiro, Director of Constitutional Studies, Manhattan Institute
--Professor Todd Clark, Associate Dean of Academic Affairs and Professor of Law, St. Thomas University Law School
--[Moderator] Devon Westhill, President and General Counsel, Center for Equal Opportunity

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