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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:

Debating State Sentences for Violent Crime: How Tough is Tough Enough? May 16, 2023

Show notes

Following a surge in many types of violent crime in 2020 and 2021 that has only recently begun to ebb in some places, many state legislatures, especially in southern states, have passed or are considering policies that are designed to result in longer periods behind bars for those convicted of serious violent crimes. Policy proposals include imposing or lengthening mandatory minimums, removing parole eligibility in certain cases, and requiring that a high percentage of the sentence be served behind bars (often referred to as “truth-in-sentencing”). However, there are also countervailing trends in states like California. Determining the right approach to sentencing and time served raises several questions:

What is the proper balance between uniformity and discretion and the degree of influence exercised by legislators versus prosecutors and judges?
To what degree is the focus on the length of the sentence or period of incarceration, as opposed to certainty that a significant percentage of the sentence, whatever its length, be served behind bars?
Given that elderly individuals have the lowest recidivism rates, would we be shortchanging public safety if we allocate too much prison space to those who committed a heinous crime decades ago as opposed to those who are in the midst of a crime spree involving less serious offenses and have failed at diversion and probation? How do we know whether a jurisdiction is efficiently allocating correctional resources to maximize public safety or perhaps is spending too much or too little on corrections?
Should the inquiry at parole solely be a forward-looking one which assesses future risk, as is the case in Michigan due to reforms a few years ago, or should paroling agencies also consider whether further punishment is warranted?
What are the merits of concurrent versus consecutive sentences in light of the Lara case that was argued before the Supreme Court in March? How does this relate to whether the primary goal of incarceration is punishment, incapacitation, or rehabilitation?

Featuring:
---Dr. Nazgol Ghandnoosh, Co-Director of Reasearch, The Sentencing Project
--Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation
--[Moderator] Marc Levin, Chief Policy Counsel, Council on Criminal Justice and Senior Advisor, Right on Crime

Litigation Update: LTL Management’s Chapter 11 Bankruptcy May 11, 2023

Show notes

LTL Management LLC (LTL) is a subsidiary of Johnson & Johnson (J&J) that was established in 2021 to hold and manage claims related to a mass tort alleging that J&J’s talc-based baby powder caused many cases of ovarian cancer, mesothelioma, and other serious health issues. J&J claims that settling the mass tort in this manner is a reasonable and legitimate course of action. Some plaintiffs’ attorneys claim that J&J is using a bad faith strategy that serves no legitimate business purpose, and the tort litigation should be allowed to continue.
The case began in the United States Bankruptcy Court for the District of New Jersey. Chief Judge Michael Kaplan ruled in favor of LTL in February 2022 holding that LTL’s filing for Chapter 11 protection was “unquestionably a proper purpose under the Bankruptcy Code.” Upon an expedited appeal, a three-judge panel of the Third Circuit reversed and narrowly held in favor of claimants.
Hours later, LTL once again filed for Chapter 11 protection; the new filing includes an $8.9 billion settlement offer. Some – including the U.S. Department of Justice’s Trustee Program – continue to argue that J&J is misusing bankruptcy law through LTL, but others think the massive settlement is in the best interest of claimants. Both LTL and parent J&J reject that its bankruptcy filing is illegitimate, illegal, or in bad faith.
This webinar served as a second installment of the February 16, 2023 webinar titled Chapter 11 Bankruptcy & Mass Torts: A Review of the Third Circuit’s LTL Opinion with Professors Lindsey Simon and Tony Casey.
Featuring:
--Professor Tony Casey, Deputy Dean, Donald M. Ephraim Professor of Law and Economics & Faculty Director, The Center on Law and Finance, University of Chicago Law School
--Professor Lindsey Simon, Robert Cotten Alston Associate Chair in Corporate Law, University of Georgia School of Law
--Mikal C. Watts, Partner, Watts Guerra LLP

American Trade Law in a Post-WTO Appellate Body World May 11, 2023

Show notes

For decades, the WTO Appellate Body regularly ruled that American laws violated the various WTO treaties. This forced Congress to rewrite WTO non-compliant statutes and altered U.S. policy on issues related to trade, the environment, and taxes - amongst others. In December 2019, however, a U.S. campaign to block Appellate Body judge nominations paralyzed the entire WTO Appellate Body system. As a result, the WTO cannot render final decisions in disputes between its member-states, and in recent years new laws like the Inflation Reduction Act's Electric Vehicle tax credit scheme openly flout WTO treaty rules.
How did the Appellate Body constrain U.S. laws pre-2019? Why did the U.S. choose to block nominations to the Appellate Body and what are the prospects that the Appellate Body returns? And if the Appellate Body does not return, how will this impact U.S. trade and trade-related laws? Join us for a panel where two leading experts on trade law and policy will discuss these issues.
Featuring:
--Jamieson Greer, Partner, King & Spalding
--David Ross, Partner, WilmerHale
--Moderator: Trevor R. Jones, JD Candidate, Harvard Law School

Courthouse Steps Oral Argument: Tyler v. Hennepin County May 04, 2023

Show notes

On Wednesday, April 26th, the Supreme Court heard oral argument in Tyler v. Hennepin County, Minnesota.
Hennepin County foreclosed on Geraldine Tyler's home to cover her delinquent property taxes, selling the home for $40,000 and keeping the $25,000 surplus as profit. Tyler argues that the county cannot take the equity in her home and has asked the Supreme Court to declare the forfeiture of her home's equity an unconstitutional taking and excessive fine. The county maintains that Tyler had time to pay her taxes and is not entitled to any refund.
The Supreme Court will consider whether the county’s actions violate the Takings Clause and whether the forfeiture of property worth far more than the debt plus interest, penalties, and costs is an excessive fine within the meaning of the Eighth Amendment.
After the oral argument, Christina Martin, Counsel of Record in the case for Pacific Legal Foundation, joined us to break down the proceedings.
Featuring:
--Christina Martin, Senior Attorney, Pacific Legal Foundation
--Moderator: Tony Francois, Partner, Briscoe Ivester & Bazel

"The Diversity Lie" 20 Years Later May 02, 2023

Show notes

In 2003, Professor Brian Fitzpatrick published a piece titled "The Diversity Lie" in which he discussed the recently decided Grutter v. Bollinger case. Twenty years later, the Supreme Court is on the precipice of deciding two important affirmative action cases in SFFA v. Harvard and SFFA v. UNC. How has Professor Fitzpatrick's analysis held up against the test of time? How has the Supreme Court changed? What does the future hold for affirmative action? Can universities install a program of race-neutral affirmative action?
Professors Brian Fitzpatrick and Randall Kennedy joined us to consider these questions and more as we reflect on the 20th anniversary of Grutter v. Bollinger.
Featuring:
--Professor Brian Fitzpatrick, Milton R. Underwood Chair in Free Enterprise, Vanderbilt Law School
--Professor Randall Kennedy, Michael R. Klein Professor, Harvard Law School
--[Moderator] Ted Frank, Director, Hamilton Lincoln Law Institute

Answering Threats to Taiwan Part II: Understanding the Military Dynamics of a US-China Conflict Apr 21, 2023

Show notes

The announcement that the Taiwan President will visit the United States in early April has brought renewed attention to the potential conflict between the US and China over Taiwan. Additionally, some experts assert that the ongoing conflict between Russia and Ukraine has further intensified the need for the US and China to prepare for a possible military confrontation.Despite this perceived urgency, much of the discourse surrounding a Taiwan conflict focuses on the security concerns motivating both powers and the geopolitical fallout that would occur as a result. Our panel of defense and national security law experts will go beyond this analysis to examine the specific scenarios that could trigger conflict and the strategies that the US might deploy to protect its interests.
This recorded webinar features a robust discussion on one of the most pressing security challenges of our time.
Featuring:
--Col. Mark Cancian, (USMCR, ret.) Senior Adviser, International Security Program, CSISProf.
--Julian Ku, Senior Associate Dean for Academic Affairs, Faculty Director of International Programs, and Maurice A. Deane Distinguished Professor of Constitutional Law, Maurice A. Deane School of Law at Hofstra University
--Moderator: Prof. Jamil Jaffer, Adjunct Professor, NSI Founder, and Director, National Security Law & Policy Program, Antonin Scalia Law School, George Mason University
Part I: Where does Law Matter

Courthouse Steps Oral Argument: Counterman v. Colorado Apr 20, 2023

Show notes

On April 19, 2023, the Court considered a question of free speech and criminal law: whether, in order for a statement to be categorized as a "true threat" and thus not protected under a right to free speech, the speaker must subjectively know or intend the threatening nature of the statement, or whether it is enough that an objective "reasonable person" would regard the statement as a threat of violence.
The facts of the case that poses this question for the Court, Counterman v. Colorado, are as follows. Billy Raymond Counterman was convicted and sentenced to four-and-a-half years in the state of Colorado for stalking a local female musician. According to Colorado Law, stalking entails “mak[ing] any form of communication with another person … in a manner that would cause a reasonable person to suffer serious emotional distress.”
Over the course of two years, Counterman sent the woman direct messages on Facebook in which he suggested that he had seen her while driving and made comments such as “Die” and “(expletive) off permanently.” The woman told a family member that she was “extremely scared” after receiving these messages.
Lower courts in Colorado upheld Counterman’s conviction, ruling that the appropriate test for whether Counterman’s statements qualified as a “true threat,” was whether a reasonable person would regard the statement as a threat of violence. The question now comes before the Court as to whether that “reasonable person” test is correct, or whether intent must be established.
In this recorded Teleforum we broke down and analyzed how oral argument went before the Court the day after this case is heard.
Featuring:
--Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation

A Seat at the Sitting - April 2023 Apr 19, 2023

Show notes

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.

Slack Technologies v. Pirani (April 17) - Securities, Financial Services; Whether, to bring a securities lawsuit alleging misstatements in a registration statement, a plaintiff must plead and show that he bought shares registered under the allegedly misleading statement.
US ex rel. Schutte v. SuperValu Inc. & United States ex rel. Proctor v. Safeway [Consolidated] (April 18) - Financial Services; Whether and when a defendant’s subjective knowledge about whether its conduct was legal is relevant to whether it “knowingly” submitted false claims for payment to the government or “knowingly” made false statements in support of such claims in violation of the False Claims Act.
Groff v. Dejoy (April 18) - Labor, Religious Liberties; Whether to overrule the Supreme Court’s 1977 decision in Trans World Airlines v. Hardison, on the accommodations that employers must provide for their employees’ religious practices.
Counterman v. Colorado (April 19) - Free Speech; To determine whether statements are “true threats” that are not protected by the Constitution, should courts apply an objective test that considers whether a reasonable person would regard the statement as a threat of violence, or instead a subjective test that requires prosecutors to show that the speaker intended to make a threat?
Lac du Flambeua Band v. Coughlin (April 24) - Tribal Law; Whether the Bankruptcy Code unequivocally expresses Congress’s intent to abrogate the sovereign immunity of Native American tribes.
Tyler v. Hennepin County (April 26) - Property Rights; Whether the foreclosure on and sale of a home that was worth $25,000 more than the owner owed in taxes violated the Fifth Amendment’s takings clause, which bars the government from taking private property for public use without adequately compensating the property owners.

Featuring:
--Thomas F. Gede, Counsel, Morgan, Lewis & Bockius LLP
--Sharon Fast Gustafson, Principal, Sharon Fast Gustafson, Attorney at Law, PLC
--Brian Hauss, Senior Staff Attorney, Speech, Privacy & Technology Project, ACLU
--Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
--Moderator: Anastasia P. Boden, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute

Courthouse Steps Preview: Tyler v. Hennepin County Apr 19, 2023

Show notes

Geraldine Tyler, a ninety-three-year-old homeowner, owed Hennepin County, Minnesota, nearly $12,700 in delinquent property taxes, plus interest, penalties, and costs. To cover her debt, the County foreclosed on her home and sold it for $40,000. However, the County also kept the surplus $25,000 as profit.
Minnesota, along with thirteen other states, authorize various government agencies to satisfy assorted government debts associated with real property by confiscating all title and equity in an owner’s property. Equity means the value in a piece of property beyond the encumbering debt. No one disputes the government’s ability to forfeit property to cover debts but Ms. Tyler argues the county cannot take the equity in her home.
Tyler asks the United States Supreme Court to rule Hennepin County’s forfeiture of the equity in her home an unconstitutional taking and excessive fine. However, the County argues that Tyler failed to pay her property taxes for five years, she had time to pay those taxes, and therefore the County was not required to refund Tyler any money from forfeiting her house to pay the property taxes.
Nancie Marzulla, who filed an amicus brief with the Atlantic Legal Foundation on behalf of the petitioner’s position, and John Bursch, who filed a petition for a writ of certiorari in Meisner v. Hall asserting the respondent’s position in Tyler joined us to discuss this important case.
Featuring:
--Nancie Marzulla, Partner, Marzulla Law
--John Bursch, Founder, Bursch Law PLLC
--Moderator: Tony Francois, Partner, Briscoe Ivester & Bazel

Courthouse Steps Oral Argument: Groff v. Dejoy Apr 18, 2023

Show notes

In Groff v. Dejoy the Court was set to address two issues concerning the protections provided employees who seek to practice their religious beliefs in the context of the workplace. The Court was considering whether to overrule the “more-than-de-minimis-cost” test for refusing religious accommodations under Title VII of the Civil Rights Act of 1964 established in Trans World Airlines, Inc. v. Hardison. Also at issue was whether burdens on employees are sufficient to constitute “undue hardship on the conduct of the employer’s business” for the employer under Title VII.
Gerald Groff, a Christian who due to his religious convictions treated Sundays as a sabbath and thus did not work on those days, worked for the U.S. Postal Service in Pennsylvania. Although his sabbath-taking was not a problem at the beginning of his tenure with the USPS, following a 2013 agreement with Amazon, USPS began to provide service on Sundays and holidays. This meant that postal workers now had to work Sundays. Initially, Groff was able to avoid working Sundays by trading shifts with co-workers, but that eventually became untenable as co-workers were not willing or available to trade, resulting in Groff being scheduled for Sunday shifts he could not work due to his convictions. Following disciplinary action for missed shifts, and facing termination, Groff chose to resign. He sued USPS for refusing to accommodate his religious beliefs and practices as required by Title VII. The Third Circuit, following Hardison, ruled in favor of USPS, citing as sufficient to constitute the “undue hardship” test the burden placed on Groff’s coworkers who had to take more Sunday shifts and lessened workplace morale.
Groff appealed, and SCOTUS heard oral arguments in the case on April 18, 2023. In this Courthouse Steps webinar where we broke down and analyzed how oral argument went in the case the same day argument occurred.
Featuring:
--Hiram Sasser, Executive General Counsel, First Liberty Institute

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