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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: Gonzalez v. Trevino – When the Courts Wrestle with Qualified Immunity Apr 13, 2023

Show notes

Gonzalez v. Trevino involves an alleged retaliatory conspiracy of city officials from Castle Hills, Texas to arrest Sylvia Gonzalez—a 72-year-old councilwoman—for spearheading a nonbinding petition criticizing the city’s manager. Gonzalez acknowledges that there was probable cause for her arrest and appellants asserted a qualified immunity defense. The district court denied Appellants’ motion to dismiss.
On appeal, the Fifth Circuit reversed the district court’s order denying Appellant’s motion to dismiss, finding Appellee failed to establish a violation of her constitutional rights. Notable dissents were issued by Judges Oldham (from the panel opinion) and Ho (from the denial of en banc review). Anya Bidwell and the Institute for Justice have petitioned the Supreme Court for review.
Please join us as Ms. Bidwell discusses qualified immunity, the First Amendment, and the Fifth Circuit’s decision in Gonzalez v. Trevino.

Public Defenders and Political Advocacy: What Is a Public Defender's Role? Apr 05, 2023

Show notes

Over the past several years, a debate has erupted within the world of indigent defense: to what degree is it appropriate or indeed vital for public defenders to be involved in political advocacy? Some contend such advocacy is outside the role and responsibility of public defenders, who should instead focus on defending their clients to the best of their ability. Others assert that involvement on social issues that arguably affect their clients is integral to the public defender’s mission and work.
In this Teleforum former public defenders discussed these questions on the role of public defenders in political advocacy.
Feauring:
--Maud Maron, Interim Executive Director, Foundation Against Intolerance and Racism
--Tiffany Roberts, Public Policy Director, Southern Center for Human Rights
--[Moderator] Matthew Cavedon, Robert Pool Fellow in Law and Religion & Senior Lecturer in Law, Emory University School of Law

Courthouse Steps Oral Argument: Amgen Inc. v. Sanofi Apr 04, 2023

Show notes

On November 4, 2022, the Supreme Court granted cert in Amgen Inc. v. Sanofi, a patent infringement case that involves 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.
The Court heard oral arguments in the case on March 27, 2023. 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 break down the arguments.
Featuring:
--Robert J. Rando, Partner, Greenspoon Marder LLP

Abraham Accords: Promise-Potential; Risk-Reality Apr 03, 2023

Show notes

As Indonesia, Somalia, Niger, and Mauritania may be next to join the Abraham Accords, what interests unify these countries on Accord agreement? What will be the impact of Saudi Arabia’s alignment with Iran? What are the balance of power dynamics for the Iran-concerned Accord countries of Israel, Bahrain, UAE? What binds signatories to the Accords as regional political pressures mount?
Discussants will assess the impact of the normalization of relationships they have evolved in the two and a half years since Accords were negotiated. Cultural shifts are already reported after two years of active Accords with Hebrew frequently spoken on the streets of Dubai. Trade has flourished. Flights and overflights are routine. But the United States’ role has shifted for a variety of reasons. Is America’s leadership critical to salutary Accord developments?
Featuring:
--David P. Goldman, President, Macrostrategy LLC
--Hon. Brian Hook, Founder, Latitude, LLC
--Prof. Bernard Haykel, Professor of Near Eastern Studies & Director of the Institute for Transregional Study of the Contemporary Middle East, Princeton University
--Moderator: Prof. Jamil Jaffer, Adjunct Professor, NSI Founder, and Director, National Security Law & Policy Program, Antonin Scalia Law School, George Mason University

Courthouse Steps Oral Argument Combo: Smith v. United States & Samia v. United States -Cases on Criminal Law Procedure Mar 29, 2023

Show notes

In this two-for-one Teleforum, we covered two cases with questions concerning criminal law and procedure that are set to be argued before the Court.
On March 28, 2023, the Supreme Court heard oral argument in Smith v. United States. Two issues were presented to the Court by this case.

One, whether, when there are multiple charges associated with a trial, lack of venue as to one count requires vacatur of the convictions for other counts?
Two, what is the proper remedy when someone is tried in an improper venue? Is the government’s failure to prove venue equal to an acquittal barring re-prosecution of the offense, or can the government may re-try the defendant for the same offense in a different venue?

The next day, the Supreme Court heard oral argument in Samia v. United States. In it, the Court considered whether the admission of a codefendant’s redacted out-of-court confession that incriminates the defendant due to its content violates the Confrontation Clause of the Sixth Amendment.
In this recorded webinar, we broke down and analyzed how oral argument went before the Court in these two cases, united by the Court before which they are set to be argued and the fact they pose questions of proper procedure in criminal cases.
Featuring:
--Robert McBride, Partner-in-Charge, Northern Kentucky, Taft Stettinius & Hollister LLP

Courthouse Steps Oral Argument: Jack Daniel’s Properties, Inc. v. VIP Products LLC Mar 29, 2023

Show notes

In Jack Daniel’s Properties, Inc. v. VIP Products LLC, the Supreme Court is considering "Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims; and (2) whether humorous use of another’s mark as one’s own on a commercial product is “noncommercial” and thus bars as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act."
Following oral arguments in the case, IP expert Adam Mathews joined us to break down the case and answer audience questions.
Featuring:
--Adam Mathews, State Representative, Ohio, and Attorney, Ashbrook Byrne Kresge

Should We Heed Pleas for Plea Bargaining Reform? Mar 29, 2023

Show notes

Although a right to trial is enshrined in the American Constitution, practically the nation’s criminal justice system now resolves almost all cases through plea bargaining. This has raised many questions, including whether innocent people are effectively coerced into pleading guilty, whether similarly situated defendants are treated equally, and whether there is enough transparency to evaluate the system’s effectiveness and correct injustices.
In February 2023, a task force assembled by the Criminal Law Section of the American Bar Association released a report that made numerous recommendations for changing current policy and practice on plea bargaining. Amid a system struggling with COVID-era backlogs and rates of serious crimes that largely remain above 2019 levels, are there ways to bolster the effective availability of the right to trial without jeopardizing public safety or requiring an unrealistic increase in system capacity?
Featuring:
--Clark Niely, Senior Vice President for Legal Studies, Cato Institute
--Kent Volkmer, Pinal County Attorney, Pinal County, Arizona
--[Moderator] Marc Levin, Chief Policy Counsel, Council on Criminal Justice

Litigation Update: The Stop WOKE Act Cases Mar 28, 2023

Show notes

In 2022, the Florida Legislature passed a bill titled the Individual Freedom Act. The bill is better known as the Stop Wrongs to Our Kids and Employees Act, or the Stop WOKE Act, and it has become a cultural flashpoint across the country.
The bill seeks to “protect individual freedoms and prevent discrimination in the workplace and in public schools.” While the bill explicitly authorizes “age-appropriate” classroom discussion of topics such as sexism, slavery, and racial discrimination, it prohibits instruction meant to “indoctrinate or persuade students to a particular point of view inconsistent with the principles of individual freedom or state academic standards.” The bill went into effect on July 1, 2022, and it places new restrictions on Florida’s public schools, colleges, universities, and corporations.
Proponents of the bill argue that aspects of progressive ideology – often referred to as wokeness – are being aggressively pushed on students, parents, and employees, and the effect is tantamount to ideological oppression and indoctrination. Opponents of the bill say that the Stop WOKE Act infringes upon freedom of speech and thought. Several opponents – including prominent organizations like the ACLU and FIRE – have taken to the courts to block or pare back the bill’s influence.
Ryan Newman serves as General Counsel to Florida Governor Ron DeSantis, and he is responsible for driving Florida’s litigation defense of the Stop WOKE Act in cases such as Pernell v. Florida Board of Governors, Novoa v. Diaz, and Honeyfund.com Inc. v. DeSantis.
Featuring:
--Ryan Newman, General Counsel, Executive Office of Florida Governor Ron DeSantis

Courthouse Steps Oral Argument: United States v. Hansen Mar 27, 2023

Show notes

On Monday, March 27, 2023 the Supreme Court heard oral argument in United States v. Hansen. At issue in Hansen is whether 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), a federal criminal statute that prohibits encouraging or inducing unlawful immigration for commercial or financial benefit sometimes termed “the encouragement provision”, violates the First Amendment.
Helamen Hansen operated an advising service for undocumented immigrants who wanted to pursue U.S. citizenship. Under the encouragement provision, Hansen was convicted of two counts of encouraging or inducing illegal immigration for financial gain (along with other federal crimes). He challenged those convictions, contending the law is facially overbroad. The Ninth Circuit agreed, vacating his convictions on those counts.
Hansen follows on the heels of another case with similar questions. Back in 2020, in United States v. Sinening-Smith, SCOTUS reversed a Ninth Circuit Court decision that attempted to strike down the encouragement provision on the grounds the decision attempted to address an issue that was outside of the issue before the court. Hansen now brings those same constitutional issues to the fore.
In this Courthouse Steps webinar, we will broke down and analyzed how oral argument went before the Court the same day it is argued.
Featuring:
--Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland

Litigation Update: Apache Stronghold v. United States Goes En Banc at the Ninth Circuit Mar 24, 2023

Show notes

This case presents an intersection between Native Americans’ free exercise rights and the Government’s power to regulate its territories.
In 2014, Congress enacted the Southeast Arizona Land Exchange and Conservation Act. The Act effectuated a trade of land between Resolution Copper, a mining company, and the federal government. Resolution Copper gave the government 5,300 acres of environmentally sensitive and culturally important lands. In exchange, the Government gave Resolution Copper 2,400 acres containing the third largest copper deposit in the world.
Within the 2,400-acre tract of land is Chi’chil Bildagoteel, or “Oak Flat”, a place of central spiritual importance to the Western Apache. It is the direct corridor to their Creator and the site of numerous religious ceremonies. If Resolution Copper is given the land, the religious site will be destroyed and turned into a mine.
Apache Stronghold sued to prohibit the land trade under the Religious Freedom Restoration Act (RFRA), the Free Exercise Clause, and under a theory that the trade violates the Government’s trust obligation to the Apaches. The United States argued that pursuant to its constitutional authority over the territories and existing caselaw that the trade was lawful.
The District Court rejected a preliminary injunction and the Ninth Circuit Court of Appeals affirmed that judgment by a 2–1 vote. Judge Patrick Bumatay dissented. And the Ninth Circuit agreed to rehear the case en banc this month.
Apache Stronghold again presses its three claims. Centrally, it argues that the United States has substantially burdened the Apaches’ religious exercise by authorizing the transfer and destruction of Oak Flat—rendering their religious exercise impossible.
The United States argues a line of precedent—culminating in Employment Division v. Smith—bar Apache Stronghold’s claims. The Government particularly relies on Lyng v. Northwest Cemetery Protective Association, which permitted the U.S. Forest Service to develop a road through government land that would traverse a tribal holy site, stating, “Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land.” The United States argues that RFRA and the remainder of Apache Stronghold’s claims do not undermine the holding in Lyng.
At stake is a religious site of central importance to a native tribe that cannot be replaced and development of the third largest copper deposit in the world.
In this recorded webinar, an excellent debate team discuss this en banc hearing. On behalf of Apache Stronghold, Luke Goodrich, VP and Senior Counsel for Becket, who is serving as lead counsel for Apache Stronghold. And defending the United States’ position, Anthony J. Ferate, who filed an Amicus Brief on behalf of the Arizona Chamber of Commerce and Industry in Support of Appellee United States.
Featuring:
--Luke Goodrich, Vice President & Senior Counsel, Becket
--Anthony J. Ferate, Of Counsel, Spencer Fane LLP
--Moderator: Adam Griffin, Law Clerk, US District Courts

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