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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:

A Seat at the Sitting - March 2023 Mar 16, 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.

Abitron Austria GMBH v. Hetronic Intl. Inc. (March 21) - Intellectual Property, International Law; Whether the owner of a U.S.-registered trademark can bring a lawsuit for damages for infringement overseas.
Coinbase, Inc. v. Bielski (March 21) - Litigation, E Commerce; Whether a non-frivolous appeal of the denial of a motion to compel arbitration ousts a district court’s jurisdiction to proceed with litigation pending appeal.
Jack Daniel’s Properties v. VIP Products (March 22) - Intellectual Property; Whether and when trademark law prohibits a spoof of a company’s brand.
Amgen Inc. v. Sanofi (March 27) - Intellectual Property, Medicine; When a patent applicant must provide a description of its invention that would enable a “skilled artisan” to make and use the invention, what must the applicant show to meet that requirement?
Smith v. United States (March 27) - Criminal Law; What is the proper remedy – acquittal or a new trial – when an appeals court concludes that one of the counts on which a defendant was convicted was tried in the wrong place?
Lora v. United States (March 28) - Criminal Law; Whether federal criminal sentencing laws require a New York man convicted for his role in a drug-trafficking murder to be sentenced to consecutive, rather than concurrent, sentences.
Samia v. United States (March 29) - Criminal Law; Whether prosecutors violated a defendant’s right under the Sixth Amendment when they admitted a confession from one of his co-defendants, redacted so that it did not use the defendant’s name.

Featuring:
--Prof. Jennifer Jenkins, Associate Professor of Law, Ave Maria School of Law
--Prof. Stephen Ware, Frank Edwards Tyler Distinguished Professor of Law, University of Kansas School of Law
--Robert Rando, Partner, Greenspoon Marder LLP
--Adam Mathews, Senior Intellectual Property Attorney, Faurecia
--Robert "Bob" McBride, Partner, Taft Stettinius & Hollister
--Moderator: Elizabeth Slattery, Senior Legal Fellow, Pacific Legal Foundation

Is Crypto Legislation Coming? Mar 16, 2023

Show notes

Along with the "crypto crackdown" by financial regulators in the wake of huge cryptocurrency losses and bankruptcies, Congress is discussing crypto legislation.
The House Financial Services Committee has a new Subcommittee on Digital Assets, Financial Technology and Inclusion chaired by Congressman French Hill (R-AR). Chairman Hill will join us for a keynote presentation, followed by an expert panel discussion. Among other questions, the webinar will consider: Will there be crypto legislation? What might it and what should it provide or not provide? What will be the most contentious issues? What related oversight should Congress provide?
J.C. Boggs will moderate the program and the panel will feature Dina Ellis Rochkind, Alexandra Harrison Gaiser, Patrick McCarty, and Patrick Daugherty.

The Camp Lejeune Justice Act - What Happens Next? Mar 13, 2023

Show notes

In 1982, the U.S. Marine Corps discovered that one quarter of the water wells on Marine Corps Base Camp Lejeune were contaminated with volatile organic compounds. The U.S. Department of Health & Human Services has estimated that as many as one million military and civilian staff and their families might have been exposed to contaminated drinking water between the early 1950s and late 1980s.
The Camp Lejeune Justice Act of 2022 – one section of the larger PACT Act – was signed into law by President Joe Biden on August 10, 2022. The law provides veterans who served on Camp Lejeune between 1953 and 1987 with two years to bring claims in the Eastern District of North Carolina related to this toxic water exposure. Over 15,000 claims have already been filed and some news outlets have suggested that there could be as many as 500,000 CLJA claims.
Among many interesting topics presented by these claims are fees. Personal injury law firms stand ready to collect billions. The American Tort Reform Association estimates that firms have spent more than $41 million on targeted advertisements. However, there is some debate about if a fee cap is in place. A 2021 version of the Camp Lejeune Justice Act limited attorneys’ fees to between 20 and 25%, but the 2022 version does not contain such a provision. While some firms are prepared to charge up to 40%, others think the Federal Tort Claims Act will cover the Camp Lejeune cases and limit fees to 20% of claimant recovery.
In this recorded webinar, legal experts provide an update and a discussion of the many issues associated with the large scale litigation.
Featuring:
--Mark A. Behrens, Partner and Co-Chair, Public Policy Group, Shook Hardy & Bacon LLP
--Prof. Paul Figley, Professor of Legal Rhetoric, American University Washington College of Law
--Ashley Keller, Partner, Keller Postman

Sweet v. Cardona: The Administration’s Other Student-Loan Cancellation Program Mar 09, 2023

Show notes

President Biden has directed the Department of Education to implement a national program of blanket cancellation of federal student loans. The Department has complied by announcing two debt-cancellation programs. The first program—a plan to cancel $10,000 of loans per debtor—proceeds under the Higher Education Relief Opportunities for Students Act of 2003 (HEROES) Act. On February 28, 2023, the Supreme Court heard argument in two cases challenging the Department’s claim of statutory authority for this program (Nebraska v. Biden and Department of Education v. Brown).
Less well known—but equally significant—is the Department’s other loan-cancellation program. This program is being accomplished through settlement of a nationwide APA class-action that was brought solely to compel the Department to restart lawful adjudications of “borrower-defense” claims. Instead of defending against this limited claim, the Biden Administration has instead entered a settlement agreement that dispenses with adjudication and automatically cancels billions in loans for hundreds of thousands of debtors. The Department claims it has authority for this blanket loan-cancellation program under the Higher Education Act—a claim that would apply to all loans even outside of litigation. A federal district court approved the settlement in November, but several intervening educational institutions have appealed to the Ninth Circuit.
Is this settlement legal? Is it an example of the reemergence of the sue-and-settle practices of the Obama Administration? How does this case intersect with Nebraska and Brown? This recorded webinar features a discussion with Jesse Panuccio, who represents one of the appealing intervenors.
Featuring:
--Jesse Panuccio, Partner, Boies Schiller Flexner LLP

Title IX and the Major Questions Doctrine Mar 09, 2023

Show notes

In West Virginia v. EPA, the Supreme Court held that the major questions doctrine requires courts to, “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” Some argue that the Court’s opinion in the case leaves doubt as to how the doctrine will be applied in future cases and how it will impact future regulatory policy.
In the past, Executive branch agencies have invoked Title IX to introduce many new rules and regulations. Some of these rules and regulations have faced significant opposition from inside and outside of government. Do elements of modern Title IX administration constitute a major question that Congress is best suited to consider? If so, how will this impact the future administration of Title IX regulations?
Join us as Jennifer Braceras and Professor Daniel Farber discuss the future of Title IX in the wake of West Virginia v. EPA.
Featuring:
Jennifer Braceras, Director, Independent Women's Law Center
Professor Daniel Farber, Sho Sato Professor of Law, Berkeley Law
[Moderator] Farnaz Farkish Thompson, Partner, McGuireWoods LLP

The D.C. Crime Bill: What Happens Next? Mar 08, 2023

Show notes

In November 2022, the District of Columbia City Council passed the Revised Criminal Code Act of 2022 (RCCA) that significantly reformed the D.C. Criminal Code to “modernize and overhaul” the District’s criminal laws including a reduction in penalties for many violent offenses.
D.C. Mayor Muriel Bowser initially vetoed the bill citing concerns about some of the changes, but the Council overrode her veto in early 2023. Because D.C. government is not autonomous from the federal government, the legislation requires Congressional approval.
The U.S. House voted to nullify the bill, and the Senate is slated to vote on whether to block the bill this week. Should the Senate vote to block the D.C. bill, it could be the first time in almost 3 decades that Congress has nullified a D.C. law.
If the Senate votes to nullify the law, the bill will go to President Biden to sign or to veto. While many had anticipated he would veto the resolution, President Biden indicated in a March 2 tweet that he would sign the resolution should it pass.
On March 6, D.C. Council Chairman Phil Mendelson wrote a letter to the Senate attempting to withdraw the legislation. Such a withdrawal has not been attempted before. The Senate is still slated to take the issue to a vote later this week.
As the Senate vote approaches, please join us for a webinar featuring an opening address from U.S. Senator Bill Hagerty, followed by a discussion of the bill and what may come next.
Opening Address Featuring:
--Hon. Bill Hagerty, United States Senator, Tennessee
Discussion Featuring:
--Zack Smith, Legal Fellow and Manager, Supreme Court and Appellate Advocacy Program, Edwin Meese III Center for Legal and Judicial Studies, Heritage Foundation

Government Censorship, Disinformation, and Scientific Consensus – A Litigation Update on Missouri v. Biden & Hoeg v. Newsom Mar 02, 2023

Show notes

How are we to understand scientific consensus? Who is authorized to speak on behalf of doctors and scientists as a whole, and how do those who present themselves as messengers of the majority reach their material findings? In the aftermath of the COVID-19 pandemic, these questions, and others like them, have important consequences for the future of American science and medicine.
The complaint in Missouri v. Biden arises from the controversy surrounding the Great Barrington Declaration, a declaration written in October 2020 and authored by renowned epidemiologists criticizing contemporary, aggressive COVID-19 policies. Plaintiffs allege that the federal government coerced social media companies to silence opposing viewpoints under the pretense of halting “disinformation” and “misinformation” thereby violating the First Amendment.
Hoeg v. Newsom is born of similar allegations at the state level. On September 30, 2022, the California State Legislature passed Assembly Bill No. 2098 that purports to rein in “disinformation” and “misinformation” about the COVID-19 virus and vaccines. The Bill states that “It shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.” Plaintiffs – all physicians licensed by the Medical Board of California – allege that the Bill violates their First and Fourteenth Amendment rights by interfering with their ability to freely communicate to patients and dissent from mainstream viewpoints in their professional capacity as trained doctors.
Observers have noted that achieving scientific consensus on an emergent and politicized disease is very difficult. For example, the purported scientific consensus on masks, lockdowns, natural immunity, and various other COVID-related matters has remained in flux over the past three years. Some argue that government attempts to stifle debate are concerning and illustrate the purpose of the First Amendment.
Jenin Younes is Litigation Counsel for the New Civil Liberties Alliance (NCLA) and represents plaintiffs in both cases. In this recorded webinar Jenin delivers updates on these cases and discusses the ongoing power struggle over the dissemination of medical information.
Featuring:
--Jenin Younes, Litigation Counsel, New Civil Liberties Alliance
--[Moderator] Margaret A. Little, Senior Litigation Counsel, New Civil Liberties Alliance

The Role of the Modern State Solicitor General: Current and Former SGs Weigh In Feb 28, 2023

Show notes

This virtual event featured a panel of current and former state solicitors general exploring and discussing how state SGs balance their duty to defend state sovereignty with different political priorities. There are some areas in which the states seem to be more on the same page (such as criminal law) and others that involve sharp disagreements among the states in terms of the duty to defend state sovereignty (e.g. DACA). Focusing on the role of the SG—as opposed to the presumably more overtly political state attorney general position—how do different SGs approach these issues?
Featuring:
--Benjamin M. Flowers, Solicitor General, Ohio
--Elbert Lin, Chair, Issues & Appeals, Hunton Andrews Kurth LLP; Former Solicitor General, West Virginia
--Ryan Park, Solicitor General, North Carolina
--Moderator: Hon. Britt C. Grant, Judge, United States Court of Appeals, Eleventh Circuit; Former Solicitor General, Georgia

Courthouse Steps Oral Argument: Dept. of Ed. v. Brown & Biden v. Nebraska Feb 28, 2023

Show notes

February 28, 2023, the U.S. Supreme Court heard oral argument in two cases challenging the Biden Administration's Student Loans forgiveness program: Board of Education v. Brown and Biden v. Nebraska.
In August 2022, the Biden Administration's Department of Education announced plans to forgive up to $20,000 in federal student loans for borrowers who qualified. In order to do this, the DOE relied on the HEROES Act, which allows the government to modify student loans, among other things, during a national emergency.
Both cases challenge this action. Biden v. Nebraska involves a challenge to the Executive action from six states who contend they will suffer direct harm based on a loss of tax revenue. In Department of Education v. Brown, two individual borrowers, one of whom has loans that are fully intelligible for forgiveness under the program, and one of whose loans only qualify for part of the maximum relief possible, also challenge the legitimacy of the program.
The Court will be faced with two questions in both cases: first, do the challengers, whether they be the states or the individual borrowers, have standing to sue? The Biden administration contends neither of the respondents possess standing. Second, assuming the Court decides there is standing to sue, the Court will face the question “Does the plan exceed the statutory authority available to the Secretary of Education, and adopted in a procedurally proper manner?”
We broke down and analyzed how oral argument went in both cases in this Courthouse steps program.
Featuring:
--Mark Chenoweth, President and General Counsel, New Civil Liberties Alliance

America's Expanding Semiconductor Export Controls Feb 28, 2023

Show notes

Much of global economic competition today centers around gaining market share in the semiconductor industry. Over the past decade, the Chinese Government has attempted to expand its market share across the semiconductor value chain through a complex regime of subsidies and state-owned enterprises.
Beginning in the Trump Administration, the United States launched targeted export controls to restrict certain Chinese firms - like Huawei - from obtaining American semiconductor technology. Over the past two years, the Biden Administration has built on and broadened these efforts. In the Fall of 2022, the Commerce Department announced two new rules that restricted the sale of advanced semiconductors, semiconductor manufacturing equipment, and related software or technical assistance to China. Earlier this January, U.S. officials announced the existence of a deal with Japan and the Netherlands to craft broad, multinational export controls on semiconductor exports to China.
Can the Chinese semiconductor industry survive these new restrictions? How will they impact U.S. firms and researchers in this sector? Do they form a blueprint for new export control restrictions on other technology exports to China? This panel with two leading experts on strategic technology and trade controls discussed these and other questions.
Featuring:
--Hon. Nazak Nikakhtar, Partner, Wiley Rein LLP
--Thomas Krueger, Senior Policy Advisor, Akin Gump LLP; Adjunct Senior Fellow, Center for a New American Security
--Moderator: Trevor Jones, JD Candidate, Harvard Law School

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