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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:

Parental Rights and Religious Liberty: Examining New Conflicts Between Parents and the State Dec 14, 2022

Show notes

The Supreme Court has articulated that parents have the unenumerated right rooted in the Fourteenth Amendment to direct the care, custody, and upbringing of their children since the 1920s in such cases as Pierce v. Society of Sisters, Meyer v. Nebraska, Parham v. J.R. and Troxel v. Granville. However, the precise contours of the right have long been uncertain, as has the level of scrutiny to be applied.
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court established a clear threshold for unenumerated rights, that they must be rooted in history and tradition and essential to ordered liberty. The Court noted that its decision does not call into question its line of cases on parental rights. Nevertheless, the question remains: do parental rights meet the Court’s threshold? Are there reasons to believe that parental rights will be affected by the Dobbs decision?
The Dobbs decision comes as a new series of conflicts between parents and the state are arising in education and healthcare around the country. Many of these conflicts over ideas about gender and race. These new conflicts implicate parental rights and are raising questions for courts such as:

Who has the primary responsibility for the formation of a child’s identity and values?
Do parental rights extend beyond the schoolhouse gate to include instruction and policies in schools?
And who gets to decide the treatment of a child’s mental health, including gender distress?

These questions and more have been raised in a series of recent lawsuits against school districts over policies concerning race and gender-based curriculum and policies where challengers have invoked parental rights theories. How do those arguments square with existing doctrine? How might they extend existing doctrine?
Featuring:
--Professor James Dwyer, Arthur B. Hanson Professor of Law at William and Mary Law School
--Ryan Bangert, Senior Vice President, Strategic Initiatives and Special Counsel to the President, Alliance Defending Freedom
--[Moderator] Professor Richard W. Garnett, Paul J. Schierl/Fort Howard Corporation Professor of Law and Director, Program on Church, State & Society, University of Notre Dame Law School

Back to the Future: Biden Administration Seeks Return to Restrictive Standards for Businesses and Independent Contractors Dec 12, 2022

Show notes

The Department of Labor recently closed its open comment period for its proposed rulemaking regarding Employee or Independent Contractor Classification under the Fair Labor Standards Act. As such, this webinar explores what the proposed rule seeks to do, and how the affected stakeholder community has responded. In addition, the proposed rule comes out of litigation and may in fact create additional litigation in 2023. In addition, the speakers highlight other actions that impact independent workers including the NLRB's pending decision in Atlanta Opera as well as the DOL joint employer rulemaking. On this teleforum we will hear from Maury Baskin (Littler-Mendelson) who led a winning effort against the DOL in Coalition for Workforce Innovation (CWI) v. Secretary Walsh as well as the Chair of CWI, Evan Armstrong.
Featuring:
--Evan Armstrong, Vice President, Government Affairs, Retail Industry Leaders Association
--Maury Baskin, Shareholder, Littler Mendelson P.C.

Courthouse Steps Oral Argument - Moore v. Harper Dec 07, 2022

Show notes

On December 7, 2022, the U.S. Supreme Court will hear oral argument in Moore v. Harper.
Following the most recent census, North Carolina gained a House seat, and its legislature adopted a new district map. The state’s supreme court deemed that map a partisan gerrymander and substituted in its place the court’s own map. That result, it concluded, was required by four separate parts of the state constitution, including clauses protecting the “freedom of speech” and guaranteeing “free” elections. Although the Supreme Court denied an emergency request to block that ruling for the 2022 election, it agreed to take the case to answer the broader question of state-court authority over the laws governing federal elections.
Supporters of legislature primacy—often called the “independent state legislature” doctrine—say that a decision enforcing the doctrine will cut back on election-litigation gamesmanship, end the disruption of last-minute rule changes, and put primary responsibility back in the hands of democratically accountable legislators. Opponents, however, say that a decision for the state would threaten voting rights and democracy itself.
We will break down the oral argument for this case on the same day, December 7, 2022.
Featuring:
Andrew M. Grossman, partner at Baker & Hostetler LLP, co-leader of the firm’s Appellate and Major Motions practice, and Adjunct Scholar at the Cato Institute
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What is the future of U.S. Counterintelligence and the National Counterintelligence and Security Center? Dec 07, 2022

Show notes

The Senate Select Committee on Intelligence released a detailed report in September 2022 on the state of the U.S. Counterintelligence (CI) mission. Among other things, the report noted that the National Counterintelligence and Security Center (NCSC), the nation's head agency for CI, does not have a clear mission and is limited in its authorities. The Committee further warned that NCSC's work is being hampered by bureaucracy and funding issues. The report also noted that foreign intelligence entities pose a more harmful threat to U.S. interests now than they have at any point in the past. We will discuss the report, its fallout, and the potential solutions to the problem with the former Director of NCSC, The Honorable William Evanina.
Featuring:
Jamil Jaffer, Adjunct Professor, NSI Founder, and Director, National Security Law & Policy Program, Antonin Scalia Law School, George Mason University
William Evanina, CEO, The Evanina Group; Former Director of the National Counterintelligence and Security Center

Courthouse Steps Oral Argument: 303 Creative v. Elenis Dec 05, 2022

Show notes

On December 5,2022, the U.S. Supreme Court will hear oral argument in 303 Creative LLC v. Elenis. Petitioner Lorie Smith, an artist in Colorado and owner/founder of the graphic design firm 303 Creative LLC. is challenging Colorado’s Anti-Discrimination Act (CADA) on the grounds it is unconstitutional, arguing, among other things, it violates her right to free speech.
Ms. Smith was looking to expand her business to include designing websites for weddings but would only design for weddings that were in line with her religious convictions, which meant she would not design websites for same-sex weddings. Further, in expanding her business, she wanted to post a message to her own professional website to communicate what wedding websites she would do, and explain her religious objections to same-sex weddings.
Because 303 Creative LLC. is a business open to the public, however, it falls under CADA, which prohibits any business from discriminating against possible patrons based on a list of characteristics, one of which is sexual identity. Further, CADA defines discrimination not only as the refusal to provide goods or services but also as the promulgation of messaging that says or implies that a potential patron’s business would be unwelcome based on them possessing a protected trait. Under CADA, both the refusal to create webpages for same sex weddings and the promulgation of a message that Ms. Smith would not create such webpages, even if she is never asked so to do, would be illegal.
Before any action was taken against her under CADA, Ms. Smith and 303 Creative LLC. challenged CADA in federal court, alleging its unconstitutionality. The district court granted summary judgement in favor of Colorado, and upon appeal, the Tenth Circuit affirmed that decision.
Our panel of experts will break down and analyze how the Supreme Court oral argument went the same day.
Featuring:
Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity
Prof. Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law
[Moderator] Prof. Michael Dimino, Professor of Law, Widener University Commonwealth Law School

NC NAACP v. Moore: The Impact of Unconstitutional Legislative Maps on a State Legislature's Ability to Propose Constitutional Amendments Nov 29, 2022

Show notes

In 2018, the North Carolina General Assembly placed several constitutional amendments before voters for ratification. Voters approved the amendments, which included amendments related to voter ID and a cap on the state income tax. But in August 2022, a sharply divided Supreme Court of North Carolina held that these amendments may be invalid. The majority's opinion focused on a federal court decision issued before the amendments were placed on the ballot which declared several of the state legislative districts to be the result of an unconstitutional racial gerrymander. It concluded that the General Assembly may have lost the ability to propose constitutional amendments given the fact that many of its members were elected from unconstitutionally gerrymandered legislative districts.
Our panel of experts discussed this case and considered its implications for North Carolina and states across the country.
Featuring:
--Jeanette Doran, President and General Counsel, North Carolina Institute for Constitutional Law
--Rick Glazier, Executive Director, North Carolina Justice Center
--Prof. Derek T. Muller, Ben V. Willie Professor in Excellence, University of Iowa College of Law
--Moderator: Hon. Robert T. Numbers, II, U.S. Magistrate Judge, Eastern District of North Carolina

Post-Oral Argument Courthouse Steps: Percoco v. United States Nov 28, 2022

Show notes

On November 28, 2022, the U.S. Supreme Court is set to hear oral argument in Percoco v. United States.
Justice Scalia once commented “[t]hough it consists of only 28 words, the [honest services] statute has been invoked to impose criminal penalties upon a staggeringly broad swath of behavior.”
In this case, which has potentially broad implications for the continued criminalization of politics and lobbying, the Court is asked to decide if a private citizen who holds no elective office or government employment owes a fiduciary duty to the general public sufficient to be convicted of honest-services fraud if they have informal “influence” over government decisions.
Joseph Percoco was a longtime friend of New York Governor Andrew Cuomo and served as Governor Cuomo’s Executive Deputy Secretary until he decided to leave government service to manager Governor Cuomo’s reelection campaign. While he was working on Governor Cuomo’s campaign, he was paid by a New York businessman to reach out to a state agency to resolve a labor issue. According to the trial court and the Court of Appeals for the Second Circuit, this effort deprived the citizens of New York of Mr. Percoco’s honest services.
According to both courts, the fact that Mr. Percoco was not a state employee was not dispositive -- what mattered was that Mr. Percoco “dominated and controlled” government business and that government officials “actually relied on” Percoco based on some “special relationship” between Mr. Percoco and the government.
If upheld, the Second Circuit’s test has the potential to greatly expand the application of federal honest services charges to people engaged in politics and lobbying.
This talk, featuring Mr. Gary Lawkowski, who is counsel of record for an amicus brief submitted on behalf of Citizens United, Citizens United Foundation, and the Presidential Coalition in Percoco v. United States, will break down the issues in this case and provide instant analysis on the oral argument heard by the Court.
Featuring:
Mr. Gary M. Lawkowski, Counsel at Dhillon Law Group and Senior Fellow with the Institute for Free Speech.

A Seat at the Sitting - December 2022 Nov 22, 2022

Show notes

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases that will be covered are included below.
Percoco v. United States (Nov. 28) - Criminal Law; whether a private citizen who can influence government decision-making owes a duty to the public, so that he can be convicted of bribery.
Ciminelli v. United States (Nov. 28) - Criminal Law; whether a defendant can be convicted under the federal wire-fraud statute based on a “right to control” theory.
United States v. Texas (Nov. 29) - Immigration; a challenge to the Biden administration’s policy of prioritizing certain groups of unauthorized immigrants for arrest and detention.
Wilkins v. United States (Nov. 30) - Property Rights, whether the 12-year statute of limitations to bring a lawsuit under the Quiet Title Act is jurisdictional and cannot be waived.
303 Creative v. Elenis (Dec. 5) - Civil Rights; whether applying Colorado’s public-accommodation law to require an artist to speak or stay silent violates the Constitution’s free speech clause.
MOAC Mall Holdings LLC v. Transform Holdco LLC (Dec. 5) - Bankruptcy; whether a provision of federal bankruptcy law limits the power of the courts of appeals over an order approving the sale of a debtor’s assets.
Bartenwerfer v. Buckley (Dec. 6) - Bankruptcy; whether a bankruptcy debtor can be held liable for another person’s fraud.
Moore v. Harper (Dec. 7) - Election Law; whether a state supreme court’s order invalidating a state’s congressional map and ordering the state to draw a new one violates the Constitution’s elections clause.
Featuring:
Andrew Grossman, Partner, Baker & Hostetler LLP; Adjunct Scholar, The Cato Institute
Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity Network
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
Moderator: Samuel D. Adkisson, Associate Attorney, Gibson Dunn

Recent DOJ Policy for Charging Cases under the Computer Fraud and Abuse Act: Fair or Foul? Nov 17, 2022

Show notes

The Justice Department recently announced the issuance of a revised internal policy for charging cases brought under the Computer Fraud and Abuse Act (CFAA), our nation's main computer crime statute. This revised policy was issued in the wake of the Supreme Court case of United States v. Van Buren, which held that the CFAA’s “exceeds authorized access” provision does not cover those who have improper motives for obtaining information that is otherwise available to them. Additionally, the new DOJ policy for the first time directs federal prosecutors that good-faith security research should not be charged under the CFAA, but also acknowledges that claiming to be conducting security research is not a free pass for those acting in bad faith.
Does the new DOJ charging policy strike a reasonable balance between privacy and law enforcement interests? Do its protections for security research go far enough, or do they extend too far? In the wake of Van Buren and this policy, does the federal government have adequate tools to address insider threats, especially where such threats are focused on invasions of privacy and confidentiality instead of being motivated by financial gain?
Join us as our panel of experts break down these questions.
Featuring:--Prof. Orin Kerr, Willam G. Simon Professor of Law, University of California, Berkeley School of Law
--Prof. Michael Levy, Adjunct Professor of Law, Penn Carey Law, University of Pennsylvania
--[Moderator] John Richter, Partner, King & Spalding

Courthouse Steps Oral Argument: Mallory v. Norfolk Southern Nov 15, 2022

Show notes

On November 8, 2022, the U.S. Supreme Court will hear oral argument in Mallory v. Norfolk Southern Railway.
Petitioner Robert Mallory, a Virginia resident, sued Virginia-based Norfolk Southern in sued in the Court of Common Pleas, the court of general jurisdiction in Pennsylvania, claiming that exposure to carcinogens while working for the company caused him to develop colon cancer. According to his complaint, Mallory was exposed to harmful carcinogens while employed by Defendant in Ohio and Virginia between 1988 through 2005. He did not allege that he suffered any harmful occupational exposures in Pennsylvania but sued in Pennsylvania court on a theory that the court could exercise jurisdiction over the Virginia company because it had registered to do business in Pennsylvania.
Under Pennsylvania law, a foreign corporation “may not do business in this Commonwealth until it registers” with the Department of State of the Commonwealth. State law further establishes that registration constitutes a sufficient basis for Pennsylvania courts to exercise general personal jurisdiction over that foreign corporation. Norfolk Southern Railway objected to the exercise of personal jurisdiction, arguing that the exercise violated the Due Process Clause of the Fourteenth Amendment. The trial court agreed and held Pennsylvania’s statutory scheme unconstitutional. The Pennsylvania Supreme Court affirmed.
The Supreme Court is to decide if a state registration statute for out-of-state corporations that purports to confer general personal jurisdiction over the registrant violates the Due Process Clause of the Fourteenth Amendment.
Please join us for analysis of how oral argument went before the Court.
Featuring:
John Masslon, Senior Litigation Counsel, Washington Legal Foundation.
Associated Blog Post: Mallory v. Norfolk Southern: Oral Argument Preview
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