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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 Oral Argument: Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith Oct 18, 2022

Show notes

The Supreme Court is considering a lawsuit between rock and roll photographer Lynn 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. The question before the Court in Warhol v. Goldsmith is whether Warhol’s creation of a series of paintings copied from the photo, and the licensure of those paintings to periodicals, constitutes a fair use. Underlying the case are core intellectual property questions about the nature and scope of the fair use doctrine.
Following oral arguments on October 12, Zvi Rosen, who filed an amicus brief in the case in support of the respondent (Goldsmith), joined us to break down the case.
Featuring:
Zvi Rosen, Assistant Professor, Southern Illinois University School of Law

Energy Security After Ukraine: What are the Challenges and Opportunities for the U.S. and its Allies? Oct 12, 2022

Show notes

Russia’s invasion of Ukraine shocked the world – and directed renewed attention to the global energy system. Suddenly, the topic of energy security rose to the forefront as consumers across the globe began to feel the impact of the conflict when filling their gas tanks and paying their electricity bills. As Europe struggles to disentangle itself from dependence upon Russian energy sources, the United States and others have directed renewed focus toward their supply chains for both hydrocarbon fuels and renewable power generation. Our panel of energy experts will discuss these recent events and consider the legal and policy levers available to the United States and its allies to enhance their energy security.
Featuring:
--Prof. James Coleman, Robert G. Storey Distinguished Faculty Fellow and Professor of Law, Southern Methodist University Dedman School of Law
--George Fibbe, Partner, Baker Botts, Former Deputy General Counsel, Department of Energy
--Moderator: Daniel G. West, Vice President, SCF Partners

Suing Religious Employers: The Extent of Exemptions in Title VII Oct 12, 2022

Show notes

Religious employers are exempt under §§ 702(a) and 703(e)(1), 42 U.S.C.2000e—1(a) and 2000e—2(e)(1), when sued under Title VII of the Civil Rights Act of 1964, as amended. However questions can still arise when Religious employers undertake actions that would allegedly be problematic under Title VII for non-religious employers. What is the scope of the exemption? What is the definition of religion? What is the definition of a religious employer able to invoke the exemption?
Additionally, is the exemption waived if the employer is a recipient of federal financial assistance? How does the exemption in Title VII compare with other defenses available to the employer such as the ministerial exception (Church Autonomy Theory), Religious Freedom Restoration Act, and the First Amendment’s free-speech and free-exercise clauses? What if the religious employer is sued in a similar claim under a state or municipal human rights act?
Experts Sharon Gustafson, Jennifer Goldstein, and Carl Esbeck will discuss some of these questions in this webinar on the extent of exemptions extended to religious employers under Title VII.
Featuring:
--Carl H. Esbeck, R. B. Price Professor of Law Emeritus, University of Missouri
--Sharon Fast Gustafson, Principal, Sharon Fast Gustafson, Attorney at Law, PLC
--Jennifer Goldstein, Associate General Counsel, Equal Employment Opportunity Commission

Courthouse Steps Oral Argument: Sackett v. Environmental Protection Agency Oct 07, 2022

Show notes

One of the longest-standing environmental law challenges is how to define the scope of waters regulated under the Clean Water Act known as “waters of the United States” (WOTUS). After decades of regulatory uncertainty, the Supreme Court has again taken up a case that may provide clarity. On October 3rd, the Court will hear oral argument in Sackett v. EPA, the first case of this new term and the second time the case will be reviewed by the high court. Perhaps this time the Court will definitively determine what is a WOTUS. Will the Court definitively determine what is a WOTUS?
Join us for a discussion on this important case with Damien Schiff (arguing for petitioners), Tony Francois (represented petitioners in the Ninth Circuit), and William Snape (Director of the American University Washington College of Law’s Program on Environment and Energy Law). The panel will be moderated by Hunton Andrews Kurth partner Matt Leopold, who served previously as EPA general counsel and assisted in drafting the 2020 Navigable Waters Protection Rule defining WOTUS.
Featuring:
Tony Francois, Senior Attorney, Pacific Legal Foundation
Damien Schiff, Senior Attorney, Pacific Legal Foundation
Prof. William Snape, Director of Program on Environmental and Energy Law, Assistant Dean of Adjunct Faculty Affairs, and Fellow in Environmental Law, American University Washington College of Law
Moderator: Matt Leopold, Partner, Hunton Andrews Kurth
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To register, click the link above.

Courthouse Steps Oral Argument: Merrill v. Milligan Oct 04, 2022

Show notes

On October 4, 2022 the U.S. Supreme Court heard oral argument in Merrill v. Milligan.
Following the 2020 Census, the Alabama Legislature redrew its congressional district lines to account for shifts in the state’s population. With these new lines, only one of the state’s seven congressional districts was majority-minority. Several plaintiffs sued, asserting the districts violated Section 2 of the Voting Rights Act of 1965 and the Fourteenth Amendment to the United States Constitution, and sought the creation of an additional majority-minority district to account for the growing African American population in Alabama.
The District Court enjoined the districts, holding that they violated the VRA. Alabama appealed to the U.S. Supreme Court, which granted Certiorari and stayed the district court's injunctions.
We broke down the argument on the same day, October 4, 2022.
Featuring:
--David Warrington, Partner, Dhillon Law Group Inc.
--Moderator: Michael Dimino, Professor of Law, Widener University Commonwealth Law School

The 2022 Mike Lewis Memorial Teleforum: Peace in Cyberspace: How it was Lost and How to Restore It Oct 02, 2022

Show notes

Faced with relentless cyberattacks and intrusions that could imperil democracy, how should Western nations respond? This teleforum will discuss problems in the application of existing law and norms to reduce international cyber conflict. It will also explore possible new approaches involving a concentrated and coordinated deterrence strategy as well as technological innovations to secure vital areas of cyberspace.
Mike Lewis was a naval aviator, and then a renowned law professor, widely admired by other scholars and practitioners. He was a great friend of the Federalist Society, appearing at dozens of lawyer and student chapter events, as well as the 2014 National Convention. He was also a member of the Executive Committee of the Society's International & National Security Law Practice Group. Each year, the Practice Group holds a Teleforum in his honor.
Featuring:
--Prof. Lucas Kello, Associate Professor of International Relations, Oxford University
--Prof. Eric Jensen, Associate Professor of Law, Brigham Young University J. Reuben Clark Law School
--Moderator: Vince Vitkowsky, Partner, Gfeller Laurie LLP
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A Seat at the Sitting - October 2022 Sep 27, 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.
Sackett v. Environmental Protection Agency (October 3) – environmental law; water policy regulations; administrative law
Delaware v. Pennsylvania and Wisconsin (October 3) – State claims dispute over travelers checks; financial services & e-commerce
Merrill v. Milligan (October 11) – election law; whether Alabama’s 2021 redistricting plan violated the Voting Rights Act
National Pork Producers Council v. Ross (October 11) – interstate commerce, dormant commerce clause
Helix Energy Solutions Group v. Hewitt (October 12) – labor law; regulatory policy on overtime pay and exemptions; Fair Labor Standard’s Act
Featuring:
Donald Kochan, Professor of Law and Deputy Executive Director, Law and Economics Center, Antonin Scalia Law School, George Mason University
Prof. Michael Dimino, Professor of Law, Widener University Commonwealth Law School
Charles Yates, Attorney, Pacific Legal Foundation
Prof. Patrick Parenteau, Professor of Law, Vermont Law School
Moderator: Adam Gustafson, Senior Counsel for Environmental and Regulatory Affairs at Boeing
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To register, please click the link above.

"Digital Discrimination" Under the Infrastructure Investment and Jobs Act Sep 27, 2022

Show notes

The 2021 Infrastructure Investment and Jobs Act requires the Federal Communications Commission and the Department of Justice to "ensure that Federal policies promote equal access to robust broadband internet access service by prohibiting deployment discrimination."
Watch this discussion on the FCC's ongoing efforts to effectuate this portion of the statute and how policymakers can best achieve the goal of equitable broadband deployment. The discussion considered what discrimination means in this context, whether broadband providers engage in it, and what regulatory actions would best ensure Americans have access to the broadband they need.
Featuring:
--Diana Eisner, Vice President, Policy & Advocacy, USTelecom
--Jenna Leventoff, Senior Policy Counsel, Public Knowledge
--Crystal Tully, Deputy Staff Director, United States Senate Committee on Commerce, Science & Transportation
--Sanford Williams, Special Advisor to Chairwoman Rosenworcel and Deputy Managing Director, The Office of the Managing Director, Federal Communications Commission
--Moderator: Joe Kane, Director of Broadband and Spectrum Policy, Information Technology and Innovation Foundation

Who Decides if January 6 Was an Insurrection Prohibiting the Election Of Participants? Sep 27, 2022

Show notes

The Fourteenth Amendment prohibits anyone who has engaged in insurrection or rebellion against the United States after swearing an oath to support the Constitution from ever holding public office again. In light of this Disqualification Clause, some have called for participants in the riot that occurred on January 6, 2021 to be barred from future elections.
Who has the authority to enforce this provision, the states or Congress? Normally states cannot add requirements for holding public office, but is this different, or is enforcement left to Congress itself through its ability to expel members?
These questions took on new relevance on September 6, 2022, when New Mexico Judge Francis Mathew ordered that Otero County Commissioner Couy Griffin be removed from office effective immediately for his participation in the January 6 riot under the Disqualification Clause. While this decision is likely to be appealed, it could have serious implications for members of Congress and/or former President Donald J. Trump.
Watch a discussion on these important issues between James Bopp, Jr., who represented Congressman Madison Cawthorn against challenges to his office under the Disqualification Clause, and Pressly Millen, who represented the challengers to Congressman Cawthorn. That challenge was mooted after Congressman Cawthorn failed to win his primary, leaving the underlying questions unanswered. Joining Mr. Bopp and Mr. Millen will be Kory Langhofer, who successfully represented Congressman Andy Biggs before the Arizona Supreme Court on a Disqualification Clause challenge, and moderator Devin Watkins, an Attorney at the Competitive Enterprise Institute.
Featuring:
--James Bopp, Jr., General Counsel, James Madison Center for Free Speech
--Kory Langhofer, Managing Partner, Statecraft
--Pressly M. Millen, Partner, Womble Bond Dickinson
--Moderator: Devin Watkins, Attorney, Competitive Enterprise Institute

Answering Threats to Taiwan: Where Does Law Matter? Sep 19, 2022

Show notes

The government of Communist China has insisted – and the U.S. government has officially acknowledged since 1979 – that Taiwan is part of China. Does that mean international law imposes no limits on Chinese coercion or intimidation of Taiwan? Do U.S. international agreements in the region require (or prohibit) U.S. military aid to Taiwan in the event of open conflict with China? Would the President need authorization from Congress to deploy U.S. forces there if conflict seems imminent? Our panelists will discuss the way these questions are likely to be viewed by other governments as well as by policymakers in Washington.
Featuring:
Michael Mazza, Nonresident Fellow, AEI
Mary Kissel, Executive Vice President and Senior Policy Advisor, Stephens, Inc.
Prof. 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. Jeremy Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University
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To register, please click the link above.

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