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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 Webinar: Kennedy v. Bremerton School District Apr 28, 2022

Show notes

On April 25, 2022, the U.S. Supreme Court will hear oral argument in Kennedy v. Bremerton School District.
Bremerton School District in Washington state removed Coach Joe Kennedy from his job as a public high school football coach after kneeling in brief, quiet prayer on the field after football games. Coach Kennedy filed suit alleging that the school district’s ban on “demonstrative religious activity” violated his First Amendment rights under the Free Speech and Free Exercise Clauses.
In 2019, on appeal of the denial of a preliminary injunction, the U.S. Supreme Court declined the petition for review, allowing further factual development. Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh, issued a statement respecting the denial of certiorari, writing that the “Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”
This year, the Supreme Court granted cert on two questions concerning the interplay of the Free Speech, Free Exercise, and Establishment Clauses:
Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection.
Whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause nevertheless compels public schools to prohibit it.
We will break down the argument on the same day, April 25, 2022.
Featuring:
--Stephanie Taub, Senior Counsel, First Liberty
Note: Coach Kennedy is represented by Kirkland & Ellis and First Liberty Institute.

Courthouse Steps Decision Webinar: United States v. Tsarnaev Apr 28, 2022

Show notes

On March 4, 2022, the U.S. Supreme Court decided United States v. Tsarnaev. In a 6-3 decision, the Court reversed the judgment of the U.S. Court of the Appeals for the First Circuit, holding that the court improperly vacated Dzhokhar Tsarnaev's capital sentences.
The Court held that the judge's conduct of voir dire conformed to its precedents and reversed the First Circuit's holding that the judge had violated a rule established by that circuit under its supervisor power. The Court held that courts of appeals have no power to circumvent or supplement legal standards established in Supreme Court precedents.
The Court also held that the judge was within his authority to exclude from the penalty trial hearsay evidence of Tsarnaev's brother's involvement in an unrelated murder. The Court rejected the argument that the Eighth Amendment requires admission of all mitigating evidence no matter how dubious or how weakly mitigating.
Justice Thomas delivered the opinion of the court, in which Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett joined. Barrett filed a concurring opinion, in which Gorsuch joined. Justice Breyer filed a dissenting opinion, in which Justices Sotomayor and Kagan joined.
Please join our legal expert to discuss the case, the legal issues involved, and the implications going forward.
Featuring:
--Kent Scheidegger, Legal Director, Criminal Justice Legal Foundation

Judicial Ethics in the Modern Era Apr 28, 2022

Show notes

In the modern era, U.S. Supreme Court justices have been cited for what some critics characterize as “controversial” statements, sometimes relating to actual or potential matters before the Court. In some instances, these critiques have been accompanied by calls for recusal in specific cases. More recently, critics have turned to the statements not only of the justices themselves, but of the spouse of one particular justice. In light of these recent developments, what are the free speech considerations for justices and their family members? Although there is no formal code of judicial conduct applicable to spouses or even the justices of the Supreme Court, what are the ethical considerations of these actions? Does Congress have authority to impose an ethical code on this co-equal branch of government, particularly at the level of the Supreme Court?
Featuring:
--Prof. Rebecca Roiphe, Trustee Professor of Law and Co-Dean for Faculty Scholarship, New York Law School
--Prof. Thomas D. Morgan, Oppenheim Professor Emeritus of Antitrust and Trade Regulation Law, George Washington University Law School
--Prof. Michael I. Krauss, Professor Emeritus of Law, Antonin Scalia Law School, George Mason University
--Moderator: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society

Ukraine in Crisis Apr 28, 2022

Show notes

A war is raging in Europe. Russia invaded Ukraine on February 24, 2022. Arguing that Ukraine was controlled by nationalists and Nazis, Russia sought to seize major cities including the capitol, Kyiv, and trigger a regime change. After failures to achieve these objectives, Russia now appears to be regrouping its forces to target Ukraine’s eastern region. Russia’s aggression has resulted in significant civilian deaths, the alleged commission of war crimes, and the displacement of millions of Ukrainians. The invasion has also unified the West, with Germany pledging to increase military spending, broad sanctions against Russian leadership and industry, and discussions in Sweden and Finland about joining NATO. Our experts will review events to date, what we can expect from the Kremlin, the Biden administration’s policy, and what comes next. Please join us for this timely conversation.
Featuring:
--Michael Allen, Managing Director, Beacon Global Strategies; Former Special Assistant to the President and Senior Director for Counter-proliferation Strategy, National Security Council; Author, Blinking Red Light: Crisis and Compromise in American Intelligence after 9/11
--Prof. Angela Stent, Director, Center for Eurasian, Russian and East European Studies; Professor of Government and Foreign Service, Georgetown University
--Moderator: Matthew Heiman, General Counsel & Corporate Secretary, Waystar Health; Senior Fellow and Director of Planning, National Security Institute

Criminal Market Allocation or Pro-Competitive Agreement: The Debate over DOJ’s “No Poach” Prosecutions Apr 26, 2022

Show notes

No poaching allowed! No, you have not wandered into a Hunter’s Safety Forum, but rather an in depth discourse regarding the Department of Justice, Antitrust Division’s recent criminal investigations and prosecutions of “No Poach” conduct. These agreements, which generally establish that Company A will not hire Company B’s employees and in exchange Company B agrees to do the same, have been in the DOJ crosshairs since 2016, but only in the last year have they been specifically referenced in public charging documents. DOJ’s decision to now criminally prosecute “no poach” agreements has resulted in approximately six charged cases from January 2021 to the present. The criminal antitrust defense bar, as well as some academics, have cried foul given that from their perspective the DOJ has created a new form of criminal antitrust conduct out of whole cloth and is prosecuting individuals and corporations who had no intent to violate the law nor had any indication that discussing employment concerns with another company was unlawful. The enforcers have responded just as forcefully and argue that it has always been criminal under Section 1 of the Sherman Act to allocate markets and “no poach” is nothing more than the allocation of the market for employees. Amidst this backdrop, our panel will examine the evolution of “no poach” from the DOJ’s 2016 Guidance for Human Resource Professionals to the cases that are currently pending before judges and at least one jury.
Our panel will include former Principal Deputy Assistant Attorney General for Antitrust Barry Nigro, Co-Chair of the ABA Antitrust Section’s Cartel & Criminal Practice Committee Lindsey Vaala, former United States Attorney for the Eastern District of Virginia Zach Terwilliger, and Pepper Crutcher, chair of the Labor and Employment practice group at the Federalist Society and partner at Balch & Bingham, who will wrangle our panel and serve as moderator.
Featuring:
--Barry Nigro, Partner, Fried Frank, and former Principal Deputy Assistant Attorney General for Antitrust
--Lindsey Vaala, Counsel, Vinson & Elkins, and Co-Chair, ABA Antitrust Section's Cartel and Criminal Practice Committee
--Zach Terwilliger, Partner, Vinson & Elkins, and former United States Attorney for the Eastern District of Virginia
--Moderator: Pepper Crutcher, Partner, Balch & Bingham and Chairman, Labor & Employment Practice Group at the Federalist Society

A Seat at the Sitting - April 2022 Apr 26, 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.
United States v. Washington (April 18) – workers’ compensation; state and federal law
Siegel v. Fitzgerald (April 18) – Bankruptcy Judgeship Act; Bankruptcy Clause of the U.S. Constitution
George v. McDonough (April 19) – veterans’ claims and Department of Veterans Affairs agency interpretation
Kemp v. United States (April 19) – Federal Rule of Civil Procedure 60(b)(1)
Vega v. Tekoh (April 20) – Habeas motions under 42 U.S.C. 1983 and relief for Miranda violations
Kennedy v. Bremerton (April 25) – the Speech and Establishment Clauses of the First Amendment
Nance v. Ward (April 25) – method of execution and 42 U.S.C. 1983 habeas motions
Biden v. Texas (April 26) – remain in Mexico immigration policy
Shoop v. Twyford (April 26) – the All Writs Act and habeas petitions
Oklahoma v. Castro-Huerta (April 27) – Indian Law
Featuring:
--Noel J. Francisco, Partner-in-Charge Washington, Jones Day
--Allyson Newton Ho, Partner and Co-Chair, Constitutional and Appellate Law Practice Group, Gibson, Dunn & Crutcher LLP
--Aaron M. Streett, Chairman, Supreme Court and Constitutional Law Practice, Baker Botts LLP
--Misha Tseytlin, Partner, Troutman Pepper Hamilton Sanders LLP
--Moderator: Elbert Lin, Partner, Hunton Andrews Kurth LLP

Talks with Authors: John Fisher and Thomas More: Keeping Their Souls While Losing Their Heads Apr 19, 2022

Show notes

In his recent book John Fisher and Thomas More: Keeping Their Souls While Losing Their Heads, Robert Conrad, who serves as a federal district court judge in the Western District of North Carolina, details the lives, trials, and executions of two Catholic saints who opposed King Henry's bid for ecclesiastical approval of his divorce. Thomas More, an attorney and close advisor to the king, underwent a trial filled with grievous errors, the deprivation of due process, and more.
Judge Conrad will join us to discuss his book, these two men, and the enduring relevance of their stories.
Featuring:
--Hon. Robert Conrad, District Judge, Western District of North Carolina
--Moderator: William Saunders, Professor, The Catholic University of America; Co-Director of the Center for Religious Liberty, and Fellow, The Institute for Human Ecology

Issue Update: Woke Capital Apr 19, 2022

Show notes

Following the prominent events of early 2020, as part of what’s often referred to as a national, racial reckoning, countless institutions altered their policies. Large publicly traded corporations (including Coca-Cola Company, Novartis AG, McDonald’s Corporation, Starbucks Coffee Company, Lowe’s Companies, Inc., NASDAQ, Inc., and much of the financial services industry) rolled out new policies — under banners invoking diversity, equity, and inclusion — concerning matters ranging from their selection of vendors, to hiring and promotions, to election of future directors to (in NASDAQ’s case) willingness to list customers at all. Those policies have raised concern among some over their potential violation of civil rights law (both state and federal), including Dan Morenoff, the Executive Director of the American Civil Rights Project. Do officers and directors of publicly traded companies advancing these policies run afoul of existing corporate law, with possible personal liability for breaches of fiduciary duty and for their use of corporate resources pursuing ultra vires actions?
Citing the related concerns of shareholders, the ACR Project demanded the public retraction of such policies by Coke last year — Coke acceded in all but name in March, declaring that the policies at issue “have not been and are not policy of the company[.]” The ACR Project has since made demands on behalf of shareholders to the officers and directo
rs of Lowe’s, Novartis, McDonald’s, and Starbucks. America First Legal appears to have taken a related tack this week in publicly demanding on behalf of shareholders that the Walt Disney Company’s officers and directors launch investigations into alleged violations of employee's civil rights.
Featuring:
Dan Morenoff, Executive Director, American Civil Rights Project
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To register, click the link above.

Courthouse Steps Oral Argument: Egbert v. Boule Apr 14, 2022

Show notes

A federal statute allows citizens to sue state and local officers for violating constitutional rights, but there is no federal law that does the same for federal officers. In 1971, in a case called Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court held that a cause of action for damages against federal officers could be inferred from constitutional provisions. But in the 50 years since, the Court has struggled to explain how, or even if, a Bivens cause of action applies in different cases.
In 2014, Erik Egbert, a Customs and Border Patrol Agent, went to the Smugglers Inn, which sits at the U.S.-Canada border, and approached a car carrying a guest from Turkey. The inn’s owner, Robert Boule, asked Egbert to leave. Egbert refused to do so and pushed Boule to the ground. After Boule complained to Egbert’s supervisors, Egbert suggested to the IRS that it investigate Boule. In Egbert v. Boule, argued on March 2, the Court continued to grapple with Bivens questions, including whether Bivens applies to First Amendment retaliation and whether federal officers engaged in immigration-related functions are subject to Bivens suits for violations of Fourth Amendment rights.
Featuring:
Anya Bidwell, Attorney and Elfie Gallun Fellow in Freedom and the Constitution, Institute for Justice
Erin Hawley, Senior Legal Fellow, Independent Women's Law Center
Moderator: Hon. David Stras, Judge, United States Court of Appeals, 8th Circuit
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To register, click the link above.

Revisiting Jacobson Apr 14, 2022

Show notes

In 1905, the U.S. Supreme Court decided Jacobson v. Massachusetts, upholding a state's ability to enforce compulsory vaccination laws pursuant to its police powers and for the protection of its citizens. This precedent has recently come under scrutiny for its possible overbreadth. Two distinguished experts join us to discuss and debate the holding of the case, its merits, its relevance today, and ultimately, whether it should be limited or overruled.
Featuring:
--Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston
--Prof. Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and Professor of Government, University of Texas at Austin School of Law
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This Zoom event is open to public registration at the link above.

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