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FedSoc Forums — Business
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:

Title VI, College Admissions, and Public Opinion Apr 14, 2022

Show notes

With the Supreme Court about to hear two cases involving the use of race in admissions at Harvard and the University of North Carolina, what do Americans actually think about preferential treatment? Dr. Althea Nagai, Senior Research Fellow at the Center for Equal Opportunity (CEO), will present her analysis of recent data from the Pew Research Center on what Americans believe colleges should consider when deciding whom to admit. Her study focuses on the attitudes of some of the beneficiaries of affirmative action, based on a large sample of black and Hispanic respondents as well as Asians and whites. Joining Dr. Nagai on the panel discussion will be Theodore Johnson, Director of the Fellows Program at the Brennan Center for Justice, and moderator Linda Chavez, CEO Chair.
Featuring:
Dr. Althea Nagai, Senior Research Fellow, Center for Equal Opportunity (CEO)
Theodore Johnson, Director, Fellows Program, Brennan Center for Justice
Moderator: Linda Chavez, Chairman, Center for Equal Opportunity (CEO)
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

The Separation of Powers, From Washington to Sacramento Apr 14, 2022

Show notes

Are state governors subject to the same separation of powers restrictions as the federal president?
Expanding on the recent Regulatory Transparency Project panel discussion on emergency executive power during the pandemic, this event will feature experts engaging in a broader separation of powers discussion about the distinctions between the federal and state separation of powers doctrines, using California as an example.
In a conversation moderated by Braden Boucek, David. A. Carrillo, Luke A. Wake, and John C. Yoo will explore those distinctions, examine how they affect the latitude and options state and federal executives have, and debate the extent to which federal separation of powers doctrines can or should be applied to the states through judicial interpretation.
Featuring:
David A. Carrillo, Lecturer in Residence and Executive Director, California Constitution Center, University of California, Berkeley, School of Law
Luke A. Wake, Attorney, Pacific Legal Foundation
John C. Yoo, Emanuel S. Heller Professor of Law; Co-Faculty Director, Korea Law Center; and Director, Public Law & Policy Program, University of California, Berkeley, School of Law
[Moderator] Braden Boucek, Director of Litigation, Southeastern Legal Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

Litigation Update: New York's Covid Therapeutics Case Apr 12, 2022

Show notes

New York’s response to the Covid-19 pandemic has been widely criticized, triggered an FBI investigation, and repeatedly landed the state before the Supreme Court. The latest criticism comes coupled with litigation alleging that New York State’s Department of Health (NYHD) is illegally discriminating on the basis of race in administering antiviral medication for covid treatment.
On December 27, 2021, the NYHD issued guidelines for the administration of the antivirals paxlovid and molnupiravir. Citing the short supply of both treatments, the NYHD directed that the drugs could only be administered to patients with Covid who also had “a medical condition or other factors that increase their risk for covid.” While New York’s guidelines link to the CDC’s “People with Certain Medical Conditions” page to describe “risk factors for severe illness,” New York specifically added consideration of race as a factor for prescription.
The guidelines state: “Non-white race or Hispanic/Latino ethnicity should be considered a risk factor, as longstanding systemic health and social inequities have contributed to an increased risk of severe illness and death from Covid-19.”
As a result, in some cases identically situated "whites" and non-white are ineligible or eligible for certain treatments. Although the NYHD disputes the characterization of their guidelines as impermissibly racially discriminatory, many lawsuits have been filed challenging the guidelines as impermissible and illegal race discrimination. The first of those lawsuits was filed by Professor William Jacobson of Cornell who joins us to discuss the pending litigation in New York and in other states across the country.
Featuring:
--Prof. William Jacobson, Clinical Professor of Law and Director of the Securities Law Clinic, Cornell Law School; President, Legal Insurrection
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To register, click the link above.

Citizen Suits, Separation of Powers, and the Future of the Supreme Court's Standing Jurisprudence Apr 11, 2022

Show notes

Internal tensions in the Supreme Court's standing doctrine have led to some unexpected fractures. Last term, in Transunion LLC v. Ramirez, the Court considered a class action arising from Transunion's errors in the processing and use of the plaintiffs' personal credit information. By a vote of 5-4, the Court held that, while Congress had created a cause of action that on its face let all of the class members sue, only those whose information was shared with third parties had sufficiently concrete injuries to establish standing. Justice Thomas joined the court's three more liberal justices in dissent, arguing that Congress's creation of a cause of action was sufficient and pointing out numerous inconsistencies in the Court's standing doctrine. Of particular note, Justice Thomas cited a provocative concurring opinion from the 11th Circuit's Judge Newsom, who argued that standing has no basis in the original meaning of Constitution and that courts should instead look at whether a congressionally created cause of action violates the Constitution's separation of powers. Judge Newsom's opinion, and both the majority and the dissent in Transunion, spent considerable time discussing how courts should approach citizen suits, which have always been on the outer edge of the Court's standing jurisprudence and which several justices have said raise other serious separation of powers concerns.
This webinar will have a lively discussion among three leading experts about what the future may hold for citizen suits, standing doctrine, and the separation of powers
Featuring:
--Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
--Prof. Robin Craig, Robert C. Packard Trustee Chair in Law, USC Gould School of Law
--Jonathan Brightbill, Partner, Winston & Strawn LLP and former Acting Assistant Attorney General for the Environment & Natural Resources Division of the U.S. Department of Justice
--Moderator: Michael Buschbacher, Counsel, Boyden Gray & Associates PLLC

Litigation Update: Ducey v. Treasury Mar 31, 2022

Show notes

On January 21, 2022, Arizona Governor Doug Ducey filed suit against Janet Yellen and the Treasury Department over its threat to withdraw federal funding if Governor Ducey did not alter school masking conditions. Ducey allocated over $160 million for schools but conditioned the money on those schools remaining open and not mandating masks.
Two attorneys on the ground in Arizona join us to discuss this case.
Featuring:
--Anni Foster, General Counsel, Governor Doug Ducey
--Moderator: Michael Bailey, General Counsel, Arizona Chamber of Commerce & Industry
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This Zoom link is open to public registration at the link above.

Where's the Beef? Inflation at the Grocery Store and Proposed Regulatory Responses Mar 29, 2022

Show notes

Although inflation has broadly scattered across the economy, it is the food we buy where inflation's bite is the most obvious. The Biden Administration has pointed the finger at industry consolidation as the culprit. It proposes a rewrite of the regulations implementing agricultural antitrust statutes as the remedy. Industry disagrees that consolidation is to blame and looks warily at the proposed regulations as harbingers of what is to come for antitrust policy more generally. What is to blame for $18/pound beef, and what if anything can be done to counteract the rapid price increases at the grocery store? How will businesses respond to the proposed regulatory changes? Sean Heather of the U.S. Chamber of Commerce; Mark Dopp, Chief Operating Officer and General Counsel of the North American Meat Institute; and Joe Maxwell, president of Farm Action and former Lieutenant Governor of Missouri will discuss the policy and legal options available. Judge Stephen Alexander Vaden of the U.S. Court of International Trade and former General Counsel of the U.S. Department of Agriculture will moderate the panel.
Featuring:
--Mark Dopp, General Counsel, the North American Meat Institute
--Sean Heather, U.S. Chamber of Commerce
--Joe Maxwell, President, Farm Action
--Moderator: Hon. Stephen Vaden, Judge, U.S. Court of International Trade
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To register, click the link above.

Spectrum Policy in the 5G Era Mar 24, 2022

Show notes

This webinar will focus on spectrum policy in the 5G era and the recent increase in inter-agency spectrum turf wars. In recent years, there has been an uptick in the amount of involvement by other agencies, including the Department of Transportation, Department of Defense, Department of Energy, and the National Oceanic and Atmospheric Administration, to name a few, in FCC spectrum band proceedings. As spectrum demands continue to increase and the importance of sharing rises, some of this proceeding involvement has led to conflicts of interest, delays, and other challenges. The webinar will explore some of the most recent conflicts, such as C-band and 5.9 GHz band, the 6 GHz court challenge, as well as the potential long-term impacts of these battles on spectrum policy at the FCC and beyond.
Featuring:
--Prof. Adam Candeub, Professor of Law, Michigan State University
--Harold Feld, Senior Vice President, Public Knowledge
--Tricia Paoletta, Partner, Harris, Wiltshire & Grannis LLP
--Moderator: Danielle Thumann, Legal Advisor, Commissioner Brendan Carr
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This Zoom webinar is open to public registration at the link above.

Legal Review: Dobbs and the Holdings of Roe and Casey Mar 21, 2022

Show notes

Before the Supreme Court this term is the question of whether all pre-viability bans on abortion are unconstitutional. In Dobbs v. Jackson Women's Health, the Court must address this question in light of its previous holdings in Roe v. Wade and Planned Parenthood v. Casey. Shortly after oral argument in December 2021, law professor Richard Re encouraged the Court to adopt a gradualist approach, making room for the possibility that the justices could uphold both Mississippi's prohibition on abortions before 15-weeks gestation and its prior precedents in Roe and Casey. Law professor Eric Claeys has written a forthcoming article for the Georgetown Journal of Law and Public Policy in which he takes a deep dive into the abortion precedents, concluding that the Court must either reaffirm or overturn those prior rulings.
These two distinguished scholars join us to discuss the argument, the stakes, and more.
Featuring:
Prof. Eric Claeys, Professor of Law, Antonin Scalia Law School, George Mason University
Prof. Richard Re, Joel B. Piassick Research Professor of Law, University of Virginia School of Law
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This Zoom webinar is open to public registration at the link above.

A Seat at the Sitting - March 2022 Mar 18, 2022

Show notes

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. Issues presented in the March 2022 sitting included arbitration and the Federal Arbitration Act, international law, states rights, civil procedure, and more.

Morgan v. Sundance, Inc. (March 21) – arbitration and contract law
Berger v. North Carolina State Conference of NAACP (March 21) – states rights, intervention, and civil procedure
Golan v. Saada (March 22) – international law; the Hague Convention on the Civil Aspects of International Child Abduction
ZF Automotive US, Inc. v. Luxshare, Ltd. consolidated for argument with Alixpartners, LLP v. Fund for Protection of Investors’ Rights (March 23) – rules of evidence before international arbitral tribunals; what constitutes a “foreign or international tribunal” under 28 U.S.C. § 1782(a)
Ledure v. Union Pacific Railroad Co. (March 28) – The Locomotive Inspection Act
Southwest Airlines Co. v. Saxon (March 28) – the definition of “transportation workers” under the Federal Arbitration Act
Torres v. Texas Dept. of Public Safety (March 29) – state sovereign immunity, the constitutional war power, and the Uniformed Services Employment and Reemployment Act of 1994
Viking River Cruises, Inc. v. Moriana (March 30) – enforcement of bilateral agreements under the Federal Arbitration Act

Featuring:

Theane Evangelis, Partner, Gibson Dunn
Jonathan Urick, Association Chief Counsel, U.S. Chamber of Commerce Litigation Center
John Elwood, Partner, Arnold Porter
Evan Caminker, Dean Emeritus and Branch Rickey Collegiate Professor of Law at Michigan Law
Moderator: Jess Bravin, Supreme Court Correspondent, The Wall Street Journal

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This conference has already happened. Watch the archived video above or at www.youtube.com/c/TheFederalis...

Talks with Authors: Who Decides? States as Laboratories of Constitutional Experimentation Mar 16, 2022

Show notes

As federalism becomes an increasingly important principle of our constitutional structure, Chief Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit has published a timely book titled, Who Decides? States as Laboratories of Constitutional Experimentation (Oxford, 2021). Judge Sutton, a former law clerk to Justices Lewis Powell and Antonin Scalia, argues that constitutional law in America--encompassing the systems of all 51 governments--should have a role in assessing the right balance of power among all branches of our state and federal governments.
A distinguished group of legal thinkers and practitioners joins us to discuss this book.
Featuring:
--Hon. William H. Pryor, Jr., Chief Judge, U.S. Court of Appeals for the Eleventh Circuit
--Hon. Jeffrey S. Sutton, Chief Judge, U.S. Court of Appeals for the Sixth Circuit
--Moderator: Prof. Jennifer L. Mascott, Assistant Professor of Law and Co-Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School
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This Zoom event is open to public registration at the link above.

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