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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:

Cochran v. SEC: Vindicating Article III Jurisdiction over the Structural Constitution and ALJs Feb 03, 2022

Show notes

In Cochran v. SEC the Fifth Circuit court of appeals sitting en banc opened the doors of federal district courts in Texas, Mississippi and Louisiana to constitutional challenges to agency administrative law judges (ALJs) who enjoy multiple layers of protection from removal. This means that persons administratively charged by the SEC will no longer have to first endure years of pointless administrative proceedings before judges they claim are unconstitutional. By contrast, in six other circuits (Second, Fourth, Seventh, Eleventh, D.C. and Ninth), administrative agencies such as the SEC and FTC can instigate unconstitutional proceedings and evade judicial review by an Article III court for years on end. Defendants are thereby forced to settle or bankrupted before ever receiving meaningful judicial review.
Cochran is not only a groundbreaking course-correction vindicating Americans’ access to Article III courts for redress of their constitutional rights, but it creates a circuit split that may well prompt Supreme Court review. The Fifth Circuit, by a 9-7 vote (Haynes, Jones, Smith, Elrod, Willett, Duncan, Engelhardt, Oldham and Wilson) held that § 78y of the Exchange Act neither explicitly nor implicitly stripped jurisdiction from federal courts to hear this challenge.
Judge Oldham, joined by Judges Smith, Willett, Duncan, Engelhardt and Wilson, concurred separately in a remarkable opinion that set forth the origins of the administrative state in § 78y’s transfer of power “far away from the three branches of government the Founders worked so hard to create, separate and balance … [a]nd … as far away from democracy and universal suffrage as possible.” They said that critical disjuncture has allowed “administrative agencies to operate in a separate, anti-constitutional, and anti-democratic space—free from pesky things like law and an increasingly diverse electorate.”
Please join Peggy Little, Senior Litigation Counsel of the New Civil Liberties Alliance (NCLA), who argued the en banc, and Gregory Garre, former U.S. Solicitor General and now partner at Latham & Watkins, who worked with another NCLA client in 2020 on a petition for certiorari to the Supreme Court on this point, for a discussion of this landmark decision and the concurrence’s open engagement with administrative power. Peggy and Greg will discuss how this structural constitutional question was litigated in district courts in California, Texas and the Fifth, Ninth and Eleventh Circuits, what the Fifth Circuit got right that so many other circuits got wrong, and how this separation of powers question might reach the Supreme Court in the near future.
Featuring:
Peggy Little, Senior Litigation Counsel, New Civil Liberties Alliance
Gregory Garre, Partner, Latham & Watkins

Litigation Update: Cert Granted in Students for Fair Admission v. Harvard and Students for Fair Admission v. UNC Chapel Hill Feb 02, 2022

Show notes

Breaking news: The Supreme Court granted certiorari in two petitions pending before the Supreme Court which have gained national attention. Students for Fair Admission Inc. v. President and Fellows of Harvard College and Students for Fair Admission, Inc. v. University of North Carolina both ask the Court to overrule Grutter v. Bollinger, a nearly twenty-year-old Supreme Court decision that allowed higher education institutions to consider race in admission decisions.
Beyond challenging Grutter, the petitioners suing Harvard allege the college’s admissions policies discriminate against Asian Americans in violation of Title VI of the Civil Rights Act.
In both the Harvard and UNC cases, lower courts have so far upheld the use of race in admissions. And after the Court called for the views of the Biden Administration, the United States filed a brief urging the Court not to get involved in the Harvard matter. Nevertheless, the case is proceeding to the Court in what is sure to be a significant battle on the topic of whether schools can consider a student's race when making admissions decisions.
Join Will Trachman, former Deputy Assistant Secretary to the Office for Civil Rights, Department of Education, for a litigation update discussing both cases. Will is currently General Counsel to Mountain States Legal Foundation, which filed an amicus brief in both the Harvard and UNC petitions, urging the Court to grant certiorari.
Featuring:
Will Trachman, General Counsel, Mountain States Legal Foundation
To register, click the link above.

Fireside Chat with Nadine Strossen Feb 01, 2022

Show notes

Free speech champion and icon Nadine Strossen joins Erik Jaffe for a virtual “fireside” chat spanning a variety of free speech topics, including: the perpetual and inevitable conflict between process- and outcome-oriented approaches to free speech cases (i.e., whether to defend the speech or speaker you hate); how does a lawyer or public interest group decide whether to take a case raising such a conflict; does more speech always solve the problems of bad speech; how much risk or harm should be tolerated before it is acceptable to restrict speech; the prospective conflict between freedom and equality if speech is claimed to create a hostile environment on campus or in the workplace; balancing private versus public power questions in the free speech and other contexts; how the ACLU has grappled with such issues; and are there areas of or approaches to the First Amendment that might have bipartisan appeal.
Featuring:
Nadine Strossen, John Marshall Harlan II Professor of Law, Emerita, New York Law School
Moderator: Erik Jaffe, Partner, Schaerr Jaffe LLP
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To join, click the link above.

Litigation Update: New York's "Rent Stabilization Act" Jan 28, 2022

Show notes

Does New York’s “rent stabilization” law violate the federal Constitution? The law, which regulates approximately 1 million apartments in New York City, was enacted more than fifty years ago and remains in effect based on an every-three-year declaration of a housing “emergency.” The law does not merely regulate rent levels. It also limits a property owner’s right to determine who uses an apartment, to convert the property to new uses or to replace the existing building with a new structure, and to occupy the property for use by the owner and his or her family.
A lawsuit filed in 2019 asserts that the New York law—including 2019 amendments that significantly increased the restrictions on property owners— violates due process and effects both physical and regulatory takings of the property that it regulates. After being dismissed at the District level, the case now moves to the United States Court of Appeals for the Second Circuit.
Rent regulation is not just a New York phenomenon. Other cities across the country have enacted, or are considering, rent regulation legislation. Andrew Pincus, lead counsel for the plaintiffs, and Dean Reuter, Federalist Society Senior Vice President and General Counsel, will discuss the constitutional challenge in the context of the Supreme Court’s evolving property rights jurisprudence—including last Term’s decision in Cedar Point Nursery v. Hassid.
Featuring:
Andrew Pincus, Partner, Mayer Brown
Moderator: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society
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To register, click the link above.

Litigation Update: FEC v. Cruz for Senate Jan 26, 2022

Show notes

On January 19, 2022, the United States Supreme Court will hear an appeal by the Federal Elections Commission (FEC) from a successful challenge to campaign finance restrictions brought by Sen. Ted Cruz. The action centers on a provision of the Bipartisan Campaign Reform Act (BCRA) of 2002, otherwise known as McCain-Feingold, that restricts candidates’ ability to use campaign donations received after the election to pay back personal loans made to their campaign.
Pursuant to BCRA, the case was heard by a 3-judge district court panel in Washington, D.C. and, after the court struck down the limitation, the FEC appealed directly to the Supreme Court, which set it for oral argument. The case offers an opportunity for the Court to clarify and/or refine its campaign finance jurisprudence, including reviewing the real-world effect of such restrictions on political speech, the distinction devised in Buckley v. Valeo between expenditures and contributions, and the various levels of scrutiny for each.
The webinar will review the traditional free speech issues in the case (including the extent of any risk of corruption or its appearance presented by a candidate's loan to his or her own campaign), as well as practical concerns about the effect these limitations might have on campaigns -- including on the kinds of candidates who will be able to run for office.
Featuring:
Donald A. Daugherty, Jr., Senior Litigator, Institute for Free Speech
Harmeet Dhillon, Founding Partner, Dhillon Law Group Inc.
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To register, click the link above.

The New Mass Arbitration: Just Deserts or Just Another Abuse? Jan 25, 2022

Show notes

In recent years, many companies have required consumers and employees to agree to individually arbitrate any disputes that might arise, eliminating aggregate dispute resolution devices like class actions. In response, plaintiffs’ lawyers have begun filing masses of individual arbitration demands on behalf of employees and consumers against companies like Intuit, Uber, and American Express. The demands place companies on the hook for millions of dollars in arbitration fees, and companies have begun resisting payment and asking to return to court for aggregate dispute resolution, or to create aggregate arbitration procedures. Is this just deserts for corporations or an abuse of the system by plaintiffs’ lawyers? What about the claimants: does mass arbitration deliver for them? Our speakers will explore these and other questions in this lively and timely event.
Featuring:
Daniel Fisher, Chartered Financial Analyst, Walden Consultants, LLC
Maria Glover, Professor of Law, Georgetown University Law Center
Moderator: Brian Fitzpatrick, Milton R. Underwood Chair in Free Enterprise, Vanderbilt University Law School

Litigation Update: Investigating Title VI and Title IX Complaints Jan 25, 2022

Show notes

Title IX of the Education Amendments of 1972 supplemented Title VI of the Civil Rights Act of 1964 to include, in addition to barring discrimination on the ground of race, color, or national origin, sex as a protected class in federally funded education programs or activities. The purpose of enacting Title IX was to ensure that everyone, regardless of sex, would enjoy a discrimination-free educational experience.
In the years since their enactment, observers have accused colleges and universities of violating Titles VI and IX in various ways. Many Title IX concerns have involved single-sex, female-only programs, scholarships, awards, fellowships, camps, clubs, etc. Others have involved single-sex, male-only programs. And recently, programs or scholarships for BIPOC-only or people of color have invoked Title VI concerns. One such observer of these potential civil rights violations is professor emeritus of economics at the University of Michigan, Mark Perry.
Over the last three years, Professor Perry has identified more than 1,200 Title IX and Title VI alleged violations and has filed complaints with the Department of Education’s Office for Civil Rights (OCR) against nearly 400 colleges and universities which have resulted in nearly 200 federal investigations and more than 100 resolutions, mostly in his favor.
However, after years of this work, Professor Perry announced recently that he has noticed what he describes as a “significant departure from past practices” in what OCR now requires of Title VI and Title IX complaints. Please join us for an update from Professor Perry on his civil rights advocacy and what he views as “troubling signs” at the Biden-Cardona-Lhamon OCR for a discrimination-free educational experience for all.
Featuring:
-- Mark Perry, Senior Fellow, American Enterprise Institute
-- Moderator: Devon Westhill, President and General Counsel, Center for Equal Opportunity

Talks with Authors: The Great Dissenter: The Story of John Marshall Harlan Jan 25, 2022

Show notes

The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero is a new book exploring the life and legacy of a towering but sometimes forgotten jurist. Harlan, who served over 30 years on America's highest court, earned a reputation for being a champion of civil liberties -- notably, he was the lone dissenter in the Civil Rights Cases and Plessy v. Ferguson.
Author Peter Canellos joins us to discuss his new book and Justice Harlan's legacy.
Featuring:
Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston
Peter S. Canellos, Managing Editor, Politico
Moderator: Hon. Victor Wolski, Senior Judge, U.S. Court of Federal Claims
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This Zoom event is open to public registration at the link above.

The Fourth Amendment at the High Court: Last Term in Review and the Future Jan 24, 2022

Show notes

The Federalist Society's Criminal Law and Procedure and Environmental Law and Property Rights Practice Groups bring you a roundtable discussion with leading Fourth Amendment scholars and litigators reviewing the major Fourth Amendment decisions from the 2020-2021 term and previewing the future of the Fourth Amendment at the High Court. What is the fate of Katz, the third-party doctrine, and the exigent-circumstances exception to the warrant requirement? What is the best method of interpreting the Amendment and will we see a revival of its original meaning? Four Fourth Amendment experts review:
Caniglia v. Strom, a unanimous opinion written by Justice Thomas rejecting the warrantless search of a home under the “community caretaking exception.”
Lange v. Caniglia, an opinion written by Justice Kagan rejecting a categorical exception to the warrant requirement for a fleeing misdemeanant.
Torres v. Madrid, a 5-3 decision by Chief Justice Roberts with a resounding dissent by Justice Gorsuch, debating what constitutes a "seizure"--is mere touch sufficient or must an officer take actual possession?
Bovat v. Vermont, Justice Gorsuch, joined by Justices Kagan and Sotomayor, dissenting from the denial of certiorari in a case involving the “knock and talk” exception to the warrant requirement.
The last term was a busy one for the Fourth Amendment and no doubt many questions remain in this important area of constitutional law. Join the nation's leading scholars and litigators as they discuss the most recent developments in Fourth Amendment law and preview the Amendment's future at the High Court.
Featuring:
Professor Jeffrey Bellin, Mills E. Godwin, Jr., Professor of Law and Robert E. and Elizabeth S. Scott Research Professor at William & Mary Law School.
Professor Laura Donohue, Anne Fleming Research Professor; Professor of Law at Georgetown Law.
Robert Frommer, Senior Attorney, Institute for Justice.
James K. Vines, Partner, King & Spalding LLP
Moderator: Adam Griffin, Law Clerk, U.S. District Courts; former Constitutional Law Fellow, Institute for Justice

Vaccine Policy: Who Decides? Jan 21, 2022

Show notes

The Supreme Court recently issued its decisions in two federal vaccine mandate cases. Several states and interest groups sought emergency relief on regulations issued by the Occupational Safety and Health Administration as well as the Centers for Medicare and Medicaid Services.
The OSHA rule required large employers to require vaccination or regular testing of their employees. CMS required vaccination of staff at health care facilities participating in Medicare or Medicaid programs. The Court granted a stay of the OSHA rule pending merits review in the Sixth Circuit, but stayed an injunction of the CMS rule allowing it to go into effect.
But federal agencies are not the only actors setting vaccine policy. Effective January 15th, the D.C. government will require restaurants and other businesses to check customer vaccine status. Meanwhile Florida has taken a different approach, and has barred businesses from checking employee or customer vaccine status.
This panel will review the decisions and also consider the appropriate role for the various levels of government authority in setting vaccine policy, as well as competing interests of private businesses, employees, and consumers.
Featuring:
Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
Dorit Reiss, Professor of Law and the James Edgar Hervey '50 Chair of Litigation, UC Hastings Law
Ryan Dean Newman, General Counsel, Governor Ron DeSantis
David Dewhirst, Solicitor General, Montana
Moderator: Kate Todd, Managing Partner, Ellis George Cipollone
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To register, click the link above.

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