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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:

A Seat at the Sitting - January 2022 Jan 06, 2022

Show notes

Join us for the fourth episode of the Federalist Society's Supreme Court Show: A Seat at the Sitting. Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. During the first two weeks of January, the Justices will hear eight oral arguments on cases including the First Amendment – both the speech and religion clauses, immigration, tax law, and Medicaid, and more.This episode will also feature discussion of the OSHA vaccine mandate oral argument scheduled for January 7.

Gallardo v. Marstiller – reimbursement under the Federal Medicaid Act for tort recovery (Jan. 10)
Johnson v. Arteaga-Martinez – immigration (Jan. 11)
Garland v. Gonzalez – immigration (Jan. 11)
Boechler, P.C. v. Commissioner of Internal Revenue – tax law (Jan. 12)
Shurtleff v. Boston – First Amendment – speech and religion (Jan. 18)
Cassirer v. Thyssen-Bornemisza Collection Foundation – Foreign Sovereign Immunities Act and choice of law (Jan. 18)
Federal Election Commission v. Ted Cruz for Senate – federal campaign contribution limits and the Free Speech Clause (Jan. 19)
Concepcion v. United States – First Step Act (Jan. 19)

Featuring:-- Prof. Suzanna Sherry, Herman O. Loewenstein Chair in Law Emerita, Vanderbilt Law School
-- Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason Univeristy
-- Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
-- Sarah M. Harris, Partner, Williams & Connelly
-- Moderator: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society

Roiling the Waters: Clean Water Act “Navigable Waters” Definition – Litigation and Regulatory Developments Dec 21, 2021

Show notes

The Clean Water Act authorizes the Environmental Protection Agency and U.S. Army to regulate discharges to “navigable waters,” defined in the statute as “waters of the United States, including the territorial seas.” The agency regulations further defining these terms have engendered controversy and litigation for decades.
Since 2015, the agencies have modified their Navigable Waters regulations three times, and dozens of federal lawsuits have challenged the various versions. Meanwhile, the validity of these regulations have been the key issue in several enforcement cases.
On December 7, 2021, the agencies proposed yet a fourth revision in six years to the regulatory definition of Navigable Waters.
This teleforum will update listeners on the key pending cases that may have an ultimate effect on the agency regulations, and provide an overview of the proposed new regulation.
Featuring:
Charles Yates, attorney in Pacific Legal Foundation’s environmental practice group, where he litigates to defend private property rights and uphold the structural protections guaranteed by the Constitution’s separation of powers.
Tony Francois, who is experienced in Water and Real Property Law, Land Use and Zoning, Environmental Regulation, Natural Resources Development, Agricultural Law, and Constitutional Law. He has represented homeowners, builders, farmers and ranchers, trade associations, and water districts in administrative, civil, and criminal proceedings before state and federal administrative agencies and state and federal trial and appellate courts.

Admitting Expert Evidence Under Rule 702: By What Standard? Dec 17, 2021

Show notes

This webinar will host a debate over the pending amendments to Federal Rule of Evidence 702, which governs the admissibility of expert testimony. In August 2021, the federal judiciary’s Advisory Committee on Evidence Rules published proposed amendments to Rule 702 to include within the text of the rule language directly stating that the proponent of expert testimony must establish each of Rule 702’s elements by a preponderance of the evidence. Currently, Rule 702 does not explicitly include a preponderance standard, but merely cross-references the preponderance standard included under another evidentiary rule. A year’s worth of research into federal cases analyzing the current Rule 702 reveals that some courts apply a preponderance standard while others apply a more relaxed policy favoring admissibility.
The Advisory Committee will host a public hearing on January 21, 2022, and those wishing to testify are asked to reserve a spot 30 days in advance. The Committee is also accepting public comments on the proposed amendment until February 16, 2022.
The webinar discussion will be moderated by Leah Lorber, Assistant General Counsel of Dispute Resolution and Prevention at GSK. Participants will include Lee Mickus, a Partner at Evans, Fears & Schuttert, who has written and spoken extensively in support of Rule 702 reforms; David Wool, a Partner at the Wagstaff Law Firm who has litigated Rule 702 and Daubert issues extensively and questioned the need for the proposed amendment; and Katie Jackson, an Associate at Shook, Hardy & Bacon and Fellow with Lawyers for Civil Justice who has conducted research regarding the courts’ application of Rule 702.
Here is a link to a webpage with several Rule 702 resources for those wishing to file a comment, testify at the hearing, or simply learn more about the proposed amendments.
Featuring:
Kateland Jackson, Associate at Shook, Hardy & Bacon LLP in Washington, D.C.
Leah Lorber, Assistant General Counsel of Dispute Resolution and Prevention at GSK.
Lee S. Mickus, Partner, Evans Fears & Shuttert LLP
David Wool, Partner, Wagstaff Law Firm

Litigation Update: the OSHA Vaccine Mandate Dec 16, 2021

Show notes

Late in 2020, several pharmaceutical companies developed vaccines for Covid-19 that received FDA approval, first for emergency use and then for general use. Next came the question of whether the federal or state governments should mandate vaccination or leave that decision to individuals. The states have generally deferred to the federal government, and Congress punted punted the question to President Joe Biden. At first, he tried to persuade the public, and numerous people were vaccinated. In September 2021, however, the President changed course, expressing dissatisfaction with the rate of vaccination. Among other things, he ordered the Occupational Safety and Health Administration (OSHA) to promulgate an Emergency Temporary Standard (ETS) requiring all employees at companies with 100 or more employees to be vaccinated or receive weekly negative test results to remain at the workplace. Numerous parties challenged the OSHA Vaccination Mandate. The U.S. Court of Appeals for the Fifth Circuit stayed the effect of the ETS, and OSHA agreed not to enforce it for the time being. All related cases have now been transferred to the Sixth Circuit, and the federal government has asked that court to dissolve the stay.
Featuring:
-- Paul Larkin, who is the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Meese Center for Legal and Judicial Studies. Larkin works on criminal justice policy, drug policy, and regulatory policy.
-- Larry Stine, a Senior Principal in the firm of Wimberly, Lawson, Steckel, Schneider & Stine P.C., and an AV rated attorney, who enjoys a diverse practice in which he covers a broad range of labor and employment matters. Larry is the former Region IV Counsel for OSHA in the Office of the Solicitor for the U.S. Department of Labor. He is nationally known for his expertise in Occupational Safety and Health
-- Moderator: R. Pepper Crutcher, General Counsel to the Mississippi Manufacturers Association. Pepper Crutcher advises and advocates for a wide range of Southeast U.S., private sector employers. As the leader of the firm's Affordable Care Act practice, Pepper also helps employers, insurers, brokers, administrators and providers achieve ACA compliance and appeal ACA assessments. Labor negotiation and arbitration, OSHA, work site immigration enforcement, and intellectual property protection also are in Pepper's portfolio.

Talks with Authors: The Dictatorship of Woke Capital Dec 16, 2021

Show notes

Please join us for the latest installment in our Talks with Authors Series, in which author Stephen Soukup sits down for an interview with Eileen O’Connor about his book The Dictatorship of Woke Capital. Perhaps you recall learning that the obligation of a corporation is to maximize profits, thus preserving and increasing shareholder value. Perhaps you even thought that was still a top priority of corporate executives. But more likely, if you hadn’t been aware of it already, it came to your attention during the last year or two that corporations were inserting themselves into public policy debates, and making decisions about where and how to operate based on considerations far removed from their businesses. In The Dictatorship of Woke Capital, Stephen Soukup describes how the focus of corporate attention went from shareholder value to woke capital. He takes us step by step through the evolution, from its beginning. He identifies the people and groups who have played and continue to play a major role in the development of woke capital. Published by Encounter Books, The Dictatorship of Woke Capital is available at its website, as well as Scribd, Amazon, and wherever books are sold.
Featuring:
-- Stephen Soukup, Author, The Dictatorship of Woke Capital: How Political Correctness Captured Big Business
-- Interviewer: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor PLLC

Courthouse Steps Decision Webinar: Whole Woman's Health v. Jackson Dec 16, 2021

Show notes

On December 10, 2021, the U.S. Supreme Court decided Whole Woman's Health v. Jackson and dismissed the federal government's suit against Texas in United States v. Texas. The Court held 8-1 in Jackson that plaintiff abortion providers can pursue claims against licensing officials.
Justice Gorsuch wrote the majority opinion, joined in full by Justices Alito, Barrett, and Kavanaugh, with Justice Thomas joining as to all but one part. Justices Roberts wrote an opinion concurring in judgment in part and dissenting in part which Justices Breyer, Kagan, and Sotomayor joined, while Justice Sotomayor wrote a separate opinion concurring in the judgment in part and dissenting in part which Justices Breyer, Kagan, and Sotomayor joined.
A pair of distinguished federal-courts scholars join us to discuss the cases, the legal issues involved, and the implications going forward.
Featuring:
Prof. Stephen Sachs, Antonin Scalia Professor of Law, Harvard Law School
Prof. Howard Wasserman, Professor of Law, Florida International University College of Law
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This Zoom event is open to public registration at the link above.

Courthouse Steps Oral Argument Litigation Update: American Hospital Association v. Becerra Dec 14, 2021

Show notes

On Tuesday, November 30, 2021, the Supreme Court heard oral argument in American Hospital Association v. Becerra. One of the certified questions asks the Court to revisit the famed Chevron doctrine which has been subjected to much criticism since its implementation. The petitioners ask the Court whether Chevron allows the Department of Health and Human Services to set reimbursement rates for hospital groups and whether 42 U.S.C. 1395I(t)(12) precludes the petitioners' suit. Rich Samp of the New Civil Liberties Alliance which filed an amicus brief in the litigation before the Court joins us to discuss the oral argument.
Featuring:
Richard A. Samp, Senior Litigation Counsel, New Civil Liberties Alliance
Moderator: Eli Nachmany, Student Member, Administrative Law and Regulation Practice Group Executive Committee; 3L Student, Harvard Law School
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To register, click the link above.

Courthouse Steps Oral Argument: New York State Rifle and Pistol Association v. Bruen Dec 14, 2021

Show notes

In District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), the Supreme Court decided for the first time that the Second Amendment protects the right of individual Americans to keep a handgun in their homes for self-defense. In New York State Rifle & Pistol Association v. Bruen, the Court is expected to decide whether New York violated the Second Amendment by denying the applications of two law-abiding citizens to carry a concealed weapon in public.
Oral argument in this case was held on November 3. In this webinar, two Second Amendment experts will discuss the arguments, as well as the effects that the decision, whichever way it goes, might have on government power to enforce the criminal law.
Featuring:
Robert Leider, Assistant Professor of Law, George Mason Univeristy, Antonin Scalia Law School
Adam Winkler, Professor of Law, UCLA School of Law
Moderator: Nelson Lund, Professor of Law, George Mason University, Antonin Scalia Law School
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To register, click the link above.

Courthouse Steps Oral Argument Webinar: Carson v. Makin Dec 10, 2021

Show notes

On December 8, 2021, the U.S. Supreme Court will hear oral arguments in Carson v. Makin on the question of whether a state violates the Religion Clauses or Equal Protection Clause by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious instruction.
We are joined by two experts, one of whom will argue the case before the Supreme Court for the petitioner, to discuss the legal issues involved and the implications of oral arguments.
Featuring:
Michael Bindas, Senior Attorney, Institute for Justice
Daniel Mach, Director, ACLU Program on Freedom of Religion and Belief
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This Zoom event is open to the press and public.

Courthouse Steps Oral Argument Webinar: Dobbs v. Jackson Women's Health Organization Dec 10, 2021

Show notes

On December 1, 2021, the U.S. Supreme Court will hear Dobbs v. Jackson Women's Health Organization, one of the most anticipated cases on the Court's docket in recent years, on the question of whether all pre-viability prohibitions on elective abortions are unconstitutional.
This distinguished panel will review the oral arguments, explore the legal issues involved, and anticipate where the law might be headed.
You can view our pre-argument webinar here.
Featuring:
Prof. Daniel Farber, Sho Sato Professor of Law, University of California, Berkeley
Prof. Richard W. Garnett, Paul J. Schierl/Fort Howard Corporation Professor of Law, University of Notre Dame Law School
Prof. Julia Mahoney, John S. Battle Professor of Law, University of Virginia School of Law
Prof. Richard Re, Joel B. Piassick Research Professor of Law, University of Virginia School of Law
Prof. Mary Ziegler, Stearns Weaver Miller Professor, Florida State University College of Law
Moderator: Jennifer C. Braceras, Director, Independent Women's Law Center, Independent Women's Forum

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