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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:

Litigation Update: Eviction Moratoria Oct 18, 2021

Show notes

On September 1, 2020, the U.S. Centers for Disease Control and Prevention took a step into nationwide housing policy, and issued a nationwide ban on evictions. With the order, the federal agency invoked a little-known WWII-era statute that empowered the agency to “make and enforce such regulations” that “are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” The agency asserted that evictions presented a unique and unacceptable danger to the public in light of Covid-19.
CDC’s order was challenged almost immediately by a variety of public interest groups on a variety of statutory and constitutional grounds. At the heart of these challenges was an objection to the agency’s determination that property owners could be forced to turn over their real property to tenants who refused to pay rent.
The order was, in months-long increments, in existence for most of the past year. Meanwhile, several district courts and the Sixth Circuit invalidated the moratorium, but only with respect to individual litigants. After one trip to the Supreme Court, another extension, and a final stop back at the Supreme Court, the moratorium ended. However, related rules issued by agencies like the Consumer Financial Protection Bureau, as well as local eviction moratoria, continue around the country.
This litigation update by Caleb Kruckenberg of the New Civil Liberties Alliance, which filed the first challenge to the CDC order, discussed the origins of the moratorium, including relevant congressional action (and inaction), the legal challenges to the moratorium, recent and possible future extensions of the moratorium, and why this case was bound for resolution by the Supreme Court.
Featuring:
Caleb Kruckenberg, Litigation Counsel, New Civil Liberties Alliance

HUD and the Disparate Impact Rule Oct 14, 2021

Show notes

On June 25, 2021, President Biden’s newly appointed Housing Secretary Marcia Fudge proposed to rescind a Secretary Carson-era disparate impact rule designed to implement the Fair Housing Act. In its place, HUD would reinstate the 2013 Discriminatory Effect Standard because the 2013 rule "better states Fair Housing Act jurisprudence and is more consistent with the Fair Housing Act’s remedial purposes." By the time notice and comment ended on August 24, 2021, over ten thousand public comments had been submitted.
Critics of Secretary Fudge’s proposed rule, including Ranking Member Senator Pat Toomey, argue that the change not only flouts the Supreme Court’s decision in Texas Department of Housing and Community Affairs v. Inclusive Communities but also ultimately hurt consumers. Proponents argue that the change will move the housing market towards greater equity. Our panel of experts with a diversity of views discussed the pros and cons in a teleforum on October 11, 2021.
Featuring:
Paul Compton, Founding Partner, Compton Jones Dresher
Moderator: Devon Westhill, President and General Counsel, Center for Equal Opportunity

Cancel Culture and Higher Education Oct 06, 2021

Show notes

Has American higher education gone too far — or in the wrong direction — in how it sanctions normatively disfavored conduct? Some of these sanctions (“cancellations," as they are sometimes called) are ephemeral and others career-ending. Some are based on transgressions that almost all condemn, others on conduct that some find praiseworthy. Is higher education now more intolerant than it once was, or is it just intolerant about different things? And if academia is now intolerant about different things, has the change been beneficial or harmful? If the answer depends on how we feel about free speech, do “cancelations” — however understood -- impair free speech or advance it?
Join us for Part 1 of a thoughtful series discussing cancel culture and its effect on American culture featuring:
J.C. Hallman, an acclaimed author who wrote a piece entitled “In Defense of Cancel Culture” following the publication of the Harper’s Magazine letter on Justice and Open Debate.
Dr. Charles Murray, the F.A. Haye Chair Emeritus in Cultural Studies at the American Enterprise Institute who experienced academic and social backlash notably his publication of The Bell Curve.
Featuring:
-- J.C. Hallman, Author and Columnist
-- Dr. Charles Murray, W.H. Brady Scholar, American Enterprise Institute
-- Moderator: Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law

Redistricting: Discussing the John R. Lewis Voting Rights Advancement Act Oct 05, 2021

Show notes

This webinar addresses the impact that changes proposed in HR 4, the John R. Lewis Voting Rights Advancement Act of 2021, may have on drawing voting districts and litigating redistricting cases and features two renowned voting rights experts.
Featuring:
-- Mark Braden, Of Counsel, BakerHostetler
-- Jeffrey M. Wice, Adjunct Professor of Law, New York Law School; Director, N.Y. Census and Redistricting Institute
-- Moderator: Maya Noronha, Visiting Fellow, Independent Women's Law Center

Litigation Update: Alabama Association of Realtors v. HHS Sep 30, 2021

Show notes

On August 26, 2021, the Supreme Court of the United States ruled in Alabama Association of Realtors v. HHS that the Centers for Disease Control and Prevention (CDC) had exceeded its authority in issuing a nationwide ban on evictions. Brett Shumate, counsel of record for the Alabama Association of Realtors, joins us to discuss the litigation, the implications of the Supreme Court’s decision, and other pending cases involving the CDC’s eviction moratorium.
Featuring:
-- Brett Shumate, Partner, Jones Day
-- Moderator: Daniel Suhr, Senior Attorney, Liberty Justice Center

A Seat at the Sitting - October 2021 Sep 30, 2021

Show notes

Streamed live on September 30, 2021
Join us for the inaugural episode of the Federalist Society’s Supreme Court Show: A Seat at the Sitting. Each month, a panel of constitutional experts will convene to discuss the Court’s upcoming docket and debrief oral arguments from the previous month. During the first two weeks of October, the Justices will hear eight oral arguments on cases ranging from national security and civil procedure to criminal law and water law. The case names, issues, and dates of argument are listed below:

Mississippi v. Tennessee – water law and original jurisdiction – October 4
Wooden v. United States – the Armed Career Criminal Act – October 4
Brown v. Davenport – Federal habeas petitions under 28 U.S.C. § 2254 – October 5
Hemphill v. New York – the Federal Rules of Evidence and the Confrontation Clause – October 5
United States v. Zubaydah – the CIA and the state secret’s privilege – October 6
Cameron v. EMW Women’s Surgical Center – state civil procedure and abortion – October 12
Thompson v. Clark – procedure for civil claims for deprivation of rights under 42 U.S.C. § 1983 – October 12
United States v. Tsarnaev – challenges to the capital conviction of the Boston marathon bomber – October 13
Babcock v. Kijakazi – civil service pensions and the Social Security Act – October 13

Featuring:
-- Sarah Harris, Partner, Williams & Connolly
-- Jonathan Adler, Johan Verheij Memorial Professor of Law and Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law
-- Kate Comerford Todd, Former Deupty White House Counsel

Corporate Social Responsibility, Investment Strategy, and Liability Risks Sep 30, 2021

Show notes

Environmental, Social and Corporate Governance (ESG) investing is growing in popularity, especially after major investment firm BlackRock signaled support for what it called "ESG Integration," or the practice of incorporating material ESG information into investment and divestment decisions. However, since this strategy is relatively young, the short- and long-term merits and potential harm to investors are both unclear.
A distinguished panel joins us to discuss a new paper, titled "Corporate Collusion" and written by former U.S. Ambassador and White House Counsel C. Boyden Gray, and to offer their differing views on the legal issues involved, including ESG, ERISA requirements, fiduciary duty, and more.
Additional reading includes: "What Milton Friedman Missed About Social Inequality" by Leo Strine, Jr. and Joey Zwillinger; "Restoration: The Role Stakeholder Governance Must Play in Recreating a Fair and Sustainable American Economy," by Leo Strine, Jr.
Featuring:
David J. Berger, Partner, Wilson Sonsini
Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates
Hon. Hester Peirce, Commissioner, U.S. Securities and Exchange Commission
Hon. Leo E. Strine, Jr., Of Counsel, Wachtell Lipton; former Chief Justice, Delaware Supreme Court
Moderator: Hon. Paul S. Atkins, Chief Executive Officer, Patomak Global Partners; former Commissioner, U.S. Securities and Exchange Commission

Can Congress Forbid A State from Cutting its Taxes? Sep 28, 2021

Show notes

On March 11, 2021, President Biden signed into law the American Rescue Plan Act (the Act). Purportedly intended to help the U.S. economy recover from the COVID virus and the steps taken to prevent its spread, it calls for the Federal Treasury to provide approximately $350 billion in aid to state governments. The Act imposes on states that accept the aid a four-year prohibition against lowering taxes. By April 2, sixteen states – including Ohio, Kentucky, Tennessee, Arizona - filed suit to challenge the prohibition, claiming that the Constitution does not permit Congress to dictate how states handle their budgets.
The U.S. District Court for the Southern District of Ohio permanently enjoined application of the Act’s tax-cut prohibition to Ohio, concluding that it exceeded Congress’ authority. Other courts have dismissed the suits as premature or dismissed them for lack of standing.
The authority of Congress to dictate terms to the states is a perennial issue. It has been addressed before in numerous contexts, and the outcome of the current conflict could have far reaching implications.
Brett Nolan, Deputy Solicitor General of Kentucky and Professor Steven Schwinn of the University of Illinois Chicago Law School join for a webinar discussion moderated by Hon. Eileen J. O’Connor.
Featuring:
Brett Nolan, Deputy Solicitor General of Kentucky
Steven Schwinn, Professor of Law, University of Illinois Chicago Law School
Moderator: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor PLLC

Search Warrants, the Attorney-Client Privilege, and Federal Criminal Rule 41(g) Sep 27, 2021

Show notes

In July, the Fifth Circuit Court of Appeals issued an opinion in Harbor Healthcare System v. United States, addressing the application of Federal Rule of Criminal Procedure 41(g) and motions to return documents improperly seized by the government in the context of a criminal False Claims Act matter. The Fifth Circuit took a more restrictive approach to seizing and segregating privileged material than we have traditionally seen, and raises interesting questions about the attorney-client privilege, search warrants, and the use of government “taint teams.”
Featuring:
William McClintock, Associate, King & Spalding

Fireside Chat: Alex Pollock and Fifty Years Without Gold Sep 23, 2021

Show notes

Fifty years ago, on August 15, 1971, President Richard Nixon put the economic and financial world into a new era. Through his decision to "close the gold window," he fundamentally changed the international monetary system into the system of today, where the whole world runs on pure fiat currencies. "The dollar was the last ship moored to gold, with all the other currencies on board, and the U.S. cut the anchor and sailed off." Nobody knew how it would turn out. Fifty years later, we are completely used to this post-Bretton Woods monetary world with endemic inflation and floating exchange rates, and take it for granted. Nobody thinks it is even possible to go back to the old world: We are all Nixonians now. How shall we judge the momentous Nixon decision in its context and since? A fundamental question with pluses and minuses remains. Is the international monetary system now permanently open to more money printing and more monetization of government debt, making faith in central banks misplaced, and expectation of an ideal monetary policy foolish?
Featuring:
Alex J. Pollock, Distinguished Senior Fellow, R. Street Institute, Author of Fifty Years Without Gold
Moderator: Hon. Wayne A. Abernathy, Chairman, Federalist Society Financial Services & E-Commerce Practice Group

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