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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:

Gender Based Board Quotas, the Fourteenth Amendment, and Meland v. Weber Aug 03, 2021

Show notes

On June 21, 2021, the Court of Appeals for the Ninth Circuit ruled a shareholder-plaintiff had standing to sue California’s Secretary of State. Creighton Meland, a shareholder at OSI Systems, Inc., sued alleging that Senate Bill 826, which was signed into law in 2018, violates the Fourteenth Amendment because it requires corporations to elect a sliding scale quota of women to corporate board member seats. The District Court ruled Meland had no standing because SB 826 governed corporations, not shareholders, and at the time of Meland’s suit OSI was in compliance so any controversy was moot.
The Ninth Circuit disagreed, allowing Meland’s suit to go forward by finding that the practical effect of SB 826 was to govern shareholders and direct them to vote on the basis of gender to avoid the imposition of fines or penalties for noncompliance. The court further held that Meland’s suit alleged a direct harm and did not rely on prudential standing since he alleged personal harm rather than injury to the corporate entity.
Featuring:
Ann Ravel, Lecuter, Berkeley Law; Former Commissioner and Chair, Federal Election Commission
Anastasia P. Boden, Senior Attorney, Pacific Legal Foundation
Megan L. Brown, Partner, Wiley Rein
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

A Webinar on Central Bank Digital Currencies Aug 03, 2021

Show notes

With expressions ranging from enthusiasm to serious interest, central banks from China to Europe have been actively exploring the potential for Central Bank Digital Currencies (CBDCs). On June 28, Federal Reserve Board Vice Chairman for Supervision Randal Quarles offered comments that, far from equivocal, expressed great doubt about the feasibility and desirability for the Federal Reserve sponsoring such a currency.
Controversies focus on CBDC implications for privacy, greater personal financial inclusion, government control of credit, innovation, government assumption of banking activities, broadening the tax base, and more.
Featuring:
-- Bert Ely, Principal, Ely & Co. Inc.
-- Chris Giancarlo, Senior Counsel, Willkie Farr & Gallagher
-- Peter C. Earle, Writer, American Institute for Economic Research
-- Moderator: Alex J. Pollock, Distinguished Senior Fellow, R. Street Institute
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Foreign Policy in the Biden Administration Aug 02, 2021

Show notes

This virtual event examined current national security issues, including relations with China, as well as coordination with allies, utilization of available legal tools, and whether those tools might be effective.
Featuring:
-- Hon. Nazak Nikakhtar, Partner, Wiley Rein LLP. Nazak served as Assistant Secretary for Industry and Analysis at the U.S. Department of Commerce’s International Trade Administration. She also served as the U.S. government’s top official for export controls on dual-use items and technologies, performing the non-exclusive functions and duties as Under Secretary for the Bureau of Industry and Security.
-- Adam J. Szubin, Of Counsel, Sullivan & Cromwell LLP. Mr. Szubin served for two years as Acting Treasury Department Under Secretary for Terrorism and Financial Intelligence. During his nearly 13 year tenure at the Treasury, Mr. Szubin served as the Director of Treasury’s Office of Foreign Assets Control (OFAC) for nine years and Senior Advisor to the Under Secretary for Terrorism and Financial Intelligence.
-- Moderator: Eric J. Kadel, Jr., Partner, Sullivan & Cromwell LLP
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Congressional Oversight and Investigations: New Developments and Outlook for the 117th Congress Aug 02, 2021

Show notes

With Democrats holding power in both houses of Congress and the White House, how will congressional oversight and investigations affect private industry and the Biden Administration during the 117th Congress? What should we expect if Republicans take back one or both houses of Congress in the midterm elections? What should private entities expect from congressional investigations, and what effect will recent court decisions such as Mazars have on industry? A panel of current and former congressional investigators will discuss these issues and more, as well as how recent investigations and judicial decisions will affect the structural relationship between Congress and the Executive Branch in the years ahead.
Featuring:
-- Ashley Callen, Deputy Staff Director, House Oversight and Reform Committee
-- Daniel Goshorn, Chief Investigative Counsel, U.S. Senate Committee on Finance
-- Allison Murphy, Former Chief Oversight Counsel of the House Select Subcommittee on the Coronavirus Crisis, Majority Staff; Partner in the Government, Regulatory & Internal Investigations Practice Group, Kirkland & Ellis
-- Christopher Armstrong, Former Chief Oversight Counsel, Senate Committee on Finance; Partner, Holland & Knight LLP
-- Moderator: Michael D. Bopp, Partner, Gibson Dunn & Crutcher LLP
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Opioids in 2021: Enforcement Strategies and Policy Prescriptions Aug 02, 2021

Show notes

Opioid deaths in the US rose 29% during the course of the recent COVID pandemic. More than 55,000 Americans die annually from opioid consumption. Overtaken to some extent by other events, the opioid crisis is still with us and might be getting worse. The four participants in this panel discussion brought a wealth of experience and insight to this ongoing problem from both a law enforcement and public health perspective. Discussion ranged from the successes and failures of various law enforcement strategies and experiences to the efficacy of various public health policies and their often unintended consequences. This panel examined and discussed what has been learned to date in the efforts and what those lessons should tell us about what needs to be done to end the opioids crisis.
Featuring:
-- Robert M. Duncan, Jr., Partner, Dinsmore & Shohl LLP
-- Christina E. Nolan, Shareholder, Sheehey Furlong & Behm PC
-- Prof. Tomas J. Philipson, Daniel Levin Professor of Public Policy, University of Chicago
-- Jeffrey A. Singer, Senior Fellow, Cato Institute
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Talks with Authors: A Dubious Expediency Jul 27, 2021

Show notes

A Dubious Expediency: How Race Preferences Damage Higher Education is a collection of eight essays written by experts in the field examining and analyzing the impact of racial diversity preferences and identity politics in American colleges and universities. The book’s title comes from a 1976 California Supreme Court opinion in Bakke v. UC Regents authored by Justice Stanley Mosk, who wrote:
“To uphold the [argument for race-preferential admissions] would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality.”
In the book, the authors take up the question of race-based preferences in higher education, arguing that mounting empirical evidence shows race-based solutions cause long term harm both to intended beneficiaries and to society as a whole.
Featuring:
Gail L. Heriot, Professor of Law, University of San Diego School of Law
Maimon Schwarzschild, Professor of Law, University of San Diego School of Law
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Private Entities and Public Concern Jul 27, 2021

Show notes

Aside from the purely legal questions already addressed in this programming series, how should we think about the practical and philosophical questions at stake? Many of us start with the presumption that the social media companies are private businesses and therefore may operate according to viewpoint norms as their owners see fit.
But the growing reliance on big tech platforms, combined with the behavior of such platforms in restricting the scope of permissible speech, has raised concerns across the political spectrum, including among those of generally libertarian policy preferences. And the new interest in considering a range of regulatory options is not breaking down along conventional left/right lines. How should we think about these larger philosophical questions?
Featuring:
Ashley Keller, Partner, Keller Lenker LLC
Genevieve Lakier, Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School
Randy E. Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center
William Baude, Professor of Law, Aaron Director Research Scholar, University of Chicago Law School
Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, D.C. Circuit
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

The Implications of the Latest Congressional Review Act Disapprovals Jul 15, 2021

Show notes

The Congressional Review Act (CRA) was used in 2017 to overturn 15 rules issued near the end of the Obama administration. The shift in political control in the White House and Congress this year set the stage for a possible repeat with respect to Trump administration rules. The CRA’s period for expedited congressional procedures (free of the Senate filibuster) has now expired for late Trump era regulations, and Congress overturned only three such rules. On June 24, Congress finished action to repeal the EEOC conciliation rule and the OCC (Comptroller) true lender rule, and it took final action to repeal the EPA methane rule the following day. President Biden has since signed all three resolutions, making them law.
This latest cycle of CRA actions merit general exploration as well as consideration of the specific rules at issue. What process did Congress use to disapprove the three rules? Why did it use the CRA relatively sparingly this year, and what will the impact be of the three disapprovals? The answers to the last two questions are arguably related. When Congress uses the CRA to repeal federal regulations, the respective agencies are automatically barred from issuing another rule that is “substantially the same” as the one disapproved without new statutory authorization. Though there is no court ruling on what the CRA’s anti-circumvention clause means, the resulting uncertainty may have skewed the CRA’s use in interesting ways.
Join Todd Gaziano and Professor Jonathan Adler discuss the CRA, how it has been used, and the ramifications of its use on the three rules this year and on future federal regulations.
Featuring:
-- Todd F. Gaziano, Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers, Pacific Legal Foundation
-- Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Director of the Center for Business Law & Regulation, Case Western Reserve University School of Law
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Courthouse Steps Decision Webinar: Transunion LLC v. Ramirez Jul 12, 2021

Show notes

On June 25, 2021, the Supreme Court issued its decision in Transunion LLC v. Ramirez. In this case, a class of plaintiffs sued the credit reporting company TransUnion under the Fair Credit Reporting Act. The plaintiffs alleged that the process Transunion used to flag consumer credit worthiness accounts—running consumers names against the U.S. Treasury Departments’ Office of Foreign Assets Control database of terrorists, traffickers, and other criminals and flagging those names that matched database listed names—resulted in harm to the plaintiffs where the match was only a coincidence.
Although the initial class contained 8,185 members, only 1,853 class members incurred harm since Transunion only conveyed credit reports flags for that subset to third parties during the relevant period.
The District Court ruled the whole 8,185 member class had standing to sue. The Supreme Court reversed on the standing issue, ruling that the 6,332 class members whose information had not been conveyed to third parties during the relevant period had no Article III standing since they had suffered no cognizable injury.
Featuring:
-- Theodore "Ted" Frank, Director of Litigation and Senior Attorney, Hamilton Lincoln Law Institute
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Courthouse Steps Decision Webinar: Penneast Pipeline Co. v. New Jersey Jul 12, 2021

Show notes

On June 29, 2021, the Supreme Court held that the Eleventh Amendment did not bar Penneast Pipeline Co., exercising federal eminent domain authority under the Natural Gas Act, from suing the State of New Jersey to acquire state-owned property to construct a natural gas pipeline. The Supreme Court rejected New Jersey’s arguments that the federal eminent domain power had not been properly delegated to PennEast, and even if the authorization were appropriate, the State’s sovereign immunity precluded this federal court suit. The federal government has always had the supreme power to condemn state property,the Court ruled, and the tradition of delegating this power to build public infrastructure goes back to the days of the nation’s founding. Penneast was represented by former Solicitor General, Paul Clement.
Chief Justice Roberts delivered the opinion of the Court, joined by Justices Breyer, Alito, Sotomayor and Kavanaugh. Justice Gorsuch filed a dissent joined by Justice Thomas. Justice Barrett filed a dissent joined by Justices Thomas, Kagan, and Gorsuch.
Featuring:
Paul D. Clement, Partner, Kirkland & Ellis LLP
Moderator: Roger J. Marzulla, Partner, Marzulla Law
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

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