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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:

Severability and Article III Powers Jul 12, 2021

Show notes

What should the Supreme Court do when it finds one provision of a statute unconstitutional? There is a significant split between current Justices on the question where Congress has not provided express instructions on severance within the statute. Several believe the Court should save the rest of the statute, while others have expressed skepticism towards this practice.
This distinguished panel will explore the foundations of the severability doctrine and the authority of Article III judges in such cases. Panelists will offer their differing views of severability and discuss where the doctrine may be headed.
Featuring:
Prof. William Baude, Professor of Law, University of Chicago Law School
Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston
Erin M. Hawley, Senior Legal Fellow, Independent Women's Law Center
Prof. Kevin C. Walsh, Assistant Professor, University of Richmond School of Law
Moderator: Megan L. Brown, Partner, Wiley
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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: Brnovich v. Democratic National Convention Jul 12, 2021

Show notes

On July 1, 2021, the Supreme Court issued its decision in Brnovich, Attorney General of Arizona v. Democratic National Convention. The DNC sued the state of Arizona arguing that two of the State’s election procedures—refusing to count ballots that were incorrectly cast out of precinct and forbidding most third parties from collecting vote-by-mail ballots for delivery—had a disparate impact on racial minority voters in violation of Section 2 of the Voting Rights Act (VRA). The DNC also alleged that the ballot-collection measure was enacted with discriminatory intent.
Although the District Court found no violation of the Voting Rights Act and a panel of the Ninth Circuit affirmed, an en banc panel of the Ninth Circuit reversed finding disparate impact and that the District Court had clearly erred in finding no discriminatory intent. The Supreme Court reversed and remanded the Ninth Circuit’s decision, holding 6-3 that Arizona’s voting rules did not violate Section 2 of the Voting Rights Act and that the ballot collection measure was not enacted with discriminatory intent.
Justice Alito delivered the opinion of the Court joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Justice Gorsuch filed a concurrence in which Justice Thomas joined. Justices Kagan, Breyer, and Sotomayor dissented.
Featuring:
Derek T. Muller, Professor of Law, University of Iowa College 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.

Questions of Federal Preemption Jul 09, 2021

Show notes

Several states are considering how to regulate the content moderation practices of social media and other tech platforms. Some are focused primarily on protecting a wider range of expressible user viewpoints, while other states are concerned with strengthening incentives on platforms to engage in more aggressive moderation of potentially harmful speech. Some states are also pursuing antitrust enforcement actions against some tech platforms. Such state level regulation of national – even global – platforms, raises the prospect of a patchwork of competing state regulatory frameworks.
States have their own antitrust statutes that can differ from federal standards, and historically have had authority to regulate and set boundaries for material that cannot be published, such as libel, and content harmful to minors. How should we think about state regulatory efforts when applied to technology platforms - is regulatory federalism likely to be beneficial, or should federal law preempt such efforts? What role can or should the FCC play in preempting such state regulation? How does the Dormant Commerce Clause affect state level efforts to regulate content and content moderation policies of social media within state borders?
Featuring:
Hon. Brendan Carr, Commissioner, Federal Communications Commission
Daniel Francis, Furman Fellow, New York University School of Law
Paul Watkins, Managing Director, Patomak Global Partners
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.

Courthouse Steps Decision Webinar: Nestle USA, Inc. v. Doe et al Jul 07, 2021

Show notes

On June 17, 2021, the Supreme Court issued its 8-1 decision in Nestle USA, Inc. v. Doe et al and the consolidated case of Cargill, Inc. v. Doe I. In this case, six people from Mali who had been trafficked as child slaves onto cocoa farms in the Ivory Coast sued under the Alien Tort Statute, arguing that since the American companies Nestle and Cargill provided financial and technical support to those farms, they should be liable for aiding and abetting human trafficking.
The Ninth Circuit had reversed the District Court, finding that the respondents had adequately pled a domestic application of the Alien Tort Statute because the corporate decisions driving contracting with the Ivory Coast farms originated in the United States. The Supreme Court reversed the Ninth Circuit holding that the presumption against extraterritoriality required plaintiffs to establish relevant conduct in the United States and that general corporate activity like decision making was insufficient.
Justice Thomas announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which Chief Justice Roberts and Justices Breyer, Sotomayor, Kagan, Gorsuch, Kavanaugh and Barrett joined. Justices Thomas, Gorsuch and Sotomayor all filed concurring opinions and Justice Alito dissented.
Featuring:
Ilya Shapiro, Vice President and Director, Robert A. Levy Center for Constitutional Studies, Cato Institute
William S. Dodge, John D. Ayer Chair in Business Law and Martin Luther King Jr. Professor of Law, UC Davis School of Law
Moderator: Julian Ku, Senior Associate Dean for Academic Affairs, Faculty Director of International Programs, and Maurice A. Deane Distinguished Professor of Constitutional Law, Maurice A. Deane School of Law at Hofstra University
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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: Americans for Prosperity v. Bonta Jul 07, 2021

Show notes

On July 1, 2021, the Supreme Court issued its decision in Americans for Prosperity Foundation v. Bonta, Attorney General of California. California state law required charitable organizations soliciting donors in the state to register with the California Attorney General. To file, charities had to submit their IRS Form 990 along with all Schedules including Schedule B which discloses donor names and information.
Two conservative organizations refused to submit Schedule B and ultimately sued arguing that the compelled disclosure of their donor lists violated their First Amendment right to freedom of association. Disclosure would make their donors less likely to donate or associate with the charities of their choice.
The case went through multiple appeals to the Ninth Circuit finally arriving in the Supreme Court, which cited NAACP v. Alabama, clarified the applicable exacting scrutiny standard, and held California’s Schedule B disclosure requirement facially unconstitutional.
Joining us to discuss is Mr. Erik Jaffe, a Partner at Schaerr Jaffe LLP and the author of an amicus brief in support of the petitioners.
Featuring:
Erik Jaffe, Partner, Schaerr Jaffe 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.

Courthouse Steps Decision Webinar: Collins v. Yellen Jul 07, 2021

Show notes

On June 23, 2021, the U.S. Supreme Court in Collins v. Yellen held 7-2 that 1) because the Federal Housing Finance Agency did not exceed its authority under the Housing and Economic Recovery Act of 2008, the anti-injunction provisions of the Recovery Act bar the statutory claim brought by shareholders of Fanne Mae and Freddie Mac; and 2) the Recovery Act’s structure violates the separation of powers.
Justice Alito wrote the majority opinion. Justice Gorsuch joined the opinion as to all but Part III–C, Justices Kagan and Breyer joined as to all but Part III–B, and Justice Sotomayor joined as to Parts I, II, and III–C. Justice Thomas filed a concurring opinion. Justice Gorsuch filed an opinion concurring in part. Justice Kagan filed an opinion concurring in part and concurring in the judgment, in which Justices Breyer and Sotomayor joined as to Part II. Justice Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined.
Featuring:
Jason Levine, Partner, Alston & Bird
Jeffrey McCoy, Attorney, Pacific Legal Foundation
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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: Crisis of the Two Constitutions Jul 06, 2021

Show notes

American politics grows embittered because it is increasingly torn between two rival constitutions, two opposed cultures, two contrary ways of life. American conservatives rally around the founders’ Constitution, as amended and as grounded in the natural and divine rights and duties of the Declaration of Independence. American liberals herald their “living Constitution,” a term that implies that the original is dead or superseded, and that the fundamental political imperative is constant change or transformation (as President Obama called it) toward a more and more perfect social democracy ruled by a Woke elite.
Crisis of the Two Constitutions details how we got to and what is at stake in our increasingly divided America. It takes controversial stands on matters political and scholarly, describing the political genius of America’s founders and their efforts to shape future generations through a constitutional culture that included immigration, citizenship, and educational policies. Then it turns to the attempted progressive refounding of America, tracing its accelerating radicalism from the New Deal to the 1960s’ New Left to today’s unhappy campus nihilists. Finally, the volume appraises American conservatives’ efforts, so far unavailing despite many famous victories, to revive the founders’ Constitution and moral common sense. From Ronald Reagan to Donald Trump, what have conservatives learned and where should they go from here?
Along the way, Charles R. Kesler argues with critics on the left and right, and refutes fashionable doctrines including relativism, multiculturalism, critical race theory, and radical traditionalism, providing in effect a one-volume guide to the increasingly influential Claremont school of conservative thought by one of its most engaged, and engaging, thinkers.
Featuring:
-- Prof. Charles R. Kesler, Author, Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness, Senior Fellow, The Claremont Institute
-- Moderator: Prof. Gerard V. Bradley, Professor of Law, Univeristy of Notre Dame Law School
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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: Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System Jul 06, 2021

Show notes

The Supreme Court issued its decision in Goldman Sachs Group, Inc., v. Arkansas Teacher Retirement System on June 21, 2021. Justice Barrett delivered the opinion of the Court, which Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh joined in full.
In this case, a group of Goldman shareholders sought to certify a class action suit against Goldman arguing that they had detrimentally relied on Goldman’s alleged misrepresentations about conflict management, which had resulted in inflation maintenance and subsequent shareholder loss. In arguing for class certification, the plaintiffs relied on the Supreme Court’s 1988 Basic Inc. v. Levinson decision allowing plaintiffs to prove reliance based on evidence common to the class. Goldman argued against certification and against the Basic presumption by presenting evidence showing the alleged misrepresentations had not affected stock prices.
On its second attempt, the District Court certified a class and the Second Circuit affirmed. In its decision, the Supreme Court remanded to the Second Circuit to consider the generic nature of the alleged misrepresentations even though that evidence might get to materiality not usually considered at the initial certification stage under Rule 23. The Court also clarified the Basic presumption holding that a defendant does bear the burden of persuasion to rebut the presumption of reliance allowed to class action plaintiffs.
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: NCAA v. Alston Jul 01, 2021

Show notes

On June 21, 2021, the Supreme Court unanimously decided NCAA v. Alston in favor of respondent. Writing for the Court, Justice Gorsuch explained that the district court's injunction on NCAA rules limiting the benefits schools can make available to student athletes is consistent with antitrust law and principles. Justice Kavanaugh filed a concurring opinion.
Featuring:
Michael Murray, Former Principal Deputy Assistant Attorney General, Antitrust Division, U.S. Department of Justice
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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.

Covid-19 Vaccines and Intellectual Property Jul 01, 2021

Show notes

In October 2020, two countries, India and South Africa, that had been hit particularly hard by the COVID-19 virus and its variants and by inadequate supply of personal protective equipment, diagnostic tests, and medicines, requested a waiver of intellectual property protections covering COVID-19 vaccines. Specifically, these countries sought a waiver that would exempt World Trade Organization (WTO) member countries from obligations related to patents, copyrights, industrial designs, and trade secrets under TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights). Among other things, TRIPS requires member countries to provide minimum intellectual property protections and enforcement mechanisms that support these intellectual property rights.
In a move that surprised many, on May 5, 2021, United States Trade Representative Katherine Tai issued a statement announcing the current administration’s support for this waiver, but initially for vaccines only rather than the additional COVID-19 health technologies covered by the waiver proposal. In Tai’s announcement, she stated that “The Administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines.” The purpose of the waiver, as Tai noted, was to “get as many safe and effective vaccines to as many people, as fast as possible.”
Since Representative Tai’s statement, there has been much commentary in favor and against the waiver and the US support for it, but after the most recent TRIPS Council meeting, text-based negotiations have begun on the India/South Africa proposal and a European Union communication emphasizing elimination of trade barriers, voluntary agreements, and clarifications of the TRIPS Agreement’s compulsory licensing rules. In this webinar, experts in intellectual property and international trade helped to explain the pros and cons of the waiver proposal, what effects it may have on the pandemic, and what other impacts the waiver may have long term.
Featuring:
-- Jorge Contreras, Professor of Law, University of Utah College of Law
-- James Bacchus, Distinguished Professor of Global Affairs and Director, Center for Global Economic and Environmental Opportunity, University of Central Florida
-- Ana Santos Rutschman, Assistant Professor, Saint Louis University School of Law
-- Brook K. Baker, Professor of Law, Northeastern University School of Law
-- Moderator: Steven M. Tepp, President and CEO, Sentinel Worldwide
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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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