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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:

Courthouse Steps Decision Webinar: Holly Frontier Cheyenne Refining LLC v. Renewable Fuels Association Jun 30, 2021

Show notes

On June 25, the Supreme Court issued its decision in Holly Frontier Cheyenne Refining LLC. v. Renewable Fuels Association. This case turned on the interpretation of the statutory term “extension” contained in the Renewable Fuel Program. In an effort to encourage refineries to produce renewable fuel, Congress directed the EPA to require refineries to blend certain percentages of renewable fuel into their products, while allowing certain exemptions to small refineries.
In this case, the exemptions granted to several small refineries had lapsed. When they reapplied and received exemptions, biofuels interests sued. They argued that, because these refineries' exemptions had lapsed, they were no longer eligible under the terms of the statute, which provides that small refineries can apply for “an extension of the exemption [for] . . . disproportionate economic hardship.”
The Tenth Circuit interpreted the statutory language to bar an exemption grant based on the lapse—granting an exemption after a lapse would not be an “extension.” The Supreme Court reversed, holding that “extension” as used in this statute does not require “unbroken continuity” and determining that the statutory language’s context indicated Congressional intent to allow small refineries to apply for an exemption even if they hadn't continuously received one before.
Justin Schwab, former EPA Deputy General Counsel and founder of CGCN Law, previewed the case for us on April 27, 2021. He joins us again to discuss the opinion.
Featuring:
-- Justin Schwab, Founder, CGCN Law, PLLC

Navigating High Profile Defamation Jun 30, 2021

Show notes

The rise in cancel culture aided by online activity—and more recently by the national press—can result in significant harm to an individual’s or a company’s reputation. Speaking out on nearly any topic on an online platform has become increasingly risky because it takes no time for a profile or a post to move from virtual anonymity to notoriety. Join Libby Locke, a Partner at Clare Locke LLP, to discuss how individuals and companies can respond effectively to high-profile reputational attacks.
Featuring:
Libby Locke, Partner, Clare Locke LLP
Moderator: Hon. G. Barry Anderson, Associate Justice, Minnesota Supreme Court
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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.

Current Status of Police Reform Legislation Jun 30, 2021

Show notes

Over the past year, police reform has become a priority for many at both the state and federal levels. In this teleforum, Zack Smith at The Heritage Foundation will recap some of the recent efforts to pass police reform legislation at the state and federal levels and will provide an update on where police reform stands in the 117th Congress.
Featuring:
-- Zack Smith, Legal Fellow, Meese Center for Legal and Judicial Studies, The Heritage Foundation

Courthouse Steps Decision Webinar: Yellen v. Confederated Tribes of the Chehalis Reservation Jun 30, 2021

Show notes

The Supreme Court issued its decision in Yellen, Secretary of Treasury v. Confederated Tribes of the Chehalis Reservation on June 25, 2021. In this case, the Coronavirus Aid, Relief, and Economic Security (CARES) Act allotted 8 million dollars to “Tribal governments” defined as the “recognized governing body of an Indian tribe” under the Indian Self-Determination and Education Assistance Act.
Under this definition, Alaska Native Corporations (ANCs) qualified for CARES Act Covid-19 relief. Several other Indian tribes sued, arguing that the money should be reserved for federally recognized tribes.
The District Court entered summary judgment for the ANCs and the Department of the Treasury, the DC Circuit reversed, and the Supreme Court ultimately held that the ANCs do qualify for COVID-19 relief under the CARES Act.
Featuring:
Anthony "AJ" Ferate, Of Counsel, Spencer Fane LLP
Jennifer Weddle, Shareholder, GreenbergTraurig
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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: Unsettling Climate Science Jun 30, 2021

Show notes

Popular and political discussions of the climate invariably invoke “The Science” as settled. But a careful reading of the research, literature, and government assessment reports shows a different picture. In this Federalist Society book event, Dr. Koonin discussed his bestseller, Unsettled: What Climate Science Tells Us, What It Doesn’t, and Why It Matters. He will describe some of the surprises in the official science that he asserts belie the notion that the world has already broken the climate and faces certain doom unless we take prompt and drastic action. Dr. Koonin also examined whether society’s right to make fully informed decisions about climate and energy has been usurped in the assessment reports and media, and he will close with suggestions to improve the presentation of climate certainties and uncertainties to nonexperts.
Featuring:
-- Dr. Steven E. Koonin, Author, Unsettled: What Climate Science Tells Us, What it Doesn't, and Why it Matters; Professor, New York University
-- Moderator: Diana Furchtgott-Roth, Adjunct Professor, George Washington 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.

What Happened with the Texas Energy Grid Jun 30, 2021

Show notes

When the Texas electric grid failed over Valentine’s Day weekend in February 2021, the recriminations were plentiful and contradictory: too many renewables that failed; too much natural gas-fired generation that didn’t show up; a flawed regulatory model that fell short on resource adequacy and weatherization; a competition model that gives customers apparent choice with over 70% of the market controlled by two retailers. While ideological priors explain many of the explainers’ explanations, the terrible fact is that the Texas grid went down, causing death and misery. The Texas legislature has now instituted reforms to correct the problems with the Texas market, but a hot summer already has Texans on edge whether the grid will meet the soaring demand. This teleforum explored the legal and regulatory fallout from the Texas electricity mess with a former Chairman of the Public Utility Commission of Texas, Barry Smitherman. The focus of the conversation was not be so much on recriminations, but on an assessment of what went wrong, the regulatory and institutional challenges and what the experience might mean for energy policy nationally.
Featuring:
-- Barry Smitherman, principle of BARRY SMITHERMAN, P.C. and a former partner at Vinson & Elkins LLP. He served on the Texas Railroad Commission from 2011 through 2014, and was Chairman of the Commission from March 2012 through August 2014.
-- Raymond L. Gifford, who counsels communications, electric and gas utilities, and information technology companies on state and federal aspects of regulation, administrative law, and competition policy. He is an expert in public utilities law, and the law and economics of regulation of network industries.
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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.

Limiting the Right to Exclude: Common Carrier and Market Dominance Jun 30, 2021

Show notes

The recent concurrence by Justice Thomas in Biden v. Knight First Amendment Institute has raised new questions about how we might think about restrictions on speech and debate on social media. Where private, concentrated control over online content and platforms exists, can a solution be found in doctrines that limit the right of a private company to exclude?
While there is historical precedent for regulating communications networks in a similar manner as traditional common carriers, are social media platforms best understood as communications networks that “carry” information from one user to another? Or have they created a business model built more on “curated” speech that to some degree reflects their own expressive interest in acceptable debate and discussion? And how should we think about possible state regulatory efforts to regulate private companies in this way?
Featuring:
Adam Candeub, Professor of Law, Michigan State University
Geoffrey A. Manne, President and Founder, International Center for Law and Economics
Olivier Sylvain, Professor of Law, Fordham University
Charles M. Miller, Deputy Chief Counsel, Ohio Attorney General's Office
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: Mahanoy Area School District v. B.L. Jun 29, 2021

Show notes

On June 23, 2021, the Supreme Court decided Mahanoy Area School District v. B.L., a high-school student, was disciplined for posting on Snapchat a vulgar message that was critical of the school's cheerleading team. By an 8-1 vote, the Court held that the discipline was unconstitutional. The Court concluded that a school has less authority to regulate students' off-campus speech than to regulate speech that occurs on-campus. The Court noted three reasons for its conclusion. First, where a student speaks off campus, it is generally the responsibility of parents, not school officials, to supervise students' conduct. Second, courts should be skeptical of off-campus regulation of speech, because allowing schools to regulate both on- and off-campus speech would subject all of a student's speech to potential school discipline. Third, since schools are the “nurseries of democracy,” they have an interest in protecting the freedom of speech and teaching respect for people's right to express messages over which there is disagreement. Applying those principles, the Court determined that the school could not discipline B.L. for her off-campus speech, which denigrated the school and its cheerleading team, but which did not substantially disrupt the operation of the school.
Featuring:
Michael R. Dimino, Professor of Law, Widener University Commonwealth 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.

Title IX: A Discussion Jun 29, 2021

Show notes

On March 11, 2021, President Joseph R. Biden issued an Executive Order titled “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex….” President Biden’s Order requires the US Department of Education’s Office for Civil Rights (OCR) to undertake a comprehensive review of existing Title IX policies, including sexual harassment regulations that the Trump administration issued last year. Earlier this month, OCR conducted public hearings as part of its review. This webinar will provide differing perspectives on the issues that are now under OCR review, such as how best to address sexual assault, protect due process, and ensure that related public policy goals are met in schools and colleges.
Featuring:
-- Samantha Harris, Attorney, Allen Harris Law
-- Shiwali Patel, Director of Justice for Student Survivors and Senior Counsel, National Women's Law Center
-- Moderator: Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under 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.

A CLE Webinar - Some Recent (and Ongoing) Developments in Legal Ethics Jun 29, 2021

Show notes

In this CLE Webinar, Judge Jennifer M. Perkins of the Arizona Court of Appeals and Professor Emeritus of Law William Hodes will discuss the following three areas of lawyer professional responsibility.
* The American Bar Association adopted Model Rule 8.4(g) in August 2016 to provide enforceable regulations against discrimination and harassment by lawyers on the basis of sex, race, and several other characteristics. But the Rule has proven to be controversial, and even five years later the controversy seems to be increasing rather than fading from view.
* Wide adoption of computer-based and online technology has dramatically affected the practice of law, beginning well before the dawn of this century. Ramifications for legal ethics include responding to online criticism by clients or opposing parties, working remotely outside the state of licensure, preventing and dealing with data breaches involving confidential client information, maintaining competency to practice law beyond knowledge of legal doctrine and familiarity with procedural requirements, using artificial intelligence to conduct judge-specific legal research, and avoiding ex parte or other improper communications through interactions on social media.
* Model Rule 1.2(d) and its predecessors have always prohibited lawyers from knowingly assisting clients in carrying out fraudulent or criminal schemes. But how does a lawyer know when a client is up to no good? In suspicious circumstances, is there an unavoidable tension among client loyalty, client service, self-protection., and good citizenship? An uncomfortable "client audit" can become necessary, in litigation and non-litigation matters.
Featuring:
-- William Hodes, Owner and President, The William Hodes Law Firm
-- Judge Jennifer M. Perkins, Arizona Court of Appeals, Division One
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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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