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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:

China, the U.S., and Global Climate Policy: Cooperation, or Competition? Jun 21, 2021

Show notes

The Biden Administration recently made headlines by announcing a greenhouse gas emissions reduction target for the U.S. of 50% by 2030 (relative to 2005 levels) when hosting a climate summit with world leaders. Indeed, in an executive order (Jan. 27, 2021), President Biden stated that “[i]t is the policy of my Administration that climate considerations shall be an essential element of United States foreign policy and national security.” China, on the other hand, is not only the world’s largest carbon emitter, but also considered by many to be a geopolitical rival to the U.S. It has gained prestige for committing to reaching net zero emissions by 2060, even while its emissions continue to increase significantly in the present. The teleforum will discuss the respective aspirational goals and current efforts of China and the U.S. with regard to climate change mitigation, as well as the legal frameworks within which each government attempts to implement policy. It will then discuss the impact of this issue upon the broader strategic interactions between the two nations, and consider paths forward for U.S. policy.
Featuring:
Gabriel Collins, Baker Botts Fellow in Energy & Environmental Regulatory Affairs, Center for Energy Studies, Baker Institute
Moderator: Dan West, Executive Committee, International and National Security Law Practice Group
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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 Teleforum: Terry v. United States Jun 21, 2021

Show notes

On June 14, 2021, the Supreme Court issued its decision in Terry v. United States. Petitioner Tarahrick Terry plead guilty to possession of crack cocaine in 2008. Following the passage of the First Step Act in 2018, petitioner requested resentencing. The First Step Act makes the 2010 Fair Sentencing Act’s downward sentence modification for certain crack cocaine convictions retroactive. The Court found that since Terry’s initial crack cocaine conviction did not trigger a mandatory minimum, it was not modified by the Fair Sentencing Act. As a result, the First Step Act does not apply and Terry’s request for retroactive resentencing was properly denied.
Featuring:
Vikrant P. Reddy, Senior Research Fellow, Charles Koch Institute
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Talks with Authors: Religious Liberty in Crisis Jun 21, 2021

Show notes

On June 16, 2021, The Federalist Society's Religious Liberties Practice Group hosted a teleforum titled "Talks with Authors: Religious Liberty in Crisis."
In his new book Religious Liberty in Crisis: Exercising Your Faith in an Age of Uncertainty, former U.S. Solicitor General Ken Starr explores the contemporary relationship between government, constitutional law, and religious freedom. Judge Starr is joined by Professor Robert P. George, Princeton's McCormick Professor of Jurisprudence, to discuss the book and related matters.
Featuring:
-- Hon. Kenneth W. Starr, U.S. Court of Appeals, District of Columbia Circuit (1983-1989); U.S. Solicitor General (1989-1993)
-- Moderator: Prof. Robert P. George, McCormick Professor of Jurisprudence; Director, James Madison Program, Princeton University

Certiorari and Stinson Deference Jun 21, 2021

Show notes

On June 16, 2021, The Federalist Society's Administrative Law & Regulation Practice Group hosted a teleforum on "Certiorari and Stinson Deference."
The U.S. Supreme Court recently signaled a retreat from deference to agency guidance in Kisor v. Wilkie, in which the Court narrowed judicial deference available to agencies construing their own ambiguous regulations.
But what about judicial deference to the U.S. Sentencing Commission, the agency housed in “within the Judicial Branch,” and which Justice Scalia derided as a “junior varsity Congress,” making policy choices that should be committed to the legislature? In Stinson v. United States, the Supreme Court held that courts should defer to the commentary the Sentencing Commission issued construing their formally adopted Sentencing Guidelines, unless they are “inconsistent with, or a plainly erroneous reading of,” the relevant Guideline. The Stinson Court required such deference even if the Commission’s interpretation “may not be compelled by the guideline text.”
On June 17, the Supreme Court’s conference is slated to include discussion on a series of cases percolating up from the courts of appeals that all raise similar challenges to the use of Stinson deference in deciding criminal defendants’ sentences. The Court seems poised to grant certiorari to one or more of these cases challenging deference in order to resolve a broad and deep split among the circuits that reflects inconsistencies in sentencing nationwide. Or, at least, it would explain why the court has been holding some of these cert petitions for over six months in order to consider all of them together—perhaps in order to select the best vehicle from among the slew of petitions clamoring for the Court’s consideration.
Here to discuss the pending Stinson deference cert petitions is appellate attorney John Elwood, a partner at Arnold & Porter who is better known in some circles as the relist guru on SCOTUSblog. John filed a petition for certiorari on behalf of Zimmian Tabb in a case out of the Second Circuit—one of the first Stinson deference cases to reach the Supreme Court last fall. John will explain what’s at stake in the reconsideration of Stinson deference, including the following questions: Do constitutional due process and the rule of lenity preclude Stinson deference when commentary to a Sentencing Guideline would increase a sentence? Do courts owe deference to Guidelines commentary that appears to expand the scope of the Sentencing Guidelines? Post-Kisor, may courts defer to commentary without first determining whether the pertinent Guideline is ambiguous? Post-Kisor, must courts apply canons of construction like the rule of lenity before granting the agency deference? And, practically speaking, what might the Supreme Court be looking for to select the best vehicle for reconsideration of Stinson deference from among the pending cert petitions? Moderating the discussion will be New Civil Liberties Alliance Executive Director and General Counsel, Mark Chenoweth. NCLA authored another of the cert petitions pending before this week’s conference at the Court on behalf of a defendant in the Eighth Circuit, Marcus Broadway.
Featuring:
John P. Elwood, Partner, Arnold & Porter
Moderator: Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties Alliance
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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.

Department of Justice: Executive Supervision or Independence? Jun 21, 2021

Show notes

On June 17, 2021, The Federalist Society's Federalism & Separation of Powers Practice Group hosted a teleforum exploring the "Department of Justice: Executive Supervision or Independence?".
With the change in presidential administration, some critics and scholars have argued that a need for independence at agencies like the Department of Justice should be reconsidered. To whom is the Department of Justice accountable? Whose interests does it represent?
When a change in executive leadership occurs, should the policies at agencies like DOJ be subject to change as well? And, if so, how far does that latitude extend—to prosecutorial policies, to enforcement discretion, to the questions of constitutional and statutory and criminal law interpretation delegated for resolution to DOJ? This distinguished panel discussion will address these issues and the core question of which governmental actors our constitutional system has charged with directing the arc of the use of that authority.
Featuring:
-- Bob Bauer, Professor of Practice and Distinguished Scholar in Residence, New York University Law School; former White House Counsel
-- Steven Engel, Partner, Dechert LLP; former Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice
-- Jamie Gorelick, Partner, WilmerHale; former Deputy Attorney General, U.S. Department of Justice
-- Hon. Michael Mukasey, Of Counsel, Debevoise & Plimpton; 81st Attorney General of the United States
-- Moderator: Hon. Chad Readler, U.S. Court of Appeals for the Sixth Circuit

OFCCP in the Biden Administration Jun 18, 2021

Show notes

This session will cover changes – both observed to-date and anticipated – by OFCCP in the Biden administration. We will discuss the early initiatives the Biden administration has introduced, including a webpage for the Affirmative Action Verification Initiative that may substantially increase compliance obligations. Other topics will include OFCCP’s anticipated policy interests, areas of significant legal risk including compensation analysis, recent trends and expectations for audits, and the intersectionality of diversity equity and inclusion with OFCCP compliance.
Featuring:
-- Lauren B. Hicks, Of Counsel, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Courthouse Steps Decision Teleforum: Borden v. United States Jun 17, 2021

Show notes

Charles Borden had been convicted three times of aggravated assault under Tennessee law. Federal law prohibits possession of firearms by convicted felons, and the Armed Career Criminal Act (ACCA) provides a mandatory minimum sentence of 15 years for those with three prior convictions of violent felonies. Two of Borden's convictions were under a subsection of Tennessee's aggravated assault law covering intentional or knowing violations, and one was under a subsection covering reckless violations. Borden was sentenced to the mandatory minimum over his objection that reckless aggravated assault is not a "violent felony" within the meaning of the ACCA.The federal courts of appeals were divided on the question of whether crimes with a reckless mens rea were included within the particular clause of the ACCA invoked in this case. That clause includes convictions of a crime which "has as an element the use, attempted use, or threatened use of physical force against the person of another."The Supreme Court reversed in a fractured decision, unable to reach majority agreement on a single rationale. The result is that any crime which has a definition permitting conviction on the basis of mental state of recklessness will not count for the ACCA.
Featuring:
Kent Scheidegger, Legal Director and General Counsel, Criminal Justice Legal Foundation
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Dial 888-752-3232 to access the call.

Textual Challenges of Section 230 Jun 17, 2021

Show notes

This panel addressed the textual questions of §230: is the statute correctly understood to permit discretionary content moderation on the part of social media platforms and other supporting tech entities, or does the text provide for a more limited range of moderation policies? Although several circuit courts have adopted a more expansive interpretation of the statutory protections, Justice Thomas has recently questioned whether the prevailing application is consistent with the text. Does viewpoint discrimination fall within the scope of §230 protection? Are decisions to ban individuals from participating on a platform covered by the statutory protections? To what extent does the statute preclude state regulatory initiatives to protect speech by platform users?
Featuring:
Philip A. Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia Law School; President, New Civil Liberties Alliance
Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
Mary Anne Franks, Professor of Law and Dean's Distinguished Scholar, University of Miami School of Law
Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, District of Columbia Circuit
* * * * *
As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Closing the Digital Divide: The Future of Broadband Access Jun 17, 2021

Show notes

On June 15, 2021, The Federalist Society's Telecommunications & Electronic Media Practice Group sponsored a teleforum to discuss "Closing the Digital Divide: The Future of Broadband Access."
The COVID-19 pandemic has brought a renewed attention to closing the country’s digital divide. In response, Congress and the White House have made broadband infrastructure a top priority, with several different infrastructure proposals on the table. This massive investment to connect all Americans will require significant funding. This event, featuring FCC Commissioner Brendan Carr, will explore the different options available, potential roadblocks, and the continued importance of unleashing private sector investment in today’s broadband networks.
Featuring:
-- Hon. Brendan Carr, Commissioner, Federal Communications Commission
-- Moderator: Randolph J. May, President, Free State Foundation

Free Speech and Compelled Speech: First Amendment Challenges to a Marketplace of Ideas Jun 15, 2021

Show notes

Section 230 has been understood to shield internet platforms from liability for content posted by users, and also to protect the platforms’ discretion in removing “objectionable” content.
But policy makers have recently taken a stronger interest in attempting to influence tech companies’ moderation policies. Some have argued the policies are too restrictive and unduly limit the scope of legitimate public debate in what has become something of a high-tech public square. Other policy makers have argued the platforms need to more aggressively target “hate speech,” online harassment, and other forms of objectionable content. And against that background, states are adopting and considering legislation to limit the scope of permissible content moderation to preclude viewpoint discrimination.
Some have suggested that the §230 protection, in combination with political pressure, create First Amendment state action problems for content moderation. Others argue that state efforts to protect the expressive interests of social media users would raise First Amendment concerns, by effectively compelling speech by social media and tech platforms.
What are the First Amendment limits on federal and state efforts to influence platform decisions on excluding or moderating content?
Featuring:
Eugene T. Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
Jed Rubenfeld, formerly Assistant United States Attorney, U.S. Representative at the Council of Europe, and professor at the Yale Law School
Mary Anne Franks, Professor of Law and Dean's Distinguished Scholar, University of Miami School of Law
Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, District of Columbia Circuit
* * * * *
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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