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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:

Courthouse Steps Decision Webinar: Google v. Oracle Apr 21, 2021

Show notes

On April 5, 2021, the U.S. Supreme Court decided Google v. Oracle. In a 6-2 decision, Justice Stephen Breyer wrote that Google's use of a Java program constituted "fair use" under federal copyright law. Justice Thomas filed a dissenting opinion, which Justice Alito joined. Justice Barrett took no part in the consideration or decision of the case.
A panel of experts joined us to discuss the case, their differing views on the ruling, and its implications for copyright and intellectual property law.
Featuring:
--Prof. Michael Risch, Vice Dean and Professor of Law, Villanova University Charles Widger School of Law
--Prof. Zvi Rosen, Assistant Professor, Southern Illinois University School of Law
--Moderator: Prof. Sandra Aistars, Clinical Professor, Senior Scholar and Director of Copyright Research and Policy, Antonin Scalia Law School, George Mason University

Would a Wealth Tax Pass Constitutional Muster? Apr 21, 2021

Show notes

Always on the lookout for new sources of federal revenue, some lawmakers are now drawn to the prospect of taxing wealth. In 2020, Sen. Sanders proposed a “Make Billionaires Pay Act,” described briefly here. In her Presidential campaign, Sen. Warren also proposed a tax on wealth. Now as a member of the Senate Finance Committee, Sen. Warren, along with Sen. Sanders and others, have proposed an “Ultra-Millionaire Tax.”
Because Article I, Section 2, Clause 3 of the Constitution requires that “direct taxes shall be apportioned among the several States,” it took the 16th Amendment, passed by Congress in 1909 and ratified in 1913, to enable Congress to tax incomes. Does the Constitution permit Congress to tax wealth? With co-author Prof. John R. Brooks, Prof. David Gamage wrote Why A Wealth Tax Is Definitely Constitutional. In The Warren Wealth Tax: A Response To Professor Bruce Ackerman, Prof. Jonathan Turley lays out some of the arguments to the contrary.
In this virtual discussion, Profs. Turley and Gamage will discuss the constitutional issues wealth tax proposals present.
Featuring:
-- Prof. Jonathan R. Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law, The George Washington University Law School
-- Prof. David Gamage, Professor of Law, Maurer School of Law
-- Interlocutor: Robert Carney, Senior Counsel, Caplin & Drysdale
-- Moderator: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC

Original Meaning or Framers' Intent? A New Book and an Age-Old Debate Apr 19, 2021

Show notes

In his new book, The Hollow Core of Constitutional Theory: Why We Need the Framers, historian Donald Drakeman argues that in order to properly interpret the Constitution, one must consider the will of the lawmakers—in this case, those founding fathers who framed the charter—and, more specifically, their decisions about both the ends and the means of the provisions they designed. In the face of ascendant "public meaning" originalism, this book seeks to revive the importance of the framers' intent in constitutional theory and interpretation.
Joining Mr. Drakeman to review his new book are two distinguished constitutional theorists, Professors Lawrence Solum of the University of Virginia and Keith Whittington of Princeton. All three will offer their views on the matters at hand in a discussion moderated by Judge Britt Grant of the 11th Circuit Court of Appeals.
Featuring:
Donald L. Drakeman, Distinguished Research Professor, Program in Constitutional Studies, University of Notre Dame
Prof. Lawrence B. Solum, William L. Matheson and Robert M. Morgenthau Distinguished Professor of Law, University of Virginia School of Law
Prof. Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University
Moderator: Hon. Britt C. Grant, U.S. Court of Appeals for the Eleventh 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.

Courthouse Steps Decision Teleforum: Florida v. Georgia Apr 19, 2021

Show notes

On April 1, the Supreme Court ruled on an original jurisdiction dispute in Florida v. Georgia. Justice Barrett authored the Court's unanimous decision, holding that Florida did not prove by clear and convincing evidence that the collapse of Florida’s downstream oyster fisheries was caused by Georgia’s alleged overconsumption of water from the Apalachicola-Chattahoochee-Flint River Basin. The Court found that other factors besides Georgia’s upstream water consumption contributed to the collapse including overharvesting, a severe drought, and changing rainfall, so Florida could not successfully establish causation. Ultimately, the Court agreed with the report of the Special Master and took his recommendation to dismiss the case.
Featuring:
Tony Francois, Senior Attorney, Pacific Legal Foundation
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.

Courthouse Steps Decision Teleforum: Facebook v. Duguid Apr 14, 2021

Show notes

On April 1, 2021, the U.S. Supreme Court ruled in favor of Facebook in Facebook v. Duguid. Writing for the unanimous court, Justice Sonia Sotomayor explained that a device must have the capacity to store or produce a telephone number using a number generator. Justice Samuel Alito filed an opinion concurring in the judgment.
Telecommunications law experts Scott Delacourt and Daniel Lyons discuss the ruling and implications.
Featuring:
-- Scott D. Delacourt, Partner, Wiley
-- Prof. Daniel Lyons, Professor of Law, Boston College School of Law
-- Moderator: Danielle Thumann, Attorney Advisor, FCC Commissioner Brendan Carr

Courthouse Steps Decision Webinar: FCC v. Prometheus Radio Project Apr 13, 2021

Show notes

On April 1, 2021, the U.S. Supreme Court decided Federal Communications Commission v. Prometheus Radio Project. Writing for the unanimous court, Justice Kavanaugh explained that the FCC's 2017 decision to modify its media-ownership rules was not arbitrary or capricious under the Administrative Procedure Act.
The distinguished panel that joined us to discuss oral arguments is returning to discuss the ruling and its implications.
Featuring:
Ms. Jane E. Mago, Consultant in Media Policy and Law; former General Counsel, Federal Communications Commission
Hon. Michael O'Rielly, Visiting Fellow, Hudson Institute; former Commissioner, Federal Communications Commission
Mr. Christopher J. Wright, Partner, Harris, Wiltshire & Grannis; former General Counsel, Federal Communications Commission
Moderator: Mr. Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal and Economic Public Policy Studies; Executive Committee Member, Federalist Society's Telecommunications & Electronic Media Practice Group
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This Zoom panel is open to public registration. See the above link.

A Discussion of ABA Model Rule 8.4(g) Apr 09, 2021

Show notes

American Bar Association Model Rule 8.4(g) defines professional misconduct in relevant part as “conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Because the 8.4(g) professional misconduct definition is broad and applies to a wide swath of undefined activity, the model rule has prompted spirited debate in light of the serious competing interests implicated.
Join us for a discussion of contrasting views from Professor Josh Blackman and Mr. Robert Weiner.
Featuring:
-- Josh Blackman, Professor of Law, South Texas College of Law Houston
-- Robert Weiner, Partner, Arnold & Porter Kaye Scholer LLP
-- Moderator: Kim Colby, Director of the Center of Law and Religious Freedom, Christian Legal Society

Courthouse Steps Decision Teleforum: Ford Motor Company v. Montana Eighth Judicial Dist. Court Apr 09, 2021

Show notes

On Thursday, March 25, 2021, the Supreme Court issued its decision in Ford Motor Company v. Montana Eighth Judicial Dist. Court and the consolidated case of Ford Motor Company v. Bandemer. The case turned on specific personal jurisdiction, the type of contacts required by the Fourteenth Amendment to satisfy Due Process, and the Court’s precedent in International Shoe Co. v. Washington, which sets the standards required for an out-of-state defendant to be constitutionally called into a foreign state court.
In this case, two plaintiffs sued Ford alleging product liability causes of action resulting from death and serious injury that occurred during accidents allegedly caused by product defects. Markkaya Gullett died and Adam Bandamer was seriously injured. The pair of wrongful death and serious bodily injury product liability claims were brought separately in the states where the death and the injury respectively took place: Montana and Minnesota.
Ford Motor Co., as an out of state defendant incorporated in Delaware and headquartered in Michigan, argued in both cases that insufficient contacts connected Ford to the two forum states so neither the Montana nor the Michigan state court could constitutionally exercise specific personal jurisdiction over Ford. Both state court cases were heard by their state Supreme Courts and both times, the Supreme Courts ruled against Ford holding Ford was properly subject to personal jurisdiction in their state judicial system.
Ford appealed both state Supreme Court decisions on the constitutional Due Process question. In an 8-0 decision, the Supreme Court ruled against Ford holding that Ford’s contacts with both forum states were sufficiently extensive and connected to the subject matter of each suit that an exercise of personal jurisdiction could satisfy Due Process and was reasonable and fair in line with International Shoe.
Featuring:
-- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
-- Jaime A. Santos, Partner, Goodwin Procter LLP

Nation-State Cybercrime: Perspectives on the Problem and Response with Two Former DOJ National Security Officials Apr 07, 2021

Show notes

Recent cyber attacks by the Russian and Chinese governments involving SolarWinds and Microsoft exposed cyber-related vulnerabilities in the supply chains of many large and small companies that rely on SolarWinds and Microsoft for their internal security and IT services, which also experienced security breaches as a result of these attacks. Two former DOJ National Security officials from the Obama and Trump administrations will discuss the impact of these attacks, possible criminal and non-criminal responses, and pros and cons of each approach.
Featuring:
-- Kellen Dwyer, Adjunct Professor of Law, Antonin Scalia Law School, Former Deputy Assistant Attorney General, National Security Division
-- Alex Iftimie, Partner and Co-Chair, Global Risk & Crisis Management Practice, Morrison & Foerster LLP, former Deputy Chief of Staff and Counsel to the Assistant Attorney General, National Security Division
-- Moderator: Brian Lichter, Senior Director - Legal, Global Investigations & Cybersecurity Counsel, Cognizant Technology Solutions

Courthouse Steps Decision Teleforum: Brownback v. King Apr 05, 2021

Show notes

In Brownback v. King, the Court addressed the Federal Tort Claims Act, (FTCA) which waives Federal sovereign immunity to allow plaintiffs to sue the United States for certain torts committed by Federal employees. The FTCA includes a judgment bar which precludes a plaintiff from suing a federal employee on a cause of action arising from the same subject matter as his FTCA claim.
Following a violent encounter with two undercover FBI agents, King sued alleging an FTCA cause of action and an implied Bivens claim. The District Court dismissed both claims. Then the Sixth Circuit reversed, finding the District Court’s dismissal of King’s FTCA claims did not invoke the FTCA judgment bar because it had not reached the merits so King’s Bivens claim should be able to go forward.
In a 9-0 opinion written by Justice Thomas, the Court reversed the Sixth Circuit holding the District Court’s decision reached the merits and implicated the FTCA judgment bar.
Featuring:
-- Roman Martinez, Partner, Latham & Watkins LLP
-- Patrick Jaicomo, Attorney, Institute for Justice

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