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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:

Litigation Update: Jack Phillips and Masterpiece Cakeshop Apr 05, 2021

Show notes

Jack Phillips, of Masterpiece Cakeshop fame, is back in court for the third time since the Supreme Court’s 2017 decision. Phillips has most recently been sued in Colorado state court by Autumn Scardina, a transgender attorney who requested Phillips create a transgender transition cake. When Phillips declined, Scardina filed a complaint with the Colorado Civil Rights Commission. After being sued in Federal Court, Scardina dropped the CRC complaint then sued Phillips in state court, alleging discrimination and false advertising under Colorado state law. The false advertising claim was dismissed; trial on the remaining discrimination claim began on March 22, 2021 and a decision is expected soon.
Joining us to discuss the complicated litigation is Mark Trammell, General Counsel, Center for American Liberty.
Featuring:
Mark Trammell, General Counsel, Center for American Liberty
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 Oral Argument Teleforum: NCAA v. Alston Apr 02, 2021

Show notes

On March 31, 2021, the Supreme Court hears oral arguments in the case of NCAA v. Alston. This case addresses a Ninth Circuit decision holding that the National Collegiate Athletic Association eligibility rules regarding compensation of student-athletes violate federal antitrust law. The Court is expected to review the decision according to circuit splits and general antitrust principles.
Joshua Wright, a former commissioner at the Federal Trade Commission, joins us to discuss the case, oral arguments, and implications.
Featuring:
-- Hon. Joshua D. Wright, University Professor and Executive Director, Global Antitrust Institute, Antonin Scalia Law School, George Mason University

Courthouse Steps Oral Argument: Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System Apr 01, 2021

Show notes

On March 29, 2021, the Supreme Court will hear oral argument in the case of Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System. The case turns on class action issues and the 1988 Supreme Court case Basic Inc. v. Levinson. In Goldman Sachs, the Court will address whether a class action defendant in a case alleging securities fraud may rebut a presumption of class-wide reliance on an alleged misstatement by pointing to the generic nature of the statement and if so, whether that defendant ultimately bears the burden of production or the burden of persuasion.
Featuring:
Ted Frank, Director, Center for Class Action Fairness, Hamilton Lincoln Law 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.

Courthouse Steps Oral Argument: TransUnion LLC v. Ramirez Mar 31, 2021

Show notes

On March 30, 2021, the Supreme Court will hear oral argument in the case of TransUnion LLC v. Ramirez. In this case, the Court will address the type of injury required by Rule 23 of the Federal Rules of Civil Procedure and Article III of the U.S. Constitution for a class of plaintiffs to sue where the injury alleged by the class representative is different (and arguably greater) than the injury alleged by the remaining class members.
Featuring:
-- Ted Frank, Director, Center for Class Action Fairness, Hamilton Lincoln Law Institute

Doctrine Briefing: The Ministerial Exception Mar 31, 2021

Show notes

In Our Lady of Guadalupe v. Morrissey-Berru (2020), the Supreme Court expanded on the ministerial exception doctrine it outlined in an earlier case, Hosanna-Tabor v. EEOC (2012). The doctrine holds that federal nondiscrimination laws do not apply to religious organizations in their decisions to hire and fire their “ministers.” It is an increasingly relevant rule in First Amendment jurisprudence, one that deserves careful attention and understanding, especially as there are many outstanding questions left by Our Lady that are already being litigated. Joining us to explain the doctrine, and discuss its history and future, is Jones Day attorney Victoria Dorfman, who represented a distinguished group of law professors in an amicus brief in support of Our Lady of Guadalupe School.
Featuring:
-- Victoria Dorfman, Partner, Jones Day

Courthouse Steps Decision Teleforum: Torres v. Madrid Mar 30, 2021

Show notes

On Thursday, March 25, the Supreme Court issued its decision in Torres v. Madrid. The case came before the court on a section 1983 claim filed by Roxanne Torres against two New Mexico police officers who were attempting to execute a warrant for her arrest. During the attempted arrest, Torres fled from the officers, who fired thirteen times after her fleeing car. Torres was hit twice and argued in her 1983 claim that those shots were an unreasonable seizure which violated her Fourth Amendment rights. The officers argued no seizure took place because Torres did not submit to the exerted force so there could be no Fourth Amendment claim.
In a 5-3 decision, over the dissent of Justices Gorsuch, Thomas, and Alito, the Supreme Court sided with Torres finding that a seizure for purposes of the Fourth Amendment does take place where a police officer intentionally exerts force upon the person of another even where that person does not submit to the force exerted and even where the force is exerted from a distance.
Featuring:
Kent Scheidegger, Legal Director and General Counsel, Criminal Justice 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 Oral Argument: Caniglia v. Strom Mar 29, 2021

Show notes

In Caniglia v. Strom, the U.S. Supreme Court will decide whether the community-caretaking exception to the Fourth Amendment’s warrant requirement extends to the home. The general rule under the Fourth Amendment is that before police perform a search or seizure they must obtain a warrant. The community-caretaking exception, by contrast, allows police to search and seize without a warrant when engaged in community-caretaking activities that are entirely unrelated to the enforcement of criminal statutes.
The Supreme Court first created the community-caretaking exception in a case called Cady v. Dombrowski, which involved a crashed car that police towed to a private garage and then searched without first obtaining a warrant. The Court’s decision upholding the officers’ actions noted the differences between homes and vehicles, including that car accidents on public thoroughfares are a “nuisance” requiring officers’ immediate attention.
The First Circuit in Caniglia extended the community-caretaking exception to the home. Edward and Kim Caniglia, a married couple, had a disagreement one night in their Rhode Island abode. After Mr. Caniglia retrieved his unloaded handgun and asked “why don’t you just shoot me and get me out of my misery?” Mrs. Caniglia left and spent the night in a motel.
The next morning, Mrs. Caniglia had the police escort her home. The police believed Mr. Caniglia could be a threat to himself, so they wanted to take him to a hospital for a psychiatric evaluation. Mr. Caniglia agreed to go based on the officers’ promise that they would not take his handguns while he was gone. But once Mr. Caniglia was admitted to the hospital, the officers entered the home without a warrant and seized his guns, claiming the community-caretaking exception justified their actions. And the First Circuit agreed.
Now, the Supreme Court is poised to address, for the first time, whether this community-caretaking exception to the warrant requirement can be applied to searches and seizures within the home. The Supreme Court accepted the case on November 20, 2020 and will hear oral arguments on March 24, 2021.Featuring:
Robert Frommer, Senior Attorney, Institute for Justice
Matt Cavedon, Assistant Public Defender, Northeastern Judicial Circuit
Dial 888-752-3232 to access the call.

When the Government Changes Sides in Ongoing Litigation Mar 26, 2021

Show notes

On March 26, 2021, the Federalist Society's Federalism & Separation of Powers Practice Group hosted a webinar panel to discuss "When the Government Changes Sides in Ongoing Litigation."
In the early months of the Biden Administration, the US Solicitor General's Office (OSG) has switched the federal government's position in several high-profile cases and withdrawn from other cases. While some may think the moves are politically motivated, there are legal reasons OSG switches its position between presidential administrations. Some believe, however, that OSG risks undermining the rule of law when it makes such decisions.
Are we seeing an increase in altered litigation positions following administration change, or have the recent administrations’ decisions been consistent with prior practice? What are the appropriate factors to consider? What are some important such cases in the current and previous administrations, and are the decisions to switch sides or end those cases defensible? How should courts treat the switches?
Featuring:
-- Beth Brinkmann, Partner, Covington & Burling LLP; former Deputy Assistant Attorney General, Civil Division and Assistant to the Solicitor General, Department of Justice
-- Gene P. Hamilton, former Counselor to the Attorney General, Department of Justice
-- Hashim M. Mooppan, former Deputy Assistant Attorney General, Civil Appellate and Counselor to the Solicitor General, Department of Justice
-- Moderator: Hon. Beth A. Williams, former Assistant Attorney General, Office of Legal Policy, Department of Justice

Book Review: Unshackled: Freeing America's K-12 Education System Mar 26, 2021

Show notes

Education policy has long been a bi-partisan priority, and education has played a significant role in the development of constitutional law—from First to Fourteenth Amendment—over the past century. During the COVID-19 pandemic, debates about the structure of the public school system and the parental right to choose private or home schooling have come to a head.
This program will focus on the debate over reform and school choice through the lens of a new book, Unshackled: Freeing America's K-12 Education System. Co-authors Clint Bolick and Kate Hardiman join education law expert Nicole Garnett to review the new book.
Register here to attend live
Featuring:
Hon. Clint Bolick, Supreme Court of Arizona
Kate Hardiman, William H. Rehnquist Fellow, Cooper & Kirk PLLC
Moderator: Prof. Nicole Stelle Garnett, John P. Murphy Foundation Professor of Law, University of Notre Dame Law School
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This Zoom discussion is open for public registration. See above link.

Debate: The Outer Reaches of the Unitary Executive Theory and the Termination of EEOC General Counsel Sharon Gustafson Mar 26, 2021

Show notes

This teleforum will include a discussion about the Unitary Executive Theory, its judicial and legislative history, and its applicability to the President’s recent termination of EEOC General Counsel Sharon Gustafson. Ms. Gustafson will share her thoughts regarding her duties at the EEOC and the challenges for any individual performing such duties. The panelists will debate and discuss the authority of the President to exercise “at-will” termination authority over Senate-confirmed individuals serving on 'independent' boards and commissions.
Featuring:
-- Hon. W. Neil Eggleston, Partner, Kirkland & Ellis LLP
-- Hon. Sharon Fast Gustafson, Former General Counsel, United States Equal Employment Opportunity Commission
-- G. Roger King, Senior Labor and Employment Counsel, HR Policy Association

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