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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 Oral Argument: United States v. Cooley Mar 25, 2021

Show notes

On March 23, 2021, the Supreme Court will hear oral argument in United States v. Cooley. The Court will address whether the Ninth Circuit erred in upholding the suppression of evidence obtained when an Indian tribe police officer temporarily detained a non-Indian crossing a reservation on a public right of way and discovered evidence of federal crime during the stop. Defendant Cooley argues the evidence should be suppressed because the officer’s stop and search exceeded the scope of jurisdiction permitted by the Indian Civil Rights Act of 1968.
Joining us to discuss the Oral Argument is Anthony J. Ferate, Of Counsel at Spencer Fane LLP.
Featuring:
Anthony J. Ferate, Of Counsel at Spencer Fane LLP.
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.

ICT Supply Chain Security: A Panel Discussion Mar 24, 2021

Show notes

On February 24, 2021, President Biden signed an executive order (EO) on a whole-of-government strategy to secure supply chains for critical and essential goods. The EO institutes a parallel examination of supply chain vulnerabilities: (1) a 100-day review of four key industries, including semiconductors and (2) a one-year review of a broader range of industries, including information and communications technology (ICT). At the same time, the Biden Administration did not withdraw the ICT supply chain security rule from the Trump Administration that is scheduled to go into effect March 22. Citing security benefits to the ICT supply chain, the Acting Chairwoman of the FCC has teed up a Notice of Inquiry on Open Radio Access Networks (ORAN) for the FCC’s March 17 meeting. The Commerce Department’s National Telecommunication and Information Administration has launched its own Notice of Inquiry on 5G Open Stack Challenge on behalf of the Department of Defense.
What do these actions mean for the ICT sector, and the semiconductor industry particularly? Will ORAN result in more secure and trusted 5G networks? Will it be adopted due to perceived long-term cost savings and operational benefits, or will government mandate its adoption? If the ICT supply chain rule goes into effect this month, will there be enough semiconductors to power 5G? Join us for a panel of informed experts to discuss these critical issues.
Featuring:
-- Maryam Khan Cope, Director, Government Affairs, Semiconductor Industry Association
-- Kelsey Guyselman, Deputy Policy Director, U.S. Senate Committee on Commerce, Science & Transportation
-- Hon. John Kneuer, President and Founder, JKC Consulting LLC; former Assistant Secretary of Commerce for Communications and Information, U.S. Department of Commerce
-- Gregory Watson, Policy Advisor, Hon. Brendan Carr, Federal Communications Commission
-- Moderator: Patricia Paoletta, Partner, Harris, Wiltshire & Grannis LLP

ICT Supply Chain Security: A Panel Discussion Mar 24, 2021

Show notes

On February 24, 2021, President Biden signed an executive order (EO) on a whole-of-government strategy to secure supply chains for critical and essential goods. The EO institutes a parallel examination of supply chain vulnerabilities: (1) a 100-day review of four key industries, including semiconductors and (2) a one-year review of a broader range of industries, including information and communications technology (ICT). At the same time, the Biden Administration did not withdraw the ICT supply chain security rule from the Trump Administration that is scheduled to go into effect March 22. Citing security benefits to the ICT supply chain, the Acting Chairwoman of the FCC has teed up a Notice of Inquiry on Open Radio Access Networks (ORAN) for the FCC’s March 17 meeting. The Commerce Department’s National Telecommunication and Information Administration has launched its own Notice of Inquiry on 5G Open Stack Challenge on behalf of the Department of Defense.
What do these actions mean for the ICT sector, and the semiconductor industry particularly? Will ORAN result in more secure and trusted 5G networks? Will it be adopted due to perceived long-term cost savings and operational benefits, or will government mandate its adoption? If the ICT supply chain rule goes into effect this month, will there be enough semiconductors to power 5G? Join us for a panel of informed experts to discuss these critical issues.
Register here to attend live
Featuring:
Maryam Khan Cope, Director, Government Affairs, Semiconductor Industry Association
Kelsey Guyselman, Deputy Policy Director, U.S. Senate Committee on Commerce, Science & Transportation
Hon. John Kneuer, President and Founder, JKC Consulting LLC; former Assistant Secretary of Commerce for Communications and Information, U.S. Department of Commerce
Gregory Watson, Policy Advisor, Hon. Brendan Carr, Federal Communications Commission
Moderator: Patricia Paoletta, Partner, Harris, Wiltshire & Grannis LLP
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This Zoom panel is open to public registration. See the above link.

Courthouse Steps Oral Argument: Cedar Point Nursery v. Hassid Mar 24, 2021

Show notes

In Cedar Point Nursery v. Hassid, the Supreme Court will decide whether a California “Access Regulation” violates the Takings Clause of the Fifth Amendment. The Access Regulation allows union organizers to enter the private property of agricultural employers in the state for three hours per day, 120 days per year, for the purposes of soliciting employees to join the union.
Petitioners Cedar Point Nursery and Fowler Packing Company, Inc., are California agricultural employers subject to the Access Regulation. In 2015, union organizers came onto the property of Cedar Point Nursery, a strawberry plant harvester near the Oregon border. The same year, union organizers filed an unfair labor practices charge against Fowler Packing, a citrus and table grape grower, alleging that Fowler denied access to union organizers seeking to enter their property. Petitioners contend that the Access Regulation constitutes a per se taking by appropriating an easement for the benefit of third party union organizers. Petitioners add that, because there is no mechanism for providing just compensation to Petitioners, the Access Regulation violates the Takings Clause.Respondents are members of the Agricultural Labor Relations Board. They argue that per se taking analysis is inappropriate because of time, place, and manner limitations contained in the Access Regulation. They urge the Court to analyze the Access Regulation under the multi-factor balancing test invoked in cases involving regulatory takings.In 1979, a divided California Supreme Court rejected a takings claim brought by other California growers shortly after the Access Regulation went into effect. Petitioners in this case brought this case in federal court. A divided Ninth Circuit affirmed a district court’s decision rejecting Petitioners’ Fifth Amendment claim, and Petitioners’ petition for rehearing en banc was denied over the dissent of eight judges. The Supreme Court accepted the case in November 2020, and will hear oral arguments on March 22, 2021.
Featuring:
Wen Fa, Attorney, Pacific Legal Foundation
Dial 888-752-3232 to access the call.

Courthouse Steps Decision Teleforum: Federal Republic of Germany v. Philipp Mar 24, 2021

Show notes

On February 3, 2021, the Supreme Court unanimously decided Federal Republic of Germany v. Philipp and Republic of Hungary v. Simon.
The plaintiffs in Federal Republic of Germany are heirs of German Jewish art collectors who purchased a collection of medieval relics termed the Welfenschatz. As the Third Reich took control of Germany and began assimilating the great cultural achievements of the West, the Nazis government bought the Welfenschatz for one third of its value. Following World War II, the Welfenschatz changed hands, ultimately landing in a Berlin museum owned by the Federal Republic of Germany and maintained by the Stiftung Preussischer Kulturbesitz (SPK).
After unsuccessfully seeking compensation from Germany, the heirs to the original owners brought common law property claims against Germany and SPK in United States District Court. Generally, the Foreign Sovereign Immunities Act (FSIA) would bar such a suit; Germany argued that the possibly applicable exception for “property taken in violation of international law” did not apply to domestic takings where a government takes the property of its own citizens. The heirs argued Germany’s coerced taking was an act of genocide bringing their suit within the exception since genocide violates international human rights law.
The Court relied on the long established history of international law to determine the phrase “property taken in violation of international law,” refers specifically to the law of expropriation, which includes the domestic taking rule. Violations of international human rights law do not fall within the phrase, so Germany retains sovereign immunity under FSIA and the heirs cannot recover in U.S. Courts. Relying on Federal Republic of Germany, the Court issued a per curiam decision in Republic of Hungary, directing the United States Court of Appeals for the D.C. Circuit to decide the case in light of its ruling in Federal Republic of Germany.
Featuring:
-- Professor Alberto R. Coll, Vincent de Paul Professor of Law and Director of Global Engagement, DePaul College of Law

Ricky Vaughn's Prosecution and the First Amendment Mar 18, 2021

Show notes

The DOJ has charged Douglas Mackey, aka Ricky Vaughn, with conspiracy “to injure, oppress, threaten, or intimidate” people in the exercise of their constitutional rights. His crime? Using his social media platform in the months leading up to November 2016 to post memes about the Presidential election, including ones that – if taken literally – falsely state that people could vote for Hillary just by posting on Twitter and Facebook. Are such prosecutions consistent with the First Amendment? Are they authorized by federal law? Joining us to discuss is Professor Eugene Volokh, noted First Amendment scholar and the Gary T. Schwartz, Professor of Law at the UCLA School of Law, who recently wrote on the subject.
Featuring:
Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
Dial 888-752-3232 to access the call.

Courthouse Steps Decision Teleforum: Uzuegbunam v. Preczewski Mar 12, 2021

Show notes

On March 8, 2021, the U.S. Supreme Court decided Uzuegbunam v. Preczewski. Writing for the 8-justice majority, Justice Clarence Thomas explained that a completed violation of a legal right does in fact satisfy the redressability element necessary for Article III standing. Justice Kavanaugh filed a concurring opinion, while Chief Justice Roberts filed a dissenting opinion.
John Bursch, head appellate litigator at Alliance Defending Freedom, the firm that represented petitioner Chike Uzuegbunam, joins us to discuss the case, ruling, and implications for religious liberty, free speech law, and more.
Featuring:
John Bursch, Senior Counsel and Vice President of Appellate Advocacy, Alliance Defending Freedom
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This Teleforum is open to the public and press. Dial 888-752-3232 to access the call.

Litigation Update: Apache Stronghold v. United States Mar 12, 2021

Show notes

Apache Stronghold v. United States is an ongoing case involving religious land use. On February 18, 2021, a federal judge allowed the government's plans to swap a portion of Tonto National Forest for land owned by Resolution Copper. Inside the National Forest land is Oak Flat, a Native American sacred site.
Apache Stronghold, a nonprofit organization that defends these sites, and the Becket Fund for Religious Liberty are challenging the judge's preliminary injunction at the Ninth Circuit Court of Appeals.
First Amendment expert Stephanie Barclay, co-author of the recent Harvard Law Review article "Rethinking Protections for Indigenous Sacred Sites," and A.J. Ferate, formerly Vice President of Regulatory Affairs for the Oklahoma Independent Petroleum Association, will give an update on this case and discuss legal implications.
Featuring:
Prof. Stephanie Barclay, Associate Professor of Law and Director, Religious Liberty Initiative, University of Notre Dame Law School
Anthony J. Ferate, Of Counsel, Spencer Fane LLP
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This call is open to the public and press. Dial 888-752-3232 to access.

Courthouse Steps Decision Teleforum: U.S. Fish and Wildlife Service v. Sierra Club Mar 10, 2021

Show notes

In this case, Sierra Club, Inc. submitted a FOIA request to the U.S. Fish and Wildlife Service requesting biological impact reports that were made in consultation with the Environmental Protection Agency. The EPA had planned to construct “cooling water intake structures” and in compliance with the Clean Water Act consulted with U.S. Fish and Wildlife on the question of biological impact. Citing FOIA Exemption 5, the deliberative process privilege, Fish and Wildlife withheld the draft reports. Sierra Club sued and both the District Court and Ninth Circuit sided with Sierra Club, holding to varying degrees that the deliberative process privilege did not cover the requested reports. In Justice Barrett’s first majority opinion and by a 7-2 margin, the Supreme Court overruled the Ninth Circuit’s decision finding that the deliberative process exemption covers “predecisional and deliberative” documents and so protects the draft biological impact reports from FOIA disclosure.
Featuring:
-- Nancie Marzulla, Partner, Marzulla Law
-- Damien Schiff, Senior Attorney, Pacific Legal Foundation

Courthouse Steps Decision Teleforum: Pereida v. Wilkinson Mar 09, 2021

Show notes

In Pereida v. Wilkinson, the Supreme Court held 5-3 that an individual seeking relief from a lawful removal order under the Immigration and Nationality Act (INA) must “shoulder [the] heavy burden” of proving every element of eligibility for relief including the absence of a conviction for a crime of moral turpitude. Clemente Avelino Pereida argued on appeal that although he was recently convicted of a crime, he remained eligible for relief because he refused to disclose the nature of the crime so moral turpitude could not be proven. The Court disagreed with Pereida, siding with the Eight Circuit and finding Pereida must show the crime was not one of moral turpitude in order to be eligible for relief under the INA.
Featuring:
-- Brian M. Fish, Special Assistant, United States Attorney, Baltimore, Maryland

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