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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:

Analyzing the EPA’s Draft Memorandum on Maui v. Hawaii Wildlife Fund Dec 22, 2020

Show notes

In April, 2020, the United States Supreme Court held that, in certain situations, the Clean Water Act requires Section 402 permits for point source discharges that travel through groundwater to reach navigable waters. According to the Court, a permit is required if the discharge is the "functional equivalent of a direct discharge from the point source into navigable waters." This month, the EPA issued a draft memorandum to help apply the Maui decision and clarify what is required for a "functional equivalent" analysis. What does this draft guidance cover and is it consistent with the Maui decision? Is the guidance helpful to regulated entities and what changes should be considered? Join us as we discuss this critical new guidance that seeks to help to make sense of the Maui decision.
Featuring:
-- Damien Schiff, Senior Attorney, Pacific Legal Foundation

Courthouse Steps Decision Teleforum: Texas v. New Mexico Dec 18, 2020

Show notes

On December 14, 2020, the Supreme Court released its decision in Texas v. New Mexico. By a vote of 7-1, Texas’ motion to review the Pecos River Master’s determination – that New Mexico was entitled to a delivery credit for evaporated water stored at Texas’ request under the Pecos River Compact – is denied. Justice Kavanaugh's majority opinion was joined by the Chief Justice and Justices Thomas, Breyer, Sotomayor, Kagan, and Gorsuch. Justice Alito filed an opinion concurring in the judgment in part and dissenting in part. Justice Barrett took no part in the consideration or decision of the case.
Featuring:
Anthony L. 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.

Chairman Ajit Pai's Tenure at the FCC: Fireside Chat and Panel Discussion Dec 18, 2020

Show notes

As 2020 draws to a close, Federal Communications Commission Chairman Ajit Pai joins Bryan Tramont, head of the Federalist Society's Telecommunications & Electronic Media Practice Group and Managing Partner at Wilkinson Barker Knauer, in a fireside chat to review Pai's term as Chairman of the FCC, the FCC's significant accomplishments during his tenure, and the most pressing matters facing the Commission ahead. A panel discussion will follow the fireside chat, featuring Randolph May, Shane Tews, and Patricia Paoletta.
Featuring:
-- Hon. Ajit Pai, Chairman, Federal Communications Commission
-- Randolph May, President, Free State Foundation
-- Patricia Paoletta, Partner, Harris, Wiltshire & Grannis LLP
-- Shane Tews, Visiting Fellow, American Enterprise Institute
-- Moderator: Bryan Tramont, Managing Partner, Wilkinson Barker Knauer

Capital Conversations: Amb. Robert Lighthizer, United States Trade Representative Dec 18, 2020

Show notes

On December 14, 2020, the Federalist Society hosted an online teleforum with Ambassador Robert Lighthizer, United States Trade Representative. Ambassador Lighthizer discussed judicial activism at the Appellate Body of the World Trade Organization.
Featuring:
-- Hon. Robert Lighthizer, 18th United States Trade Representative
-- Moderator: Hon. Dean Reuter, Vice President, General Counsel and Director of Practice Groups, The Federalist Society
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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 speakers.

Court-Packing, Term Limits, and More: The Debate Over Reforming the Judiciary Dec 18, 2020

Show notes

On December 16, 2020, The Federalist Society's Federalism and Separation of Powers Practice Group hosted a debate on "Court-Packing, Term Limits, and the Debate Over Reforming the Judiciary."
The battles over the nominations of Merrick Garland, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett suggest that the Supreme Court is now part of the same politicized cloud that envelops all of the nation's public discourse. Politics have always played a role in judicial confirmations, but it's a modern phenomenon for divergent legal theories to map onto partisan preferences at a time when the parties are ideologically sorted and polarized. Has the culmination of these trends led some people to think of judges and justices in partisan terms, and to question the legitimacy of our judiciary altogether -- or at least its mode of selection and appointment? The threat of "court-packing" was a live issue in the 2020 campaign, as a potential Democratic response to alleged Republican violations of the norms surrounding judicial nominations. Is there anything we can do to fix this dynamic, to turn down the political heat on Supreme Court vacancies? Reform proposals abound: term limits, politically rebalancing or changing the size of the Court, setting new rules for the confirmation process, and more. President-elect Joe Biden promised to establish a bipartisan judicial reform commission and our distinguished panel will provide a preview of the sort of discussion such a commission would likely have.
Featuring:
-- Prof. Noah Feldman, Felix Frankfurter Professor of Law and Director, Julis-Rabinowitz Program on Jewish and Israeli Law, Harvard Law School
-- Prof. James T. Lindgren, Professor of Law, Northwestern University Pritzker School of Law
-- Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network
-- Prof. Rivka Weill, Professor of Law, Harry Radzyner Law School, Interdisciplinary Center
-- Moderator: Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute
-- Introduction: Nick Marr, Assistant Director, Practice Groups, The Federalist Society
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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 speakers.

The USMCA and the Rapid Response Enforcement Mechanism - Enforcing Compliance with Labor Laws through Free Trade Agreements? Dec 18, 2020

Show notes

The United States Mexico Canada Agreement (USMCA) free trade agreement went into force in July of 2020. Under that agreement, Mexico committed to a comprehensive reform of its laws governing labor unions and collective bargaining. Mexico's labor laws as they relate to unions have historically been criticized as encouraging employers and established labor unions to enter into agreements to serve as a protection against independent labor unions. Often the workers who are represented know nothing of the unions or the agreements. Some believe this system has led to suppression of wages in Mexico and that, in turn, has created an unfair competitive advantage against U.S. business. As part of an effort to ensure labor law reform, the USMCA created a mechanism that allows enforcement against individual facilities for failure to comply with the reformed laws, called a Rapid Response dispute resolution process. Under that process, claims for failure to comply can be brought directly against facilities in Mexico. Following investigation and adjudication, these cases can result in a loss of the preferential tariffs accorded under the USMCA for goods or services coming from that facility, creating the first-ever international process that holds an individual business accountable for its failure to comply with the labor laws of another country. Will mechanisms like this be incorporated into other free trade agreements in the future?
Featuring:
-- Lewis Karesh, Assistant U.S. Trade Representative for Labor
-- Matthew Levin, Director, Office of Trade and Labor Affairs, U.S. Department of Labor
-- Stefan J. Marculewicz, Shareholder and Co-Chair, Business and Human Rights Practice Group, Littler Mendelson P.C.
-- Philip A. Miscimarra, Partner, Morgan & Lewis

Courthouse Steps Decision Teleforum: United States v. Briggs Dec 17, 2020

Show notes

On December 10, 2020, the Supreme Court released its decision in United States v. Briggs. Consolidated with United States v. Collins, United States v. Briggs challenged the idea that a rape charge may only be prosecuted if it is discovered within five years of the crime. By a vote of 8-0, the judgments of the U.S. Court of Appeals for the Armed Forces were reversed and the cases remanded. Justice Alito's opinion was joined by all other members of the Court except Justice Barrett, who took no part in the consideration or decision of the case. Justice Gorsuch filed a concurring opinion.
Featuring:
Arthur Rizer, Director, Criminal Justice & Civil Liberties; Resident Senior Fellow, R Street Institute
Prof. Richard Sala, Assistant Professor of Law, Vermont Law School
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: Rutledge v. Pharmaceutical Care Management Association Dec 17, 2020

Show notes

On December 10, 2020, the Supreme Court released its decision in Rutledge v. Pharmaceutical Care Management Association. By a vote of 8-0, the judgment of the U.S. Court of Appeals for the Eight Circuit was reversed and the case remanded. Per Justice Sotomayor's opinion for the Court: "Arkansas' Act 900 regulates the price at which pharmacy benefit managers reimburse pharmacies for the cost of drugs covered by prescription-drug plans. The question presented in this case is whether the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U. S. C. §1001 et seq., pre-empts Act 900. The Court holds that the Act has neither an impermissible connection with nor reference to ERISA and is therefore not pre-empted." Justice Sotomayor's opinion was joined by all other members of the Court except Justice Barrett, who took no part in the consideration or decision of the case. Justice Thomas filed a concurring opinion.
Featuring:
-- Anthony G. Provenzano, Member, Miller & Chevalier

Courthouse Steps Decision Teleforum: Tanzin v. Tanvir Dec 16, 2020

Show notes

On December 10, the Supreme Court decided the case of Tanzin v. Tanvir. The 8-0 ruling affirmed the judgement of the Second Circuit Court of Appeals, holding that "appropriate relief" under the Religious Freedom Restoration Act (RFRA) includes claims for money damages against government officials in their individual capacities. Stephanie Taub of First Liberty joins us to discuss the ruling and its implications.
Featuring:
Stephanie Taub, Senior Counsel, First 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: Henry Schein Inc. v. Archer and White Sales Inc. Dec 16, 2020

Show notes

The case of Henry Schein Inc. v. Archer and White Sales Inc. will have oral arguments at the Supreme Court on December 8, 2020. At issue is whether a provision in an arbitration agreement that exempts certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator. Erika Birg joins us to discuss the background of the case and the oral arguments as they occurred.
Featuring:
Erika C. Birg, Partner, Nelson Mullins Riley & Scarborough 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.

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