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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:

Critical Race Theory: Fighting Racism, or Racism Masquerading as Remedy? Nov 24, 2020

Show notes

The post-modern social science framework of “critical race theory” is well-known in certain academic circles and trending in corporate settings. CRT-inspired concepts and terminology-- such as “white privilege,” “intersectionality,” “implicit bias,” “microaggressions,” and “systemic racism”—are increasingly used in ethnic studies curricula in higher education. Robin DiAngelo’s NYT best-seller “White Fragility” (2018) brought mainstream attention to some CRT concepts and terminology. This year, the death of George Floyd served as the impetus for many institutions, including corporate employers, governmental entities, and some K-12 school systems, to adopt responsive training for employees and students. In some cases, existing EEO and diversity training programs were enhanced to target anti-racism issues. Critics have charged that CRT training itself contains racial stereotypes, assigns blame to individuals based solely on their race and sex, and imputes race discrimination as the reason for all disparate outcomes in society. Some employees have complained that being subjected to CRT training constitutes workplace harassment and/or discrimination. Proponents of CRT contend that disparate outcomes can only or best be explained by lingering, systemic racism. President Trump generated controversy in September when OMB Director Russell Vought released a memo instructing federal agencies to identify CRT training within federal agencies, with an eye to stop funding such programs. President Trump also issued an executive order forbidding such training by federal contractors. Our speakers will discuss the background and utilization of CRT, and explore whether the use of CRT (or similar theories) in workplace or K-12 contexts raises legal issues. They will grapple with the foundational question: Is CRT’s focus on race contrary to the traditional goal of a color blind society?
Featuring:
Mike Gonzalez, Senior Fellow, Douglas and Sarah Allison Center for Foreign Policy and Angeles T. Arredondo E Pluribus Unum Fellow, The Heritage Foundation
Peter N. Kirsanow, Partner, Benesch, Friedlander, Coplan & Aronoff LLP
Professor Daniel B. Rodriguez, Harold Washington Professor of Law, Northwestern University Pritzker School of Law
Professor Daria Roithmayr, Richard L. and Antoinette S. Kirtland Professor of Law, USC Gould School of Law
Moderator: Mark Pulliam, Contributing Editor, Law & 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 Arguments Teleforum: California v. Texas Nov 24, 2020

Show notes

In NFIB v. Sibelius, the Supreme Court upheld the constitutionality of the individual mandate of the Affordable Care Act (ACA) by branding the penalty for not buying health insurance as a tax. In 2017 however, the Republican-controlled Congress under the newly elected President Trump enacted an amendment to the ACA that set the penalty for not buying health insurance to zero, leaving the rest of the ACA in place. Several states, including Texas, subsequently filed suit in federal court challenging the individual mandate again, positing that because the penalty was now zero, it can no longer be considered a tax and is thus unconstitutional. California and several other states joined the lawsuit in defense of the individual mandate. The oral arguments for the case took place on November 10th, and Professor Ilya Somin joins us to discuss the oral argument and the implications for the case.
Featuring:
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University

The NLRB: What’s the Latest, and What to Expect for 2021? Nov 24, 2020

Show notes

The National Labor Relations Board has been busy, with new standards about offensive workplace conduct, labor contract management rights clauses, discipline issues, arbitration, and independent contractors, among other things. And the NLRB has proposed and adopted more regulations – addressing joint employer status, representation election procedures, election disclosures, college student assistants, and more – than any other time in the past 85 years. In this session, the latest insights regarding NLRB developments will be presented by Roger King (the HRPA’s Senior Labor and Employment Counsel) and Philip Miscimarra (former NLRB Chairman), who will also address the NLRB’s outlook for 2021 and beyond.
Featuring:
-- G. Roger King, Senior Labor and Employment Counsel, HR Policy Assocation
-- Philip A. Miscimarra, Partner, Morgan Lewis & Bockius LLP

The Annual Mike Lewis Memorial Teleforum: The Identity Crisis at the International Criminal Court Nov 24, 2020

Show notes

We are pleased to present the annual Mike Lewis Memorial teleforum. Professor Lewis was a naval aviator, internationally renowned law professor, and tireless public advocate for a principled and wise application of the Law of Armed Conflict, consistent with both the values and interests of the United States. He was a great friend of the Federalist Society, speaking at dozens of events and serving on the Executive Committee of its International & National Security Law Practice Group. His life was tragically cut short by cancer.
This year’s teleforum will focus on The International Criminal Court (ICC). The current Prosecutor has chosen to focus attention on U.S. actions in Afghanistan. The Trump administration responded with targeted sanctions on two ICC officials. Meanwhile, the ICC is attempting to rewrite the law of armed conflict to narrow permissible targeting. Current plans call for the selection of a third prosecution and six new judges. The incoming administration faces a range of challenges from the court.
These and related matters will be explored by Professor Michael A. Newton, Professor of the Practice of Law at Vanderbilt Law School. He is also a former military officer, and an experienced practitioner before international tribunals. He recently filed an amicus brief on the Law of Targeting at the request of the ICC. His discussion will be facilitated by Professor Jeremy Rabkin of the Antonin Scalia Law School at George Mason University.
Featuring:
-- Prof. Michael A. Newton, Professor of the Practice of Law at Vanderbilt Law School
-- Moderator: Prof. Jeremy A. Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University

Book Review: The Property Species: Mine, Yours, and the Human Mind Nov 24, 2020

Show notes

In his new book The Property Species, Chapman University law professor Bart Wilson offers a strikingly original look at the origin and meaning of private property. Unlike scholars who argue that property is a “social construct,” Wilson argues that property is a deeply and uniquely human practice. Incorporating insights from history, linguistics, law, and his own laboratory experiments, Wilson illuminates the means by which our ideas of private property originate and gain their moral and legal force. In this conversation with Goldwater Institute’s Timothy Sandefur, our Teleforum will examine how the institution of private property marks human beings as “the property species.”
Featuring:
-- Professor Bart J. Wilson, Director of the Smith Institute for Political Economy and Philosophy at Chapman University and author of The Property Species
-- Moderator: Timothy Sandefur, Vice President for Litigation, Goldwater Institute

Courthouse Steps Oral Argument Teleforum: Fulton v. City of Philadelphia Nov 17, 2020

Show notes

This teleforum reviews the November 4 oral argument in Fulton v. City of Philadelphia. In March 2018, Philadelphia’s Department of Health and Human Services stopped placing foster children with families certified and supported by Catholic Social Services because the agency, as an arm of the Catholic Church, has a sincere religious objection to endorsing same-sex or unmarried heterosexual relationships. Three foster families supported by Catholic Social Services sued, seeking to continue partnering with their chosen agency and challenging the city's decision on religious free exercise and free speech grounds.
The issues before the Supreme Court involve the appropriate standard for a free-exercise claim, reconsideration of the Court's decision in Employment Division v. Smith, and the grounds on which a government can condition foster-care participation.
Mark Rienzi, president of The Becket Fund for Religious Liberty, joins us to discuss oral arguments. Becket is representing plaintiffs in this case.
Featuring:
Mark L. Rienzi, President, The Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, The Catholic University of America Columbus School of Law
This call is open to the public and press. Dial 888-752-3232 to be connected.

Courthouse Steps Oral Argument Teleforum: Borden v. United States Nov 17, 2020

Show notes

As a convicted felon, Charles Borden Jr. was in violation of 18 U.S.C. § 922(g)(1) when caught at a traffic stop with a pistol. Under the Armed Career Criminal Act, Borden was sentenced to nine years and seven months imprisonment. The U.S. District Court for the Eastern District of Tennessee relied on the 6th Circuit Court's decision in United States v. Verwiebe as precedent; however, Borden argued that his due process protections were violated in the application of Verwiebe. Borden argued that one of his previous felonies - reckless aggravated assault - did not qualify as a violent felony under the use of force clause. The 6th Circuit retroactively applied the precedent that reckless aggravated assault does constitute a violent crime, and classified Borden as an armed career criminal. The Court of Appeals affirmed.
Featuring:
Kent Scheidegger, Legal Director & 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 Preview: Brownback v. King Nov 17, 2020

Show notes

When it enacted the FTCA, Congress waived sovereign immunity and accepted vicarious liability for certain torts committed by federal employees. The judgment bar provision of the FTCA provides that the judgment in an FTCA action “shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the employee of the government whose act or omission gave rise to the claim.”
The question before the Court is whether this judgment bar provision is triggered in an action with both FTCA and constitutional claims, when an FTCA claim is dismissed for lack of subject matter jurisdiction. The Court will hear this case on November 9, 2020.
Featuring:
-- Patrick Jaicomo, Attorney, Institute for Justice
-- Roman Martinez, Latham & Watkins LLP

Courthouse Steps Oral Argument Teleforum: Jones v. Mississippi Nov 17, 2020

Show notes

When it comes to juvenile convictions and sentencing, some gray areas may be encountered. Brett Jones found himself a product of this uncertainty in his post-conviction relief proceeding. At the age of 15 Jones stabbed his grandfather to death and was sentenced to life in prison; however, at this hearing the Mississippi Supreme Court ordered he be resentenced after a hearing to determine his parole eligibility. Simultaneous to this decision was the U.S. Supreme Court's decision in Miller v. Alabama and Montgomery v. Louisiana; in Miller, the Court held that mandatory life in prison without parole for juveniles was a violation of the Eighth Amendment, and in Montgomery, it clarified that Miller barred life in prison without parole for all juveniles except for "the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility." Despite this precedent, the Circuit court held that Jones was still not entitled to parole eligibility.
Featuring:
-- Marc Levin, Chief of Policy & Innovation, Right on Crime, Texas Public Policy Foundation

Courthouse Steps Oral Argument Teleforum: U.S. Fish and Wildlife Service v. Sierra Club Nov 06, 2020

Show notes

Under the Clean Water Act, the Environmental Protection Agency (EPA) must approve clean water intakes, used by factories to cool machinery, before any are built. The EPA is required to consult with the Fish and Wildlife Service and National Marine Fisheries Service to conduct a study of the new intake on marine life. The Sierra Club made a Freedom of Information Act (FOIA) request for records made by the EPA during the agency's rule making process, including the documentation of consultation with the services. The Services records were withheld citing Exemption 5 of the FOIA shielding from disclosure documents subject to the "deliberative process privilege". The district court determined twelve of the sixteen restricted documents were not subject to Exemption 5. The U.S. Court of Appeals for the Ninth Circuit affirmed the lower court's order to disclose some of the records but reversed the decision regarding two of the records. Our discussion will review the record and discuss next steps.
Featuring:
Damien Schiff, Senior Attorney, Pacific Legal Foundation
Moderator: Nancie G. Marzulla, Partner, Marzulla Law
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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