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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:

Supply Chain Security and Global Power Competition: Should the United States Get China Out of its Supply Chain? Oct 14, 2020

Show notes

Recent events have demonstrated how dependent on China the United States has become for critical needs. The ongoing coronavirus pandemic has demonstrated the supply chain vulnerabilities that exist for antibiotics, personal protective equipment (PPE) and other medical equipment. This newly-appreciated vulnerability has occurred against the backdrop of the Trump administration’s efforts to eliminate Chinese electronic infrastructure companies from the U.S. supply chain for cybersecurity and broader national security reasons. And most recently, China’s adoption of its “Hong Kong Security Law”, and Congress’ reaction – the Hong Kong Autonomy Act, establishing a sanctions regime for Chinese persons found by the Departments of Treasury and State to be undermining the autonomy of Hong Kong – only adds to the complexity of supply chain decision making.
Join a distinguished panel of experts, Joanne Medero, Daniel Ahn, and Bryan Smith, as we delve into whether searching the U.S. supply chain for opportunities to remove Chinese participation is beneficial to U.S. national security, and whether it is even possible. What complications will arise if the U.S. does so? Have recent attempts to remove some Chinese electronics manufacturers been successful? How do China's new Hong Kong Security Law, and the U.S.'s Hong Kong Autonomy Act enacted in response, impact the relevant financial and trade landscapes? And what antitrust or other collateral issues will need to be considered if the United States moves further to remove Chinese participation in our supply chain?
Featuring:
Daniel Ahn, Managing Director, Chief US Economist and Head of Macro Strategy, BNP Paribas
Joanne Medero, formerly Managing Director, BlackRock, Inc.
Bryan Smith, Senior Fellow, George Mason University National Security Institute
Moderator: W. Hartmann Young, Senior Counsel - Government Business, GE Aviation
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.

Appointments Clause Back in the Supreme Court: Patent Office Judges as Principal or Inferior Officers Oct 09, 2020

Show notes

Eleven months ago the Federal Circuit held that the Administrative Patent Judges who serve on the Patent Trial and Appeal Board, were unconstitutionally appointed because they act as “principal officers” within the meaning of the Constitution but were not appointed with the advice and consent of the Senate as required by the Appointments Clause. The court adopted a narrow “remedial approach” in which it “sever[ed] any problematic portions [of the statute] while leaving the remainder intact.” The court thus invalidated Title 5’s removal restrictions, as applied to these administrative patent judges. , See 35 U.S.C. § 3(c). Because the APJs can be removed without cause, the court concluded that, going forward they were inferior as opposed to principal officers. It has remanded scores of cases to the PTAB for reconsideration by a new panel of APJs.
All parties have sought certiorari. The government argues that there was no Appointments Clause violation at all, and regardless that no remands were required. The patent owner argues that the Federal Circuit did not go far enough, and that there is no remedy for the purported Appointments Clause violation here. And some are of the view that the Federal Circuit got it just right. As the Supreme Court turns to its October 2020 Term, it will decide whether to take up this issue, following on decisions such as Lucia v. SEC and Financial Oversight & Management Board for Puerto Rico v. Aurelius.
The stakes are high. Left unaltered, the Federal Circuit’s decision will lead to do-overs for potentially hundreds of invalidated patents. And if the patent owners’ arguments were to prevail, it would potentially bring down the entire statutory regime for Patent Office review (or at least re-review) of patentability decisions -- affecting hundreds of patents (and ultimately patent cases) each year.
John O’Quinn, a frequent Federal Circuit practitioner with Kirkland & Ellis LLP in Washington D.C., will introduce the topic and its implications for patent practice, and Professor Aditya Bamzai, an expert on the Appointments Clause from the University of Virginia Law School, will discuss the constitutional issues presented by the case
Featuring:
John O'Quinn, Partner, Kirkland & Ellis LLP
Aditya Bamzai, Associate Professor of Law, University of Virginia School of Law

Courthouse Steps Oral Arguments Teleforum: Carney v. Adams Oct 09, 2020

Show notes

In Delaware, there is a state constitutional provision that requires the state's three highest courts to have no more than a "bare majority" of judges to be affiliated with either major political party. James Adams, a Delaware resident and member of the Delaware bar, decided against applying for a judicial position due to the constitutional provision. Adams would not have qualified for the position because he is not a member of either the Republican party or the Democrat party. Adams subsequently filed a lawsuit challenging the constitutional provision that limits judges to members of either the Democratic or Republican parties. The district court found that Adams had partial Article III standing, and decided to review the case on the merits. On the merits, the district court found that the provision in question was unconstitutional in its entirety. Upon appeal, The United States Court of Appeals for the Third Circuit affirmed in part, but reversed on the provisions for which Adams had been denied Article III standing at the district level. The Supreme Court granted cert and will decide whether a state constitutional amendment that effectively limits the qualifications of judicial applicants based on political affiliations is constitutional. Michael Dimino will join us to discuss the oral arguments and their implications.
Featuring:
-- Michael Dimino, Professor of Law, Widener University Commonwealth Law School

Litigation Update: United Nurses and Allied Professionals v. NLRB Oct 08, 2020

Show notes

The U.S. Court of Appeals for the First Circuit (Judges Kayatta, Selya and retired Justice Souter) ruled on September 15 that the National Labor Relations Board was correct as a matter of law in holding that private sector unions may never charge dissenting nonmembers for their lobbying activity. The private sector union in this case, United Nurses & Allied Professionals, lobbied the Vermont and Rhode Island legislatures on a variety of bills, and argued that no Supreme Court case squarely held lobbying to be nonchargeable to nonmembers in the private sector, and that the NLRB erred in its analysis of the Supreme Court’s line of compulsory dues cases when it held lobbying per se nonchargeable. To reach its decision, the First Circuit analyzed the line of Supreme Court cases that stretches from IAM v. Street (1961) to CWA v. Beck (1988) to Lehnert v. Ferris Faculty Association (1991) to Harris v. Quinn (2014) and ultimately to the decision in Janus v. AFSCME (2018). The First Circuit agreed with the NLRB and the dissenting employee, nurse Jeanette Geary, that Supreme Court law taken as a whole compelled a finding that private sector unions are banned from ever charging nonmembers for lobbying activities. Jeannette Geary’s lawyer, Glenn Taubman of the National Right to Work Legal Defense Foundation, argued the case and will present an overview of the case and discuss its ramifications for unions and employees in the private sector.
Mr. Taubman will also discuss the significant procedural twists and turns this case took before reaching the First Circuit, as it was the subject of two mandamus petitions in the D.C. Circuit, one challenging the power of President Obama’s NLRB recess appointees to act in the years before Noel Canning was decided, and a second one challenging the NLRB’s inordinate delay in deciding the case once a valid complement of Board members was confirmed by the Senate.
Featuring:
Glenn Taubman, Staff Attorney, The National Right to Work Legal Defense and Education 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.

Challenging Michigan Executive Orders Related to COVID Oct 08, 2020

Show notes

The case of Midwest Institute of Health, PLLC v. Whitmer concerns the state-law claims (brought to the Michigan Supreme Court through the certified-question process from federal court) made in challenge to all of Michigan Governor Whitmer’s Executive Orders issued after April 30, 2020. On that date, the Michigan Legislature refused to extend Governor Whitmer’s emergency declaration. She asserted this denial was irrelevant under Michigan’s 1945 Emergency Powers of Governor Act, which unlike Michigan’s 1976 Emergency Management Act, does not have an explicit mechanism permitting the Legislature to terminate an emergency declaration. Governor Whitmer has issued around 175 COVID Executive Orders and almost all of the 41 still-active ones were issued after April 30, 2020. Plaintiffs focused their argument on the statutory construction concept of constitutional avoidance – specifically that if read in the manner that the Governor claimed, the 1945 EPGA would violate the 1963 Michigan Constitution’s separation of powers provision as it would be an unlawful delegation.
Featuring:
-- Patrick J. Wright, Vice President for Legal Affairs, Mackinac Center for Public Policy

Religious Liberty at the Supreme Court: Previewing the New Term Oct 08, 2020

Show notes

The Supreme Court's most recent term ended with several high-profile liberty rulings, including Espinoza v. Montana Department of Revenue and Little Sisters of the Poor v. Pennsylvania. This term, set to begin next month, will bring more religious liberty cases before the Court. Chief among these cases is Fulton v. City of Philadelphia, a case which brings to the forefront the questions of whether, when, and why religious exemptions are required by the Free Exercise Clause. Oral arguments for this case are scheduled for November 4, 2020.
Mark Rienzi of the Becket Fund joins us to preview the Fulton case, discuss other religious-liberty cases the Court will hear this year, and analyze the future of religious liberty at the Supreme Court. Professor William Saunders from The Catholic University of America will moderate the conversation.
To listen to Professors Rienzi and Saunders discuss last term's religious liberty cases, see Religious Liberty at the Supreme Court: The 2020 Term and Beyond.
Featuring:
Mark Rienzi, President, Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, Catholic UniversityModerator: William Saunders, Professor, The Catholic University of America; Director, Program in Human Rights, The Institute for Human Ecology; Chairman, The Federalist Society's Religious Liberties Practice Group
This call is open to the public and press. Please dial 888-752-3232 to access the call.

USMCA in Practice: What it Means for the Future of US-Mexico Relations Oct 08, 2020

Show notes

The new United States-Mexico-Canada Agreement (USMCA) entered into force in the United States on July 1, 2020, and is expected to significantly affect the trade relationship between the United States and Mexico. How successful will it be for either country? This panel of experts will discuss the anticipated effects of USMCA on US-Mexico relations, including recent policies implemented by Mexican president Andres Manuel Lopez-Obrador. The program will feature Ambassador Jeffrey Davidow, former U.S. Ambassador to Mexico and Assistant Secretary of State for Western Hemisphere Affairs, who is currently a Senior Counselor with the Cohen Group in Washington, DC, and Ana Rosa Quintana, Senior Policy Analyst, Latin America and Western Hemisphere, at the Heritage Foundation.
Featuring:
-- Amb. Jeffrey Davidow, Senior Counselor, The Cohen Group, and former U.S. Ambassador to Mexico and Assistant Secretary of State for Western Hemisphere Affairs
-- Ana Rosa Quintana, Senior Policy Analyst, Latin America and the Western Hemisphere, The Heritage Foundation
-- Moderator: Harout Jack Samra, Associate, DLA Piper

Adjudicating Employment Discrimination in Federal Contracting: Is OFCCP Regulating Without Authority? Oct 08, 2020

Show notes

In the landmark Title VII of the Civil Rights Act of 1964, Congress legislated a comprehensive scheme for eradicating employment discrimination in American workplaces. Title VII has been implemented by the federal courts in thousands of cases to remedy discrimination on the basis of race, sex and other protected classifications. Congress and the federal courts have worked hard to strike an appropriate balance in the application of Title VII - ensuring the effectiveness of the law while encouraging employers to implement successful preventive measures and enabling them to achieve their legitimate business purposes. Congress has also amended Title VII on numerous occasions in response to concerns that it did not go far enough or that certain federal court interpretations went amiss.
At other times the Executive Branch has sought to alter this balance on its own, but concern is growing about whether federal courts will effectively constrain federal regulations that lack any statutory basis. This teleforum will consider the aforementioned concern in the context of the Office of Federal Contract Compliance Programs (OFCCP). This relatively obscure federal agency exercises broad enforcement powers to monitor the employment practices of federal contractors and subcontractors. OFCCP often has sought to impose controversial and expansive theories of employment discrimination - sometimes including theories rejected by the Department of Justice - through a regulatory framework that is practically unchecked by federal courts. Unlike other Dept. of Labor enforcement programs (e.g., OSHA), there are few federal court decisions involving the merits of OFCCP enforcement actions against federal contractors. The teleforum will address why this is so.
Our OFCCP discussion will also focus on the statutory authority (or lack thereof) for several of the agency's regulatory policies in contrast to federal court interpretations of Title VII. We will examine some particular examples of the statutory authority problem: (1) Congress never gave EEOC authority to issue regulations setting forth substantive discrimination standards with the force and effect of law under Title VII, but OFCCP has asserted that it has such authority under Executive Order 11246; (2) Congress mandated a 300-day statute of limitations for claims by both private plaintiffs and EEOC under Title VII, but OFCCP has asserted that its claims are not governed by any statute of limitations; and (3) Congress provided authority to OFCCP to adjudicate, e.g., veterans and rehabilitation act discrimination claims, but not some other discrimination claims that OFCCP nonetheless asserts the power to adjudicate.
Featuring:
-- Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties Alliance
-- Kara Rollins, Litigation Counsel, New Civil Liberties Alliance
-- William Doyle, Jr., Partner, McGuireWoods

Race and Policing Oct 08, 2020

Show notes

In this teleforum, James R. Copland will discuss competing legislative proposals in Congress, in the context of a complex phenomenon. In Copland's view, the evidence is clear that black men both disproportionately benefit from policing and disproportionately bear its costs. How should we think about the evidence, and how should we address the issue?
Copland will also discuss his newly-released book, The Unelected: How an Unaccountable Elite is Governing America.
Featuring:
-- James R. Copland, Senior Fellow and Director, Legal Policy, Manhattan Institute

Patent Litigation in the Western District of Texas: An Afternoon Discussion with Judge Alan Albright and a New Take on Patent Case Procedure Oct 08, 2020

Show notes

The Federalist Society's Intellectual Property Practice Group will host a conversation with the Hon. Alan D. Albright of the Western District of Texas and Art Gollwitzer III, an attorney with Michael Best in Austin, TX. The speakers will be introduced by the Hon. Ryan T. Holte of the U.S. Court of Federal Claims.
Please join us for a conversation expected to cover Judge Albright's approach to patent cases; a unique brand of local patent rules; innovative advisory council group on rules; goals for the rules and how they work in daily practice; and a discussion regarding how new patent procedures evolve to meet the needs of a rapidly growing patent litigation docket.
Featuring:
-- Hon. Alan D. Albright, U.S. District Court, Western District of Texas
-- Arthur Gollwitzer III, Partner, Michael Best
-- Introductions: Hon. Ryan T. Holte, U.S. Court of Federal Claims

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