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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:

Book Review: Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court Oct 01, 2020

Show notes

The brutal confirmation battles we saw over Supreme Court Justices Neil Gorsuch and Brett Kavanaugh are symptoms of a larger problem with our third branch of government, a problem that began long before Kavanaugh, Merrick Garland, Clarence Thomas, or even Robert Bork: the courts' own self-corruption, aiding and abetting the expansion of federal power. In Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court, Ilya Shapiro, director of the Cato Institute's Robert A. Levy Center for Constitutional Studies, takes readers inside the unknown history of fiercely partisan judicial nominations and explores reform proposals that could return the Supreme Court to its proper constitutional role. Confirmation battles over justices will only become more toxic and unhinged as long as the Court continues to ratify the excesses of the other two branches of government and the parties that control them. Only when the Court begins to rebalance our constitutional order, curb administrative overreach, and return power to the states will the bitter partisan war to control the judiciary subside.
Featuring:
-- Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, The Cato Institute and Author, Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court
-- Joseph Tartakovsky, Author of The Lives of the Constitution: Ten Exceptional Minds that Shaped America's Supreme Law

Mass Arbitrations: Challenges, Benefits, and Proposals for Improvement Oct 01, 2020

Show notes

In Epic Systems Corp. v. Lewis, the Supreme Court confirmed that federal law permits employers to include class action waivers in employment arbitration agreements. In the wake of that decision, employers have increasingly adopted arbitration programs to gain the benefit of class action waivers. Employee-side class action attorneys have responded by filing "mass arbitrations" as a substitute for traditional class actions. Mass arbitrations can involve hundreds or even thousands of individual arbitrations filed simultaneously. Our panel will review the increasing use of the mass-arbitration approach from the perspective of employer-side and employee-side attorneys. In addition, the panel will discuss proposals for modifying arbitration procedures to accommodate mass arbitrations, including, in particular, the new Mass Arbitration Protocol released by the International Institute for Conflict Prevention and Resolution.
Featuring:
-- Allen Waxman, President & CEO, International Institute for Conflict Prevention and Resolution (CPR)
-- David E. Gottlieb, Partner, Wigdor LLP
-- Moderator: Christopher C. Murray, Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Evaluating the EPA’s Proposals to Retain the Existing Particulate Matter and Ozone Standards Oct 01, 2020

Show notes

The Environmental Protection Agency recently proposed retaining both the existing particulate matter and ozone primary and secondary standards. Over the last several decades, air quality in the United States has improved dramatically. Though many have advocated for more stringent PM and ozone standards, the environmental and public health imperative for tighter standards is the subject of debate. Unlike in the past, the agency was able to finish the review of these criteria pollutants within the five-year statutory window. What was the basis for retaining these standards, how did the agency review the standards in such a timely fashion, and are these actions supported by the best available science? What are the arguments for and against these proposed actions? And are these standards, if finalized, likely to withstand judicial review? Join us as we discuss these and other critical questions.
Featuring:
-- Jeffrey R. Holmstead, Partner, Bracewell LLP
-- Justin Schwab, Founder, CGCN Law, PLLC
-- Moderator: Daren Bakst, Senior Research Fellow, The Heritage Foundation

The Law and Economics of Municipal Broadband Sep 22, 2020

Show notes

Now six months into the COVID pandemic, the Internet has offered Americans a welcome economic, educational and sometimes even psychological lifeline to weather the crisis. Given Americans’ increased reliance on broadband, politicians on both sides of the aisle are now actively campaigning on the issue of expanding broadband deployment. Republicans are focusing on promoting private-sector deployment, while Democrats are pushing for the expansion of government-owned networks (“GONs”).
While the debate over the merits of municipal broadband is nothing new, what has been missing from the debate over the years is a cohesive legal and economic analysis to frame the discussion. A new 100-page study recently published in the Federal Communications Law Journal attempts to fill that gap. To explore this important topic in detail, we will be joined in this teleforum by two of the authors of this new study to discuss their findings.
Featuring:
-- Dr. George S. Ford, Chief Economist, Phoenix Center for Advanced Legal & Economic Public Policy Studies
-- Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal & Economic Public Policy Studies and member of the Federalist Society’s Telecommunications & Electronic Media Practice Group Executive Committee
-- Moderator: Danielle K. Thumann, Associate, Wilkinson Barker Knauer and member of the Federalist Society’s Telecommunications & Electronic Media Practice Group Executive Committee

Rights and Wrongs: The Golden State Killer and Genetic Investigations Sep 16, 2020

Show notes

After 87 victims, 53 separate crime scenes, and multiple investigations spanning over four decades, the Golden State Killer was finally brought to justice this past August when he was sentenced to life in prison without the possibility of parole. The key piece of evidence that led investigators to the serial burglar, rapist, and murderer was not a traditional smoking gun, but rather genetic evidence sourced through a public genealogy database. While the positive uses of such investigative techniques are clear, what implications does this new era of genetic detective work have on the wider criminal justice system?
How does this technology work? Are privacy rights at risk? Should there be limits on this new field of DNA forensics as it pertains to criminal investigations? Reflecting the contentious nature of the topic, there are differing answers to all of these questions from public defenders and prosecutors alike. Join us for a thoughtful discussion as we explore the case of the Golden State Killer and the evolving legal landscape of open-source genetic forensics.
Featuring:
-- Arthur Rizer, Resident Senior Fellow and Director of Criminal Justice & Civil Liberties, R Street Institute
-- Nila Bala, Resident Senior Fellow and Associate Director of Criminal Justice & Civil Liberties, R Street Institute

Special Topics in Religious Liberty Series #2: Sex-Abuse Litigation And Chapter 11 Issues for Religious Organizations Sep 14, 2020

Show notes

In the last year, many states had seen a new wave of lawsuits against religious organizations based on alleged sexual abuse from decades ago. New York’s Child Victims Act, which revived previously-time barred claims and at first opened a one-year window to bring them, has now extended that window by another year. Thousands of claims were already brought under that Act in New York state courts. Pennsylvania courts are similarly adjudicating issues relating to abuse claims against the religious organizations. These suits raise a variety of procedural and substantive, including constitutional, issues. They also raise the question of how religious organizations can benefit from Chapter 11 reorganization. As noted in the first part of this Teleforum series, these Supreme Court decisions may also impact certain issues in abuse litigation and in how religious organizations are treated under Chapter 11.
Please join the lawyers of Jones Day for a second part of the Teleforum call that will discuss significant developments in state court litigation involving religious organizations and will provide an update on recent reorganizations and bankruptcy filings.
Featuring:
-- Corinne Ball, Partner, Jones Day
-- Todd Geremia, Partner, Jones Day
-- John Goetz, Partner, Jones Day

Iran Turns East with China Partnership: Should the West Respond? Sep 14, 2020

Show notes

As the United Arab Emirates and Israel agreed to establish diplomatic ties, Iran and China’s 25-year, $400 billion deal lurks in the background. The nearly finalized Iran-China Deal provides potential for equal or greater regional consequence. Iran, weakened by sanctions and Covid-19 impacts, has turned East to find both economic and military support. China and Iran have a history of deals and arrangements, but does this partnership’s trade and military components pose strategic concerns for the West? Other Iranian allies like Syria, Iraq, and Lebanon reportedly are lining up to negotiate similar pacts. Does this alliance, in providing a foothold in the region, benefit China with leverage in Middle East affairs?
Whether or not sanctions against Iran are renewed, how will the United Nations or the United States respond to an Iran-China arms deal? Will the lessons learned by countries that have entered into Belt and Road Initiatives be instructive as new agreements are forged? What should the West’s response be and what is the range of options?
Featuring:
-- Hon. Dov S. Zakheim, Senior Fellow, CNA
-- Brigadier General (Res.) Prof. Jacob Nagel, Senior Fellow, Foundation for Defense of Democracies
-- Bryan Smith, Senior Fellow, George Mason University National Security Institute
-- Moderator: Matthew R.A. Heiman, General Counsel & Corporate Secretary, Waystar Health

The False Claims Act, the CARES Act, and COVID-19: An Enforcement Overview Sep 02, 2020

Show notes

The False Claims Act, which imposes civil and criminal liability on those who submit false claims for payment to the federal government, serves as a primary tool in the federal government’s enforcement arsenal. At the same time, the global COVID-19 pandemic and the CARES Act have led the federal government to disburse unprecedented amounts of money to the private sector, raising the possibility of future enforcement action.
This teleforum will provide an update on the DOJ’s False Claims Act enforcement priorities to date, and discuss potential trends and activity that could emerge from the COVID-19 pandemic and related stimulus spending.
Featuring:
-- John C. Richter, Partner, King & Spalding

Special Topics in Religious Liberty Series #1: Recent and Upcoming Supreme Court Cases Sep 02, 2020

Show notes

In the 2019 Term, the U.S. Supreme Court issued three decisions with major implications for religious organizations, addressing such issues as access to government programs, conscience exemptions in health-care plans, and the ministerial exemption in employment litigation, as well as a per curiam decision arising from a bankruptcy of a pension plan administered by a Catholic diocese in Puerto Rico. Please join the lawyers of Jones Day for a Teleforum call that will discuss these major cases, including concurrences and dissents, along with a case the Court will consider in the fall involving the roles of state and local governments and religious organizations in providing foster care to children. The presentation will also examine what are the next steps in litigation in these areas.
Featuring:
-- Victoria Dorfman, Partner, Jones Day
-- Anthony Dick, Partner, Jones Day
-- David Raimer, Partner, Jones Day

Litigation Update: Desrosiers et al. v. Gov. Baker: A Conversation with NCLA’s Michael DeGrandis Sep 01, 2020

Show notes

The Massachusetts Supreme Judicial Court will soon hear a lawsuit on accelerated consideration brought by the New Civil Liberties Alliance that aims to restore constitutional governance to the Commonwealth. The suit seeks to overturn the Civil Defense State of Emergency, which Gov. Charlie Baker declared under the Commonwealth’s Civil Defense Act, which has never before been invoked for a health emergency. Massachusetts does have a Public Health Act expressly designed to empower local authorities to control and prevent transmission of infectious diseases dangerous to public health.
This case presents foundational due process questions. A hearing, which will take place on September 11, will ask the Supreme Judicial Court to declare that the Civil Defense Act does not confer any authority upon the Governor during a pandemic and to declare his orders null and void. This ruling would permit local boards of health to establish strategies befitting their communities.
Featuring:
-- Michael DeGrandis, Senior Litigation Counsel, New Civil Liberties Alliance

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