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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:

Free Speech in the Digital Era: Section 230 and the Federal Communications Commission Sep 01, 2020

Show notes

Section 230 of the Communications Decency Act provides liability protection to platforms, internet service providers, and other online intermediaries for third-party content they host or republish. It also provides liability protections for actions taken “in good faith” by such entities to moderate content. Section 230 has recently come under scrutiny from President Trump, members of Congress, and others who have raised questions about the appropriateness of these protections and their continued viability “in the Age of Twitter.”
In May, President Trump issued an Executive Order that directed the National Telecommunications and Information Administration (NTIA) to file a petition for rulemaking with the Federal Communications Commission (FCC) proposing regulations to clarify the scope of Section 230. The FCC is currently soliciting public comment on the NTIA petition, which was filed on July 27.
During this teleforum, panelists will discuss the background of Section 230. They will reflect on whether Section 230 continues to encourage innovation and free speech online, or whether changes are needed. What should the FCC do to address the pending NTIA petition? And, in light of the upcoming elections, what are the political dynamics at play—at the FCC, in Congress, and in the White House?
Featuring:
-- Hon. Adam Candeub, Acting Assistant Secretary of Commerce for Communications and Information
-- Prof. Eric Goldman, Professor of Law and Co-Director, High Tech Law Institute, Santa Clara University School of Law
-- Ashkhen Kazaryan, Director of Civil Liberties, TechFreedom
-- Jon Adame, General Counsel, Office of Sen. Marsha Blackburn
-- Moderator: Jamie Susskind, Vice President of Policy and Regulatory Affairs, Consumer Technology Association

Home Economics: Real Estate Exchanges and the Future of Homebuying Aug 28, 2020

Show notes

Join us as Richard Epstein and Michael Toth discuss how digital innovation is changing the way U.S. consumers buy and sell homes. Amid a V shaped recovery in housing, that has led to a surge in mobility and home prices across the U.S., Epstein and Toth will review emerging real estate marketplaces and how these platforms compare with other efforts to disrupt traditional industries through exchanges. Epstein is the Laurence A. Tisch Professor of Law, at New York University, the Peter and Kirstin Senior Fellow at the Hoover Institution , and the James Parker Hall Distinguished Service Professor Emeritus and Senior Lecturer, the University of Chicago. Toth is SVP of REX, an Austin-based real estate technology company delivering a full-service online platform for residential real estate buyers and sellers.
Featuring:
-- Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
-- Michael Toth, Senior Vice President for Public Policy and Special Counsel, REX

FTC v. Qualcomm: The Ninth Circuit on Tech Antitrust Aug 28, 2020

Show notes

Please join us for a teleforum discussing the Ninth Circuit’s recent opinion in this important case, which reversed the Federal Trade Commission's 2019 trial court win. The Ninth Circuit ruled that Qualcomm did not violate antitrust law through its licensing practices for standard-essential patents.
John Shu, a professor, attorney, and legal commentator, will discuss the ruling and examine the history, arguments, and ramifications of the case.
Featuring:
-- Mr. John Shu, Attorney and Legal Commentator

Retooling Energy Regulations: Who Decides? Aug 24, 2020

Show notes

On July 16, 2020, the Federal Energy Regulatory Commission (FERC) revised its regulations governing qualifying small power producers and cogenerators under the Public Utility Regulatory Policies Act of 1978 (PURPA). PURPA was designed to reduce demand for traditional fossil fuels by encouraging the development of these small power producers and cogenerators. Yet, as regulation-mandated PURPA contracts expanded, many utilities (and ultimately, ratepayers) became saddled with expensive power contracts that over-charged for energy and were unnecessary. The new rule provides some added flexibility to state regulators and makes other changes designed to modernize PURPA. Join Anthony T. Clark, Senior Advisor at Wilkinson Barker Knauer LLP and a former FERC Commissioner, and Travis Kavulla, Vice President for Regulatory Affairs at NRG Energy and former commissioner at the Montana Public Service Commission, to discuss the new PURPA rule and its potential implications for the energy market.
Featuring:
-- Anthony T. Clark, Senior Advisor at Wilkinson Barker Knauer LLP and former FERC Commissioner
-- Travis Kavulla, Vice President for Regulatory Affairs at NRG Energy and former commissioner at the Montana Public Service Commission
-- Moderator: Adam Griffin, Constitutional Law Fellow, Institute for Justice

COVID-19 and Religious Matters Aug 14, 2020

Show notes

The COVID-19 pandemic has upended Americans’ daily lives. What one day people took for granted, like going to church, was the next day potentially deadly and prohibited by law. In response to the pandemic, state and local officials ordered entities such as non-essential businesses and churches to close. But as churches tried to adapt to uncertain circumstances by offering drive-thru and drive-up services, some were required to stop these activities. As the public-health situation improved, some officials required churches to remain closed, even as they allowed business establishments to open. These situations involving churches and their freedom to operate prompted lawsuits and drew the attention of the U.S. Department of Justice.
Outside of church, too, religious citizens have faced unique challenges. For example, Samaritan’s Purse, a Christian humanitarian organization, was asked to remove the field hospital it set up in New York City because of its leader’s views on same-sex marriage and other social issues. And now, as California public schools announce they will not be re-opening for in-person classes in the fall, religious schools in the state are being told they may not open either, even though many of these schools are much smaller than public schools.
These circumstances have raised a host of legal and constitutional questions regarding how religion is treated and how it should be treated. What are the limits of religious liberty during a public-health emergency, and what powers do government officials have to regulate religious exercise? In what cases, if any, can government prefer religion and when, if ever, is it required to discriminate against religion? Law professors Rick Garnett and Bill Marshall join us to discuss the legal and constitutional issues involved in these evolving matters and more.
Featuring:
-- Richard Garnett, Paul J. Schierl / Fort Howard Corporation Professor of Law, University of Notre Dame Law School
-- William Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law

Corpus Linguistics in Legal Interpretation Aug 12, 2020

Show notes

Corpus linguistics has recently emerged as a method for addressing problems in legal interpretation. Corpus linguistics draws on evidence of language use from large, coded, electronic collections of natural language, that can be designed to sample the linguistic conventions of a wide variety of speech communities, industries, or linguistic contexts. And corpora (plural of corpus) have begun to see increasing use by judges, scholars, and advocates, including in the U.S. Supreme Court. This Teleforum will first provide an overview for those unfamiliar with corpus linguistics, and then address advantages and limitations of using language evidence from linguistic corpora in legal interpretation, such as when interpreting contracts, statutes, or constitutions, as well as highlight the use of corpus linguistics in recent cases.
Featuring:
-- Donald A. Daugherty, Jr., Senior Counsel, Wisconsin Institute for Law and Liberty
-- Stephen C. Mouritsen, Shareholder, Parr Brown Gee & Loveless
-- James C. Phillips, Assistant Professor of Law, Fowler School of Law, Chapman University

Voter Fraud and Voter Registration Aug 12, 2020

Show notes

Congress enacted the National Voter Registration Act of 1993 (“NVRA”) to reform elections. Among other things, NVRA specifically provides the right to the public to inspect and copy state voting records. Section 8 of the NVRA requires election officials to “conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of – (A) the death of the registrant; or (B) a change in the residence of the registrant[.]” 52 U.S.C. § 20507(a)(4). Section 8 also requires that election officials shall complete, not later than 90 days prior to the date of a primary or general election for Federal office, any program the purpose of which is to systematically remove the names of ineligible voters from the official lists of eligible voters. Section 8 also mandates that any such list maintenance programs or activities “shall be uniform, nondiscriminatory, and in compliance with the Voting Rights Act of 1965 (52 U.S.C. § 10301 et seq.).” 52 U.S.C. § 20507(b)(1).
Are the various requirements of the National Voter Registration Act being followed? Does the COVID-19 pandemic, with increased calls for vote by mail, provide an opening to transform the way America conducts elections? Does the presence of ineligible registrants on voter rolls open the door for improperly cast votes?
Featuring:
-- Linda A. Kerns, Attorney, Law Offices of Linda A. Kerns, LLC
-- J. Christian Adams, General Counsel, Election Law Center, Public Interest Legal Foundation
-- Amber McReynolds, Chief Executive Officer, Vote at Home, and Author of When Women Vote
-- Charles Stewart III, Kenan Sahin Distinguished Professor of Political Science, Massachusetts Institute of Technology

The Commission on Unalienable Rights Report, Human Rights, and U.S. Foreign Policy Aug 06, 2020

Show notes

The U.S. State Department’s Commission on Unalienable Rights was formed in July 2019 to advise the Secretary of State on human rights and their relationship to American foreign policy. The Commission, chaired by Ambassador Mary Ann Glendon and including ten other academics, philosophers, and activists from across religious and ethical traditions, released its draft report on July 16, 2020. The Commission reviewed the American tradition of rights discourse, going back to the Declaration of Independence and the Constitution, and the principles enshrined in the 1948 Universal Declaration of Human Rights. The aim was to deepen understanding of fundamental human rights in order to enable the United States to better uphold and advance unalienable, non-derogable rights in the formation and execution of foreign policy.
Professor Robert P. George joins us to discuss the Commission’s work, the traditions on which the commissioners drew, and the challenges to human rights today. Professor William Saunders will moderate the conversation.
Featuring:
-- Robert P. George, McCormick Professor of Jurisprudence, Princeton University and Director of the James Madison Program in American Ideals and Institutions
-- William Saunders, Professor, The Catholic University of America and Director, Program in Human Rights, The Institute for Human Ecology

Minutes to Midnight, or Teeing Up a Second Term? Aug 05, 2020

Show notes

The next presidential inauguration will be on January 20, 2021. The six months between then and today will involve a flurry of regulatory activity, just as the final months of presidential terms always do. Whether the next inauguration features Donald Trump or Joe Biden, agencies will try to complete as many regulatory proceedings as possible before the inauguration, with an eye to not just the end of the current presidential term but also the beginning of the next one.
What actions should we expect agencies to take? To what extent can the current administration issue “midnight rules” affecting policy beyond January 20? And to what extent could the Congressional Review Act permanently erase those rules?
To discuss these questions, we will be joined by three experts on administrative law and the administrative state:
-- Mr. Daniel R. Pérez, Senior Policy Analyst, GW Regulatory Studies Center
-- Prof. Jack Beerman, Harry Elwood Warren Scholar and Professor of Law, Boston University Law School
-- Moderator: Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University

Capital Conversations: COVID-19 and FDA; Medical, Legal, and Regulatory Perspectives Aug 03, 2020

Show notes

During the COVID-19 pandemic, the United States Food and Drug Administration (FDA) has sought to exercise regulatory flexibilities where possible to expedite the development of timely medical products and ensure the safety of consumers. As the pandemic has evolved and new scientific evidence has emerged, the FDA has needed to adapt its policies and develop new programs to support the public health response. In this teleforum, senior agency officials will share their perspectives on the key medical, legal, and regulatory considerations during the pandemic. Examples of discussion topics will include (1) the application of emergency use authorizations to expedite the development of COVID-19 tests, (2) regulatory lessons from the Coronavirus Treatment Acceleration Program, and (3) legal actions to protect consumers from fraudulent medical products during the pandemic as part of the agency’s Operation Quack Hack.
Featuring:
-- Stacy Amin, Chief Counsel, U.S. Food and Drug Administration; Deputy General Counsel, Department of Health and Human Services
-- Anand Shah, MD, Deputy Commissioner for Medical and Scientific Affairs, U.S. Food and Drug Administration
-- Moderator: Stephen J. Cox, 39th United States Attorney for the Eastern District of Texas

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