FedSoc Forums

Religious Liberty and the Court: Looking Ahead to the 2024-2025 Term Oct 29, 2024

The Federalist Society is proud to host Mark Rienzi, President of the Becket Fund and Professor of Law at the Catholic University of America, for this year’s annual discussion of Religious Liberty at the Court. This webinar will be moderated by William Saunders, Professor and Co-director of the Center for Religious Liberty at Catholic University of America. Please join us for this latest installment which will look at recent developments in religious liberty litigation and ahead to the Supreme Court’s October term.
Featuring:
Prof. Mark L. Rienzi, President, Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, Catholic University; Visiting Professor, Harvard Law School
(Moderator) Prof. William L. Saunders, Director of the Program in Human Rights, Catholic University of America

Textualism and Patent Statutory Law – Patent Eligibility, ODP, and Upcoming Patent Reform in Congress Oct 29, 2024

When it comes to patent eligibility and statutory construction, does “any” really mean “any?” In the courts, is it permissible to limit statutorily-authorized patent term adjustment based on a doctrine that has no basis in statute? The debate surrounding these issues has only gotten livelier with recent Federal Circuit decisions and a bi-partisan patent eligibility bill working its way through Congress. With this backdrop, please join us for an exciting discussion about whether patent law has run afoul of the basic precepts of textualism and statutory construction, and what, if anything, should be done about it.
Featuring:
Matthew Dowd, Founder and Partner, Dowd Scheffel PLLC
Sherry Knowles, Principal, Knowles Intellectual Property Strategies
Gene Quinn, President & CEO, IPWatchdog, Inc.
Prof. Josh Sarnoff, Professor of Law, DePaul University College of Law
Moderator: John Rogitz, Managing Attorney, Rogitz & Associates
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Courthouse Steps Oral Argument: Garland v. VanDerStok Oct 23, 2024

Garland v. VanDerStok concerns whether the ATF's 2022 update to its regulations under the Gun Control Act of 1968, which clarified that federal law requirements that apply to the manufacture and sale of standard firearms also apply to "ghost guns" --readily convertible weapons parts or receiver kits-- exceeds the mandate of the same. The ATF argues it simply clarified what had already been true in response to the notable rise in the use of ghost guns. The challengers, including both two individual gun owners and a gun advocacy organization, challenged the rule, alleging it exceeded the statutory authority granted to the ATF. The Court is now set to consider whether such kits constitute "firearms" and/or "frames or receivers" as regulated under the Act.
Oral argument was heard on October 8, 2024.
Join us for a Courthouse Steps Oral Argument program with litigating attorney Peter Patterson who argued on behalf of the respondents.
Featuring:
Peter A. Patterson, Partner, Cooper & Kirk

2024 Ron Rotunda Memorial Webinar: Profiles in Courage in the Legal Profession Oct 23, 2024

Professor Ron Rotunda wrote seminal law books that are still used in law schools across the country and was the author of over 500 law review articles and other legal publications. These books and articles have been cited more than 2000 times by law reviews, by state and federal courts at every level, by the U.S. Supreme Court and by foreign courts in Europe, Africa, Asia and South America. He was also a member of the Federalist Society’s Professional Responsibility & Legal Education Practice Group. Each year, the Practice Group holds an annual FedSoc Forum in his honor to discuss pressing issues and trends in legal culture.
Join us for the 2024 installment in that series, where Erin Murphy will join us for a conversation moderated by Prof. Josh Blackman on the importance of courage as a lawyer as well as the state of the legal profession more broadly.
Featuring:
Erin E. Murphy, Partner, Clement & Murphy PLLC
(Moderator) Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston

LNG Lawfare: "Pause," Permitting, & Policy for American Gas Exports Oct 16, 2024

Liquefied natural gas (“LNG”) technology has enabled the United States to become the world’s largest exporter of natural gas in recent years, boosting our allies’ energy security and our own domestic economy and trade balance. Some estimates show that U.S. LNG export capacity will almost double over the next several years as facilities currently under construction come online. But LNG has met opposition from those concerned about its environmental impacts – including the Biden Administration, which announced a “pause” on approvals of LNG exports earlier this year.
The clash has made its way into the courts: In July 2024, a federal trial judge stayed the administration’s policy, and in August, the D.C. Circuit rescinded FERC’s previous authorization of two LNG projects on the Texas coast due to alleged deficiencies in its environmental analysis. Our panel of experts will discuss these recent policies and rulings, along with the broader implications of American LNG for energy security and international environmental efforts.
Featuring:
Gabriel Collins, Baker Botts Fellow in Energy & Environmental Regulatory Affairs, Baker Institute for Public Policy, Rice University
Spencer Churchill, Associate, Winston & Strawn LLP
Moderator: Daniel G. West, Director, SCF Partners

Insights on the National Spectrum Strategy Oct 16, 2024

The National Telecommunications and Information Administration (NTIA) unveiled the National Spectrum Strategy in November 2023 with significant attention and has since introduced an implementation plan. This webinar will delve into potential implementation scenarios, expected outcomes, and how the upcoming presidential election might influence the strategy's execution.
Featuring:
Jennifer Warren, Vice President, Technology Policy & Regulation, Lockheed Martin Government Affairs
Hon. Robert McDowell, Partner, Cooley
Umair Javed, Acting Chief Counsel, Office of Acting FCC Chairwoman Jessica Rosenworcel
Moderator: John Kneuer, President and Founder, JKC Consulting LLC

Talks with Authors: The Indispensable Right Oct 16, 2024

In his new book The Indispensable Right: Free Speech in an Age of Rage, Professor Jonathan Turley turns his attention to current attacks on free speech, analyzing them in the context of the historical, legal, and political traditions of free speech and the First Amendment which frame them. In so doing he discusses the interaction and role of government, academia, media, and others in creating the current climate surrounding speech which he finds troubling.
Join us as Prof. Turley and (moderator) Hon. Eileen O'Connor discuss these issues of free speech and the book itself.
Featuring:
Prof. Jonathan R. Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law; Director of the Environmental Law Advocacy Center; Executive Director, Project for Older Prisoners, The George Washington University Law School
(Moderator) Hon. Eileen J. O'Connor, Founder, Law Office of Eileen J. O'Connor PLLC

Nondelegation Doctrine Adds Another Good Year? Oct 15, 2024

For many years, legal scholars have declared that the nondelegation doctrine is dead. Professor Cass Sunstein once quipped that the nondelegation doctrine had only "one good year" and more than 200 "bad ones." But that has changed recently. In 2024, the en banc Fifth Circuit held that the Federal Communications Commision's (FCC) Universal Service Fund is unconstitutional on nondelegation grounds. It was one of the only times since 1935 that a court has done so, and it appears that 2024 (and beyond) may turn out to be good years for the nondelegation doctrine.
Contrary to the FCC's argument, the en banc Fifth Circuit concluded that the Universal Service Fund operates as a tax, which only Congress has the power and authority to require. Regardless of the public policy that it seeks to advance, Congress cannot delegate this power to the FCC or to any other executive branch agency. The nondelegation doctrine has not been entirely dead for the last hundred years; courts often construe statutes so as not to invalidate them under the nondelegation doctrine. The en banc Fifth Circuit rejected that approach.
Does the canon in the common law of agency, mentioned by the Fifth Circuit, known as delegata potestas non potest delegari (Latin for “delegated power may not be delegated”), have any impact on the original meaning of the nondelegation doctrine? Assuming the nondelegation doctrine is valid, what are the standards that courts should look to when determining whether a statute is sufficiently intelligible? Do words like “in the public interest” or instructions for the agency to “provide reasonable regulations” provide sufficient guidance to agencies? What kind of principles can be applied that are also judicially enforceable?
If the Supreme Court affirms the Fifth Circuit, what will be the impact on other statutes? To discuss these important questions and others, Jeff Beelaert, a partner at Stein Mitchell, and Trent McCotter, a partner at Boyden Gray, will join us.
Featuring:
Jeffrey Beelaert, Partner, Stein Mitchell
Trent McCotter, Partner, Boyden Gray PLLC
Moderator: Devin Watkins, Attorney, Competitive Enterprise Institute
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Fireside Chat with Gwendolyn Cooley Oct 10, 2024

Please join us for a fireside chat with Gwendolyn Cooley, former Chair of the National Association of Attorneys General (NAAG) Multistate Antitrust Task Force (2021-2024) and former Wisconsin Assistant Attorney General (2005-2024). This candid conversation will cover how State Attoneys General work together across administrations, their work with Federal antitrust agencies, and more.
Gwendolyn J. Lindsay Cooley
Featuring:
Gwendolyn J. Lindsay Cooley, Former NAAG Antitrust Task Force Chair and Former Assistant Attorney General at Wisconsin Department of Justice
Moderator: Dina Kallay, Head of Antitrust and Competition Law, Ericsson
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Litigation Update: Villarreal v. City of Laredo Oct 09, 2024

In Laredo, Texas, officials arrested local journalist and regular government critic Priscilla Villarreal for soliciting and receiving “information that has not been made public” with the "intent to obtain a benefit", a felony under a local statute. Ms. Villareal had asked a Laredo police officer for facts about two newsworthy events, which the officer shared and Ms. Villarreal then published.
Interestingly, this marked the first time the statute had been enforced, despite sitting on the books for over two decades. Ms. Villareal sued, alleging the law violated her First, Fourth, and Fourteenth Amendment rights.
In a deeply splintered 9-7 decision, the en banc Fifth Circuit held those officials have qualified immunity from Villarreal’s First and Fourth Amendment claims.
Villarreal has filed a petition of certiorari at the Supreme Court, asking the Court to answer (1) whether it obviously violates the Constitution to arrest someone for asking government officials questions and publishing the information they volunteer and (2) whether qualified immunity is unavailable to public officials who use a state statute in a way that obviously violates the First Amendment.
Join us for a litigation update on this interesting case.
Featuring:
JT Morris, Supervising Senior Attorney, Foundation for Individual Rights and Expression (FIRE)
(Moderator) Casey Mattox, Vice President, Legal Strategy, Stand Together

A Seat at the Sitting - October 2024 Oct 09, 2024

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.
Royal Canin U.S.A. v. Wullschleger, (October 7) -Federalism & Separation of Powers; Whether a post-removal amendment of a complaint to omit federal questions defeats federal-question subject matter jurisdiction pursuant to 28 U.S.C. § 1331; and (2) whether such a post-removal amendment of a complaint precludes a district court from exercising supplemental jurisdiction over the plaintiff’s remaining state-law claims pursuant to 28 U.S.C. § 1367.
Williams v. Washington, (October 7) -Federalism & Separation of Powers; Whether exhaustion of state administrative remedies is required to bring claims under 42 U.S.C. § 1983 in state court.
Garland v. VanDerStok, (October 8) -Second Amendment; Whether “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive” under 27 C.F.R. § 478.11 is a “firearm” regulated by the Gun Control Act of 1968; and (2) whether “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver” under 27 C.F.R. § 478.12(c) is a “frame or receiver” regulated by the act.
Lackey v. Stinnie, (October 8) -Civil Procedure; (1) Whether a party must obtain a ruling that conclusively decides the merits in its favor, as opposed to merely predicting a likelihood of later success, to prevail on the merits under 42 U.S.C. § 1988; and (2) whether a party must obtain an enduring change in the parties’ legal relationship from a judicial act, as opposed to a non-judicial event that moots the case, to prevail under Section 1988.
Glossip v. Oklahoma, (October 9) -Criminal Law; (1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it; and (4) whether the Oklahoma Court of Criminal Appeals' holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment.
Bouarfa v. Mayorkas, (October 15), -Immigration; Whether a visa petitioner may obtain judicial review when an approved petition is revoked on the basis of nondiscretionary criteria.
Medical Marijuana v. Horn, October 15 -Criminal Law; Whether economic harms resulting from personal injuries are injuries to “business or property by reason of” the defendant’s acts for purposes of a civil treble-damages action under the Racketeer Influenced and Corrupt Organizations Act.
City and County of San Francisco v. Environmental Protection Agency, (October 16) -Environmental Law & Regulation; Whether the Clean Water Act allows the Environmental Protection Agency (or an authorized state) to impose generic prohibitions in National Pollutant Discharge Elimination System permits that subject permit-holders to enforcement for violating water quality standards without identifying specific limits to which their discharges must conform.
Bufkin v. McDonough, (October 16) -Vetrans Affairs; Whether the U.S. Court of Appeals for Veterans Claims must ensure that the benefit-of-the-doubt rule in 38 U.S.C. § 5107(b) was properly applied during the claims process in order to satisfy 38 U.S.C. § 7261(b)(1), which directs the court to “take due account” of the Department of Veterans Affairs’ application of that rule.
Featuring:
James S. Burling, Vice President of Litigation, Pacific Legal Foundation
John Masslon, Senior Litigation Counsel, Washington Legal Foundation
Matthew Rice, Solicitor General, Tennessee Attorney General's Office
Zack Smith, Legal Fellow and Manager, Supreme Court and Appellate Advocacy Program, The Heritage Foundation
(Moderator) Kirby T. West, Attorney, Institute of Justice

Talks with Authors: Nowhere to Live: The Hidden Story of America's Housing Crisis Oct 01, 2024

In Nowhere to Live: The Hidden Story of America’s Housing Crisis, author James Burling describes the interesting history of America's housing market. With stories going back to the Civil War, the early twentieth century, and the “urban renewal” movement of the 1950s, Nowhere to Live argues that a series of governmental mistakes helped to create a current housing crisis. Burling also proposes a solution: "not by government fiat, but through the restoration of private property rights." Join the author and moderator Eric Claeys as they discuss these issues and the book itself.
Featuring:
James S. Burling, Vice President of Litigation, Pacific Legal Foundation
Moderator: Prof. Eric R. Claeys, Professor of Law, Antonin Scalia Law School, George Mason University
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To register, click the link above.
Click here to read James Burling's blog post.

A Religious Charter School? A Discussion on the Limits of State Action and Demands of the Free Exercise Clause Sep 30, 2024

On June 25, 2024, the Oklahoma Supreme Court ruled that the nation’s first religious charter school, St. Isidore of Seville Catholic Virtual School, was unconstitutional under the Establishment Clause based on its view that the privately operated school was both a government entity and a state actor. This finding of state action also led the court to uphold a state law that expressly bans religious entities but not secular ones from operating charter schools. This forum will present views from litigation counsel on both sides of this historic case. Panelists will explore the arguments for and against St. Isidore, including whether St. Isidore can fairly be considered a state actor and whether the Free Exercise Clause prevents a state from discriminating against religious operators in a public program that encourages private innovation in the formation of charter schools.
Featuring:
Alex J. Luchenitser, Associate Vice President & Associate Legal Director, Americans United for Separation of Church and State
Philip A. Sechler, Senior Counsel, Alliance Defending Freedom
(Moderator) Prof. Michael P. Moreland, Professor of Law and Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy, Villanova University Charles Widger School of Law

Litigation Update: City and County of San Francisco v. Environmental Protection Agency Sep 25, 2024

The Supreme Court recently decided that they will review a case dealing with the Clean Water Act (CWA), which prohibits the pollution of US waters without a National Pollutant Discharge Elimination System (NPDES) permit. In order to comply with the statute, the city of San Francisco was issued a permit by the Environmental Protection Agency (EPA) in 2019. The permit, however, lays down narrative limitations on the discharge of pollutants, such as anything which may “cause or contribute to a violation of any applicable water quality standard.” The city of San Francisco challenged the EPA’s permit, arguing that these restrictions “expose San Francisco and numerous permit-holders nationwide to enforcement actions while failing to tell them how much they need to limit or treat their discharges to comply with the Act.” In July 2023, the Ninth Circuit Court of Appeals rejected San Francisco’s argument, finding that the narrative limitations are not too vague but are rather important to ensuring that state water standards are met. This then prompted the city to appeal the decision to the Supreme Court.
Join this FedSoc Forum as panelists discuss varying views of this case and what the Supreme Court’s review might bring.
Featuring:
Prof. Robin Craig, Robert A. Schroeder Distinguished Professor of Law, University of Kansas School of Law
Andre Monette, Managing Partner, Best Best & Krieger LLP
Moderator: Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law and Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law
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The Public Lands Rule: Will A New “Conservation and Landscape Health” Paradigm for Federal Lands Survive Judicial Review? Sep 25, 2024

The Bureau of Land Management (BLM) recently adopted comprehensive new land management regulations known as the “Conservation and Landscape Health Rule,” or simply, “the Public Lands Rule.” The rule has spurred litigation challenging the Interior Department’s authority to establish a conservation “overlay” over 245 million acres of federal lands. Some argue that this rule, which aims to “build and maintain the resilience of ecosystems on public lands,” violates the Federal Land Policy Management Act (FLPMA), which requires BLM to “manage the public lands under principles of multiple use and sustained yield” and “regulate, through easements, permits, leases, licenses, published rules, or other instruments as the Secretary deems appropriate, the use, occupancy, and development of the public lands.” In the Public Lands Rule, BLM claims “wide discretion to determine how those [FLPMA] principles [of multiple use and sustained yield] should be applied.”
Whether this new rule improperly places “conservation” above other uses of federal lands – for grazing, recreation, energy production, or otherwise – is the subject of heated debate. In this FedSoc Forum, a panel of experts from different vantage points will consider the legal and policy merits of the “Public Lands Rule” and address whether the rule should survive judicial review and/or congressional scrutiny.
Featuring:
Prof. Sam Kalen, Associate Dean, William T. Schwartz Distinguished Professor of Law, University of Wyoming College of Law
Jeffrey Wood, Partner, Baker Botts LLP
Jonathan Wood, Vice President of Law & Policy, Property and Environment Research Center
Moderator: Jim Burling, Vice President of Litigation, Pacific Legal Foundation
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A Short Introduction to Electronic Discovery Sep 24, 2024

PowerPoint Slides
This program will provide a short introduction to the world of E-Discovery, predominantly in the civil litigation setting. Join us as Prof. Ted Hirt discusses E-Discovery and some related topics: the challenge of "big data," how the Federal Civil Rules deal with E-discovery (including case scheduling and orders), and "proportionality." Additionally, this program will cover topics including dealing with the client, safeguarding privileges, ways to deploy technologies in E-discovery production, and sanctions or measures for the destruction of information.
Featuring:
Prof. Ted Hirt, Professorial Lecturer in Law, George Washington University Law School

Litigation Update: Free Speech Rights of K-12 Students Sep 24, 2024

The free speech rights (or lack thereof) of K-12 students has always been a unique area in the realm of First Amendment litigation. Cases like Tinker v. Des Moines Independent Community School District from 60 years ago established that students do not leave their First Amendment rights at the schoolhouse gate, though subsequent cases have articulated that those First Amendment rights are not inherently co-extensive with the rights of adults. Schools often implement policies aimed at preserving the safety of students or that seek to limit “offensive” or “inappropriate” messaging which can constrain or inhibit the free speech of their students. To what degree that restriction of a constitutional right is permissible has become a question for the courts in a series of cases where students (or their representatives) are challenging school policies on the basis of alleged unconstitutional restriction of students’ First Amendment rights.
Join us for an update on several of these cases including:
D.A. v Tri-County Area Schools (Michigan student forbidden from wearing a "Let's Go Brandon Sweatshirt.") -
L.M. v Town of Middleborough (Massachusetts school forbade student from wearing "There are only two genders" tshirt).
B.B. v Capistrano Unified School District (California school punished kindergartner over "All Lives Matter" in drawing).
Featuring:
Conor Fitzpatrick, Supervising Senior Attorney, Foundation for Individual Rights in Education (FIRE)
Tyson Langhofer, Senior Counsel, Director of Center for Academic Freedom, Alliance Defending Freedom
Caleb Trotter, Attorney, Pacific Legal Foundation
(Moderator) Casey Mattox, Vice President, Legal Strategy, Stand Together

Conservative Populism and the Future of the Right’s Relationship with Organized Labor Sep 23, 2024

On July 15th, Teamster’s president Sean O’Brien surprised the country by becoming the first head of the nation’s largest labor union to speak at the Republican National Convention. Former president Trump chose J.D. Vance as his running mate, on the same day. Vance, a longtime advocate for disaffected blue-collar workers, reflects a larger populist swing within some parts of the conservative movement. The Republican party, long characterized by some as hostile to unions, now includes many who argue in favor of laws promoting a reformed vision of organized labor. Are right-wing populists correct in identifying flaws in current labor law? Can supporting organized labor be compatible with conservative governance? What changes to labor law if any, could create a better future for workers, businesses, and the American people?
Featuring:
Jonathan Berry, Managing Partner, Boyden Gray PLLC
Oren Cass, Executive Director, American Compass
Prof. Richard A. Epstein, Professor of Law and Director, Classical Liberal Institute, New York University School of Law
Alexander T. MacDonald, Shareholder, Littler Mendelson P.C.
(Moderator) G. Roger King, Senior Labor and Employment Counsel, HR Policy Association

Recent Supreme Court Decisions: Implications for the Business World Sep 19, 2024

The U.S. Supreme Court continues to shape arbitration law through a strict interpretation of the Federal Arbitration Act (FAA), with each term introducing new nuances. This program will explore Supreme Court decisions from the latest term and examine recent interpretations by federal appeals courts, focusing on their impact on arbitration practice. The panel will offer practical insights into the evolving landscape of arbitration law, updates for attorneys to ensure compliance with the latest legal developments, and strategies to optimize arbitration for clients currently using or considering arbitration.
Featuring:
Charles Bennett, Trial Lawyer, Bennett Legal
Richard Faulker, Attorney, Faulkner ADR Law, Of Counsel, Bennett Legal
Philip J. Loree, Jr., Partner, The Loree Law Firm

Judicial Elections and Free Speech Sep 17, 2024

Judicial selection in the states is not uniform, but most states have some form of judicial elections. Some are contested elections--whether partisan or nonpartisan--and some involve uncontested retention elections. During an election, judicial candidates must abide by ethical rules that explicitly restrict their ability to speak freely.
What are the implications, if any, for restrictions on judicial speech arising from different systems of selecting and retaining judges? How do judicial campaign experiences inform free speech perspectives? Join us for a conversation about how judicial elections intersect with free speech rights.
Featuring:
Hon. Clint Bolick, Justice, Arizona Supreme Court
Hon. J. Brett Busby, Justice, Texas Supreme Court
Hon. Daniel Kelly, Former Justice, Wisconsin Supreme Court
(Moderator) Hon. G. Barry Anderson, Justice, Minnesota Supreme Court (ret.)
Related Reading(s):
Op. Ed By Justice Bolick
Other Materials

CLE: Is DEI Legal After The Harvard Case? Sep 17, 2024

DEI (Diversity, Equity and Inclusion) initiatives have become ubiquitous on campuses and in workplaces across the nation, particularly after the death of George Floyd in late May 2020 and the rapid rise of "anti-racism" initiatives. These efforts, frequently using racially exclusionary or derogatory terminology and eligibility, were considered by some legal experts to be of doubtful legality. But after the Supreme Court's June 2023 ruling in Students for Fair Admissions v. Harvard and UNC (SFFA), DEI practices have come under expanded legal challenge. This program will examine the legal viability of race-focused DEI practices in light of SFFA, reviewing practices, challenges, and case developments.
Featuring:
Giovanni D. Cicione, Chair, Stephen Hopkins Center for Civil Rights
Nicole Levitt, Staff Attorney, Women Against Abuse Inc.
(Moderator) Prof. William A. Jacobson, Clinical Professor of Law, Cornell Law School, and Founder of the Equal Protection Project (EqualProtect.org)
CLE Cost:
$25/Member
$50/Non-Member
To register for CLE credit, click the link at the top of the page.
CLE Info

Understanding the Regulatory Landscape for Private Fund Advisers Sep 04, 2024

The regulatory landscape for Private Funds has changed dramatically over the past decade, culminating in the SEC’s recent Private Fund Advisers regulation, which was recently struck down by the Fifth Circuit. In the wake of this important court decision, what’s next? Will the SEC go back to the drawing board? Is more regulation even needed? What broader implications can we draw for the legal landscape and regulatory governance principles going forward?
Featuring:
David Blass, Partner, Simpson Thacher
Russ Ryan, Senior Litigation Counsel, New Civil Liberties Alliance
Jennifer Choi, CEO, Institutional Limited Partners Association
Moderator: Lindsey Keljo, Managing Director and Associate General Counsel, Head of Asset Management Group, SIFMA
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Courthouse Steps Decision: Ryan LLC v. Federal Trade Commission Sep 04, 2024

On August 20, 2024, the U.S. District Court for the Northern District of Texas struck down the Federal Trade Commission’s Non-Complete Rule in its entirety, finding it exceed FTC’s statutory authority and was arbitrary and capricious. The Rule, adopted in April, banned virtually all new noncompete clauses in employment contracts and invalidated existing noncompete agreements except for those covering certain senior executives. Ryan, LLC, the U.S. Chamber, the Business Roundtable, the Texas Association of Business, and the Longview Chamber of Commerce challenged this Rule. Join this FedSoc Forum discussion of the case, its decision, and what might happen next.
Featuring:
Andrew G.I. Kilberg, Partner, Gibson, Dunn & Crutcher LLP
Judson O. Littleton, Partner, Sullivan & Cromwell LLP
Moderator: Asheesh Agarwal, Consultant, American Edge Project and U.S. Chamber of Commerce
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To register, click the link above.
For more information on this topic, click here to read our blog.

The SEC and Cryptocurrency Aug 28, 2024

This event will survey the SEC's current involvement in the cryptocurrency field. The conversation will include best practices for defending against SEC enforcement inquiries or investigations in the crypto industry. It will also examine the proactive legal approaches individuals and companies can take against the SEC, detailing how, when, and why they can bring suit. This discussion will conclude with a conversation about private sector initiatives to establish a sound disclosure protocol to avoid fraud and improve crypto asset disclosure.
Featuring:
Rachel Barnett, CLO of IEX Exchange
Prof. Chris Brummer, Agnes Williams Sesquicentennial Professor of Financial Technology at Georgetown Law
William R. McLucas, Partner, WilmerHale
Brian Richman, Associate, Gibson, Dunn, & Crutcher
Patrick Daugherty, Partner, Foley & Lardner (Moderator)

Litigation Update: Merck et al. v. Becerra et al. Aug 28, 2024

Pharmaceutical company Merck & Co., Inc. (Merck) filed a lawsuit against the U.S. Department of Health and Human Services (HHS) challenging the Medicare drug price negotiation program established by the Inflation Reduction Act of 2022. Merck argues that the drug pricing program violates the First Amendment and the Takings Clause of the Fifth Amendment, claiming it forces them to accept government-dictated prices and infringes on their property rights. The federal government, represented by HHS Secretary Xavier Becerra and others, contends that Merck's arguments are unfounded and that the negotiation program is essential for reducing drug costs and ensuring the financial stability of Medicare. The case could significantly impact drug pricing, Medicare costs, and federal regulatory authority in healthcare.
The case was filed on June 6, 2023, in the U.S. District Court for the District of Columbia. On October 19, 2023, Merck filed an amended complaint adding its subsidiary Merck Sharp & Dohme LLC as a second plaintiff. The case is ongoing, with both parties having filed motions for summary judgment.
Join us for a litigation update on Merck et al. v. Becerra et al. with Yaakov M. Roth, one of the lead attorneys at Jones Day representing Merck & Co., Inc.

Courthouse Steps Decision: Gonzalez v. Trevino Aug 28, 2024

In Gonzalez v. Trevino, the plaintiff, Sylvia Gonzalez, argued that her arrest was a retaliatory action violating her First Amendment rights, stemming from her political activities as a newly elected city council member who had organized a petition to remove the city manager. She contended that she should be allowed to pursue her retaliatory arrest claim based on the circumstances surrounding her case. On the other hand, the defendants, including Mayor Edward Trevino and other city officials, maintained that the arrest was lawful and based on probable cause, as Gonzalez was accused of stealing a government document. They argued that the existence of probable cause should bar Gonzalez's retaliatory arrest claim, relying on the precedent set in Nieves v. Bartlett, which generally prevents such claims when probable cause exists. The defendants also contended that Gonzalez failed to provide sufficient evidence of similarly situated individuals who were not arrested in comparable circumstances, which they believed was necessary to overcome the probable cause bar.
On June 20, 2024, the Court issued its decision, reversing the Fifth Circuit in an 8-1 decision. Join us for a Courthouse Steps Decision program, where we will analyze this decision and its possible ramifications.

Courthouse Steps Decision: Trump v. United States Aug 28, 2024

In Trump v. United States, the Supreme Court addressed the issue of presidential immunity from criminal prosecution for actions taken while in office. Former President Trump's legal team argued that a former president should have absolute immunity from criminal prosecution for official acts performed during their tenure, citing the need for presidents to act boldly without fear of future prosecution. They contended that all allegations in the indictment fell within Trump's official duties as president. The United States government, represented by Special Counsel Jack Smith, argued that while presidents may have some immunity for official acts, this does not extend to criminal conduct or actions outside the scope of presidential duties. The Court ruled in a 6-3 opinion that former presidents have absolute immunity for actions within their "conclusive and preclusive constitutional authority" and presumptive immunity for other official acts, but no immunity for unofficial acts. The case was remanded to lower courts to determine which of Trump's alleged actions were official or unofficial.
Please join us in discussing the decision and its future implications.

Do We Need Qualified Immunity? Aug 28, 2024

Qualified immunity is perhaps the nation’s most controversial legal doctrine. Proponents say qualified immunity is necessary to give government officials—especially police—breathing room to act in split-second situations without fear of lawsuits. By requiring that a right be “clearly established” before an official can be sued for violating it, the doctrine is supposed to ensure officials have notice of what conduct to avoid before they put a foot wrong. Meanwhile, critics argue that qualified immunity makes it too difficult for victims of government abuse to pursue justice and too often protects officials who have egregiously violated the Constitution, all while failing to put officials on notice. And now new Institute for Justice research finds that the doctrine shields a wide array of government officials and conduct, including premeditated First Amendment retaliation. Join us as we consider these two perspectives on qualified immunity and seek an answer to the question, “Do we need qualified immunity?”
Featuring:
Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School
Michael Perloff, Interim Legal Director, ACLU
Moderator: Robert McNamara, Deputy Litigation Director, Institute for Justice

Debanking: The Newest Threat to Free Speech and Religious Liberty? Aug 28, 2024

In June 2023, the Coutts bank closed the account of British politician Nigel Farage. While NatWest, the owner of Coutts, initially claimed that Farage failed to meet the Coutts eligibility criteria of holding £1,000,000 or more in his account, it was later revealed that Farage's account was closed in part as Coutts felt that his beliefs and values did not align with theirs. Debanking, the practice of financial institutions closing accounts or refusing services to certain individuals or businesses, has risen in prominence as its proponents argue that debanking is necessary for risk management and regulatory compliance in an increasingly complex world. They say that debanking helps banks avoid involvement in money laundering, fraud, or illegal activities and maintain the financial system's integrity. Critics, however, argue that debanking can lead to unfair discrimination and economic exclusion, particularly for unpopular religious or marginalized groups, and may even be used as a tool for censorship. They worry that debanking has been used to target religious organizations or individuals, infringing on religious freedom by limiting their access to essential financial services and hindering their ability to practice or promote their beliefs.
Featuring:
Hon. Kevin Cramer, U.S. Senator, North Dakota
Hon. Brenda Bird, Attorney General, Iowa
Hon. Sam Brownback, Former U.S. Senator and United States Ambassador-at-Large for International Religious Freedom
Prof. Peter Conti-Brown, Class of 1965 Associate Professor of Financial Regulation at The Wharton School of the University of Pennsylvania and Nonresident Fellow in Economics Studies at The Brookings Institution
Jeremy Tedesco, Senior Counsel, Senior Vice President of Corporate Engagement, Alliance Defending Freedom
Moderator: J.C. Boggs, Partner, King & Spalding

Courthouse Steps Decision: United States of America v. Donald J. Trump, Waltine Nauta, and Carlos De Oliveira Aug 28, 2024

United States of America v. Donald J. Trump, Waltine Nauta, and Carlos De Oliveira marked the first federal indictment of a former U.S. president. The prosecution, led by Special Counsel Jack Smith, argued that Trump illegally retained hundreds of classified government documents at his Mar-a-Lago residence after leaving office and obstructed efforts to retrieve them. He said this posed a national security risk and violated laws governing the handling of sensitive information. Trump's defense team, however, argued that the appointment of Jack Smith as special counsel was unconstitutional, violating the Appointments Clause. They claimed that Smith lacked the proper authority to bring charges, as he was not a Department of Justice employee at the time of his appointment. Judge Aileen Cannon dismissed the case on July 15, ruling that the appointment of Smith had been unconstitutional. Join us as we discuss the case and its implications.

Patent Owners in the Soup... No Injunction for You! Aug 28, 2024

Some Intellectual Property experts contend that American patent reliability has been in decline for 20 years. They point to the threat of inter partes review, the misuse of march-in rights under the Bayh-Dole Act, the imposition of reasonable or reference price clauses, direct government price-setting, and, most importantly, an inability to obtain an injunction after a finding of infringement. In fact, since the Supreme Court decided eBay v. MercExchange in 2006, injunctions have declined precipitously - some studies have shown as much as a 91% reduction.
Are current patent owners and their licensees taking a risk in believing that their patents will accomplish their raison d’être… affecting the right to exclude? Is it true that patent owners cannot count on their patents to prevent copycat products from entering the market or to allow patent owners or their licensees to charge market prices for their goods? Should injunctive relief be more readily available in patent cases?
This FedSoc forum will explore the history of injunctive relief in patent cases and explain the eBay opinion and how it is currently being applied by the trial courts. This program will also discuss potential legislative proposals to provide regular access to injunctive relief in order to restore patent reliability.
Featuring:
Prof. Jonathan Barnett, Professor, University of Southern California Gould School of Law
Prof. Thomas Cotter, Taft, Stettinius & Hollister Professor of Law, University of Minnesota Law School
Nick Matich, Principal, McKool Smith
Hon. Paul Michel, Former Chief Judge, United States Court of Appeals for the Federal Circuit
Moderator: Jeffrey Depp, Policy Consultant, Center for Strategic and International Studies
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Free Exercise, History and Tradition, and Preferred Pronouns: Key Takeaways from Vlaming v. West Point School Board Aug 27, 2024

High school French teacher Peter Vlaming was fired from his job in West Point, Virginia, for declining to refer to a female student using male pronouns. Vlaming filed suit in state court, alleging that the school board had violated his rights to the free exercise of religion and free speech under the Virginia Constitution. Late last year, the Virginia Supreme Court held that the Virginia Constitution provides more robust protections for religious freedom than the federal Free Exercise Clause as interpreted in Employment Division v. Smith. As the Court wrote, “the federal Smith doctrine is not and never has been the law in Virginia, and its shelf life in the federal courts remains uncertain.” In its place, the Virginia Supreme Court adopted a history-and-tradition approach that asks whether the religious claimant has committed or is seeking to commit “overt acts against peace and good order,” and whether the government’s interest in negating that threat could be satisfied by “less restrictive means” than denying a religious exemption. This opinion raises a host of interesting questions: Will the U.S. Supreme Court’s history-and-tradition test for Second Amendment challenges be expanded to apply to other constitutional rights? Will other state courts follow the Virginia Supreme Court’s lead in applying it to their own state constitutions? Did the Virginia Supreme Court get its history right? Could its historical analysis serve as the basis for the U.S. Supreme Court to revisit Smith? What rights should public schoolteachers have in the classroom? Should courts resolve conflicts between the alleged free-exercise and free-speech rights of teachers and the alleged rights of students to engage in their own forms of self-expression? Finally, what role, if any, does Title IX play in the analysis? This panel will address these and other questions raised by this important decision.
Featuring:
Prof. Stephanie Barclay, Professor of Law, University of Notre Dame Law School
Prof. Kate Carté, Professor of History, Southern Methodist University
Chris Schandevel, Senior Counsel, Alliance Defending Freedom's Appellate Advocacy Team
Adam Unikowsky, Partner, Jenner & Block LLC
(Moderator) Eric Treene, Senior Counsel, Storzer and Associates; Adjunct Professor at the Catholic University of America Law School

Litigation Update: Challenges to the SAVE Plan Aug 20, 2024

Since its earliest days, the Biden Administration has been clear as to its goal of addressing what it sees as a crisis of student debt by forgiving notable segments of existing student loans. To that end, it has pursued several plans -- the attempted forgiveness of loans under the HEROES Act struck down in Biden v. Nebraska (2023), the SAVE Plan which is currently being litigated, and further yet-to-be-finalized actions from the Department of Education.
The SAVE Plan, more officially titled "Improving Income Driven Repayment for the William D. Ford Federal Direct Loan Program and the Federal Family Education Loan (FFEL) Program.” (88 Fed. Reg. 43,820), seeks to amend the existing Higher Education Act REPAYE Program. It does so in three ways: lowering the cap for repayment relative to a borrower's discretionary income, redefining "discretionary" income, and canceling the loans of borrowers with a principal of $12000 or lower after 10 years of payments, adding a year for every $1000 borrowers had as a principal above that line. The Department of Education estimates these challenges would cost $137.9 billion over the next ten years, with others estimating the cost would be closer to half a trillion dollars.
Much like the HEROES Plan before it, the SAVE Plan has been subject to several challenges that are currently being litigated. Join us for a litigation update where Abhishek Kambli and moderator Sheng Li will sum up the statuses of the ongoing challenges and discuss where they may be going next.
Featuring:
Abhishek Kambli, Deputy Attorney General - Special Litigation and Constitutional Issues, Office of the Kansas Attorney General
(Moderator) Sheng Li, Litigation Counsel, New Civil Liberties Alliance

New Voices in Administrative Law II: The Supreme Court and Federal Court Jurisdiction Aug 19, 2024

The development of standing jurisprudence has been inextricably intertwined with the growth of the administrative state over the past 60 years and the bevy of new statutory rights, privileges, obligations, constraints, and interbranch dynamics that came with it. Over the past three terms, the U.S. Supreme Court has issued numerous opinions that are rich with standing doctrine. Three new voices in administrative law--all recent law school graduates--will address recent developments in standing jurisprudence, focusing on State standing, associational standing, and post-TransUnion common law analogues.
Featuring:
Eric Bush, Law Clerk to the Hon. Justin Walker, U.S. Court of Appeals for the D.C. Circuit
Shiza Francis, Associate, Shutts and Bowen LLP
Aaron Watt, Law Clerk to the Hon. Brian Miller, Eastern District of Arkansas
[Moderator] Prof. Aram Gavoor, Associate Dean for Academic Affairs, The George Washington University Law School

Patent Owners in the Soup... No Injunction for You! Aug 15, 2024

Some Intellectual Property experts contend that American patent reliability has been in decline for 20 years. They point to the threat of inter partes review, the misuse of march-in rights under the Bayh-Dole Act, the imposition of reasonable or reference price clauses, direct government price-setting, and, most importantly, an inability to obtain an injunction after a finding of infringement. In fact, since the Supreme Court decided eBay v. MercExchange in 2006, injunctions have declined precipitously - some studies have shown as much as a 91% reduction.
Are current patent owners and their licensees taking a risk in believing that their patents will accomplish their raison d’être… affecting the right to exclude? Is it true that patent owners cannot count on their patents to prevent copycat products from entering the market or to allow patent owners or their licensees to charge market prices for their goods? Should injunctive relief be more readily available in patent cases?
This FedSoc forum will explore the history of injunctive relief in patent cases and explain the eBay opinion and how it is currently being applied by the trial courts. This program will also discuss potential legislative proposals to provide regular access to injunctive relief in order to restore patent reliability.
Featuring:
Prof. Jonathan Barnett, Professor, University of Southern California Gould School of Law
Prof. Thomas Cotter, Taft, Stettinius & Hollister Professor of Law, University of Minnesota Law School
Nick Matich, Principal, McKool Smith
Hon. Paul Michel, Former Chief Judge, United States Court of Appeals for the Federal Circuit
Moderator: Jeffrey Depp, Policy Consultant, Center for Strategic and International Studies
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The First Amendment in Trademark Law after Vidal v. Elster Aug 14, 2024

In Vidal v. Elster (the “Trump Too Small” case), the Supreme Court unanimously upheld a federal limitation on registering trademarks that include other people’s names. All the Justices agreed that, though the limitation was content-based, it didn’t need to be judged under strict scrutiny. But behind this unanimity was a major rift about whether the Court should decide these matters by focusing on history and tradition, or should instead build on more recent precedents such as those dealing with “limited public forums.” Which is the better approach – and which is the one most likely to gain majority support in the future?
Featuring:
Prof. Barbara Lauriat, Associate Professor of Law & Dean’s Scholar in Intellectual Property, Texas Tech University School of Law
Prof. Lisa Ramsey, Professor of Law, University of San Diego School of Law
Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
Moderator: Prof. Zvi Rosen, Assistant Professor, Southern Illinois University School of Law

What is the Role of the ITC in Patent Cases? Aug 13, 2024

The U.S. International Trade Commission (ITC), long a favored forum for patent infringement disputes, has recently come under fire for duplicating the functions of the federal courts where patents disputes – often the same ones that are before the ITC – are litigated. In this panel, Professors Jorge L. Contreras, Michael Doane, and F. Scott Kieff will discuss the pros and cons of the ITC's patent jurisdiction and whether any changes are warranted in light of technology markets that are increasingly global in scope.
Featuring:
Prof. Jorge L. Contreras, James T. Jensen Endowed Professor for Transactional Law & Director of the Program on Intellectual Property and Technology Law, University of Utah S.J. Quinney College of Law
Prof. Michael Doane, Visiting Assistant Professor of Law, University of Akron School of Law
Prof. F. Scott Kieff, Stevenson Bernard Professor, George Washington University Law School, and Former Commissioner, U.S. International Trade Commission
Moderator: Michael K. Friedland, Founding Partner, Friedland Cianfrani LLP
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Certification of State-Law Questions by Federal Courts Aug 12, 2024

In Lindenberg v. Jackson National Life Ins. Co., 912 F.3d 348 (2018), the Sixth Circuit declared unconstitutional Tennessee’s law capping punitive damages based on the Tennessee constitution. But in the wake of Lindenberg, Tennessee state courts continue to reduce punitive damage awards in reliance on the statutory cap because the Tennessee Supreme Court has not directly addressed the law’s constitutionality. And in a case on a different statutory damages cap, the Tennessee Supreme Court indicated it likely would have disagreed with the Sixth Circuit. McClay v. Airport Mgmt Svcs, 596 S.W.3d 686, 693 n.6 (Tenn. 2020)
Federal court certification of state law questions to state high courts is a thorny issue with competing concerns. All states but North Carolina permit certification, but the federal courts control which questions presented in the case it certifies for resolution. State courts are free to decline to answer the questions certified and to do so after a period of months, as happened in Lindenberg. Some experts point out that even when the state court chooses to answer the questions certified, the process can be time consuming and inefficient.Our panel will explore the issues of federalism, efficiency, and prudence presented when considering the question certification process between federal and state courts.
Featuring:
Hon. Rachel Wainer Apter, Associate Justice, Supreme Court of New Jersey
Hon. Benjamin Beaton, United States District Court for the Western District of Kentucky
Hon. Sarah Keeton Campbell, Justice, Supreme Court of Tennessee
Moderator: Hon. Jennifer Perkins, Arizona Court of Appeals, Division One
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Free Exercise and Abortion Aug 09, 2024

In the wake of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), pro-choice advocates have argued that restrictions on abortion violate freedom of religion in some circumstances. A recent decision by the Indiana Court of Appeals, academic articles, and media stories have taken up these religious free-exercise challenges to abortion laws. This panel will explore the constitutional and statutory grounds for these claims in different faith traditions. pro-life responses to them, and the implications of these claims for religious liberty and for the post-Dobbs legal status of abortion.
Featuring:
Erin M. Hawley, Senior Counsel, Vice President of Center for Life & Regulatory Practice, Alliance Defending Freedom
Prof. Michael A. Helfand, Brenden Mann Foundation Chair and Co-Director of the Nootbaar Institute for Law, Pepperdine Caruso School of Law
Prof. Jessie Hill, Associate Dean and Professor of Law, Case Western Reserve University School of Law
Prof. Sherif Girgis, Associate Professor of Law, University of Notre Dame Law School
(Moderator) Prof. Michael Moreland, Professor of Law and Religion and Director of the Eleanor H. McCullen Center for Law, Villanova University Charles Widger School of Law

A Discussion of Labor Law: Is the Taft-Hartley Act Being Interpreted as Written? Aug 01, 2024

The 1947 Taft-Hartley amendments to the National Labor Relations Act, doggedly opposed by organized labor, included compliance with practicable portions of the federal rules of evidence and civil procedure, barring the Board from treating supervisors and independent contractors as protected employees, expressly incorporating employer free-speech rights, and more. Where are the Taft-Hartley amendments today and why?
Featuring:
Fred B. Jacob, Solicitor, National Labor Relations Board
Hon. John F. Ring, Partner, Morgan, Lewis & Bockius, former Chairman of the National Labor Relations Board

Private Attorneys General: Bridging Gaps in Law Enforcement? Jul 31, 2024

Should private attorneys general enforce laws? Proponents argue that this approach allows individuals and private entities to act in the public interest, supplementing often overburdened or under-resourced government agencies. This can lead to more comprehensive enforcement of laws, particularly in areas such as environmental protection, consumer rights, and civil liberties, where violations might otherwise go unchecked. On the other hand, critics contend that private enforcement of public laws unconstitutionally delegates enforcement power from executive officers to private citizens. Such laws eviscerate political accountability and undermine the rule of law, which leads to inconsistent application of laws and potentially frivolous or profit-driven lawsuits. Join us as we examine these perspectives.
Featuring:
Judd Stone II, Former Solicitor General, Texas
Andrew Davis, Partner, Lehotsky Keller Cohn LLP
Moderator: Karen Harned, President, Harned Strategies LLC

Litigation Update: US v. Apple Jul 30, 2024

In March of this year, the U.S. Justice Department and 16 states filed a sweeping complaint against Apple alleging that it has monopolized and attempted to monopolize US markets for smartphones and “performance” smartphones. At issue is an array of current and past Apple policies and restrictions governing the way that third party applications access and engage on the iPhone platform. Plaintiffs claim that Apple’s failure to open its platform prevents the development of “super apps” and cross-platform functionality that would make it easier and more attractive for Apple users to select or switch to rival smartphones, while in contrast, Apple characterizes its practices as a procompetitive way to differentiate its products and make them more attractive and safe for consumers to use.
As this litigation progresses, what are likely to be the most hotly contested—and possibly determinative—issues of fact and law? How will they affect the outcome of the case, including with respect to potential remedies, and further development of the law of monopolization? And, considering how the Apple complaint fits into the Biden Administration’s view of competition in high-tech platform markets, what impact could a potential change in Administrations have?
Featuring:
Prof. Rebecca Haw Allensworth, Associate Dean for Research, David Daniels Allen Distinguished Chair of Law
Hon. Maureen K. Ohlhausen, former Acting Chairman, Federal Trade Commission, Partner, Antitrust and Competition, Wilson Sonsini Goodrich & Rosati
Moderator: Deborah Garza, Partner, Rule Garza Howley LLP
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Crypto, Data Centers, and Climate Jul 29, 2024

In January 2024, the U.S. Energy Information Administration (EIA) initiated an “emergency collection” of information about the electricity consumption of leading cryptocurrency mining companies operating in the United States. EIA’s Administrator declared the agency’s intent to analyze and report on the energy implications of cryptocurrency mining activities in the United States. This followed reports by leading environmental groups that have claim that, as an extremely energy-intensive process, cryptocurrency mining threatens the ability of governments across the globe to reduce dependence on fossil fuels, declaring, “If we do not take action to limit this growing industry now, we will not meet the goals set forth by the Paris Agreement and the Intergovernmental Panel on Climate Change to limit warming to 2 degrees Celsius.”
In response to the EIA’s action, several leaders of the crypto community filed suit, swiftly securing a preliminary injunction of EIA’s “emergency” action. This panel will discuss the litigation to date, the growth of crypto, Bitcoin mining, and the impact its data centers may be having on electric demand and the environment. What might EIA have planned in the future? What are states already doing? And are there implications for the burgeoning datacenter demands anticipated by the growth of Artificial Intelligence (AI)?
Featuring:
Thomas Cmar, Senior Attorney of the Clean Energy Program, Earthjustice
Ewelina Czapla, Director of Energy Policy, Chamber of Digital Commerce, Digital Power Network
Kara Rollins, Litigation Counsel, New Civil Liberties Alliance
Moderator: Jonathan Brightbill, Former Acting Assistant Attorney General, United States Department of Justice; Partner, Winston & Strawn LLP
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Discussing Garland v. Cargill Jul 26, 2024

Garland v. Cargill concerned whether bump stocks are considered "machineguns" as defined by Title 26 of the United States Code. Impacting the realms of both Second Amendment and administrative law, the case raised questions concerning the role of lenity, the applicability of the (then standing) Chevron Doctrine, and the nature of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)’s authority.
The issue came to the Court following a significant circuit split on the validity of the ATF's 2019 reclassification of bump stocks as machineguns, with the Fifth and Sixth Circuits having held that bump stocks are not machineguns, while the D.C. and Tenth Circuits had held that they were. Oral argument was heard in Cargill on February 28, 2024, and a 6-3 Court issued its decision on June 14, 2024.
Join us as a panel of experts break down and analyze the decision and its potential impacts for both Second Amendment and administrative law jurisprudence.
Featuring:
Dr. Stephen Halbrook, Senior Fellow, Independent Institute
Prof. Zachary Price, Professor of Law, The College of the Law, University of California San Francisco
(Moderator) Dr. Robert Leider, Assistant Professor of Law, George Mason University, Antonin Scalia Law School

2024 Annual Supreme Court Round Up Jul 25, 2024

On Thursday, July 25, the Washington, D.C. Lawyers Chapter gathered for the annual Supreme Court Round Up discussing the 2023-2024 term.
Featuring:
Hon. Paul D. ClementPartner,Clement & Murphy PLLC
Mayflower Hotel (Grand Ballroom)1127 Connecticut Ave NWWashington, D.C. 20036

Litigation Update: Roman Catholic Diocese of Albany v. Vullo Jul 25, 2024

In 2017, New York passed a law requiring employers to cover abortions in their health insurance plans. New York initially planned to exempt religious employers with sincere religious objections but later changed the exemption to protect only religious entities whose purpose is to inculcate religious values and who primarily employ and serve coreligionists. This exempted non-objecting ministries while leaving many religious groups that do object unprotected. Several of these unprotected religious groups—including an order of Anglican nuns, Roman Catholic dioceses, and Baptist and Lutheran churches—sued New York, arguing that the law forced them to violate their deeply held religious beliefs. The New York courts ruled against the religious groups and in 2021, represented by Jones Day and Becket, the groups asked the U.S. Supreme Court to hear its case. The Supreme Court granted the petition, vacated the bad rulings from the New York state courts, and told the state courts to reconsider the case in light of Fulton v. City of Philadelphia. But on May 21, 2024, the New York Court of Appeals found Fulton inapplicable and again upheld the abortion mandate. The religious groups’ cert petition is due on August 18, 2024.
Featuring:
Lori Windham, Vice President and Senior Counsel, The Becket Fund for Religious Liberty
(Moderator) Whitney Hermandorfer, Director of Strategic Litigation Unit, Office of the Tennessee Attorney General

The Law, Policy, and Politics of Rescheduling Cannabis Jul 23, 2024

The legal status of cannabis has been a controversial issue ever since the Controlled Substances Act of 1970 (CSA) prohibited its distribution under federal law. That act classified cannabis as a Schedule I drug, a category for drugs that have no legitimate medical use and cannot be used safely even under medical supervision. Schedules II-V are for drugs that have a legitimate medical use and pose a decreasing risk of harm. Congress placed cannabis in Schedule I but authorized the attorney general, in consultation with the Secretary of (what is now) Health and Human Services, to reschedule it. Recently, Attorney General Merrick Garland announced that the Biden Administration has decided to recategorize cannabis and place it into Schedule III. That announcement raises numerous legal, policy, and political issues. Our panelists—Harvard Medical School Professor Bertha Madras and Ohio State Law School Professor Douglas Berman—will discuss them.
Featuring:
Prof. Douglas Berman, Newton D. Baker-Baker & Hostetler Chair in Law, Moritz College of Law, The Ohio State University
Dr. Bertha K. Madras, Professor of Psychobiology, Department of Psychiatry, Harvard Medical School
(Moderator) Paul James Larkin, Jr., Senior Legal Research Fellow, the Center for Legal and Judicial Studies, The Heritage Foundation

Courthouse Steps Decision: Ohio v. EPA Jul 23, 2024

In October of 2015, the Environmental Protection Agency (EPA) announced new standards for air quality, some of which had to do with air pollution which is carried across state borders, from “upwind” states to “downwind” states. The EPA required these states to submit plans of implementation but then rejected 21 of those plans as insufficient, instead publishing a federal plan which would enforce certain more stringent ozone pollution controls. This prompted several states and companies to challenge the rule and request a temporary block to its implementation, claiming the controls could lead to power grid emergencies. The EPA and its supporters claim, however, that a stay to the rule could critically affect public health and air quality. The Supreme Court did not speak to those issues, however, but instead stayed the rule after finding a likelihood of success on the claim that the rulemaking was arbitrary and capricious.
Ohio v. EPA was argued before the Supreme Court in February and its 5-4 decision was issued this June. The Court ordered that the EPA’s enforcement of their implementation plan be stayed pending the ongoing D.C. circuit merits litigation and the disposition of the applicants’ petition for writ of certiorari.
Join Mathura Sridharan, Deputy Solicitor General of Ohio, for a discussion of the facts of the case and the possible future implications of its decision.
Featuring:
Mathura Sridharan, Deputy Solicitor General of Ohio
Moderator: Justin Schwab, Founder, CGCN Law, PLLC

Litigation Update: Hile v. Michigan Jul 23, 2024

Join us for a webinar featuring Manhattan Institute fellow Tim Rosenberger, who will delve into the landmark case of Hile v. Michigan. On November 6th, 2023, the Sixth Circuit upheld Michigan's Blaine Amendment, which bars public financial support for parochial and other nonpublic schools, raising significant questions about religious discrimination and equal protection under the law. The plaintiffs filed a petition of certiorari with the U.S. Supreme Court, arguing that these so-called "neutral" amendments often mask deep-seated biases, as evidenced by Michigan's historical animosity towards Catholic schools.
Learn about the broader implications for religious freedom, the precedent set by recent Supreme Court decisions, and the potential ripple effects across other states with similar provisions. Don’t miss this opportunity to understand the constitutional arguments and engage in a pivotal discussion on the future of educational rights and religious liberties in America.
Featuring:
Tim Rosenberger, Fellow, Manhattan Institute

What’s Happening with Apprenticeship? – Recent Regulatory and Subregulatory Actions Jul 23, 2024

Apprenticeship has been a significant focus of the Biden administration, and previously the Trump administration, with each taking markedly different approaches. The Trump Administration expanded apprenticeship through regulations making programs easier to establish through industry-recognized apprenticeship programs. The Biden administration rescinded these regulations and is now proceeding with its own proposed rule focused on registered apprenticeship programs.
In this webinar, a panel of experts will compare the two approaches. The panel will also provide insights on the pending apprenticeship rulemaking, including new potential regulatory requirements in the DEI area. The panel will also discuss the heavy reliance on a combination of regulatory and subregulatory guidance in the apprenticeship area, including in implementing green energy tax credits under the Inflation Reduction Act, and how this may be impacted by the recent Loper Bright and Relentless decisions ending Chevron deference.
Featuring:
Ryan Craig, Managing Director, Achieve Partners
Prof. Aram A. Gavoor, Associate Dean for Academic Affairs and Professorial Lecturer in Law, The George Washington University Law School
Hon. John Pallasch, Founder and CEO, One Workforce Solutions
Hon. Jonathan Skrmetti, Attorney General of Tennessee
(Moderator) Craig Leen, Craig E. Leen, Partner, K&L Gates, and Former OFCCP Director

FTC’s Interim Pharmacy Benefit Manager Report - Assessing Vigor Jul 18, 2024

On July 9th, the Federal Trade Commission released a Staff Interim Report on the Pharmacy Benefit Manager Industry. This panel will discuss the state of the PBM marketplace, the staff’s key findings, Commission statements surrounding the Report, and how this Report compares to earlier FTC market studies.
Featuring:
Rani Habash, Partner, Dechert
Dan Gilman, Senior Scholar, Competition Policy, International Center for Law & Economics, Former Attorney Advisor, FTC Office of Policy Planning
Professor Mike Shor, University of Connecticut, Department of Economics
Moderator: Derek W. Moore, Counsel, Rule Garza Howley, Former Attorney Advisor, FTC Office of Policy Planning
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Courthouse Steps Decision: Ohio v. EPA Jul 18, 2024

In October of 2015, the Environmental Protection Agency (EPA) announced new standards for air quality, some of which had to do with air pollution which is carried across state borders, from “upwind” states to “downwind” states. The EPA required these states to submit plans of implementation but then rejected 21 of those plans as insufficient, instead publishing a federal plan which would enforce certain more stringent ozone pollution controls. This prompted several states and companies to challenge the rule and request a temporary block to its implementation, claiming the controls could lead to power grid emergencies. The EPA and its supporters claim, however, that a stay to the rule could critically affect public health and air quality. The Supreme Court did not speak to those issues, however, but instead stayed the rule after finding a likelihood of success on the claim that the rulemaking was arbitrary and capricious.
Ohio v. EPA was argued before the Supreme Court in February and its 5-4 decision was issued this June. The Court ordered that the EPA’s enforcement of their implementation plan be stayed pending the ongoing D.C. circuit merits litigation and the disposition of the applicants’ petition for writ of certiorari.
Join Mathura Sridharan, Deputy Solicitor General of Ohio, for a discussion of the facts of the case and the possible future implications of its decision.
Featuring:
Mathura Sridharan, Deputy Solicitor General of Ohio
Moderator: Justin Schwab, Founder, CGCN Law, PLLC

Courthouse Steps Decision: SEC v. Jarkesy Jul 16, 2024

On June 27, 2024, the U.S. Supreme Court issued their opinion in SEC v. Jarkesy. The following three questions were presented in this case – (1) Whether statutory provisions that empower the Securities and Exchange Commission (SEC) to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment; (2) Whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine; (3) Whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection.
The Court held, in a 6-3 decision, that when the Securities and Exchange Commission seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial.
Please join us in discussing the decision and its future implications.
Featuring:
Devin Watkins, Attorney, Competitive Enterprise Institute
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Courthouse Steps Decision: Moyle v. United States Jul 12, 2024

Following the Supreme Court’s decision in Dobbs v. Jackson Women's Health Organization, the Biden administration filed a lawsuit in a federal district court in Idaho, arguing that the Emergency Medical Treatment and Labor Act (EMTALA) preempts a state law that restricts abortion in all but limited circumstances. The district court sided with the Biden administration and issued a preliminary injunction on Idaho’s law. On June 27th, 2024, the Supreme Court (6-3) dismissed the writ of certiorari as improvidently granted instead of determining the statutory interpretation question. It vacated its earlier stay of the district court’s preliminary injunction against Idaho’s abortion law.
Join Erin Hawley, Senior Counsel and Vice President of the Center for Life & Regulatory Practice at Alliance Defending Freedom, for a breakdown of this decision and its implications on the legal issues surrounding abortion in the post-Roe era.
Featuring:
Erin M. Hawley, Senior Counsel, Vice President of Center for Life & Regulatory Practice, Alliance Defending Freedom

Courthouse Steps Decision: Corner Post, Inc. v. Board of Governors of the Federal Reserve System Jul 09, 2024

On July 1, 2024, the U.S. Supreme Court issued their opinion in Corner Post, Inc. v. Board of Governors of the Federal Reserve System. The case asked whether a plaintiff’s Administrative Procedure Act (APA) claim “first accrues” under 28 U.S.C. § 2401(a)—the six-year default federal statute of limitations—when an agency issues a rule or when the rule first causes a plaintiff to “suffer legal wrong” or “be adversely affected or aggrieved,” 5 U.S.C. § 702.
Petitioner Corner Post is a North Dakota convenience store and truck stop that sought to challenge a 2011 Federal Reserve rule governing certain fees for debit card transactions. Corner Post didn’t open its doors until 2018 but the lower courts in this case held that its challenge is time barred because the statute of limitations ran in 2017—before Corner Post accepted its first debit card payment.
This 6-3 decision held that a claim under the APA does not accrue for purposes of the six-year statute of limitations until the plaintiff is injured by final agency action.
Please join us as we discuss the case and decision recently released by the Court.
Featuring:
Molly Nixon, Attorney, Pacific Legal Foundation
Moderator: Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law
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For more information, check out this blog post by Michael J. Showalter.
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Antitrust Law Down on the Farm: Farmers, Food Inflation, and a Fair Deal Jul 09, 2024

The marked inflation of food pricing is apparent upon any trip to the grocery store. Can new regulations aimed at governing the relationship between farmers and the corporations to which they sell their livestock help bring food prices down while allowing farmers to earn more for their labor? The Biden Administration has issued four regulations that aim to (1) prohibit certain previously common contractual terms between farmers and the purchasers of their livestock, (2) allow farmers to use an antitrust statute to assert claims of racial and other types of discrimination, and (3) allow farmers in general to more easily sue meat processors with claims of unfair competition. Are these new regulations legally sound, and will they work to bring down food prices? Join Minnesota Congressman Brad Finstad, Farm Action's Joe Maxwell, and the North American Meat Institute's Mark Dopp in a panel moderated by Judge Stephen Alexander Vaden as they debate these questions.
Featuring:
Mark Dopp, Chief Operating Officer and General Counsel, North American Meat Institute
U.S. Congressman Brad Finstad, (MN-01)
Joe Maxwell, President, Board of Directors, Farm Action
(Moderator) Hon. Stephen Alexander Vaden, Judge, United States Court of International Trade

Courthouse Steps Decision: City of Grants Pass, Oregon v. Johnson Jul 08, 2024

City of Grants Pass, Oregon v. Johnson raised the question of whether the sections of the Grants Pass Municipal Code which prohibit sleeping/camping on public property like parks and streets constitute "cruel and unusual punishment" as prohibited by the Eighth Amendment. The codes in question only impose civil penalties, which can, in certain circumstances develop into criminal penalties. After the Ninth Circuit's 2022 decision holding that the codes violated the Eighth Amendment, the Supreme Court granted cert, and oral argument was heard on April 22, 2024.
On June 28, 2024 a 6-3 Court issued its decision, reversing the Ninth Circuit. Join us for a Courthouse Steps program where we break down and analyze the decision of this interesting case at the intersection of Criminal Law, Federalism and Separation of Powers, and Property rights.
Featuring:
Vikrant P. Reddy, Senior Fellow, Stand Together Trust

Courthouse Steps Decision: NetChoice Cases Jul 08, 2024

Two cases involving NetChoice, a company that represents social media giants like Facebook, Twitter, Google, and TikTok, were heard and decided by the Supreme Court this term. Both cases concern issues of free speech and social media platforms.
In Moody v. NetChoice, LLC, NetChoice challenged Florida law S.B. 7072, arguing it violates the social media companies’ right to free speech and that the law was preempted by federal law. In NetChoice, LLC v. Paxton, NetChoice challenged the constitutionality of two sections of Texas law HB 20 (sections 7 and 2) that aims to regulate the content restrictions of large social media platforms. While the U.S. Court of Appeals for the Eleventh Circuit ruled against Florida, the Fifth Circuit ruled in favor of Texas, creating a Circuit split. In light of that split the Supreme Court granted cert and heard oral argument in both cases on February 26, 2024. On July 1, 2024, a 9-0 court released its decision vacating both judgments based on a lack of "proper analysis of the facial First Amendment challenges" and remanding them for reconsideration.
Join us for a Courthouse Steps Decision program, where we will analyze this decision and its possible ramifications.
Featuring:
Allison R. Hayward, Independent Analyst

Courthouse Steps Decision: Fischer v. United States Jul 03, 2024

Fischer v. United States concerned whether to prove a violation of 18 U.S.C. § 1512(c)(2) — a provision of the Sarbanes-Oxley Act — the government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so.
Petitioners in the case were Joseph Fischer, Edward Lang, and Garret Miller, who were involved with the events of January 6, 2021, at the U.S. Capitol. Based on their actions that day they were charged with a variety of charges including one count of Obstruction of an Official Proceeding under 18 U.S.C. §1512(c)(2). Appellees did not contest the other charges but moved to dismiss the charge mentioned above, arguing §1512 (c) is ambiguous concerning (c)(2) and (c)(1). The district court agreed. Upon appeal, the D.C. Court of Appeals reversed the lower court’s decision. The Supreme Court granted cert and heard oral arguments on April 16, 2024. A 6-3 Court, with Chief Justice Roberts writing for the majority, released its opinion on June 28, 2024. Justice Jackson filed a concurring opinion and Justice Barrett filed a dissenting opinion, in which Justices Sotomayor and Kagan joined.
Join us for a Courthouse Steps Decision program, where we will analyze this decision and its possible ramifications.
Featuring:
Theodore Cooperstein, Appellate Counsel, Theodore Cooperstein PLLC

Courthouse Steps Decision: Loper Bright & Relentless Jul 01, 2024

Chevron v. NRDC (1984) and subsequent precedents held that courts should defer to agency interpretations of ambiguous statutes. This “Chevron Deference” has been a topic of great debate, with many calling for it to be overturned, while others argue it is a vital part of how Courts address the complexity of law and agency actions.
In two cases this term (Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce) the Court considered challenges to that precedent. Oral argument was heard in both cases on January 17th, 2024.
On June 28, 2024, a 6-3 Court issued its decision overturning Chevron, in a decision that may notably change the nature of the administrative state and the role of judges in reviewing agency actions moving forward.
Join us for a courthouse steps program where we will discuss and break down the decision and the potential future impacts of this sea change in administrative law.
Featuring:
Prof. Ronald M. Levin, William R. Orthwein Distinguished Professor of Law, Washington University in St. Louis School of Law
John J. Vecchione, Senior Litigation Counsel, New Civil Liberties Alliance
(Moderator) Prof. Kristin E. Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School

Courthouse Steps Decision: United States v. Rahimi Jul 01, 2024

United States v. Rahimi raised the question of whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic violence restraining orders, violates the Second Amendment on its face.
Zackey Rahimi was found in possession of a rifle and pistol while subject to a domestic violence restraining order after the alleged assault of his former girlfriend, a protective order that specifically barred him from possessing a firearm. He was indicted under 18 U.S.C. § 922(g)(8) (a federal statute that makes it illegal for those who are subject to domestic violence restraining orders to possess a firearm).
Rahimi challenged that indictment, arguing the law is facially unconstitutional and violates the Second Amendment. Initially, both the federal district court and the U.S. Court of Appeals for the Fifth Circuit upheld the law, but, following the Supreme Court's decision in NYSRPA v. Bruen, the Fifth Circuit reversed and vacated Rahimi's conviction. The decision was appealed and the Court heard oral argument in the case on November 7, 2023.
On June 21, 2024, the Court issued its decision, reversing the Fifth Circuit in an 8-1 decision.
Join us for a Courthouse Steps Decision program, where we will analyze this decision and its possible ramifications.
Featuring:
Mark W. Smith, Senior Fellow, Ave Maria School of Law, and Host of the Four Boxes Diner Second Amendment Channel

Litigation Update: AAER v. Fearless Fund Jun 28, 2024

The Fearless Fund ran the “Strivers Grant Contest,” which awards $20,000 and other benefits “only to black females.” Last year, the American Alliance for Equal Rights sued Fearless, claiming its racially discriminatory contest violated 42 U.S.C. §1981, which prohibits private parties from discriminating on the basis of race when making or enforcing contracts. Fearless raised several arguments in reply—claiming, for instance, that the Alliance didn’t have standing and that the contest was a valid “affirmative action” program—but it also raised a First Amendment defense. According to Fearless, its discriminatory contest was really an act of “expressive association.” Although the Supreme Court rejected that argument when segregationists made it, Runyon v. McCrary (1976), Fearless won on it in the district court in Georgia.
The Alliance sought an injunction pending appeal, which a split panel of the Eleventh Circuit granted. The court concluded that the Alliance had “clearly shown the existence of a contractual regime,” which brought the case “within the realm of §1981.” The Court then rejected Fearless’ First Amendment argument, emphasizing that the Constitution “does not give [Fearless] the right to exclude persons from a contractual regime based on their race.” On the merits, the Eleventh Circuit reversed the district court, with instructions to enter a preliminary injunction against the Fearless Fund, holding that (1) the Alliance has standing and (2) that preliminary injunctive relief is appropriate because Fearless’s contest is substantially likely to violate § 1981, is substantially unlikely to enjoy First Amendment protection, and inflicts irreparable injury.
Joining us to discuss this litigation and ruling is the Manhattan Institute’s Ilya Shapiro, who filed an amicus brief alongside the American Civil Rights Project and Buckeye Institute in support of the Alliance.
Featuring:
Ilya Shapiro, Senior Fellow and Director of Constitutional Studies, Manhattan Institute

Current & Future Uses of the Impeachment Power Jun 25, 2024

Congress’s impeachment power has been used dozens of times since the republic’s founding, mostly for relatively low- and mid-level executive and judicial officers involving clear instances of bribery or other felonies. Its attempted use to remove Supreme Court justices, presidents, and now cabinet secretaries is more controversial, and since the 1990s, in arguably partisan or overtly political ways. The impeachment inquiry into President Biden and the House vote to impeach Homeland Security Department Secretary Mayorkas (which recently failed a snap Senate vote) may be seen as tit-for-tat for the two impeachment trials of President Trump. Is that a false equivalence? Regardless of who threw the first partisan stone, are recent uses of the Impeachment power a good development or arguable abuses? What does it portend for the future? Our distinguished panel of scholars will discuss the power itself, recent impeachment proceedings, and the potential implications for the future.
Featuring:
Prof. Michael J. Gerhardt, Burton Craige Distinguished Professor of Jurisprudence, UNC School of Law
Prof. Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University
(Moderator) Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University

Courthouse Steps Decision: FDA v. AHM Jun 24, 2024

In November 2022, the Alliance Defending Freedom (ADF) filed a federal lawsuit in the U.S. District Court for the Northern District of Texas, Amarillo Division, against the United States Food and Drug Administration (FDA) on behalf of the Alliance of Hippocratic Medicine (AHM) and others.
The suit challenged the FDA’s 2000 decision to legalize mifepristone and misoprostol, two drugs often used in conjunction as chemical abortifacients, and regulation of the drugs thereafter. The case rose through the Fifth Circuit, which ruled in favor of AHM. The Supreme Court granted cert, heard Oral Argument on March 26, 2024, and on June 13, 2024, issued a 9-0 decision holding the plaintiffs lacked standing to challenge the FDA.
Join us for a Courthouse Steps Decision program, where we will analyze this decision and its possible ramifications.
Featuring:
Adam Unikowsky, Partner, Jenner & Block LLP
Megan M. Wold, Partner, Cooper & Kirk
(Moderator) Prof. Teresa Stanton Collett, Professor and Director, Prolife Center, University of St. Thomas School of Law

Courthouse Steps Decision: Starbucks Corp. v. McKinney Jun 21, 2024

Starbucks Corp. v. McKinney sits at an interesting intersection of labor and administrative law. The facts of the case concern Starbucks Corp.'s alleged retaliation against seven Memphis workers for unionization efforts. The question before the Supreme Court, however, was not the Labor Law question of whether Starbucks violated the National Labor Relations Act (NLRA), but an Administrative law one as the case asks what standard the National Labor Relations Board (NLRB) needed to meet to obtain an injunction under Section 10(j) of the NLRA from a court. Is "reasonable cause" enough or is there a more stringent test a court should use?
The Court heard oral argument in the case on April 23, 2024, and on June 13, 2024, issued its decision, vacating the decision of the Sixth Circuit and remanding it for further proceedings. Justice Thomas wrote the decision for the majority joined by Chief Justice Roberts and Justices Alito, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett. Justice Jackson wrote an opinion dissenting in part, concurring in part, and concurring in judgment.
Join us for a Courthouse Steps Decision program, where we will analyze this decision and its possible ramifications.
Featuring:
G. Roger King, Senior Labor and Employment Counsel, HR Policy Association

Courthouse Steps Decision: Vidal v. Elster Jun 19, 2024

In recent years, the Supreme Court has decided two cases in which it held that certain restrictions against registering certain kinds of marks violate the Free Speech Clause of the First Amendment. In Matal v. Tam (2017), it invalidated the Lanham Act proscription against registering marks containing terms disparaging toward a person or institution. In Icanu v. Brunetti (2019), it invalidated the Lanham Act proscription against registering marks containing scandalous or immoral terms.
The Supreme Court has now decided Vidal v. Elster, in which it adopted this question presented: “Whether the refusal to register a mark under Section 1052(c) [Lanham Act section 2(c)] violates the Free Speech Clause of the First Amendment when the mark contains criticism of a government official or public figure.” At issue was an application to register the mark TRUMP TOO SMALL on various clothing items. Lanham Act section 2(c) prohibits registration of a mark that “[c]onsists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent, or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow.” The Federal Circuit held that this proscription violates the Free Speech Clause as applied in this mark-registration application.
This Courthouse Steps presentation will discuss the background leading to Vidal v. Elster, review the Court's decision, and discuss its implications for trademark law and free speech.
Featuring:
Michael K. Friedland, Founding Partner, Friedland Cianfrani LLP
Moderator: John B. Farmer, Attorney, Leading-Edge Law Group, PLC

Courthouse Steps Decision: Becerra v. San Carlos Apache Tribe Jun 18, 2024

The Indian Self-Determination and Education Assistance Act (ISDA), which allows Native tribes to administer their healthcare programs instead of the Indian Health Service (IHS), also requires IHS to pay “contract support costs” (CSCs) to tribes to offset overhead costs incurred by the tribes while administering their healthcare programs. Becerra v. San Carlos Apache Tribe (consolidated with Becerra v. Northern Arapaho Tribe) asks whether the IHS must pay CSCs not only to support IHS-funded activities but also to support tribes’ expenditure of income collected directly from third-party insurers.
The San Carlos Apache Tribe, exercising its sovereignty in Arizona, managed its healthcare programs and billed outside insurers directly. However, the Tribe encountered difficulties funding the additional healthcare services from third-party revenue because IHS would not pay CSCs for these transactions. The Tribe sued the U.S. Department of Health & Human Services, IHS, and the United States for the CSC for the years 2011–2013. The district court dismissed the Tribe’s claim for the third-party-revenue-funded portions of the Tribe’s healthcare program from CSC reimbursement, and the Tribe appealed. The U.S. Court of Appeals for the Ninth Circuit concluded that the statutory text of 25 U.S.C. § 5325(a) warranted a reversal of the dismissal and remanded further proceedings.
The Court heard oral arguments on March 25, 2024, and ruled in the case on June 6, 2024, affirming the Ninth Circuit's holding in a 5-4 decision.
Join us for a Courthouse Steps Decision program, where we will analyze this decision and its possible ramifications.
Featuring:
Jennifer H. Weddle, Shareholder, Greenberg Traurig

Courthouse Steps Decision: Thornell v. Jones Jun 12, 2024

In 1992, Danny Lee Jones was convicted of two first-degree murder charges and one attempted premeditated murder charge by a trial court in Arizona and was sentenced to death. Mr. Jones appealed, and the Arizona Supreme Court upheld his sentence. Later, Mr. Jones sought post-conviction review on multiple grounds, including a federal habeas petition. The District Court deemed the new evidence to be insignificant, but the Ninth Circuit reversed this decision.
The Supreme Court heard argument in Thornell v. Jones on April 17, 2024, and issued a decision on May 30, 2024, overturning the Ninth Circuit’s decision on the grounds that it incorrectly interpreted and applied the relevant precedent of Strickland v. Washington.
Join us for a Courthouse Steps Decision program where we break down and analyze this decision and what its ramifications may be.
Featuring:
Robert K. McBride, Partner, Taft Stettinius & Hollister

A Conversation about Supreme Court Ethics and Journalistic Integrity Jun 11, 2024

For several weeks, much media attention has focused on reports of flags flown outside the primary residence and vacation home of Supreme Court Justice Samuel Alito. Several publications assert that the flags are associated with support for the “Stop the Steal” movement, Christian nationalism, and/or the January 6 attack on the U.S. Capitol. These reports have led some reporters and lawmakers to question the impartiality of Justice Alito in cases involving former President Trump, and/or January 6 defendants. Justice Alito has issued statements directly addressing these reports and has not recused himself from any cases. On this topic, the Chief Justice declined a request for a meeting from two Democratic U.S. Senators, stating, in part, that "the format proposed - a meeting with leaders of only one party who have expressed an interest in matters currently pending before the Court - simply underscores that participating in such a meeting would be inadvisable." Is this latest media coverage and Congressional interest part of a growing trend to target certain members of the Court? Is the legitimacy of the Court itself being called into question? This program addresses the contentions made against Justice Alito and the broader implications for journalism, professional ethics, separation of powers, and future respect for the Supreme Court as an essential American institution.
Featuring:
Dan Mclaughlin, Senior Writer, National Review Online
Allyson Newton Ho, Partner & Co-Chair, Constitutional and Apellate Law Practice Group, Gibson, Dunn & Crutcher LLP

The Trump New York Verdict: Constitutional, Legal, and Prudential Questions Jun 10, 2024

A New York City jury recently convicted former President Donald Trump of 34 criminal counts of falsifying business documents. In New York, it is a misdemeanor to falsify business records with “the intent to defraud,” a crime with a two year statute of limitations. If the falsification is carried out for the purpose of concealing another crime, it is a felony, with an extended statute of limitations.
Following the verdict, Bragg pointed to the prosecution’s methodical presentation of “extensive hard evidence” in support of the outcome. Some legal experts agree. Others, however, have criticized the DA’s case and predict it will be overturned on appeal for any of several reasons. These include questions about Judge Merchan's impartiality, the prosecution’s legal theory, the evidence allowed and not allowed at trial, and the jury instructions. One much-discussed question, for example, is that Manhattan District Attorney Bragg’s case charged Trump with a felony records violation, but he did not specify until his closing argument what other crime(s) the records violations were designed to conceal. Moreover Judge Merchan's jury instructions told the jury that they need not agree on that question, but instead that they only had to agree that the violations were designed to conceal a crime. Was this correct as a matter of statutory and constitutional law? In addition, there are questions about whether some of the conduct alleged actually constituted a crime, for either statutory or constitutional reasons. There are also important questions about the propriety and prudence of bringing charges of this type against a former President of the opposite party from that of the other actors in the system. Finally, there are many important questions about what happens next.
Join us for an expert discussion of this historic case and its wide-ranging legal and prudential implications.
Featuring:
Sarah Isgur, Senior Editor, The Dispatch
Prof. William G. Otis, Adjunct Professor of Law, Georgetown Law

AI Policy Roundup Jun 06, 2024

On October 30, 2023, President Biden signed the most far-reaching presidential action in AI, Executive Order 14,110, Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. The EO directs dozens of federal agencies to take over 100 discrete actions to implement it over eight distinct policy areas. The EO received significant attention and a broad range of responses from the regulated public and congressional policymakers. Moreover, the States have grown highly active in regulating AI. This panel will discuss the consequences of the EO on the federal executive branch, the federal legislative process, States, and the tech industry as well as independent federal agency AI regulatory action with an eye toward the opportunities and challenges to come.
Featuring:
Johnathan Smith, Vice President and Legal Director, MacArthur Justice Center
Hon. Keith Sonderling, Commissioner, Equal Employment Opportunity Commissioner
Adam Thierer, Senior Fellow, R Street Institute
(Moderator) Prof. Aram A. Gavoor, Associate Dean for Academic Affairs and Professorial Lecturer in Law, The George Washington University Law School

Abortion and IVF post-Dobbs: LePage, Mayes, Etc. Jun 06, 2024

Since Dobbs v. Jackson Women’s Health Organization, state courts and legislatures have grappled with its legal and policy implications, especially as they pertain to abortion and IVF. In LePage v. Center for Reproductive Medicine, for example, the Alabama Supreme Court held that frozen embryos should be regarded as “children” for the purposes of Alabama’s Wrongful Death of a Minor Act. And in Planned Parenthood v. Mayes, the Arizona Supreme Court upheld an 1864 law that bans all abortions in the state except those deemed necessary to save the life of the mother.
These recent rulings have been highly criticized by commentators on both sides of the aisle, and they raise important questions about the legal status of IVF and abortion in the wake of Dobbs v. Jackson Women’s Health Organization. For example, in both cases, the courts interpreted the law in accordance with textualist principles, and the state legislatures swiftly enacted measures to address the state supreme court decisions afterward. Are these cases therefore examples of the proper allocation of powers, where the judiciary says what the law is, and the legislature is tasked with implementing policy? With the question of abortion being returned to the legislative process post-Dobbs, do these cases invite more thoughtful dialogue about abortion and IVF policy, or do they sow further acrimony? Were these cases rightly decided? Can we articulate a legal standard vis-à-vis abortion and IVF that is both thoughtful and conceptually consistent? In what ways do abortion and IVF interact, both philosophically and legally? Please join us as we discuss these issues and others with some of the leading scholars in this space.
Featuring:
Prof. I. Glenn Cohen, James A. Attwood and Leslie Williams Professor of Law & Deputy Dean; Faculty Director, Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics; Harvard University Law School
Prof. O. Carter Snead, Director, de Nicola Center for Ethics and Culture and Professor of Law, University of Notre Dame Law School
(Moderator) Jennie Bradley Lichter, Deputy General Counsel, The Catholic University of America

Courthouse Steps Decision: NRA v. Vullo Jun 05, 2024

On May 30, 2024, the Supreme Court issued its decision in National Rifle Association of America v. Vullo. In a 9-0 decision, the Court sided with the NRA, affirming the actions taken by New York Department of Financial Services Maria Vullo violated the First Amendment. The case, known as one of the two "jawboning" cases heard this term (along with Murthy v. Missouri) raised the question of whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy.
Join us for a panel discussion breaking down and analyzing this case and what can be expected, especially in light of the fact Murthy has yet to be decided.
Featuring:
Thomas Berry, Research Fellow, Robert A. Levy Center for Constitutional Studies, Cato Institute
Robert Corn-Revere, Chief Counsel, FIRE
Vera Eidelman, Staff Attorney, Speech, Technology, and Privacy Project, ACLU
John J. Vecchione, Senior Litigation Counsel, New Civil Liberties Alliance
(Moderator) Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity

Is the National Institute of Standards and Technology’s New Proposal on March-in a Price-Control Vehicle? May 23, 2024

The Biden Administration recently proposed new regulatory guidelines that would permit agencies to impose price controls on products based on inventions derived from upstream federally funded research. The new regulations would affect such price controls by expanding the “march-in” power of the Bayh-Dole Act.
In addition to its core function allowing universities and other contractors to retain ownership of inventions created with federal funds, this law authorizes, under very specific circumstances, the funding agency (e.g., the National Institutes of Health (NIH) or the Department of Energy) to grant licenses, without authorization of the patent owner, to any inventions made with funding provided by the agency. The proposed new guidelines would add the price of the end-product derived from those early-stage inventions to the list of specific circumstances.
Since its enactment in 1980, the march-in power of the Bayh-Dole Act has never been used. When asked about using the price of the end product as one of the circumstances, the law’s namesake Senators, Birch Bayh and Bob Dole, stated the text of their law did not authorize price-based march-in. Importantly, the NIH has rejected numerous petitions over the past several decades to use the march-in power to lower the prices of patented drugs or medical devices. Proponents of the new regulatory guidelines, however, argue that the statute does authorize an agency to consider price as a march-in trigger and the Biden Administration argues that march-in is a key tool to lower drug prices.
This panel discussed the regulatory proposal for price controls under the Bayh-Dole Act and other vehicles (e.g., the IRA and reasonable/reference pricing clauses in licenses or collaborative research agreements), whether they represent regulatory overreach by the Executive Branch, and whether it is wise policy to implement price controls on drugs and other products or services in the U.S. innovation economy.

Does Ranked Choice Voting Help or Hurt? May 23, 2024

Ranked choice voting, also known as instant runoff voting, is a voting method where voters select several candidates in the order of preference on a single ballot. Ranked choice voting has been used by certain states, cities, and political party primaries. Recently, a series of jurisdictions have implemented bans on ranked choice voting. A panel of experts, which includes an attorney, economist, and political scientist, will analyze ranked choice voting and present a diversity of perspectives on whether ranked choice voting should be implemented in American elections.
Featuring:
Lisa L. Dixon, Executive Director, Center for Election Confidence
Dr. Martha Kropf, Professor, Political Science and Public Administration, University of North Carolina at Charlotte
Walter K. Olson, Senior Fellow, Cato Institute
(Moderator) Maya Noronha, Civil Rights Attorney

Bail Reform: Illinois’ Experience After 9 months May 20, 2024

Balancing safety and justice is especially challenging in the pretrial context where difficult decisions must be made quickly while evidence is still being gathered. In September 2023, an overhaul of Illinois’ pretrial system went into effect, eliminating the use of cash bail while also expanding the authority of judges to detain defendants without bail. As states and local jurisdictions across the country weigh pretrial policies, what can we learn from the Illinois experience to date? This panel of experts will review preliminary data and specific cases that shed light on this question. The conversation will also consider to what degree experiences have differed in rural and urban areas and examine what adjustments are needed.
Featuring:
Robert Berlin, State’s Attorney, DuPage County, Illinois
Hon. Eugene Doherty, Appellate Court Justice, Illinois Appellate Court for the Fourth District
Dr. David Olson, Professor, Department of Criminal Justice and Criminology & Co-Director, Center for Criminal Justice, Loyola University Chicago
(Moderator) Marc Levin, Chief Policy Counsel, Council on Criminal Justice and Senior Advisor, Right on Crime

Is Patent Eligibility Doctrine in Need of Reform? May 16, 2024

Between 2010-2014, the Supreme Court handed down four decisions resulting in the Mayo-Alice two-step test for what counts as an invention or discovery eligible for patent protection. In the ensuing decade, the issue of whether this test is indeterminate, too restrictive, or both, has been vigorously debated by lawyers, judges, and scholars. Recently, Senators Thom Tillis (R-NC) and Christopher Coons (D-DE) introduced the Patent Eligibility Restoration Act (PERA), which would abrogate the Mayo-Alice test among other substantive and procedural reforms to patent eligibility doctrine. This webinar discussed PERA and its implications for the U.S. innovation economy as leader in innovation in the 21st century facing new challenges from global competitors like China.

Litigation Update: Sagebrush Rebels and Western States Challenge Presidential Monument Designations May 16, 2024

Congress passed the Antiquities Act in 1906 to protect Native American archaeological sites from looters and vandalism, empowering the President to designate historic landmarks, structures, or objects of scientific interest as national monuments on federal land. However, it also imposed limitations, requiring such designations to cover only "the smallest area compatible with the proper care and management of the objects to be protected." Initially, Presidents designated monuments focused on safeguarding specific landmarks or structures.
Over time, modern Presidents have expanded their authority under the Antiquities Act, interpreting "objects" broadly to include ecosystems. President Obama notably expanded the Act's use, establishing 29 new national monuments. However, this expansion faced pushback, with President Trump reducing the size of certain monuments and lifting usage restrictions. President Biden's subsequent actions, such as expanding the Grand Staircase monument and reinstating fishing bans, further illustrate the contentious nature of presidential monument designations.
All these challenges present interesting questions of statutory interpretation, limits on presidential power, the authority of the judiciary to review Presidential action, and the scope and content of both the major questions doctrine and the nondelegation doctrine.
Please join Adam Griffin, Separation of Powers Attorney at Pacific Legal Foundation, for a litigation update on these exciting cases and the future of presidential power under the Antiquities Act.

Litigation Update: Arizona Supreme Court Opinion in Planned Parenthood v. Mayes / Hazelrigg May 14, 2024

Throughout Arizona’s history as a state, the criminal code authorized penalties against any person who performed or procured an abortion for a pregnant woman. In 1971, Planned Parenthood Center of Tucson challenged that law on state and federal constitutional grounds. In early 1973, the state intermediate appellate court upheld the criminal law as constitutional. Shortly thereafter, SCOTUS issued Roe v. Wade recognizing a federal constitutional right to abortion. And the Arizona appellate court then enjoined enforcement of the state’s criminal abortion law.
The Arizona legislature codified numerous abortion-related laws in the ensuing years. One such law, enacted in 2022, adopted a “15-week ban.” Later that same year, SCOTUS issued its opinion in Dobbs v. Jackson Women’s Health Organization, which overturned Roe and concluded that the federal constitution does not support a right to abortion.
Dobbs thus set a collision course for two Arizona laws: the previously enjoined but still on-the-books criminal law from 1973 and the 2022 15-week ban. On April 9, 2024, the Arizona Supreme Court issued its opinion in Planned Parenthood v. Mayes / Hazelrigg, resolving the question of which law currently governs.
Hon. James D. Smith will join us to break down the majority and dissenting opinions.

FTC Policy Unpacked: Achieving Change at the Federal Trade Commission May 08, 2024

FTC Chair Khan has sought to implement aggressive and profound changes at the agency from novel approaches on antitrust to groundbreaking rulemakings. But will these efforts have lasting effects?
Former FTC Chairs Tim Muris and Maureen Ohlhausen were joined by Howard Beales, former Director of the Bureau of Consumer Protection at the FTC, to compare these efforts with previous Chair-initiated policy shifts at the agency. Professors Muris and Beales also unveiled their extensive research, published by the Competitive Enterprise Institute, analyzing key differences compared to earlier FTC efforts at promoting change.
This panel discussed: How should a change agent manage the existing career staff? How should relations with Congress and other key stakeholders be managed? How can change best be implemented in the face of a potentially hostile judiciary and other formidable obstacles? What role should institutional norms play in answering these questions?

Legal Scrutiny Ahead: Assessing the Implications of EPA's Final Power Plant Rule May 07, 2024

On April 25th, the Environmental Protection Agency announced a suite of final rules meant to reduce pollution from fossil fuel-fired power plants.
The rule was among four measures targeting coal and natural gas plants that the EPA said would provide “regulatory certainty” to the power industry and encourage them to make investments to transition “to a clean energy economy.” The measures include requirements to reduce toxic wastewater pollutants from coal-fired plants and to safely manage coal ash in unlined storage ponds.
Supporters of the new rule argue that it aligns well with the EPA's statutory authority, the current state of electric markets, and available emissions-reduction technologies. However, opponents contend that it is legally flawed and could jeopardize grid reliability. What legal and policy issues does this rule potentially raise? Does it trigger "major questions" issues? Is the agency relying on unproven technology, potentially violating the statutory requirement that emission standards be based on proven systems? Moreover, does the rule infringe on state prerogatives for regulating existing sources? Join us as we delve into these questions and analyze the legal complexities surrounding this new rule.
Featuring:
Kevin Poloncarz, Partner, Covington & Burling LLP
Justin Schwab, Founder, CGCN Law, PLLC

FTC’s Sweeping Non-Compete Ban: Summary, States’ Views, and Litigation Challenges May 01, 2024

On April 23, 2024, the FTC voted 3-2 to adopt a final rule banning the use of non-compete agreements nationwide, impacting 30 million workers by the FTC’s own estimates. This near categorical ban on the non-compete agreements is a contrast from a regime in which these agreements had been recognized to have potential procompetitive value and therefore were reviewed for reasonableness. It also marks a departure from the state law in many jurisdictions. Less than 24 hours after the vote, two lawsuits have challenged the rule based on statutory and Constitutional grounds. This breaking news panel discussed the final rule, grounds for statutory and Constitutional challenges, and state AG reactions.

Courthouse Steps Oral Argument: Starbucks Corp. v. McKinney Apr 29, 2024

Starbucks Corp. v. McKinney sits at an interesting intersection of Labor and Administrative law. The facts of the case concern Starbucks Corp.'s alleged retaliation against seven Memphis workers for unionization efforts. The employees received disciplinary action and ultimately lost their jobs in the wake of their involvement in a unionization effort. In the following investigation, the NLRB found that there was reasonable cause to believe Starbucks had acted in retaliation against protected unionization efforts. A district court issued a temporary injunction and required the 7 former employees to be reinstated. The Sixth Circuit affirmed on appeal, concluding the NLRB had satisfied its burden in showing there was "reasonable cause" that Starbucks had violated the National Labor Relations Act and thus the NLRB could use its remedial power. Starbucks appealed again and the case was heard by the Supreme Court on April 23, 2023.
The question before the Supreme Court, however, is not the Labor Law question of whether Starbucks violated the NLRA, but an Administrative law one as the case asks what standard the NLRB needed to meet to obtain an injunction under Section 10(j) of the NLRA from a court. Is "reasonable cause" enough or is there a more stringent test a court should use?
Join us as we break down and analyze this interesting case and the Oral Argument in the days following the argument before the Court.
Featuring:
Sheng Li, Litigation Counsel, New Civil Liberties Alliance

Standing and Section 2: Does Section 2 of the Voting Rights Act Provide a Private Right of Action? Apr 26, 2024

In 2021, in Arkansas State Conference NAACP v. Arkansas Board of Apportionment, private litigants sued to challenge the Arkansas state House redistricting map as violating Section 2 of the Voting Rights Act by illegally diluting the vote of racial minorities. In 2022, the U.S. District Court for the Eastern District of Arkansas ruled that Section 2 of the Voting Rights Act does not grant a private right of action. In 2023, the U.S. Court of Appeals for the Eighth Circuit affirmed the district court holding, and in 2024, the Eighth Circuit denied rehearing of the case en banc. In this panel, three voting rights practitioners will provide their analysis of the Voting Rights Act, the Eighth Circuit's decision, and the implications of this decision on redistricting and voting rights cases.
Featuring:
J. Christian Adams, President and General Counsel, Public Interest Legal Foundation
Nicholas Bronni, Solicitor General, The State of Arkansas
Jeffrey Wice, Adjunct Professor of Law, New York Law School & Senior Fellow, New York Census and Redistricting Institute
(Moderator) Maya Noronha, Civil Rights Attorney

Nuziard v. MBDA: What is the Future of Equal Protection Litigation? Apr 25, 2024

On March 5, 2024, U.S. District Court Judge Mark Pittman of the Northern District of Texas entered a declaratory judgment and nationwide injunction against the Minority Business Development Agency, preventing the agency from extending a federally-sponsored racial preference to groups seeking to access capital and government contracts. This case, Nuziard v. MBDA, expands upon last summer's Supreme Court ruling in SFFA v. Harvard, which struck down affirmative action in college admissions. Daniel Lennington of the Wisconsin Institute for Law & Liberty, who litigated the case, discussed the case and its impact on the future of equality.

Déjà Vu all over again? The Return of Network Neutrality Apr 25, 2024

In 2002, under Chairman Michael Powell, the FCC passed the Cable Modem Order which classified cable modem internet service providers (ISPs) as not subject to common carrier non-discrimination requirements. The order’s critics said the FCC had created a non-neutral internet where dominant firms could use their market power to harm consumers and diminish competition. After several attempts, which the D.C. Circuit rejected, the FCC under Chairman Wheeler imposed network neutrality requirements on ISPs in the Protecting and Promoting the Open Internet order in 2015. Then, the FCC under Chairman Pai largely revoked the network neutrality rules in the Restoring Internet Freedom order in 2017. Now, under Chair Rosenworcel the FCC has just reimposed network neutrality.
This panel discussed the legal future on appeal of this most recent iteration in what appears to be an unending partisan regulatory saga—especially in light of the Supreme Court’s changing views on administrative review. The panel also investigated whether this over two decade old policy dispute is fighting yesterday’s war as many believe that there have been few competitive abuses by ISPs during the last two decades—and arguably competitive abuses by dominant firms has moved elsewhere in the web.

Discrimination By Proxy?: Arlington Heights Cases in the Post Students for Fair Admissions Era Apr 25, 2024

In the consolidated Students for Fair Admissions cases, the Supreme Court held unlawful the use of race in undergraduate admissions at Harvard University and the University of North Carolina. Many colleges and universities have nonetheless indicated that they plan to circumvent the decision by using proxies for race instead. A 1978 Supreme Court case, Village of Arlington Heights v. Metropolitan Housing, held that using proxies for race to discriminate is generally as unlawful as using race itself. Arlington Heights also sets forth a test for identifying when a challenged policy is prohibited proxy discrimination. But the lower courts have applied Arlington Heights in different ways to challenged admissions policies, with some lower courts engaging in tough scrutiny of challenged policies and with others being much more deferential to assertions of benign intent.
This panel addressed: is proxy discrimination unlawful under the Fourteenth Amendment? If yes, what is the right legal test -- Arlington Heights or something else? What challenged policies, if any, are prohibited proxy discrimination?

Litigation Update: Ream v. U.S. Department of Treasury - Is Home-Distilling Commerce? Apr 23, 2024

John Ream, an engineer and owner of Trek Brewing Company which creates craft beers in Newark, Ohio, is suing the U.S. Department of Treasury over the regulations that prohibit distilling spirits and hard alcohols at home. Mr. Ream asserts that he would like to pursue the hobby of distilling spirits at home for his personal use but cannot because of federal legislation. The federal law, passed under the Commerce Clause of the Constitution, makes it a felony punishable by $10,000 in fines and five years in prison, to distill hard alcohol, even for personal use. Mr. Ream, represented by The Buckeye Institute, alleges that this prohibition is unconstitutional and exceeds the powers granted Congress by the Commerce Clause, since it seeks to regulate non-commercial activity.
The case was filed in the United States District Court for the Southern District of Ohio, early in 2024, and is currently making its way through the litigation process.
Join us for a litigation update on Ream v. U.S. Department of Treasury featuring Robert Alt, lead attorney at The Buckeye Institute representing Mr. Ream.
Featuring:
Robert Alt, President and CEO, The Buckeye Institute
(Moderator) Andrew Grossman, Partner, BakerHostetler LLP

Cooperation Credit, Privileges, and Possible Landmines for Attorneys and Clients: Implications of US v. Coburn Apr 23, 2024

In February 2022, a District of New Jersey court in United States v. Coburn compelled a private company to produce internal investigation materials to two of its former executives, who had been indicted by the U.S. Department of Justice ("DOJ") relating to an alleged foreign bribery scheme. This panel will explore the implications that this decision, and its legal reasoning, might have on attorneys and clients who are attempting to cooperate with DOJ as part of a self-disclosure strategy with the intent to earn "cooperation credit," while at the same time protecting the attorney-client and work product privileges emanating from internal investigations conducted on behalf of one's corporate client.
Featuring:
Hon. Don Cochran, Professor of Law, Belmont University College of Law
Hon. Mike Hurst, Partner, Phelps Dunbar LLP
Hon. John C. Richter, Partner, King & Spalding
(Moderator) Hon. David C. Joseph, United States District Court Judge, Western District of Louisiana

Courthouse Steps Oral Argument: City of Grants Pass, Oregon v. Johnson Apr 22, 2024

City of Grants Pass, Oregon v. Johnson questions if prohibiting sleeping/camping on public property under the Grants Pass Municipal Code breaches the Eighth Amendment's ban on "cruel and unusual punishment." These provisions typically carry civil penalties but can escalate to criminal penalties.Initially filed in 2018, this case draws parallels to Martin v. City of Boise, where the Ninth Circuit ruled that criminalizing such activities breached the Eighth Amendment. The Grants Pass case raises a critical question: do civil penalties for similar actions also infringe on constitutional protections?
Following the Ninth Circuit's 2022 decision favoring the plaintiffs, led by Gloria Johnson, the city appealed, leading to a Supreme Court hearing scheduled for Monday, April 22. This case sits at the intersection of Criminal Law, Federalism and Separation of Powers, and Property Rights, addressing fundamental questions about local governance, public health, and individual freedoms.
Join us as we break down and analyze how oral argument went the same day.
Featuring:

Timothy Sandefur, Vice President for Litigation, Goldwater Institute

Jurisdiction Stripping: Fact & Fiction Flowing Through the Mountain Valley Pipeline Case Apr 18, 2024

Generally, when Congress strips courts of jurisdiction, it does so by implementing broad, forward-looking, statutory bars that insulate agency decisions or foreclose appeal. In response to the protracted litigation surrounding construction and operation of the Mountain Valley Pipeline, Congress passed a unique statutory provision which (1) granted all required approvals for the pipeline to proceed and (2) stripped every court’s jurisdiction to review the pipeline’s permit approvals. Simultaneously, the amendment granted the United States Court of Appeals for the D.C. Circuit exclusive jurisdiction over all constitutional challenges to the jurisdiction stripping provision.
The case-specific impact of this legislation prompted much public concern and Supreme Court review. Petitioners unsuccessfully argued that Congress exceeded its constitutional authority by intervening to effect a specific outcome in a specific case Respondents prevailed on the counterargument that Congress merely made new underlying law without directing any decision of an Article III court. In this panel, academic commentators and amici from the case discussed the careful distinctions between amendments to substantive law and case-specific jurisdiction stripping, sharing insights on the separation-of-powers questions both behaviors raise.

Discussing Clarke v. CFTC: The Case of PredictIt & the CFTC's No-Action Letter Apr 18, 2024

In July of 2023, the Fifth Circuit reversed the district court's decision in Clarke v. CFTC, and remanded with instructions to enter a preliminary injunction against the Commodity Futures Trading Commission. The case is one concerning the CFTC's revocation of its "no-action letter" concerning PredictIt Market. PredictIt Market is an online marketplace for people to trade contracts predicting important political events, started as a research tool by Victoria University of Wellington in New Zealand. Before going into operation, PredictIt sought a "no-action letter" from the CFTC to operate in the US without registering under the Commodity Exchange Act as a designated contract market, which the CFTC issued in 2014.
However, in August 2022, the CFTC withdrew the letter and issued notice to PredictIt to cease operations within 6 months, which led to suit being filed by supporters of PredictIt. Questions included whether the revocation was arbitrary and capricious, whether the letter constituted "final action" on the part of the agency, and whether the plaintiffs had standing to sue.
Join us as a panel of experts discuss this interesting case.
Featuring:
Michael Edney, Partner, Hunton Andrews Kurth LLP
Hon. David Mason, General Counsel and Chief Compliance Officer, Aristotle International
Connor Raso, Deputy General Counsel, Public Company Accounting Oversight Board
(Moderator) Russ Ryan, Senior Litigation Counsel, New Civil Liberties Alliance

Courthouse Steps Preview: City of Grants Pass, Oregon v. Johnson Apr 17, 2024

City of Grants Pass, Oregon v. Johnson concerns whether the sections of the Grants Pass Municipal Code which prohibit sleeping/camping on public property like parks and streets constitute "cruel and unusual punishment" as prohibited by the Eighth Amendment. The codes in question only impose civil penalties, which can, in certain circumstances develop into criminal penalties. The case parallels the 2018 case Martin v. City of Boise, in which the Ninth Circuit held that criminal penalties for sleeping/camping on public property violated the Eighth Amendment. Grants Pass raises the question of whether that extends to civil penalties.
The case was originally filed in 2018 by a group of individuals including Gloria Johnson affected by the Grants Pass Municipal Codes, and in 2022 the Ninth Circuit decided in favor of the group. The city appealed and it is set to be heard at the Supreme Court on Monday, April 22.
Supporters of the city of Grants Pass have argued that these codes and those like them are important for addressing issues of local governance and public health and safety. They contend having courts meddle in issues that pertain to local matters is dangerous and preempts local law enforcement and governments from serving their communities. Detractors claim that the codes endanger those who are involuntarily homeless and impose disproportionate punishment for a non-criminal status.
Join us for a Courthouse Steps preview on this interesting case at the intersection of Criminal Law, Federalism and Separation of Powers, and Property rights.
Featuring:
Mark Miller, Senior Attorney, Property Rights, Pacific Legal Foundation

A Seat at the Sitting - April 2024 Apr 17, 2024

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.
Snyder v. United States (April 15) - Whether section 18 U.S.C. § 666(a)(1)(B) criminalizes gratuities, i.e., payments in recognition of actions a state or local official has already taken or committed to take, without any quid pro quo agreement to take those actions.
Chiaverini v. City of Napoleon (April 15) - Whether Fourth Amendment malicious-prosecution claims are governed by the charge-specific rule, under which a malicious prosecution claim can proceed as to a baseless criminal charge even if other charges brought alongside the baseless charge are supported by probable cause, or by the “any-crime” rule, under which probable cause for even one charge defeats a plaintiff’s malicious-prosecution claims as to every other charge, including those lacking probable cause.
Fischer v. United States (April 16) - Whether the U.S. Court of Appeals for the District of Columbia Circuit erred in construing 18 U.S.C. § 1512(c), which prohibits obstruction of congressional inquiries and investigations, to include acts unrelated to investigations and evidence.
Thornell v. Jones (April 17) - Whether the U.S. Court of Appeals for the 9th Circuit violated this court’s precedents by employing a flawed methodology for assessing prejudice under Strickland v. Washington when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the state’s rebuttal when it reversed the district court and granted habeas relief.
City of Grants Pass v. Johnson (April 22) - Constitutional Law, First Amendment - It explores the standards required for a plaintiff alleging an arrest in retaliation for speech protected by the First Amendment, focusing on what evidence must be shown to prove such a claim, especially in light of exceptions outlined in precedent cases.
Smith v. Spizzirri (April 22) - Whether Section 3 of the Federal Arbitration Act requires district courts to stay a lawsuit pending arbitration, or whether district courts have discretion to dismiss when all claims are subject to arbitration.
Department of State v. Munoz (April 23) - (1) Whether a consular officer's refusal of a visa to a U.S. citizen's noncitizen spouse impinges upon a constitutionally protected interest of the citizen; and (2) whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible under 8 U.S.C. § 1182(a)(3)(A)(ii) suffices to provide any process that is due.
Starbucks Corp. v. McKinney (April 23) - Whether courts must evaluate the National Labor Relations Board’s requests for injunctions under Section 10(j) of the National Labor Relations Act using the traditional, stringent, four-factor test for preliminary injunctions or some other more lenient standard.
Moyle v. United States (April 24) - Whether the Supreme Court should stay the order by the U.S. District Court for the District of Idaho enjoining the enforcement of Idaho’s Defense of Life Act, which prohibits abortions unless necessary to save the life of the mother, on the ground that the Emergency Medical Treatment and Labor Act preempts it.
Trump v. United States (April 24) - Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.
Featuring:
Anya Bidwell, Attorney, Institute for Justice
G. Roger King, Senior Labor and Employment Counsel, HR Policy Association
Harry Graver, Associate, Jones Day
Timothy Sandefur, Vice President for Litigation, Goldwater Institute
Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute; Visiting Fellow, Hoover Institution
Moderator: Danielle Thumann, Partner, McGuireWoods

Courthouse Steps Decision: Pulsifer v. United States Mar 22, 2024

In Pulsifer v. United States, the Supreme Court considered an Eighth Circuit case that raised the question: "Must a defendant show he does not meet any of the criteria listed in 18 U.S.C. § 3553(f) to qualify for a sentence lower than the statutory minimum?". Key to that question was the meaning of the word "and" in the statute, as the Court was asked to consider whether text and context required "and" in this case be read to mean "or". Oral argument was heard on October 2, 2023, and judgment was rendered in favor of the government (affirming the 8th Circuit's decision) on March 15, 2024. The decision split the Court 6-3, with Justice Kagan authoring the majority opinion. Justice Gorsuch authored a dissent, which Justices Sotomayor and Jackson joined.In the wake of this decision, join us for a Courthouse Steps Decision Forum as we discuss its potential ramifications.
Featuring:
Vikrant P. Reddy, Senior Fellow, Stand Together Trust

303 Creative, Masterpiece Cakeshop, and the Fate of Free Exercise for Wedding Vendors Mar 21, 2024

Over the past decade, the tension between First Amendment rights and public accommodations laws has grown, as wedding vendors have refused to serve same-sex weddings pursuant to their consciences. On June 30, 2023, the U.S. Supreme Court issued its decision in 303 Creative LLC v. Elenis, which held that the free speech clause prohibits a state from forcing a website designer to create messages with which the designer disagrees. That said, the Court has yet to issue a clear decision that resolves these issues under the free exercise clause, even though wedding vendors almost invariably object to providing services on religious grounds. Indeed, when the free exercise question was addressed in Masterpiece Cakeshop Ltd. V. Colorado Civil Rights Commission, the Court largely punted on the issue and resolved the case on very narrow procedural grounds.
Wedding-vendor litigation continues to percolate throughout the country and raises important questions for First Amendment jurisprudence, including whether the Supreme Court should reconsider Employment Division v. Smith, whether the free exercise clause extends protection to wedding vendors in a similar way to the free speech clause, and whether the so-called “hybrid rights doctrine” is a viable theory for analyzing religious claims to exemptions. Please join us as we discuss these issues and others with some of the leading scholars and practitioners in this space.
Featuring:
Prof. Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law
Prof. Douglas Laycock, Robert E. Scott Distinguished Professor of Law Emeritus, University of Virginia School of Law
Jonathan Scruggs, Senior Counsel and the Director for the Center for Conscience Initiatives, Alliance Defending Freedom
(Moderator) Austin Rogers, Chief Counsel at Senate Judiciary Committee

Courthouse Steps Oral Argument: Gonzalez v. Trevino Mar 20, 2024

In Gonzalez v. Trevino, Petitioner Sylvia Gonzalez is a 72 year-old city councilwoman from Castle Hills, Texas. Ms. Gonzalez believed that the city's mayor and city manager were ignoring her constituents and her own frustrations with the city. The mayor and other allies of the city manager in turn planned to unseat the councilwoman. The mayor and police chief next filed charges with a rarely-used law to have the councilwoman arrested, booked, and put in jail. Ms. Gonzalez maintains that she did nothing wrong.
After a day in jail, local media picked up the story and the local prosecutor dropped the charges. Petitioner is represented by the Institute for Justice and she filed a 2020 lawsuit against the city officials. The city filed a motion to dismiss claiming qualified immunity, which the district court denied. An appeal followed to the Fifth Circuit, which reversed the district court over a dissent from Judge Oldham. The Supreme Court granted certiorari this past fall.
On March 20, 2024, the Supreme Court heard oral argument in Gonzalez v. Trevino. This was a discussion with Anya Bidwell, Attorney at the Institute for Justice, as she broke down the case and its developments after oral argument.

A Seat at the Sitting - March 2024 Mar 14, 2024

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.
Murthy v. Missouri (March 18) - Whether the Supreme Court should stay the injunction of the U.S. District Court for the Western District of Louisiana restricting federal officials’ and employees’ speech concerning content moderation on social media platforms.
NRA v. Vullo (March 18) - Whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy.
Diaz v. United States (March 19) - Criminal Law & Procedure; Whether in a prosecution for drug trafficking — where an element of the offense is that the defendant knew she was carrying illegal drugs — Federal Rule of Evidence 704(b) permits a governmental expert witness to testify that most couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters.
Truck Insurance Exchange v. Kaiser Gypsum Company, Inc. (March 19) - Bankruptcy law - This case addresses whether an insurer with responsibility for a bankruptcy claim qualifies as a "party in interest" able to object to a plan of reorganization under Chapter 11 of the Bankruptcy Code. It touches on the rights and roles of insurance companies within the framework of bankruptcy proceedings.
Gonzalez v. Trevino (March 20) - Constitutional Law, First Amendment - It explores the standards required for a plaintiff alleging an arrest in retaliation for speech protected by the First Amendment, focusing on what evidence must be shown to prove such a claim, especially in light of exceptions outlined in precedent cases.
Texas v. New Mexico and Colorado (March 20) - Environmental Law - This dispute involves the apportionment of the waters of the Rio Grande among the states and the role of the federal government in such agreements. It represents the latest chapter in a long-running legal battle over water rights and usage.
Becerra v. San Carlos Apache Tribe (March 25) - Federal Indian Law, Medical Law - The question is whether Native American tribes that manage their own healthcare programs are entitled to receive funds from the Indian Health Service to cover costs associated with services that are covered by insurance. This case examines the intersection of tribal sovereignty, healthcare, and federal funding obligations.
Harrow v. Department of Defense (March 25) - Ad Law - It questions whether the 60-day deadline for a federal employee to petition the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board is jurisdictional, impacting the rights of federal employees in the review process.
Food and Drug Administration v. Alliance For Hippocratic Medicine (March 26) - Ad Law - It centers on the FDA’s approval process and actions to increase access to mifepristone, a drug used in medication abortions. The case challenges the FDA's decisions on drug safety and accessibility, testing the limits of agency authority and judicial review.
Erlinger v. United States (March 27) - Criminal Law - The question is whether, for the purposes of imposing an enhanced sentence under the ACCA, it should be a jury or a judge who decides if the defendant’s previous convictions occurred on different occasions.
Connelly v. Internal Revenue Service (March 27) - Tax Law - The case examines whether the proceeds of a life insurance policy, taken out by a closely held corporation on a shareholder to facilitate the redemption of the shareholder’s stock, should be considered a corporate asset when calculating the value of the shareholder’s shares.
Featuring:
Robert Corn-Revere, Chief Counsel, FIRE
Tony Francois, Partner, Briscoe Ivester & Bazel
Eli Nachmany, Associate, Covington & Burling LLP
Brett Nolan, Senior Attorney, Institute for Free Speech
Jennifer Weddle, Shareholder, Greenberg Traurig
Moderator: Michael Francisco, Partner, McGuireWoods

Litigation Update: De Piero v. Pennsylvania State University Mar 14, 2024

Professor Zack De Piero was an English professor at the Pennsylvania State University Abington campus before resigning and filing a lawsuit against the University in 2023 alleging that administrators and faculty members discriminated against him because of the color of his skin.
Professor De Piero claims the University's diversity, equity, and inclusion (DEI) initiatives created a hostile work environment with a race-essentialism focus. Professor De Piero was required to attend professional development meetings to view videos such as “White Teachers Are a Problem”, and was directed to “assure that all students see that white supremacy manifests itself in language and in writing pedagogy.” He took the prescribed course of action and filed a bias report, to no avail.
Professor De Piero has now filed suit against Penn State in federal court, alleging violations of his civil rights under federal and Pennsylvania law. Penn State initially argued that De Piero's disparate treatment claim must be dismissed because he resigned from his job at Penn State, and, thus, did not suffer an adverse employment action. On January 11, 2024, the United States District Court for the Eastern District of Pennsylvania denied Penn State’s motion to dismiss the discrimination claim against it by Professor De Piero. The case has now entered the discovery phase.
This was a Litigation Update on De Piero v. Pennsylvania State University with Michael Allen, one of Professor De Piero's attorneys and Partner at Allen Harris Law, and moderator William Trachman, General Counsel at the Mountain States Legal Foundation.

Litigation Update: Gerber v. Ohio Northern University Mar 13, 2024

Academic freedom and free speech at colleges and universities are at the center of ongoing litigation in Gerber v. Ohio Northern University.
In April 2023, Dr. Scott Gerber was abruptly removed from his law class by school security and brought to the dean's office. Dr. Gerber was then told by Dean Charles H. Rose III that he must resign or face termination proceedings. During his time teaching, he had been a long-standing critic of the University's use of race, sex, and ethnicity factors in hiring and student admissions. He refused to resign and the University soon commenced termination proceedings against him. Dr. Gerber was not told what he was accused of doing, despite his contractual right as a tenured faculty member to be informed with “reasonable particularity” of the accusations against him. Hardin County, Ohio Court of Common Pleas issued a temporary restraining order against ONU, requiring them to notify Dr. Gerber of what he was alleged to have done. At the hearing, the University allegedly failed to give Dr. Gerber a fair hearing as they brought forward new accusations and denied Dr. Gerber his contractual right to interview witnesses.
Dr. Gerber, who is represented by the America First Legal Foundation, has now filed suit against Ohio Northern University to restore his reputation, regain his employment, and secure compensation for the actions of the University.
This was a Litigation Update on Gerber v. Ohio Northern University with Ben Flowers, one of Dr. Gerber's attorneys and a Partner at Ashbrook Byrne Kresge, moderated by Dan Morenoff, Executive Director at American Civil Rights Project.

Courthouse Steps Preview: Murthy v. Missouri & NRA v. Vullo Mar 12, 2024

On March 18, 2024 the Supreme Court will hear two cases related to alleged “jawboning” -Murthy v. Missouri & NRA v. Vullo.
Murthy v. Missouri, originally filed as Missouri v. Biden, concerns whether federal government officials had violated the First Amendment by "coercing" or "significantly encouraging" social media companies to remove or demote particular content from their platforms. This content spanned various topics, including the origin of the COVID-19 pandemic, the efficacy of masks and vaccines, and the integrity of the 2020 presidential election, among others.
National Rifle Association of America v. Vullo raises the question of whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy. This lawsuit, initiated by the NRA in response to what it perceives as targeted actions by Vullo to undermine its financial support structure, argues that these measures amount to unconstitutional viewpoint discrimination, effectively punishing the NRA for its protected speech.
Join us for a conversation on the right previewing these cases and the issues at play.
Featuring:
Robert Alt, President & CEO, The Buckeye Institute
Will Duffield, Policy Analyst, Cato Institute
[Moderator] Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity

AI Meets Copyright: Understanding New York Times v. OpenAI Mar 12, 2024

Artificial intelligence is the most important technological tool being developed today, but the use of preexisting copyrighted works to train these AI systems is deeply controversial. At the end of 2023 the New York Times sued OpenAI and Microsoft, alleging that OpenAI's use of articles from the New York Times to train their ChatGPT large language model constitutes copyright infringement. An answer is due at the end of February, and it's expected the case will revolve on the question of whether the use of the copyrighted content of the Times was a fair use. The fair use analysis will likely turn on whether the use of copyrighted content to train a AI system "transforms" the work in a way which makes the use fair. The Supreme Court has spoken on this question twice recently, holding that Google's use of parts of Oracle's Java programming language to build the Android operating system was transformative, but that the licensing of a Andy Warhol work based on a photograph by Lynn Goldsmith was not transformative of Goldsmith's work. Also important and perhaps most on-point is a decision of the Ninth Circuit Court of Appeals that Google's Image Search system is transformative of the photographs it indexes and displays as thumbnails.
To help understand this case Professors Charles Duan from the American University Washington College of Law and Zvi Rosen of the Simmons School of Law at Southern Illinois University was joined by Steven Tepp of Sentinel Worldwide, who is also a Lecturer at the George Washington University School of Law and formerly of the U.S. Copyright Office. John Moran of Holland & Knight moderated the panel and provided additional perspective.

Litigation Update: Speech First, Inc. v. Sands Mar 07, 2024

Speech First, Inc. v. Sands concerns a Virginia Polytechnic Institute and State University (Virginia Tech) policy that created a bias response team and protocol where students could report bias incidents. Under this policy, reported incidents would be reviewed and possibly reported to the administration for a formal reprimand. In 2021, Speech First, Inc., a group that focuses on students' freedom of speech on university campuses, filed suit against Virginia Tech on behalf of several students for chilling their right to speech through the bias incident policies. The district court hearing the case ruled in favor of Virginia Tech finding that the Bias Incident policy didn’t specifically outline any particular speech that was chilled for the students being represented and thus the policy wasn’t found to chill speech. In 2022, the Fourth Circuit affirmed the lower court's decision. The Supreme Court granted certiorari in the case, gave judgment with respect to the Bias Policy claims vacated, and remanded the case to the 4th Circuit with instructions to dismiss those claims as moot under United States v. Munsingwear, Inc. Multiple Justices, including Justices Thomas and Alito, filed dissents.
Join us for a litigation update on this important case in light of those developments.
Featuring:
Abigail Smith, Amicus Attorney, The Foundation for Individual Rights and Expression
(Moderator) Tyson Langhofer, Senior Counsel, Director of Center for Academic Freedom, Alliance Defending Freedom

Talks With Authors: Better Money: Gold, Fiat, Or Bitcoin? Mar 06, 2024

In Better Money: Gold, Fiat, Or Bitcoin?, monetary expert Lawrence H. White delves into the timely debate surrounding alternative currencies amidst the backdrop of constant inflation in the fiat currency world. Better Money explains and analyzes gold, fiat dollars, and Bitcoin standards to evaluate their relative merits and capabilities as currencies. It addresses common misunderstandings of the gold standard and Bitcoin, and scrutinizes the evolution of currency, particularly the interplay between market and government roles. White provides provocative analysis of which standard might ultimately provide better money, and argues that we need a market competition among them.
Please join us as Professor Lawrence White joins discussants Alexandra Gaiser and Bert Ely, and moderator Alex Pollock to discuss Better Money.
Featuring:
Prof. Lawrence H. White, George Mason University
Alexandra Gaiser, General Counsel, Strive
Bert Ely, Principal, Ely & Company, Inc.
Moderator: Alex J. Pollock, Senior Fellow, Mises Institute

Courthouse Steps Decision: Trump v. Anderson Mar 05, 2024

On February 8, 2024, the Supreme Court heard Oral Argument in Trump v. Anderson. The Court considered whether the Colorado Supreme Court erred in ordering former President Donald Trump excluded from the 2024 presidential primary ballot.
Legal questions involved in the case include whether Section 3 of the Fourteenth Amendment is "self-executing" or requires an additional act of Congress, whether the events of January 6, 2021, constitute an insurrection, and if so whether Donald Trump participated in that insurrection, and whether the President is an "officer of the United States" as meant by Section 3.
On March 4, 2024 the Court issued a 9-0 decision overturning the Colorado Supreme Court’s December ruling, holding that President Trump is not precluded from appearing on Colorado’s presidential primary ballot.
Featuring:
Prof. Derek T. Muller, Professor of Law, Notre Dame Law School

Courthouse Steps Oral Argument: Ohio v. Environmental Protection Agency Mar 05, 2024

On February 21, 2024, the Supreme Court will hear oral argument in Ohio v. Environmental Protection Agency. The following questions are presented – (1) Whether the court should stay the Environmental Protection Agency’s federal emission reductions rule, the Good Neighbor Plan; and (2) whether the emissions controls imposed by the rule are reasonable regardless of the number of states subject to the rule.
Please join our panel of experts as they break down the case and its developments after oral argument.
Featuring:
Megan Herzog, Partner, Donahue & Goldberg LLP
Matt Kuhn, Solicitor General, Kentucky
Viktoria Seale, Regulatory Affairs Director, National Rural Electric Cooperative Association
Matthew Z. Leopold, Partner, Hunton Andrews Kurth

Courthouse Steps Oral Argument: Garland v. Cargill Feb 29, 2024

Garland v. Cargill concerns whether bump stocks are considered "machineguns" as defined by Title 26 of the United States Code. Impacting the realms of both Second Amendment and Administrative Law, the case raises questions concerning the role of lenity, the applicability of the Chevron Doctrine, and the nature of the ATF’s authority. Bump stocks are devices attached to semi-automatic firearms to increase the rate of fire. In 2019, the ATF issued a rule that bumpstocks themselves were machineguns, and thus subject to the rules of Title 26, which marked a significant shift in federal policy. Michael Cargill, the owner of Central Texas Gun Works, challenged this reclassification, arguing it was an unconstitutional overreach by the ATF and the Department of Justice (DOJ). The Fifth Circuit of Appeals ruled in his favor. A significant circuit split on this issue now exists, with the Fifth and Sixth Circuits holding that bump stocks are not machineguns, while the D.C. and Tenth Circuits have held that they are. The oral argument in Cargill is set to be heard before the Supreme Court on February 28, 2024.
Join us the next day as we break down and analyze how oral argument went before the Court.
Featuring:
Stephen Halbrook, Senior Fellow, Independent Institute
(Moderator) Robert Leider, Assistant Professor of Law, George Mason University, Antonin Scalia Law School

NIST’s Proposed Framework for a New Approach to Bayh-Dole March-in: What You Need to Know Feb 29, 2024

The National Institute of Standards and Technology (NIST) seeks comments on the Draft Interagency Guidance Framework for Considering the Exercise of March-In Rights, which sets out the factors that an agency may consider when deciding whether to exercise Bayh-Dole march-in rights. The information received will inform NIST and the Interagency Working Group for Bayh-Dole (IAWGBD) in developing a final framework document that may be used by a funding agency when making a march-in decision.
This panel seeks to answer what the new framework is while also debating the pros and cons. This FedSoc Forum aims for participants to have a better understanding of this proposed policy change, be able to assess the impact should it be enacted, and be motivated to actively engage in the ongoing debate.

Courthouse Steps Decision: McElrath v. Georgia Feb 29, 2024

On February 21, the Supreme Court unanimously decided McElrath v. Georgia, holding that a jury’s verdict that the defendant was not guilty by reason of insanity of malice murder constituted an acquittal for double jeopardy purposes notwithstanding any inconsistency with the jury’s other verdicts.
McElrath concerned the case of Damian McElrath, who in 2017 was tried for malice murder, aggravated assault, and felony murder Under Georgia Law, in a case where a defendant is claiming insanity at the time of the crime, the jury can render one of four possible verdicts: Guilty, Guilty but Mentally Ill, Not Guilty by Reason of Insanity, or Not Guilty. The jury rendered a split verdict, finding McElrath not guilty by reason of insanity on the malice murder charge and guilty but mentally ill on the felony murder and aggravated assault charges. McElrath challenged his guilty but mentally ill conviction as repugnant to his acquittals. The Georgia Supreme Court, instead of overturning his conviction, vacated both the conviction and the acquittal and remanded the case for a retrial. McElrath then filed a plea in bar asserting that the Double Jeopardy Clause of the United States Constitution prohibited the State from subjecting him to a second trial on the malice murder charge. The Supreme Court heard oral arguments in the case in November of 2023.
Please join us for a post-decision Courthouse steps program where we will break down and analyze this recent decision concerning double jeopardy and criminal law.
Featuring:
Zack Smith, Legal Fellow and Manager, Supreme Court and Appellate Advocacy Program, The Heritage Foundation

The First Step Act: Is It Working and What’s Next? Feb 27, 2024

The First Step Act of 2018, passed as the result of bi-partisan efforts during the Trump administration, aimed to reduce the population of those in federal prison and to limit some federal prison sentences. Over the years some have contended the act is working well, while others argue it has only partially delivered on its goals or it was flawed from the start. Now, as the act recently celebrated its 5-year anniversary, join us for a panel discussing the First Step Act, its impact, legacy, and future.
Featuring:
Stephanie Kennedy, Policy Director, Council on Criminal Justice
Rafael A. Mangual, Fellow and Deputy Director of Legal Policy Contributing Editor, City Journal, The Manhattan Institute
(Moderator) Vikrant P. Reddy, Senior Fellow, Stand Together Trust

Courthouse Steps Oral Argument: NetChoice Cases Feb 26, 2024

Two cases involving NetChoice, a company that represents social media giants like Facebook, Twitter, Google, and TikTok will be heard at the Supreme Court this term. Both cases concern issues of free speech and social media platforms.
In Moody v. NetChoice, LLC, NetChoice challenges Florida law S.B. 7072, arguing it violates the social media companies’ right to free speech and that the law was preempted by federal law. The lower district court found that the law did not stand up to strict scrutiny. Additionally, the court found that this law didn’t serve a legitimate state interest. The U.S. Court of Appeals for the Eleventh Circuit affirmed this ruling.
In NetChoice, LLC v. Paxton, NetChoice challenges the constitutionality of two sections of Texas law HB 20 (sections 7 and 2) that aims to regulate the content restrictions of large social media platforms. The lower district court found the sections unconstitutional and placed an injunction on the two sections. The Fifth Circuit reversed this decision, ruling that HB 20 doesn’t regulate the speech of the platforms, but instead protects the speech of users and regulates the platform's conduct.
Both cases are set to be heard at the Supreme Court on February 26, 2024. Join us as we break down and analyze how Oral argument went the same day.
Featuring:
Allison R. Hayward, Independent Analyst

Proposed Changes to the HSR Merger Filing Process: In-House Counsel View Feb 22, 2024

The U.S. antitrust agencies have recently proposed changes to the HSR merger filing process, broadening the scope of review beyond consumer and competitive effects to workers and other non-competition factors. Merging parties would also be required to prepare written responses to questions related to the transaction, bringing the U.S. more into line with filing requirements in certain foreign merger control regimes like the EU. The additional volume and scope of information contained in merging parties’ HSR filings would also allow the antitrust agencies to potentially apply more rigorous scrutiny of proposed transactions at an earlier stage because the information provided likely will take considerable time for the agency to review. This panel will discuss how in-house counsel is navigating these changes.
Featuring:
Kirstie Nicholson, Global Competition Counsel, BHP
Gil Ohana, former Senior Director, Antitrust & Competition, Cisco
Roman Reuter, Senior Counsel, International Competition Affairs, Deutsche Telekom AG
Moderator: Chris Wilson, Partner, Gibson Dunn

State Merger Enforcement: Trends & Outlook Feb 22, 2024

State Attorneys General have long played a role in merger enforcement, challenging anticompetitive mergers and acquisitions either independently or by partnering with other states and federal enforcers. Today, states are showing a heightened interest in ramping up their merger enforcement. The panel will explore the role of states in merger reviews and recent trends in enforcement. The panel will also discuss legislative efforts by some states to expand the role of the attorney general in merger reviews.

Courthouse Steps Oral Argument: Corner Post, Inc. v. Board of Governors of the Federal Reserve System Feb 21, 2024

On February 20, 2024, the U.S. Supreme Court will hear oral argument in Corner Post, Inc. v. Board of Governors of the Federal Reserve System. The case asks whether a plaintiff’s Administrative Procedure Act (APA) claim “first accrues” under 28 U.S.C. § 2401(a)—the six-year default federal statute of limitations—when an agency issues a rule or when the rule first causes a plaintiff to “suffer legal wrong” or “be adversely affected or aggrieved,” 5 U.S.C. § 702.
Petitioner Corner Post is a North Dakota convenience store and truck stop that seeks to challenge a 2011 Federal Reserve rule governing certain fees for debit card transactions. Corner Post didn’t open its doors until 2018 but the lower courts in this case held that its challenge is time barred because the statute of limitations ran in 2017—before Corner Post accepted its first debit card payment.
Please join us as we discuss the case and how oral argument went before the Court.

Courthouse Steps Preview: Bissonnette v. LePage Bakeries Park St., LLC Feb 15, 2024

On February 20, 2024, the Supreme Court will hear argument in Bissonnette v. LePage Bakeries Park Street LLC. The court will consider whether the Federal Arbitration Act’s exemption for the employment contracts of “workers engaged in interstate commerce” applies to any worker who is “actively engaged” in the interstate transportation of goods, or whether the worker’s employer must also be in the “transportation industry.”Join us as Prof. Samuel Estreicher previews the case and the questions implicated by its potential outcomes.
Featuring:

Prof. Samuel Estreicher, Dwight D. Opperman Professor of Law Director, Center for Labor and Employment Law Co-Director, Institute of Judicial Administration, NYU School of Law

A Seat at the Sitting - February 2024 Feb 15, 2024

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.
Corner Post v. Board of Governors of the Federal Reserve System (February 20) - Does the six-year statute of limitations to challenge an action by a federal agency begin to run when the agency issues the rule or when the plaintiff is actually injured?
Bissonnette v. LePage Bakeries Park Street, LLC (February 20) - Labor & Employment; Whether the Federal Arbitration Act’s exemption for the employment contracts of “workers engaged in interstate commerce” applies to any worker who is “actively engaged” in the interstate transportation of goods, or whether the worker’s employer must also be in the “transportation industry.”
Warner Chappell Music v. Nealy (February 21) - Intellectual Property; Whether copyright plaintiffs can recover damages for acts that allegedly occurred more than three years before they filed their lawsuit.
Ohio v. Environmental Protection Agency (February 21) - Environmental Law; (1) Whether the court should stay the Environmental Protection Agency’s federal emission reductions rule, the Good Neighbor Plan; and (2) whether the emissions controls imposed by the rule are reasonable regardless of the number of states subject to the rule.
Moody v. NetChoice, LLC (February 26) - First Amendment; (1) Whether the laws’ content-moderation restrictions comply with the First Amendment; and (2) whether the laws’ individualized-explanation requirements comply with the First Amendment.
NetChoice, LLC v. Paxton (February 26) - First Amendment; Whether the First Amendment prohibits viewpoint-, content-, or speaker-based laws restricting select websites from engaging in editorial choices about whether, and how, to publish and disseminate speech — or otherwise burdening those editorial choices through onerous operational and disclosure requirements.
McIntosh v. United States (February 27) - Criminal Law & Procedure; Whether a district court can enter a criminal forfeiture order when the time limit specified in the Federal Rules of Criminal Procedure has already passed.
Cantero v. Bank of America, N.A. (February 27) - Whether the National Bank Act preempts the application of state escrow-interest laws to national banks.
Garland v. Cargill (February 28) - Second Amendment; Whether a “bump stock” – an attachment that transforms a semiautomatic rifle into a fully automatic, assault-style weapon – is a “machinegun,” which is generally prohibited under federal law.
Coinbase v. Suski (February 28) - When an arbitration agreement tasks the arbitrator with deciding whether a dispute should be arbitrated, should courts or the arbitrator decide whether the agreement is narrowed by a later contract that does not address arbitration?
Featuring:
Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law
Scott Dixler, Partner, Horvitz & Levy LLP
Stephen Halbrook, Senior Fellow, Independent Institute
Allison R. Hayward, Independent Analyst
John Masslon, Senior Litigation Counsel, Washington Legal Foundation
Moderator: Alexandra Gaiser, General Counsel, Strive

Justice Suspended: An Update in the Case of Judge Pauline Newman Feb 14, 2024

At the age of 96, Judge Pauline Newman is the nation’s oldest federal judge. In 1984, Judge Newman became the first judge appointed directly to the US Court of Appeals for the Federal Circuit. In April of last year, reports surfaced that Federal Circuit Chief Judge Kimberly Moore had initiated a complaint against Judge Newman under the Judicial Conduct and Disability Act of 1980. Although the complaint was initially based on alleged “cognitive decline,” it later morphed to focus on her unwillingness to cooperate with Judge Moore’s investigation.
This program will provide an update on Judge Newman’s case and discuss issues related to this most-unusual set of circumstances. This program coincides with panelist David Lat’s recent interview with Judge Newman, available here, which allows viewers to hear Judge Newman in her own words. The Committee on Judicial Conduct and Disability released an opinion in the case, available here.
Check out this recording for a discussion of Judge Newman’s case, the state of judicial conduct, and more.
Featuring:

David Lat, Founder, Original Jurisdiction
Prof. Arthur Hellman, Professor Emeritus of Law, University of Pittsburgh School of Law
Moderator: Hon. Jennifer Perkins, Arizona Court of Appeals, Division One

Henry Kissinger and International Law Feb 13, 2024

On November 29, 2023, Henry Kissinger died at the age of 100. The former US Secretary of State and National Security Advisor had a long and distinguished career as a scholar and statesman, and his legacy is both prolific and controversial. While many have celebrated his success in resolutely pursuing US global interests, others have criticized Kissinger for his alleged disregard of such values as human rights. This panel discussion explores the complex and multifaceted nature of Kissinger’s legacy, focusing on his interaction with international law and his role in shaping US foreign policy.
Featuring:

Prof. Jeremi Suri, Mack Brown Distinguished Chair for Leadership in Global Affairs; Professor of Public Affairs and History, University of Texas
Prof. Thomas Schwartz, Distinguished Professor of History, Professor of Political Science and European Studies, Director of Undergraduate Studies, Vanderbilt University
Prof. John Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute; Visiting Fellow, Hoover Institution

Why Congress Feb 12, 2024

In his recent book Why Congress, Dr. Phillip Wallach covers the past, present, and future of the Legislative branch to help measure its modern level of dysfunction and offer suggestions for future restoration. The book traces how Congress was designed to operate, how it has met the challenges of decades past, and the trends that have contributed to increased polarization and decreased power. Having established how we got where we are, Dr. Wallach articulates three potential paths forward for Congress: continued dysfunction, increased power for the Executive branch, or a revival of the forms that ensured it will function as designed in the past. 
Join the author and our panel of guest experts for an enlightening discussion!
Featuring:
Prof. Bridget Dooling, Assistant Professor of Law, The Ohio State University - Moritz College of Law
Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School
Dr. Philip A. Wallach, Senior Fellow, American Enterprise Institute
(Moderator) Mr. Joel S. Nolette, Associate, Wiley Rein LLP

Antitrust Agencies' Scrutiny of Labor Feb 08, 2024

The Federal Trade Commission and Department of Justice’s Antitrust Division have put labor issues at the center of antitrust enforcement and policy making. The agencies are closely examining companies’ hiring, recruitment, non-compete, and employee classification and compensation policies. They have recently amended the merger review process to require parties to provide granular information about their labor force to screen for potential impact on labor markets, and have signaled they may challenge a proposed merger if it impacts workers but not consumers. The FTC has also recently entered agreements to share investigative files, personnel, and other intelligence with both the National Labor Relations Board and the Department of Labor, and may soon issue its first unfair competition rule that may ban non-compete provisions in employment contracts nationwide. This panel examined these developments and discussed how big of a role antitrust should play in labor matters.

Courthouse Steps Preview: Trump v. Anderson Feb 07, 2024

On February 8, 2024, the Supreme Court will hear Oral Argument in Trump v. Anderson. The Court will consider whether the Colorado Supreme Court erred in ordering former President Donald Trump excluded from the 2024 presidential primary ballot.
Legal questions involved in the case include whether Section 3 of the Fourteenth Amendment is "self-executing" or requires an additional act of Congress, whether the events of January 6, 2021, constitute an insurrection, and if so whether Donald Trump participated in that insurrection, and whether the President is an "officer of the United States" as meant by Section 3.
Join us as a panel of experts, including Prof. Kurt Lash, who submitted an amicus brief in the case, and Prof. Ilya Somin, who also submitted an amicus brief, preview this case the day before the oral argument, discussing the case and the questions implicated by it.
Featuring:
Prof. Kurt T. Lash, E. Claiborne Robins Distinguished Chair in Law, University of Richmond School of Law
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
(Moderator) Prof. Derek T. Muller, Professor of Law, Notre Dame Law School

Loper and Labor Law: Implications of a Possible Decrease in Deference on New Rulemaking Feb 07, 2024

On January 18, the Supreme Court heard oral arguments in Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce. These cases will determine whether Chevron v. NRDC, a 1984 case in which the Court held that courts should defer to agency interpretations of ambiguous statutes, should be overturned.
This program will discuss the potential effect of the decision on new rulemaking, specifically in labor law. The discussion will cover how deference has been applied in the past and how Loper and Relentless may impact recent rulemaking. The program will focus on a series of recent rulemaking, including the Section 541 Exemption Revision of the Fair Labor Standards Act, the NLRB’s modified Independent Contractor Standard, the NLRB Joint Employer rule, and the FTC proposal to ban Non Compete Clauses.
Please join us as an expert panel addresses recent rulemaking and more in pursuit of understanding the potential fallout after Loper and Relentless.
To learn more about Loper's potential impact on Labor Law, check out Alex MacDonald's article on the subject here.
Featuring:
Alexander Thomas MacDonald, Shareholder Littler
Hon. Tammy Dee McCutchen, Former Administrator, Wage and Hour Division, U.S. Department of Labor

Litigation Update: Chen et al v. Hillsdale College & Buettner-Hartsoe v. Baltimore Lutheran Feb 01, 2024

Title IX of the Education Amendments of 1972 applies to educational institutions at all levels that receive federal financial assistance from the Department of Education. As such, it has traditionally not applied to private schools that do not accept government funding, generally doled out in the form of federal grants or loans.
Two recent cases however (Buettner-Hartsoe v. Baltimore Lutheran High School Association & Chen et al. g. Hillsdale College) have presented a novel theory that would classify an institution's tax-exempt status as federal financial assistance, leaving even those private schools who have sought to remain independent from governmental regulation subject to Title IX. This would affect schools at all levels, as Buettner-Hartsoe concerns a secondary school serving grades 6-12 and Chen et al. is challenging Hillsdale College's actions.
Join us for a litigation update on these two cases featuring Mary Margaret Beecher of Napa Legal Institute, which filed an amicus brief in Buettner-Hartsoe.
Featuring:
Mary Margaret Beecher, Vice President and Executive Director, Napa Legal Institute
(Moderator) Amanda Salz, Associate, Morgan, Lewis, & Bockius LLP

Courthouse Steps Oral Argument: Loper Bright & Relentless Jan 18, 2024

In two cases this term (Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce) the Court will consider whether Chevron v. NRDC, a 1984 case in which the Court held that courts should defer to agency interpretations of ambiguous statutes, should be overturned.
Both cases concern attempts of the National Marine Fisheries Service (NMFS) to promulgate rules requiring industry-funded monitoring of Atlantic herring fishery under the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Regulated fisheries contended that the MSA does not allow the NMFS to create a program requiring the industry to pay for monitoring services. The NMFS does not contend there is an explicit grant of this power, but argues its interpretation of the statute is appropriate and due deference under the precedent of Chevron.
Oral argument is set to be heard in both cases on January 17th, 2024. Join us for a courthouse steps oral argument webinar featuring John Vecchione, who argued the Relentless case in the lower court, where we will discuss and break down how oral argument went in both cases before the court.
Featuring:
John Vecchione, Senior Litigation Counsel, New Civil Liberties Alliance

Courthouse Steps Oral Argument: Sheetz v. County of El Dorado, CA Jan 18, 2024

On January 9, 2024, the U.S. Supreme Court will hear oral argument in Sheetz v. County of El Dorado, CA. This case is a property-rights challenge by a California landowner to nearly $24,000 in development fees levied by the county as a condition for receiving a permit to build a manufactured home. The court will determine whether a monetary exaction imposed by a local government as a condition for a building permit is exempt from the “essential nexus” and “rough proportionality” requirements established in Nollan v. Cal. Coastal Comm’n and Dolan v. City of Tigard, simply because the exaction is authorized by local legislation.
Please join us as we break down and analyze how oral argument went before the Court.
Featuring:
David P. Lanferman, Partner, Rutan & Tucker LLP
Nancie G. Marzulla, Partner, Marzullla Law

Litigation Update: OKPLAC, Inc. v. Statewide Virtual Charter School Board Jan 17, 2024

After Carson v. Makin (2023) --a U.S. Supreme Court case holding that Maine may not prohibit families from using state-provided voucher funds at private religious schools-- St. Isidore of Seville Catholic Virtual School (St. Isidore) applied to become the first faith-based virtual charter school in Oklahoma. The Oklahoma Statewide Virtual Charter School Board approved St. Isidore’s application. On July 31, 2023, the Oklahoma Parent Legislative Action Committee, represented by the ACLU, Americans United for Separation of Church & State, and other organizations, filed a lawsuit against State Superintendent of Public Instruction Ryan Walters, the Oklahoma State Department of Education, the Oklahoma Statewide Virtual Charter School Board, and St. Isidore. The lawsuit alleges that it is a violation of the Oklahoma Constitution and Oklahoma law to grant charter school status and distribute state aid to a faith-based school.
Subsequently, the Attorney General of Oklahoma, Gentner Drummond, filed a separate lawsuit requesting original jurisdiction in the Oklahoma Supreme Court, taking the side of the ACLU and its allies, and seeking to ban St. Isidore from operating a faith-based virtual charter school. Currently, Oklahoma families may choose to send their children, for free, to local public schools, local charter schools run by private organizations, or virtual charter schools run by private organizations. Those seeking to block St. Isidore’s operation take the position that, while Oklahoma may allow secular private organizations to operate charter schools, it must deny the same opportunity to all faith-based organizations. The Defendants in the suits argue that Carson v. Makin and other recent precedents applying the First Amendment to the U.S. Constitution, as well as different Oklahoma state laws, prohibit the state from discriminating against St. Isidore because of its faith-based status and denying families of Oklahoma a faith-based choice among the many secular choices for free education in Oklahoma.
Join us for a litigation update on OKPLAC, Inc. v. Statewide Virtual Charter School Board.
Featuring:
Michael McGinley, Partner, Dechert LLP
(Moderator) Hiram Sasser, Executive General Counsel, First Liberty Institute

Courthouse Steps Oral Argument: Devillier v. Texas Jan 16, 2024

On January 16, 2023, the U.S. Supreme Court will hear oral argument in Devillier v. Texas. This takings case will determine whether a person whose property is taken without compensation may seek redress under the self-executing takings clause of the Fifth Amendment even if the legislature has not affirmatively provided them with a cause of action.
The petitioners in this case sued the state after the Texas Department of Transportation elevated an interstate and constructed a barrier to obstruct natural water flow, subsequently flooding and damaging the petitioners’ properties.
Ilya Somin, Professor of Law at Antonin Scalia Law School at George Mason University, joined us to discuss the case and its developments following oral argument.
For more analysis from Professor Somin, you can read his blog post on the arguments here and find his amicus brief on behalf of the CATO Institute here.
Featuring:
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University

Conservatives Talk Presidential Power: Disqualification & Contempt Jan 10, 2024

As we entered the new year, John Malcolm and John Yoo examined the latest regarding presidential power. In recent weeks, both Colorado and Maine have removed former President Donald Trump from their primary ballots under Section 3 of the Constitution's 14th Amendment. In D.C., House Republicans are are preparing contempt charges against Hunter Biden for defying a congressional subpoena. Tune in to hear the latest.

Chevron Under Review: Courthouse Steps Preview: Loper Bright & Relentless Jan 10, 2024

Chevron v. NRDC (1984) and subsequent precedents held that courts should defer to agency interpretations of ambiguous statutes. This “Chevron Deference” has been a topic of great debate, with many calling for it to be overturned, while others argue it is a vital part of how Courts address the complexity of law and agency actions. Experts on both sides argue it has implications on the role of judges, judicial independence, separation of powers, stare decisis, governmental accountability, and the rule of law.
In two cases this term (Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce) the Court will be asked whether that precedent should be overturned. Join us as a panel of experts give a preview of these two important cases in a discussion of what the Chevron doctrine has done, how these cases may affect it and the body of precedent surrounding it, and what they may mean moving forward.
Featuring:
Prof. John Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law
Prof. Philip Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia Law School; CEO, New Civil Liberties Alliance
Prof. Kristin Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School
(Moderator) Hon. Stephen Alexander Vaden, Judge, United States Court of International Trade

A Seat at the Sitting - January 2024 Jan 08, 2024

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.
Federal Bureau of Investigation v. Fikre (January 8) - Civil Rights, National Security; Whether a lawsuit alleging that the plaintiff was wrongly placed on the “No Fly List” can go forward when the government has removed the plaintiff from the list and promised not to put him back on the list “based on the currently available information.”
Campos-Chaves v. Garland (January 8) - Immigration; Whether the federal government provided adequate notice of an immigration proceeding, allowing the immigration court to enter a deportation order when the non-citizen does not appear.
U.S. Trustee v. John Q. Hammons Fall 2006, LLC (January 9) - Bankruptcy; In the wake of the court’s 2022 decision holding unconstitutional a federal law imposing higher fees on bankruptcy filers in 48 states, what should the remedy for that constitutional violation be?
Sheetz v. County of El Dorado, California (January 9) - Property Rights; Property-rights challenge by California landowner to nearly $24,000 in development fees levied by the county as a condition for receiving a permit to build a manufactured home.
Smith v. Arizona (January 10) - Sixth Amendment, Criminal Law & Procedure; Whether the Sixth Amendment, which guarantees a defendant the right to confront the witnesses against him, allows prosecutors to use expert testimony about evidence – here, a report prepared by a different crime lab analyst who no longer worked at the lab and did not testify at trial – that was not itself admitted into evidence, on the grounds that the testifying expert was simply offering his own opinion and that the defendant could have subpoenaed the original analyst.
Macquarie Infrastructure Corp. v. Moab Partners, L.P. (January 16) - Federalism & Separation of Powers; Whether the failure to make a disclosure required by Item 303 of Securities and Exchange Commission Regulation S-K, which requires a company to disclose known trends or uncertainties that are likely to have a material impact on its financial position, can support a private claim under Section 10(b) of the Securities and Exchange Act of 1934, which prohibits deception in connection with the purchase or sale of securities, even if there has not been an otherwise-misleading statement.
Devillier v. Texas (January 16) - Property Rights, Takings; Whether property owners can seek compensation under the Constitution for “taking” of their property by the state, if the state has not specifically given them a right to sue.
Relentless v. Department of Commerce (January 17) - Administrative Law, Federalism & Separation of Powers - Whether to overrule or limit the court’s 1984 decision in Chevron v. Natural Resources Defense Council.
Loper Bright Enterprises v. Raimondo (January 17) - Administrative Law, Federalism & Separation of Powers - Whether to overrule or limit the court’s 1984 decision in Chevron v. Natural Resources Defense Council.
Featuring:
Eric B. Boettcher, Partner, Wright Close & Barger
Allyson Newton Ho, Partner and Co-Chair, Constitutional and Appellate Law Practice Group, Gibson, Dunn & Crutcher LLP
Hon. Grover Joseph Rees, III, Former General Counsel of the U.S. Immigration and Naturalization, Former United States Ambassador to East Timor
Mark L. Rienzi, President, Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, Catholic University; Visiting Professor, Harvard Law School
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School
Moderator: Eli Nachmany, Associate, Covington & Burling LLP

Ethics CLE 2023: Recent Developments in Legal Ethics & Professional Responsibility Dec 29, 2023

In this CLE webinar, Judge Jennifer Perkins of the Arizona Court of Appeals, Arizona Presiding Disciplinary Judge Margaret Downie, and Greenberg Traurig shareholder Andy Halaby discussed the following areas of legal ethics and professional responsibility:
Using artificial intelligence for preparation of legal documents: some ethical implications and the development of guidelines and best practices.
Insights into when unprofessional conduct becomes unethical conduct and how supervisory attorneys (and others) can help younger lawyers avoid some common ethical pitfalls.
Ethical and other issues facing compliance lawyers under Arizona’s Alternative Business Structure (ABS) law and some takeaways from Arizona’s experience three years into this experiment.
Brief overview of the ABA’s amendment to Model Rule 1.16.
Featuring:
Hon. Margaret H. Downie, Presiding Disciplinary Judge, Arizona Supreme Court
Andrew F. Halaby, Shareholder, GreenbergTraurig
Hon. Jennifer Perkins, Judge, Arizona Court of Appeals, Division One
CLE Cost:
$25/Member
$50/Non-Member
CLE Info
To register for CLE credit, click the link at the top of the page.

Litigation Update: Bella Health and Wellness v. Weiser Dec 13, 2023

In Bella Health and Wellness v. Weiser, a Colorado faith-based healthcare provider is challenging a recent Colorado law banning a treatment commonly known as abortion pill reversal on the grounds it forced them to violate their religious beliefs. The law, passed in April 2023, makes it illegal for healthcare professionals to offer progesterone (a naturally occurring hormone crucial to a healthy pregnancy) to women who have taken mifepristone as part one in a two-step abortion pill regimen but who subsequently want to maintain their pregnancy. The law imposes significant fines and jeopardizes the medical licenses of those who provide or advertise using progesterone to reverse the effects of an abortion pill.
Bella Health, founded by Catholic mother and daughter nurse practitioners Dede Chism and Abby Sinnett, which has traditionally offered this route of care for women as a part of its life-affirming OB-GYN practice, filed in the U.S. District Court for the District of Colorado for an injunction to stop the law from going into effect. A limited injunction was issued in late April, pending reports by the state's Medical, Nursing, and Pharmacy licensing boards. The last of those regulations were issued in September. The next day, Bella again asked the Court for injunctive relief. In an order issued on October 21, 2023, the district court preliminarily enjoined Colorado from enforcing the law, and the case remains live.
Join us for a litigation update on this case and what its implications may be, featuring Prof. Mark Rienzi who is President of Becket Fund for Religious Liberty which is representing Bella Health in this case.
Featuring:
Prof. Mark L. Rienzi, President, Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, Catholic University; Visiting Professor, Harvard Law School
(Moderator) Ms. Amanda Salz, Associate, Morgan, Lewis, & Bockius LLP

Should a Felony Be a Barrier to Voting Behind Bars and Beyond? Dec 13, 2023

With campaign season in full swing, a high-stakes legal and policy battle is intensifying over whether those in prison, on probation and parole, or simply with a past felony record should be eligible to vote. In January 2024, a rare Fifth Circuit en banc hearing will consider Mississippi’s felony disenfranchisement law that was struck down by a divided three-judge panel. Plaintiffs in such cases claim violations of equal protection and cruel and unusual punishment, raising the questions of how the original meaning of such provisions should apply today and whether this is a political question that should be left by judges to the elected branches of government to determine. Also, in Texas and Florida, prosecutions against those who voted despite a disqualifying criminal record implicate the question of mens rea. Join us as we consider varied perspectives on this issue that brings to the fore conflicting conceptions of the purpose of punishment, the impact of our nation’s history on the present, and the very meaning of citizenship and democracy.
Featuring:
Jeff Jacoby, Columnist, Boston Globe
Nicole Porter, Senior Director of Advocacy, The Sentencing Project
(Moderator) Marc Levin, Chief Policy Counsel, Council on Criminal Justice

Conservatives Talk Presidential Power: Examining the Latest on Impeachment and Immunities Dec 11, 2023

John Malcolm and John Yoo continued their discussion of presidential power as they examined the latest updates on former President Donald Trump's civil and criminal cases, presidential immunities, and the expected House impeachment vote.

Litigation Update: Mahmoud v. McKnight Dec 11, 2023

In Fall 2022 the Montgomery County Board of Education (MCBOE) revised its literature/ language arts curriculum for Pre-K to eighth grade to include new books centered around LGBTQIA+ issues, including pride parades, gender transitioning, same-sex marriage, and pronoun preferences. Although this concerned some parents, initially parents were notified when the books were being read and could opt their children out of those lessons. However, in March 2023 the MCBOE issued a statement alerting parents that they would no longer be notified when these books were being taught and requests to opt-out would not be honored.
In light of this new statement, a coalition of parents of elementary school children in Montgomery County from a variety of faiths, including Islam, Catholicism, and Orthodox Christianity, brought suit in the U.S. District Court for Maryland. They argued that the MCBOE's refusal to alert parents when potentially objectional books on sex education & related topics were being taught and to deny them the option to opt their children out of such education was violative of their free-speech, free-exercise, and substantive-due-process rights under the U.S. Constitution and under Maryland law. The parents sought a preliminary injunction against the MCBOE. The U.S. District Court for the District of Maryland heard oral argument on August 9, 2023. Soon after it ruled against the parents, who appealed to the Fourth Circuit Court of Appeals. Oral argument at the 4th Circuit is set to occur on December 5.
Please join us for a Litigation Update on Mahmoud v. McKnight with Eric Baxter, who is VP & Senior Counsel at Becket and is representing the plaintiffs in this case, as he gives a breakdown of this important case concerning religious liberty, free speech, education policy, and parental rights.
Featuring:
Eric Baxter, Vice President & Senior Counsel, The Becket Fund For Religious Liberty
(Moderator) Emilie Kao, Senior Counsel, Vice President of Advocacy Strategy, Alliance Defending Freedom

Litigation Update: Rogers v. HHS & Maddonna v. HHS Dec 11, 2023

Miracle Hill Ministries is one of nearly two dozen private entities with which the state of South Carolina contracts to help serve the thousands of children in its foster care system. Miracle Hill has been operating for over 80 years and, as a faith-based ministry, it chooses to partner only with potential foster parents who affirm its doctrinal statement—a choice that, under regulations issued at the end of the Obama administration, would have precluded it from receiving federal funds that otherwise are available to private foster care entities. In 2019, South Carolina Governor Henry McMaster learned of the situation and worked with the federal Department of Health and Human Services to obtain a waiver that allowed Miracle Hill to continue its foster care service in a way that was consistent with its religious commitments. That waiver was rescinded in 2023 by the Biden administration.
Two recent cases, both of which were filed while the 2019 waiver was in place, challenged the constitutionality of the waiver and, more broadly, challenged the constitutionality of the State’s licensure of and contracting with Miracle Hill, alleging it constituted an unlawful establishment of religion and allowed publicly funded discrimination on the basis of religion. One of the cases (Rogers v. HHS et al.) was brought by a same-sex couple who identified as members of the Unitarian Universalist Church. The other case (Maddonna v. HHS et al.) was brought by a prospective foster mother who claimed to be Roman Catholic but who argued she could not affirm Miracle Hill’s Christian doctrinal statement. In both cases, the plaintiffs contended Miracle Hill should be ineligible to receive the government funding traditionally provided by HHS and the State of South Carolina to licensed private foster-care agencies. Summary judgment in favor of the defendants was granted in both Rogers v. HHS and Maddonna v. HHS earlier this year.
Join us as litigating attorney Miles Coleman, who represented Governor Henry McMaster and the Director of the S.C. Dept. of Social Services, provides a litigation update on these two cases concerning child welfare, a religious non-profit foster care ministry, and religion in the public square.
Featuring:
Miles Coleman, Partner, Nelson Mullins Riley & Scarborough LLP
(Moderator) Daniel Blomberg, Vice President and Senior Counsel, The Becket Fund for Religious Liberty

Litigation Update: Young v. Colorado Department of Corrections Dec 05, 2023

Former Colorado Corrections Sergeant Josh Young is suing the Colorado Department of Corrections alleging that mandatory Diversity, Equity, and Inclusion training subjected him to hostile work environment discrimination under Title VII of the Civil Rights Act of 1964.
Young is being represented by General Counsel of Mountain States Legal Foundation, Will Trachman. Will recently argued the case at the Tenth Circuit Court of Appeals and will join us to discuss the case, the oral argument, and more.

A Fireside Chat with Former FTC Chairs Tim Muris and Maureen Ohlhausen Dec 01, 2023

The current FTC has criticized prior Commission positions, stating they are making a sharp departure from the decades-long approach they inherited. Almost three years into the current administration, how have these efforts fared? Has the FTC actually adopted a different standard in place of the consumer welfare standard and does it accurately reflect the law, as they claim? How durable will their efforts to implement changes likely be? This fireside chat led by former FTC Chief of Staff Svetlana Gans answered these and other important questions.

Navigating Self-Defense and International Law in Gaza Nov 30, 2023

This webinar will explore the complex legal and humanitarian aspects surrounding recent events in the Israel-Palestine conflict. Specifically, this program will feature a discussion of Israel’s military operation in the Gaza Strip, proportionality in armed conflict, and the right to self defense in international law. Following Hamas’s atrocities in Israel on October 7th, the Israeli Defense Forces (IDF) began warning residents of Gaza to evacuate southward in anticipation of a large-scale military operation. Now, more than a month into the conflict, the military operation is well underway, offering further dilemmas for consideration such as the scale of the IDF’s response, the international reaction to the conflict, and future control of the Gaza Strip.
Join our panel of National Security and Law of Armed Conflict experts for an educational discussion of these crucial legal considerations and more.
Featuring:
Prof. Jennifer Maddocks, Assistant Professor of Law, US Military Academy, West Point
Prof. Paul Stephan, John C. Jeffries, Jr., Distinguished Professor of Law, University of Virginia School of Law
Moderator: Prof. Jeremy Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University

Insights on the Supreme Court's New Ethics Guidelines Nov 30, 2023

On November 13, 2023, the Supreme Court formally announced a Code of Conduct, a significant development encapsulated in a 14-page document outlining five canons of conduct. Addressing issues such as judicial recusal and permissible outside activities, the Code consolidates ethical rules guiding the Court's members. This webinar assembles a panel of Supreme Court and Legal Ethics experts to delve into the nuances of the Code, exploring surprises within its text and elucidating its implications for the Court's future.
The release of a Code coincides with the Professional Responsibility & Legal Ethics Practice Group's sponsorship of a National Lawyers Convention breakout panel titled "Originalist Perspectives on Ethics and the Supreme Court." The discussion, held just days before the Code's unveiling, pondered the necessity of an Ethics Code for the Supreme Court and foreshadowed lingering questions for the Court. A recording is available here.
Featuring:
Prof. Arthur Hellman, Professor of Law, University of Pittsburgh School of Law
David Lat, Founder, Original Jurisdiction
Moderator: Hon. Jennifer Perkins, Arizona Court of Appeals, Division One

A Seat at the Sitting - December 2023 Nov 30, 2023

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.
Brown v. United States (November 27) - Criminal Law; Whether the definition of “serious drug offense” in the Armed Career Criminal Act incorporates the federal drug schedules that were in effect when the individual committed the firearm offense, or instead the schedules that were in effect at the time of the state drug offense.
McElrath v. Georgia (November 28) - Criminal Law, Double Jeopardy; A challenge by a Georgia man who was found not guilty by reason of insanity on one charge arising from the stabbing death of his mother and guilty but mentally ill on another charge to the state’s ability to try him again on the charge on which he was acquitted.
Wilkinson v. Garland (November 28) - Immigration; Whether federal courts have the power to review an agency’s determination that a noncitizen did not meet the “exceptional and extremely unusual” hardship requirement to cancel deportation.
Securities and Exchange Comm’n v. Jarkesy (November 29) - Administrative Law, Financial Services; A challenge to the SEC’s use of in-house judges.
Harrington v. Purdue Pharma, L.P. (December 4) - Whether the Bankruptcy Code gives a court the power to approve a release that extinguishes claims against third parties, without the consent of the individuals or entities holding the claims.
Moore v. United States (December 5) Federalism & Separation of Powers - Whether a federal “mandatory repatriation tax” violates the 16th Amendment.
Muldrow v. City of St. Louis, Missouri (December 6) - What protections does Title VII of the Civil Rights Act of 1964 provide to employees who contend they were the victim of a discriminatory transfer?
Featuring:
Justin Aimonetti, Attorney, Dechert LLP
Adi Dynar, Attorney, Pacific Legal Foundation
Prof. Jennifer Jenkins, Associate Professor of Law, Ave Maria School of Law
Prof. Lindsey Simon, Associate Professor of Law, Emory University Law School
Moderator: Stephanie Maloney, Chief of Staff and Associate Chief Counsel, U.S. Chamber Litigation Center

Courthouse Steps Oral Argument: SEC v. Jarkesy Nov 29, 2023

On November 29, 2023, the U.S. Supreme Court will hear oral argument in SEC v. Jarkesy. The following three questions are presented – (1) Whether statutory provisions that empower the Securities and Exchange Commission (SEC) to initiate and adjudicate administrative enforcement proceedings seeking civil penalties violate the Seventh Amendment; (2) Whether statutory provisions that authorize the SEC to choose to enforce the securities laws through an agency adjudication instead of filing a district court action violate the nondelegation doctrine; (3) Whether Congress violated Article II by granting for-cause removal protection to administrative law judges in agencies whose heads enjoy for-cause removal protection.
Please join us as Margaret A. Little, Counsel of Record on an amicus brief filed by New Civil Liberties Alliance, discusses the case and its developments after oral argument.

Contracts, Labor & Employment Law After SFFA Nov 29, 2023

In June the U.S. Supreme Court issued its decision in Students for Fair Admissions Inc. v. President and Fellows of Harvard College. In a 6-3 decision, the Court held that Harvard and the University of North Carolina’s admissions programs violated the Equal Protection Clause of the Fourteenth Amendment.
Court observers have put forth different analyses concerning how far-reaching this decision may be. Will corporate diversity programs be stopped? How will hiring in the public and private sectors change? What about government initiatives and the public procurement process?
As employers adjust their programs and new litigation progresses through the courts, lawyers are working to advise their clients for whatever may come. Please join us as an expert panel addresses these questions and more in pursuit of understanding the greater legal landscape after SFFA.

Courthouse Steps Preview: Moore v. United States Nov 28, 2023

On December 5, 2023, the Supreme Court will hear oral argument in Moore v. United States. At issue is whether the 16th Amendment authorizes Congress to tax unrealized sums without apportionment among the states.
Professor James W. Ely and Professor Calvin H. Johnson joined us to discuss their amicus briefs examining the original public meaning of the taxing power and apportionment. The discussion was moderated by Elizabeth H. Slattery, Director of Constitutional Scholarship at Pacific Legal Foundation.

Conservatives Talk Presidential Power: A Look into the Latest Trials, Testimonies, and Plea Deals Nov 15, 2023

John Malcolm and John Yoo continued their discussion of presidential power as they examine the repercussions of plea deals taken by former President Trump's allies in Georgia, Michael Cohen's testimony in the New York civil trial, and the status of the 14th Amendment disqualification trial.

Litigation Update: Koons v. Platkin Nov 14, 2023

Koons v. Platkin is a challenge to certain provisions of New Jersey Bill A4769/S3214 – now known as Chapter 131 – that overhauled the state’s firearms and concealed carry laws following the U.S. Supreme Court’s ruling in New York State Rifle & Pistol Association v. Bruen.
Among other things, the law features 25 broad categories of “sensitive places” where permit holders may not carry a firearm. Additionally, the law makes all private property presumptively a “sensitive place” and requires permit holders to obtain consent from the property owner before carrying on their property.
Chapter 131 faced legal challenge immediately upon being signed into law by the Governor of New Jersey. At the District Court level, plaintiffs argued that several of the “sensitive place” restrictions plainly violated the Second and Fourteenth Amendments to the U.S. Constitution. Plaintiffs also challenged a provision that required permit holders to render their weapons inoperable while inside a moving vehicle. The State of New Jersey has maintained that Chapter 131 is consistent with the Second Amendment and the decision in Bruen.
The District Court granted a TRO and later a preliminary injunction noting that certain parts of the law were “plainly unconstitutional.” The case is now being litigated in the U.S. Court of Appeals for the Third Circuit where oral arguments were heard on October 25, 2023. Peter A. Patterson, Partner at Cooper & Kirk and counsel to plaintiffs, discussed the case.

Courthouse Steps Oral Argument: United States v. Rahimi Nov 07, 2023

United States v. Rahimi, set to be argued before the Supreme Court this fall, raises the question of whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic violence restraining orders, violates the Second Amendment on its face.
When executing a search warrant on Texas resident Zackey Rahimi's home in relation to a series of shootings in which he was a suspect, police found a rifle and pistol. Rahimi, however, was subject to a domestic violence restraining order after the alleged assault of his former girlfriend, a protective order that specifically barred him from possessing a firearm. He was indicted under 18 U.S.C. § 922(g)(8) (a federal statute that makes it illegal for those who are subject to domestic violence restraining orders to possess a firearm).
Rahimi challenged that indictment, arguing the law is facially unconstitutional and violates the Second Amendment. Initially, both the federal district court and the U.S. Court of Appeals for the 5th Circuit upheld the law, but, following the Supreme Court's decision in Bruen, the Fifth Circuit reversed and vacated Rahimi's conviction. The decision was appealed and oral argument is set to go on before SCOTUS on November 7, 2023.
Please join us as we break down and analyze how oral argument went before the Court.
Featuring:
Mark W. Smith, Senior Fellow, Ave Maria School of Law, and Host of the Four Boxes Diner Second Amendment Channel

College Admissions After SFFA Oct 30, 2023

On Thursday, June 29, 2023, the U.S. Supreme Court issued its decision in Students for Fair Admissions Inc. v. President and Fellows of Harvard College. In a 6-3 decision, the Court held that Harvard and the University of North Carolina’s admissions programs violated the Equal Protection Clause of the Fourteenth Amendment. Two months later, The U.S. Departments of Justice and Education issued a joint guidance document addressing the decision.
Court observers have put forth different analyses concerning how far-reaching this decision may be. Will corporate diversity programs be stopped? What about government initiatives? The jury is still out, but one thing will certainly change – college admissions.
How will college admissions offices across the country change their policies? What should high school students know about the changing landscape? What methods will be employed in pursuit of racial diversity? Please join us as an expert panel addresses these questions and more in pursuit of understanding college admissions after SFFA.

A Seat at the Sitting - November 2023 Oct 30, 2023

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.
Culley v. Marshall (October 30) - Due Process; What test should district courts apply to determine whether a state or local government must provide a hearing to someone who has had property seized under a civil asset forfeiture law?
Lindke v. Freed (October 31) - Civil Rights, First Amendment; Whether a public official’s social media activity can constitute state action only if the official used the account to perform a governmental duty or under the authority of his or her office.
O’Connor-Ratcliff v. Garnier (October 31) - Civil Rights, First Amendment; Are public officials acting as government officials, so that they can violate the First Amendment, when they block people on their personal social media accounts that they use to communicate with the public?
Vidal v. Elster (November 1) - First Amendment, Intellectual Property; Does Section 2(c) of the Lanham Act, which bars the registration of a trademark which uses the name of another living person without that person’s permission, violate the Constitution when used to reject a trademark that contains criticism of a government official or public figure?
Department of Agriculture Rural Development Rural Housing Service v. Kirtz (November 6) - Fair Credit Reporting Act, Sovereign Immunity; Whether the civil-liability provisions of the Fair Credit Reporting Act clearly waive the sovereign immunity of the United States.
United States v. Rahimi (November 7) - Second Amendment; Whether a federal ban on the possession of guns by individuals who are subject to domestic violence restraining orders violates the Second Amendment.
Rudisill v. McDonough (November 8) - GI Bill; Whether a veteran who has served two separate periods of qualifying service under the Montgomery GI Bill and the Post-9/11 GI Bill is entitled to receive a total of 48 months of education benefits as between both programs.
Featuring:
Braden Boucek, Director of Litigation, Southeastern Legal Foundation
Prof. Christa Laser, Professor, Cleveland State University of Law
Gary Lawkowski, Counsel, Dhillon Law Group
Amy Swearer, Senior Legal Policy Analyst, Meese Center for Legal and Judicial Studies, The Heritage Foundation
Moderator: Laura Stanley, Judicial Law Clerk, US Court of Appeals, Ninth Circuit

Pakistan at a Crossroads: Ports, Courts, and Power Games Oct 27, 2023

Pakistan finds itself in yet another multi-faceted crisis. In response to numerous economic challenges, including the worst inflation in Asia and the risk of default, the government is scrambling to raise funds. But the country's socio-political entities are paralyzed amidst a high-stakes tussle between former Prime Minister Imran Khan and the powerful security establishment--one that has drawn international scrutiny about Pakistan's judicial processes and the health of democratic institutions. These domestic concerns cannot be separated from Pakistani leaders' strategic balancing between the United States and China. This panel explored these and other related issues.
Featuring:
Sahar Khan, Research Fellow, CATO
Michael Kugelman, Director, South Asia Institute, Wilson Center
Moderator: Nitin Nainani, Student Liaison, International & National Security Law Practice Group

Courthouse Steps Preview: Culley v. Marshall Oct 26, 2023

Which Test is it Anyway? Civil Asset Forfeiture and the Right to a Prompt Post-Seizure Hearing at the High Court.
The Court will hear argument on Monday, October 30, 2023, in Culley v. Marshall. Petitioners Halima Culley and Lena Sutton contend police seized their vehicles and held those vehicles for more than a year without judicial oversight. The Respondents assert that those vehicles were seized because they were being used to traffic narcotics and then Petitioners sat on their rights. Ultimately, the state court denied the Petitioners a post-seizure hearing based on the Sixth Amendment speedy-trial test of Barker v. Wingo, 407 U.S. 514 (1972). The Petitioners contend the court employed the wrong test and they should have received a prompt post-seizure hearing under the Due Process Clause.
Accordingly, the Question Presented in the case is: “In determining whether the Due Process Clause requires a state or local government to provide a post seizure probable cause hearing prior to a statutory judicial forfeiture proceeding and, if so, when such a hearing must take place, should district courts apply the “speedy trial” test employed in United States v. $8,850, 461 U.S. 555 (1983), and Barker v. Wingo, 407 U.S. 514 (1972), as held by the Eleventh Circuit or the three-part due process analysis set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), as held by at least the Second, Fifth, Seventh, and Ninth Circuits.”
Stef Cassella, CEO of Asset Forfeiture Law, LLC, and Robert Johnson, Senior Attorney at the Institute for Justice, joined us for an an exciting preview of the oral argument in Culley. The discussion was moderated by Adam Griffin, Constitutional Litigation Fellow at Pacific Legal Foundation.
Featuring:
Stefan Cassella, CEO, Asset Forfeitrure Law, LLC
Robert Johnson, Senior Attorney, Institute for Justice
Moderator: Adam Griffin, Constitutional Litigation Fellow, Pacific Legal Foundation

Courts as Police, Legislators, and “Homeless Policy Czars”? What are the Implications of Grants Pass on Local Policing and Public Safety? Oct 19, 2023

Communities across the country are grappling with the complex issues presented by growing homeless encampments that have filled parks, blocked building entrances, and overrun sidewalks. Some observe that their ability to find effective, compassionate solutions have been impacted by the Ninth Circuit opinion in the City of Grants Pass v. Johnson, et al., holding that laws regulating camping on public property constitute “cruel and unusual punishment.”
In a lengthy series of opinions about these purported new rights of the homeless, the Ninth Circuit denied rehearing en banc, setting up a showdown in the Supreme Court where cities, law enforcement, disability rights advocates, property owners, and homeless advocates are looking for a final resolution to the important balance of Constitutional rights and Separation of Powers concerns.
Featuring:
William R. Maurer, Managing Attorney of the Washington Office, Institute for Justice
McGregor W. Scott, Partner, King & Spalding LLP
John F. Bash, III, Partner, Quinn Emanuel
[Moderator] Antoinette T. Bacon, US Attorney's Office, Southern District of Florida

Talks with Authors: What It Means to Be Human Oct 13, 2023

In What It Means to Be Human - The Case for the Body in Public Bioethics Prof. O. Carter Snead investigates the tension between the natural limits of the human body and the political philosophy of autonomy, and the legal and policy challenges that arise when those two conflict. He proposes a new paradigm of how to understand being human and applies it to complex issues of bioethics, laying out a framework of embodiment and dependence.
Join us for a special 90-minute webinar conversation with Prof. Snead moderated by Prof. William Saunders on “What it Means to Be Human” -both philosophically and practically.
Featuring:
Prof. O. Carter Snead, Professor of Law, Director, de Nicola Center for Ethics and Culture, & Concurrent Professor of Political Science, University of Notre Dame Law School
[Moderator] Prof. William L. Saunders, Professor - Human Rights, Religious Liberty, Bioethics, Catholic University of America

Loper Bright and the Next Steps for Chevron Deference at the Supreme Court Oct 11, 2023

This Term, the Supreme Court will hear Loper Bright Enterprises v. Raimondo—a case concerning judicial deference to agency interpretations of ambiguous statutes. Pursuant to Chevron v. NRDC and follow-on cases, courts defer to agency interpretations of ambiguous statutes. Loper Bright offers the Court an opportunity to abandon Chevron deference entirely. But the phrasing of the Question presented in Loper Bright also presents an off-ramp for the Court, allowing it to keep Chevron’s framework intact. How the Court resolves Loper Bright will have massive implications for administrative law. On this panel, three distinguished administrative law scholars discuss the task before the Court in Loper Bright and the future of Chevron deference.
Featuring:
Prof. Nicholas Bagley, Professor of Law, University of Michigan Law School
Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School
Prof. Ilan Wurman, Associate Professor, Sandra Day O'Connor College of Law, Arizona State University
(Moderator) Eli Nachmany, Former Law Clerk to Hon. Steven J. Menashi, U.S. Court of Appeals for the Second Circuit

The Economic Power Play: Examining China's Coercive Tactics Oct 11, 2023

In recent months, there has been a notable escalation in China’s economic coercion of various countries and private companies, prompting a pressing need for a deeper examination of this phenomenon and China’s global strategy. Our panel will delve into the repercussions of actions taken by China in multilateral institutions and its use of debt-trap diplomacy, examining their effects on international relations and trade dynamics. The discussion will also shed light on how the United States and its like-minded partners can effectively deter China's coercive tactics, paving the way for a more stable and secure global landscape. Ivan Kanapathy, Senior Fellow at the Center for Strategic International Studies, and DJ Nordquist, Former US Executive Director of the World Bank joined us to discuss these issues and more.
Featuring:
Ivan Kanapathy, Former Deputy Senior Director, National Security Council; Senior Associate (Non-resident), Center for Strategic International Studies; Adjunct Professor, Georgetown University School of Foreign Service
DJ Nordquist, Former US Executive Director, World Bank
Moderator: Daniel B. Pickard, Chair, International Trade & National Security Practice Group, Buchanan Ingersoll & Rooney

Litigation Update: FCA v San Jose Unified School Dist. Oct 05, 2023

Fellowship of Christian Athletes v. San Jose Unified School District concerned a Christian student club's ability to meet on campuses in the San Jose School District. Fellowship of Christian Athletes (FCA) clubs had served students in the San Jose High Schools for over a decade, until 2019 when, following a teacher's complaints about the clubs' requirement that student leaders affirm their faith, the school district revoked the clubs' status as associated student bodies and kicked them off campus. FCA brought suit, and the district court sided with the school district. In 2022 the 9th Circuit reversed the district Court's decision, and upon the district's appeal to rehear the case en banc. reaffirmed that decision in September 2023, declaring that the district could not discriminate against the FCA clubs based on their religious leadership standards under the First Amendment and the Equal Access Act.
Join us for a litigation update on this important case with Daniel Blomberg, vice president and senior counsel at Becket Fund for Religious Liberty which represented the FCA in this case.
Featuring:
Daniel Blomberg, Vice President and Senior Counsel, The Becket Fund For Religious Liberty
(Moderator) Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity

Will Congress Create a Statutory Framework for Digital Asset Regulation? Oct 05, 2023

Will the 118th Congress succeed in creating a statutory framework for effective regulation of cryptocurrencies? House Financial Services Committee Chairman Patrick McHenry and our expert panel discussed the status of this complex legislative issue, the competition among regulators and potential division of regulatory jurisdiction, the differences between stablecoins and other cryptocurrencies, federal vs. state regulation, what financial reports and other disclosures should be required, and what key decisions must be made.
Featuring:
--Hon. Patrick McHenry, United States Representative, NC-10
--Brian P. Brooks, Managing Partner, Valor Capital Group; Former Acting Comptroller of the Currency
--Patrick D. Daugherty, Partner, Foley & Lardner; Adjunct Professor, Cornell Law School
--Gary Kalbaugh, Deputy General Counsel, ING Americas; Special Professor of Law, Hofstra University
--Paul Watkins, Managing Partner, Fusion Law, PLLC
--[Moderator] J.C. Boggs, Partner, King & Spalding

Talks with Authors: The Soul of Civility Oct 05, 2023

In her new book, The Soul of Civility: Timeless Principles to Heal Society and Ourselves, Alexandra Hudson explores the question – how can a reinvigorated dedication to civility help our nation come together despite deep and growing differences? She argues that our difficulties in this arena are not new; luckily, the solutions aren’t either. Drawing wisdom from a host of ancient philosophers and influential thinkers, Hudson encourages Americans to turn inward and commit themselves to live tolerantly. She contends that our Republic depends on it.
Please join us as Alexandra Hudson sits down with The Federalist Society’s Senior Vice President and General Counsel, Dean Reuter, to discuss The Soul of Civility.

2023 Ron Rotunda Memorial Webinar: The State of the Legal Profession Oct 03, 2023

The 2023 Ron Rotunda Memorial Webinar featured a conversation with Gregory Jacob and Prof. Josh Blackman discussing the current state of the legal culture and the future of the legal profession.
Professor Rotunda wrote seminal law books that are still used in law schools across the country and was the author of over 500 law review articles and other legal publications. These books and articles have been cited more than 2000 times by law reviews, by state and federal courts at every level, by the U.S. Supreme Court and by foreign courts in Europe, Africa, Asia and South America. He was also a member of the Federalist Society’s Professional Responsibility & Legal Education Practice Group. Each year, the Practice Group holds an annual Teleforum in his honor.
Ron Rotunda was not only a renowned professor but also a mentor to many, including Prof. Josh Blackman, who wrote heartfelt remembrances about him on his blog here and in the Chapman Law Review here.
Featuring:
--Gregory Frederick Jacob, Parter, O’Melveny & Meyers LLP
--Moderator: Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston

Talks with Authors: Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience Oct 03, 2023

Agreeing to Disagree: How the Establishment Clause Protects Religious Diversity and Freedom of Conscience investigates the questions that surround the correct interpretation of the Establishment Clause, breaking down the practical history of establishment and disestablishment in the United States of religion as law and argues that a Clause often seen as a defense against religion is valuable for promoting religious freedom and diversity in America. Prof. Michael McConnel, co-author of the book, and Prof. Vincent Munoz discussed these themes and the history of the Establishment Clause in the United States.
Featuring:
--Prof. Michael W. McConnell, Richard and Frances Mallery Professor of Law, Director of the Constitutional Law Center, Stanford Law School
--Dr. Vincent Phillip Munoz, Tocqueville Associate Professor Department of Political Science and Concurrent Associate Professor of Law, University of Notre Dame Law School
--(Moderator) Adam Griffin, Constitutional Law Fellow, Pacific Legal

A Seat at the Sitting - October 2023 Oct 03, 2023

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.
Pulsifer v. United States (October 2) - Federal Criminal Law; Whether a defendant satisfies the criteria in 18 U.S.C. § 3553(f)(1) as amended by the First Step Act of 2018 in order to qualify for the federal drug-sentencing “safety valve” provision so long as he does not have (a) more than four criminal history points, (b) a three-point offense, and (c) a two-point offense, or whether the defendant satisfies the criteria so long as he does not have (a), (b), or (c).
CFPB v. Community Financial Servs. Ass'n of America, Ltd. (October 3) - Constitutional Law, Appropriations; Whether the court of appeals erred in holding that the statute providing funding to the Consumer Financial Protection Bureau, 12 U.S.C. § 5497, violates the appropriations clause in Article I, Section 9 of the Constitution, and in vacating a regulation promulgated at a time when the Bureau was receiving such funding.
Acheson Hotels, LLC v. Laufer (October 4) - Constitutional Law, Americans with Disabilities Act; Whether a self-appointed Americans with Disabilities Act “tester” has Article III standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if she lacks any intention of visiting that place of public accommodation.
Murray v. UBS Securities LLC (October 10) - Labor Law, Sarbanes Oxley Act; Whether, following the burden-shifting framework that governs cases under the Sarbanes-Oxley Act of 2002, a whistleblower must prove his employer acted with a “retaliatory intent” as part of his case in chief, or whether the lack of “retaliatory intent” is part of the affirmative defense on which the employer bears the burden of proof.
Great Lakes Insurance SE v. Raiders Retreat Realty Co., LLC (October 10) - Admiralty; Whether, under federal admiralty law, a choice-of-law clause in a maritime contract can be rendered unenforceable if enforcement is contrary to the “strong public policy” of the state whose law is displaced.
Alexander v. South Carolina State Conference of the NAACP (October 11) - Election Law; Whether the district court erred when it failed to apply the presumption of good faith and to holistically analyze South Carolina Congressional District 1 and the South Carolina General Assembly’s intent. Additionally, the court's handling of the alternative-map requirement, its treatment of the relationship between race and politics, the assessment of racial predominance in District 1, and the consideration of intentional discrimination are all under scrutiny.
Featuring:
Karen Harned, President, Harned Strategies LLC
Brian Johnson, Managing Director, Banking Supervision and Regulation Group, Patomak Global Partners
Vikrant Reddy, Senior Research Fellow, Charles Koch Institute
Moderator: Amanda Salz, Associate, Morgan, Lewis, & Bockius LLP

US-India Relations: An Important but Ambiguous Partnership Oct 02, 2023

In June, Indian Prime Minister Narendra Modi completed a highly-publicized visit to Washington that included a state dinner and an address to a joint meeting of Congress. This visit put a strengthened bilateral relationship on display—the United States and India have deepened cooperation on defense, public health, and economic matters in recent years. Yet, key differences continue to irritate relations, serving as obstacles to the closer partnership that some envision.
This program traced the trajectory of the US-Indian relationship, offering context to strides that've been made since the Cold War ended. With an eye to the future, this panel also evaluates possibilities for bilateral relations moving forward, examining areas of disagreement, and takes into consideration each country's strategic visions, priorities, and limitations.
Featuring:
--Sadanand Dhume, Resident Fellow, American Enterprise Institute
--[Moderator] Nitin Nainani, Student Liaison, International Law & National Security Practice Group

Lockstep or Step Alone: Considering Interpretations of the Federal Constitution When Interpreting State Constitutions Oct 02, 2023

Many state constitutional provisions are worded similarly to provisions of the federal Constitution. At times, this has led some to simply assume as binding or highly persuasive the interpretations of the latter on the former. But to what degree should interpretations of the United States Constitution inform a particular state’s interpretation of its own foundational document? We hosted a lively discussion of this important issue by a distinguished panel.
Featuring:
--Judge David R. Stras, United States Court of Appeals for the Eighth Circuit
--Chief Judge Jeffrey S. Sutton, United States Court of Appeals for the Sixth Circuit
--Associate Justice Sarah Hawkins Warren, Georgia Supreme Court
--Justice Clint Bolick, Arizona Supreme Court
--Moderator: Justice Sarah K. Campbell, Tennessee Supreme Court

Litigation Update: Alliance for Fair Board Recruitment v. Weber Sep 28, 2023

Alliance for Fair Board Recruitment v. Weber is a challenge to California’s Assembly Bill 979 requiring racial, ethnic, and sexual orientation diversity on boards of public corporations located in California. The Alliance for Fair Board Recruitment is arguing that the Bill violates the Equal Protection Clause of the Fourteenth Amendment.
On May 15, 2023, the US District Court for the Eastern District of California ruled that the law is unconstitutional and enjoined its continued enforcement.
Additionally, California has a related statute that requires sex-based quotas for corporate boards. Both statutes are being concurrently challenged in multiple federal and state court cases. All of the federal cases – including the Alliance case – have been stayed by the Ninth Circuit. The state court cases are active and going forward.
This Litigation Update discussed the District Court’s decision in Alliance and reviewed the different cases, where they stand, and what might come next.
Featuring:
--Joshua P. Thompson, Director of Equality and Opportunity Litigation, Pacific Legal Foundation

Litigation Update: Bates v. Pakseresht Sep 28, 2023

In Bates v. Pakseresht, Oregon mother-of-5 Jessica Bates is challenging the Oregon Department of Human Services’ (OHDS) rules that require all potential adoptive families to affirm and support the sexual orientation, gender identity, and/ or gender expression of any potential children placed with them.
Ms. Bates asserts that OHDS’s rules violate the “Free Speech,” and “Freedom of Assembly” clauses of the First Amendment, and has sued in Federal Court to have the OHDS rules deemed unconstitutional.
Jonathan Scruggs, lead attorney representing Ms. Bates from the Alliance Defending Freedom, joined us to provide an update on this live litigation affecting free speech, freedom of religious practice, state regulations, and child safety.
Featuring:
--Jonathan Scruggs, Senior Counsel, Vice President of Litigation Strategy & Center for Conscience Initiatives, Alliance Defending Freedom
--(Moderator) Miles Coleman, Partner, Nelson Mullins Riley & Scarborough LLP

Religious Liberty and the Court - Looking Ahead to the Next Term Sep 19, 2023

or the past few Supreme Court terms we have hosted Mark Rienzi, President of the Becket Fund and Professor of Law at Catholic University of America, for a discussion of Religious Liberty at the Court moderated by William Saunders, Professor and Co-director of the Center for Religious Liberty at Catholic University of America. This latest installment looked at the most recent term including the unanimous holding in Groff v. DeJoy and provide a preview of the October term.
Featuring:
--Prof. Mark L. Rienzi, President, Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, Catholic University; Visiting Professor, Harvard Law School
--[Moderator] Prof. William L. Saunders, Professor - Human Rights, Religious Liberty, Bioethics, Catholic University of America

Talks with Authors: Our Dear-Bought Liberty: Catholics and Religious Toleration in Early America Sep 15, 2023

In his new book Our Dear-Bought Liberty: Catholics and Religious Toleration in Early America, Professor Michael D. Breidenbach investigates the way American Catholics fundamentally contributed to the conception of a separation between Church and State in the founding era, overcoming suspicions of loyalties to a foreign power with a conciliatory approach. In this installment in our “Talks with Authors” series, Prof. Breidenbach joined us to discuss his book and the story it tells in a conversation moderated by Prof. William Saunders.
Featuring:
--Prof. Michael D. Breidenbach, Associate Professor of History, Ave Maria University & Senior Affiliate for Legal Humanities, Program for Research on Religion and Urban Civil Society, University of Pennsylvania
--(Moderator) Prof. William Saunders, Professor - Human Rights, Religious Liberty, Bioethics, Catholic University of America

Net Choices: Social Media, Content Moderation, and the First Amendment Sep 12, 2023

In 2021, both Florida and Texas enacted legislation to limit how social media platforms could limit what users post. The Texas law, challenged in NetChoice v. Paxton found a sympathetic audience in the Fifth Circuit, but the Eleventh Circuit was much more skeptical of the Florida law’s constitutionality in NetChoice v. Moody. In January 2023, the Supreme Court requested the Biden Administration to weigh in on the constitutionality of these laws. The NetChoice duel is likely to be on the calendar for the Court in this next term, with a decision in 2024.
This webinar gathered a panel of experts to discuss the appeals courts vivid differences in approach to issues arising from social media content moderation. The panel will also consider changes in the legal landscape since these petitions were filed, including whether recent Court decisions related to Section 230 of the Communications Decency Act have bearing on the issues raised by NetChoice.
Featuring:
--Ryan Baasch, Chief of the Consumer Protection Division, Texas Office of the Attorney General
--Allison R. Hayward, Independent Analyst
--Jess Miers, Legal Advocacy Counsel, Chamber of Progress
--Moderator: Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity
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2023 Annual Mike Lewis Memorial Teleforum: Big Data and the Law of War Sep 11, 2023

Big Data is one of the most important resources in the world, yet the rules for its protection are just beginning to develop. The danger comes into focus by the possibility of a nation-state cyber operation attacking Big Data and having a major detrimental impact on the functioning of another nation-state. Consider, for example, a cyber attack corrupting, stealing, or destroying the records of important financial institutions, causing widespread confusion and panic. Would such an attack warrant a kinetic, lethal response, with bullets and bombs?
This issue implicates the UN Charter, the Law of War, International Humanitarian Law, jus in bello and jus ad bellum, attempts to formulate rules in the Tallinn Manual, conflicting priorities among nations, and pure geopolitics. Professor Paul Stephan of the University of Virginia Law School and John Eisenberg, Former Deputy Counsel to the President and NSC Legal Advisor, joined us to explore the issue.
Mike Lewis was a naval aviator, and then a renowned law professor, widely admired by other scholars and practitioners. He was a great friend of the Federalist Society, appearing at dozens of lawyer and student chapter events, as well as the 2014 National Convention. He was also a member of the Executive Committee of the Society's International & National Security Law Practice Group. Each year, the Practice Group holds a Teleforum in his honor.
Featuring:
--John Eisenberg, Former Assistant to the President and Deputy Counsel to the President, Former NSC Legal Advisor
--Prof. Paul Stephan, John C. Jeffries, Jr., Distinguished Professor of Law, University of Virginia School of Law
--[Moderator] Vince Vitkowsky, Partner, Gfeller Laurie LLP

Courthouse Steps Preview Harrington v. Purdue Pharma Sep 06, 2023

The Supreme Court is scheduled to hear Harrington v. Purdue Pharma in December 2023. The case presents the issue of the authority of a court to provide a release from liability against non-consenting victims in favor of third parties who are not in bankruptcy.
This case involves releases in favor of the non-debtor Sackler family who owned Purdue Pharma and are accused of fueling the national opioid epidemic. Some say the bankruptcy system provides a more effective and efficient mechanism for resolving mass torts. Others say it is a vast expansion of court power without statutory or Constitutional authority.
Please join us as Professor Anthony Casey and Clifford White debate the merits of the case and discuss what to expect at the Supreme Court.

Case Preview: Acheson Hotels, LLC v. Laufer - Considering ADA “Tester” Standing Sep 06, 2023

In the fall 2023 term, the Court is currently set to consider a case of whether a civil rights "tester," someone who collects information as to whether a place of public accommodation is in compliance with laws like the Americans with Disabilities Act (ADA) without an intent actually to visit those places or use those services, has standing to sue such businesses.
At issue is whether "tester" Deborah Laufer, had standing to bring suit against Acheson Hotels. Laufer alleged that the website for a hotel operated by Acheson Hotels had insufficient information to comply with the ADA and accommodate those with disabilities. Acheson Hotels argued that since Ms. Laufer had no intention of visiting the hotel in question, she, therefore, had no standing to sue.
Ms. Laufer lost in district court, which threw out her suit for lack of standing, but the First Circuit reinstated her lawsuit, ruling she did have standing. That prompted an appeal by Acheson Hotels to the Supreme Court, which granted certiorari.
Interestingly, after certiorari was granted, Ms. Laufer dropped her case in district court after an attorney who has represented her in other cases was disciplined by a federal Court located in Maryland. Ms. Laufer's lawyers thus also asked SCOTUS to dismiss the Acheson Hotels case for mootness, given that the district case is no longer live.
Oral argument in Acheson Hotels, LLC v. Laufer is still set for October 4, 2023.
Join us as Karen Harned, who filed an amicus brief in the case, provides a preview of the case and the issues worth tracking in this conversation.
Featuring:
Karen Harned, President, Harned Strategies LLC
(Moderator) Joel Nolette, Associate, Wiley Rein LLP

Litigation Update: Jackson v. Raffensperger Sep 05, 2023

In Jackson v. Raffensperger, 316 Ga. 383 (2023), the Supreme Court of Georgia struck down the state’s licensing law for lactation care providers. The law, which was the first of its kind in the nation, would have forced hundreds of women out of work. The Court held the law unconstitutional under the Georgia constitution’s due process clause. With this decision, Georgia joined other states such as Texas and Pennsylvania in recently distinguishing the state’s standard of review from the federal standard of review.
Renée Flaherty and Jaimie Cavanaugh, both attorneys with the Institute for Justice, joined us to discuss the case.
Featuring:
--Renée Flaherty, Senior Attorney, Institute for Justice
--[Moderator] Jaimie Cavanaugh, Attorney & Legislative Counsel, Institute for Justice

Litigation Update: Louisiana v. EPA Aug 29, 2023

Efforts to achieve “environmental justice” have been a top priority of the Biden Administration and its Environmental Protection Agency (EPA). As stated in the EPA’s FY 2022-2026 Strategic Plan, “EPA will center its mission on the integration of justice, equity, and civil rights across the nation’s environmental protection enterprise,” (27).
Accordingly, the EPA has invoked Title VI of the Civil Rights Act in some of its environmental emissions investigations even where the situation appears compliant with applicable environmental laws. One such investigation recently occurred in Louisiana where the EPA found “significant evidence” of disparate adverse impacts on Black residents of St. John the Baptist Parish, St. James Parish, and an Industrial Corridor in the area. These disparate impacts were alleged to be the result of poor air quality despite the fact that the EPA had deemed the relevant emissions compliant with applicable laws shortly before opening their civil rights investigation.
In May 2023, the Louisiana Attorney General filed suit against the EPA, arguing that EPA lacked authority to impose disparate-impact based mandates under Title VI and that the agency had unconstitutionally delegated power to special interest groups to direct how EPA conducted investigations. Shortly after the State sought a preliminary injunction, the EPA abruptly abandoned its pending investigations, although it continues to adhere to its Title VI disparate-impact regulations generally. Briefing is ongoing and a hearing has been set for January 9, 2024. Click here to view the complaint.
Drew Ensign served as Special Assistant Solicitor General and Counsel to the State of Louisiana during this matter. In this recorded webinar he delivered a Litigation Update on the case.
Featuring:
--Drew C. Ensign, Owner, Drew C. Ensign PLLC & Special Assistant Solicitor General, State of Louisiana

Race & School Discipline Aug 24, 2023

During President Obama’s second term, the U.S. Education Department began sharing studies indicating that black students were disciplined at higher rates than their white peers. These data were viewed as evidence of racial bias, and, in 2014, the Education and Justice Departments jointly published a resource package to help American schools “…promote fair and effective disciplinary practices that will make schools safe, supportive, and inclusive for all students,” (DOJ).
Supporters applauded these steps from the federal government saying they reduced schools’ racial disparities in disciplinary decisions thereby curtailing the “school-to-prison pipeline.” Critics countered that the guidance misstated federal civil rights law, encouraged racial discrimination in the allocation of school discipline to produce demographic parity, and left classrooms less functional.
The 2014 resource package was ultimately rescinded in 2018 under the Trump Administration, only to be largely restored by the Biden Administration. In May 2023, the Education and Justice Departments published a “Resource on Confronting Racial Discrimination in Student Discipline.”
What is the best path forward for appropriate and meaningful disciplinary decision making in American schools? How will our school children be best served? What does the evidence really show about race and school discipline? Please join us as an expert panel discusses the legal and educational contours of the most recent guidance on race and school discipline.
Featuring:
--Dr. Juan Del Toro, Assistant Professor, Department of Psychology, University of Minnesota
--Max Eden, Research Fellow, American Enterprise Institute (AEI)
--Kristen Harper, Vice President for Public Policy and Engagement, Child Trends
--Dan Morenoff, Executive Director, American Civil Rights Project
--[Moderator] Alison Somin, Legal Fellow, Center for the Separation of Powers, Pacific Legal Foundation

Conservatives Talk Presidential Power: The Hunter Biden Investigations Aug 24, 2023

John Malcolm and John Yoo continued their discussion of presidential power with a focus on the Hunter Biden investigations. They will take a look at the probes surrounding Hunter Biden’s business dealings, the role of President Joe Biden, and the competing roles of Congress and the executive branch in the investigations.
Featuring:
--John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
--Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute; Visiting Fellow, Hoover Institution

Conservatives Talk Presidential Power: Trump's Indictment in Georgia Aug 24, 2023

John Malcolm and John Yoo examined the indictment of former President Donald Trump in the 2020 election probe in Georgia as he now faces 91 charges across four separate indictments. They will discuss the facts and law of Trump's latest indictment and the intersection between criminal law, presidential elections, and the Constitution.
Featuring:
--John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
--Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute; Visiting Fellow, Hoover Institution

Litigation Update: Coalition for TJ v. Fairfax County School Board Aug 17, 2023

Fairfax County, Virginia’s Thomas Jefferson High School for Science and Technology – commonly known as TJ – is the #1 ranked public high school in the country.
In 2020, the Fairfax County School Board enacted measures intended to increase racial diversity in TJ’s student body. These policies changed the school’s admissions process and drew criticism from some TJ parents, locals, and national observers. The changes included discontinuing the admissions test, allowing race-consciousness, and capping the number of students allowed admission from each of the district’s 23 middle schools. In the end, the new system led to a reduction in the number of Asian-American students admitted to TJ.
In March 2021, Coalition for TJ sued the Fairfax County School Board over the new admissions policies alleging discrimination against applicants of Asian heritage. The U.S. District Court for the Eastern District of Virginia granted Coalition for TJ’s motion for summary judgment in February 2022. Fairfax County School Board then appealed the District Court’s permanent injunction to the Fourth Circuit. The Fourth Circuit stayed the District Court order. The Coalition for TJ filed an emergency stay application to the U.S. Supreme Court but was denied; the case was remanded to the Fourth Circuit and heard in September 2022. In May 2023, the Fourth Circuit reversed the District Court allowing the new admissions plan to be enacted.
Coalition for TJ’s legal representation, Pacific Legal Foundation, is now planning to file a cert petition to the U.S. Supreme Court. In the lead up to filing, Erin Wilcox will join us to discuss the case and offer an update on the latest events.
Featuring:
--Erin Wilcox, Attorney, Pacific Legal Foundation

How Reliable are Corporate ESG Ratings? Aug 15, 2023

Environmental, Social, and Corporate Governance (ESG) investing has grown in popularity in recent years. As a result of major investment firms and individual stockholders making ethical and social considerations in their investing, firms and corporations have developed ESG rating matrices to grade publicly traded companies on their commitment to diversity and the fight against climate change.
These ranking systems, however, have raised eyebrows in light of recent news that major tobacco companies are receiving higher ESG scores than the electric car manufacturer, Tesla. Serious questions are being raised about the reliability of these rating systems as tools for investors, and whether a company's focus on diversity and inclusion on its board of directors should be considered an ethical investment, even if its main product is responsible for millions of deaths every year.

Litigation Update: New York's "Rent Stabilization Act" Part III Aug 09, 2023

Does New York’s “rent stabilization” law violate the federal Constitution? The law, which regulates approximately 1 million apartments in New York City, was enacted more than fifty years ago and remains in effect based on an every-three-year declaration of a housing “emergency.” The law does not merely regulate rent levels. It also limits a property owner’s right to determine who uses an apartment, to convert the property to new uses or to replace the existing building with a new structure, and to occupy the property for use by the owner and his or her family.
A lawsuit filed in 2019, Community Housing Improvement Program v. City of New York, asserted that the New York law—including 2019 amendments that significantly increased the restrictions on property owners— violates due process and affects both physical and regulatory takings of the property that it regulates. The case was first dismissed at the District level. Earlier this year, the United States Court of Appeals for the Second Circuit affirmed the District Court's ruling and found the 2019 amendments compliant with the Fifth Amendment to the U.S. Constitution. The case now moves to the Supreme Court as plaintiffs—armed with 14 amicus briefs—petition the Court to reverse the Second Circuit’s decision.
Rent regulation is not just a New York phenomenon. Other cities across the country have enacted, or are considering, rent regulation legislation. Andrew Pincus, lead counsel for the plaintiffs, discussed the constitutional challenge in the context of the Supreme Court’s evolving property rights jurisprudence.
Featuring:
--Andrew Pincus, Partner, Mayer Brown

A Conversation on the Right: The Current State of Presidential Power Aug 08, 2023

In this recorded webinar, John Malcolm and John Yoo revive their discussion of presidential power, prosecution, impeachment, and separation of powers with the prosecution of former President Donald Trump for the events surrounding the January 6, 2021 attack on the U.S. Capitol. They discussed the facts and law of Trump’s indictment, the developments in the Hunter Biden investigations, and the intersection between criminal law, presidential elections, and the Constitution.
Featuring:
--John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
--Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute; Visiting Fellow, Hoover Institution

Can States Leverage Their Local Market to Force Out-Of-State Regulations? Aug 01, 2023

How far can states use their local economy to put economic pressure on other states to change their policies? In National Pork Producers Council v. Ross (2023), the Supreme Court considered this question, and had a very unusual split 5-4 with Justices Gorsuch, Thomas, Sotomayor, Kagan, and Barrett in the majority. The Court rejected a challenge to a California regulation that prohibited the in-state sale of pork which was previously out-of-state “confined in a cruel manner.”
This panel will discuss the decision and the originalist foundations, if any, of the dormant Commerce Clause jurisprudence. Additionally, even if it properly exists, what is its extent and the impact of the Court’s decision?
Featuring:
--Jack Fitzhenry, Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
--Prof. Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law
--Prof. Michael S. Greve, Professor of Law, Antonin Scalia Law School
--Moderator: Elizabeth Slattery, Senior Legal Fellow, Pacific Legal Foundation

Newman v. Moore: Intra-Federal Circuit Dispute Raises Multiple Cross-Disciplinary Issues Jul 28, 2023

In 1984, Hon. Pauline Newman became the first judge appointed directly to the United States Court of Appeals for the Federal Circuit. Judge Newman has served on that court since, and serves to this day. Reports surfaced in April of this year that Federal Circuit Chief Judge Kimberly Moore had initiated a complaint against Judge Newman under the Judicial Conduct and Disability Act of 1980. On May 10, 2023, Judge Newman filed suit in the United States District Court for the District of Columbia against Chief Judge Moore; two other Federal Circuit judges in their capacities as members of the special committee appointed by Chief Judge Moore to investigate the complaint; and the Judicial Council of the Federal Circuit and its members. Judge Newman's federal lawsuit raises issues not just of judicial conduct (given the underlying complaint) and patent law (which are interesting given Judge Newman's and the court's history as well as what some view as its drift away from innovation-protective jurisprudence), but also separation of powers (since Judge Newman was appointed by the President and confirmed by the Senate), and even age/disability discrimination (Judge Newman is 95 years old). Our panel discussed these and related issues arising from this most-unusual set of circumstances.
Featuring:
--Prof. Paul R. Gugliuzza, Professor of Law, Temple University Beasley School of Law
--Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston
--Prof. Arthur Hellman, Professor Emeritus of Law, University of Pittsburgh School of Law
--Cheryl Stanton, Chief Legal and Government Affairs Officer, BrightStar Care
--Moderator: John J. Park Jr., Of Counsel, Strickland Brockington Lewis LLP

Artificial Intelligence, Anti-Discrimination & Bias Jul 25, 2023

Artificial intelligence (AI) technologies are not new, but they have made rapid advances in recent years and attracted the attention of policymakers and observers from all points on the political spectrum. These advances have intensified concerns about AI’s potential to discriminate against select groups of Americans or to import human bias against particular ideologies.
AI programs like ChatGPT learn from internet content and are liable to present opinions – specifically dominant cultural opinions – as facts. Is it inevitable that these programs will acquire and reproduce the discriminatory ideas or biases we see in humans? Because AI learns by detecting patterns in real world data, are disparate impacts unavoidable in AI systems used for hiring, lending decisions, or bail determinations? If so, how does this compare to the bias of human decision-making unaided by AI?
Increasingly, laws and regulations are being proposed to address these bias concerns. But do we need new laws or are the anti-discrimination laws that already govern human decision-makers sufficient? Please join us as an expert panel discusses these questions and more.

Litigation Update: Buettner-Hartsoe v. Baltimore Lutheran High School Association Jul 24, 2023

Buettner-Hartsoe v. Baltimore Lutheran High School Association d/b/a Concordia Preparatory School poses a question of whether Title IX applies to schools that do not receive federal financial aid.
Former students of Concordia Preparatory School, a private school, sued Concordia Prep. under Title IX alleging that the school had not adequately addressed complaints of sexual assault and sexual harassment. Concordia Prep. argued the lawsuit should be dismissed because, as a private school that did not receive federal financial assistance, it was not subject to Title IX.
Judge Bennett of the United States District Court for the District of Maryland rejected that argument, instead holding that, because the school received a federal tax exemption as a 501(c)(3) organization, it was therefore subject to Title IX because it is a 501(c)(3) organization, regardless of the fact the school does not otherwise receive direct federal aid, nor any financial aid from the U.S. Department of Education.
Traditionally, independent schools that do not receive federal financial aid have not been considered to be subject to Title IX’s requirements. This decision could substantively expand the number of schools which are interpreted to be subject to Title IX. The case is currently on appeal. Mary Margaret Beecher of Napa Legal Institute, which filed an amicus brief in the case, joined us to discuss the case, the nature of the litigation, and the possible effects of this decision.
Featuring:
--Mary Margaret Beecher, Vice President and Executive Director, Napa Legal Institute
--(Moderator) Amanda Salz, Associate, Morgan, Lewis, & Bockius LLP

On "Regulatory Whiplash" Jul 19, 2023

The regulatory environment in the United States is often complex. State and federal laws sometimes contradict each other. The transition of the American Presidency from one political party to another can lead to rapid and dramatic changes in the regulatory landscape. Even transfers of power between administrations of the same party or shifting priorities of one administration can cause significant changes in regulation.
This phenomenon of swift changes in regulatory policy is sometimes referred to as regulatory whiplash. In this recorded webinar, an expert panel discussed regulation and regulatory whiplash in the context of civil rights.
Featuring:
--Will Trachman, General Counsel, Mountain States Legal Foundation
--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
--[Moderator] Alison Somin, Legal Fellow, Center for the Separation of Powers, Pacific Legal Foundation

Litigation Update: Missouri v. Biden Jul 19, 2023

On July 4, 2023, a preliminary injunction was issued in Missouri v. Biden (Western District of Louisiana, 3:22-CV-01213). At issue is the constitutionality of alleged collusion between various federal government agencies and social media companies.
Plaintiffs allege that Defendants – including President Biden, White House Press Secretary Karine Jean-Pierre, Secretary Xavier Becerra, Secretary Alejandro Mayorkas, and numerous other key federal officials – violated the First Amendment by attempting to suppress protected speech. Defendants have described the speech in question as disinformation, misinformation, and malinformation.
Some observers are calling the case a major battleground for the future of internet speech. In this recorded webinar Harmeet K. Dhillon and Casey Mattox delivered an update on recent events.
Featuring:
--Harmeet K. Dhillon, CEO, Center for American Liberty & Founding Partner, Dhillon Law Group Inc.
--[Moderator] Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity

Talks with Authors: We May Dominate the World: Ambition, Anxiety, and the Rise of the American Colossus Jul 13, 2023

In his newly released book We May Dominate the World: Ambition, Anxiety, and the Rise of the American Colossus, Sean A. Mirski tells the story of how the United States asserted its growing power in the Western hemisphere in the century following the Civil War. Sean Mirski joined us to discuss this chapter of America's history and to share the lessons that we can draw from it as China and other states seek hegemony within their own regions today.
Featuring:
--Sean A. Mirski, Senior Associate, Arnold & Porter
--Moderator: Daniel G. West, Director, SCF Partners

Federal Spectrum Coordination: Pitfalls and Progress Jul 13, 2023

As wireless devices become critical to our daily lives, the process of allocating and managing electromagnetic spectrum rights has become more important but also more contested. Breakdowns in the federal spectrum coordination process and the inability to free up enough spectrum for commercial use threaten American leadership in wireless technology and limit the benefits Americans can get from their wireless devices.
Two former National Telecommunications and Information Administration (NTIA) administrators joined us for a discussion of how the NTIA makes spectrum policy and what reforms are needed to ensure effective federal policy that advances both federal and commercial interests.
Featuring:
--Hon. John Kneuer, President and Founder, JKC Consulting LLC; Former Administrator, NTIA
--Hon. David Redl, Founder and President, Salt Point Strategies; Former Administrator, NTIA
--Moderator: Scott D. Delacourt, Partner, Wiley Rein LLP
--Moderator: Joe Kane, Director of Broadband and Spectrum Policy, Information Technology and Innovation Foundation

Courthouse Steps Decision: Biden v. Nebraska Jul 11, 2023

On Friday, June 30, 2023, the Supreme Court issued its decision in Biden v. Nebraska. The case arose after President Biden enacted a plan to cancel between $10,000 and $20,000 in student loans for qualified borrowers through executive action. The Biden Administration argued that the Secretary of Education was granted the authority to forgive student loans in the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act).
In a 6-3 decision, the Court held that the HEROES Act does not grant the Secretary of Education the authority to establish a student loan forgiveness program discharging approximately $430 billion in student loans and affecting nearly all borrowers. Chief Justice Roberts delivered the Court’s opinion; Justice Barrett filed a concurring opinion focused primarily on the Major Questions Doctrine; Justice Kagan filed the dissenting opinion.
In this recorded webinar, Jesse Panuccio discussed the decision.
Featuring:
--Jesse Panuccio, Partner, Boies Schiller Flexner LLP

Courthouse Steps Decision: Arizona v. Navajo Nation Jul 10, 2023

On Thursday, June 22, 2023, the Supreme Court issued its decision in Arizona v. Navajo Nation. In a 5-4 decision, the Court held that the United States owes no “affirmative duty” to the Navajo Nation to secure water, reversing a decision by the US Court of Appeals for the 9th Circuit. The majority held that the 1868 Treaty of Bosque Redondo did not establish a federal obligation to provide water.
The decision hinged on the way the court framed the Nation's claims. Accepting the federal government's argument, the majority viewed Indian treaties as establishing rights to various resources, including land, timber, minerals, and water. Each property right was seen as a "stick in the bundle of property rights that make up a reservation." Consequently, the burden was placed on the Navajo Nation to demonstrate that the treaty explicitly obligated the United States to go beyond recognizing tribal water rights. Drawing on precedents like United States v. Jicarilla Apache Nation, the Court held that the United States only owes obligations to Indian tribes as explicitly stated in treaties, statutes, or regulations. In other words, once the federal government recognizes tribal property rights through a treaty, its obligations are limited unless further enactments exist.
AJ Ferate and Jennifer Weddle joined us to break down the Court’s findings.
Featuring:
--Jennifer Weddle, Shareholder & Co-Chair, American Indian Law Practice Group, Greenberg Traurig LLP
--Anthony J. Ferate, Of Counsel, Spencer Fane LLP

Courthouse Steps Decision: 303 Creative v. Elenis Jul 07, 2023

On June 30, 2023 U.S. Supreme Court decided 303 Creative LLC v. Elenis. Petitioner Lorie Smith, an artist in Colorado and owner/founder of the graphic design firm 303 Creative LLC. challenged Colorado’s Anti-Discrimination Act (CADA) on the grounds it is unconstitutional, arguing, among other things, it violates her right to free speech.
The Court ruled “The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.”
In this Post-Decision Courthouse Steps webinar, a panel of experts broke down and analyzed the Court’s decision.
Featuring:
--Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity
--Prof. Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law
--[Moderator] Prof. Michael Dimino, Professor of Law, Widener University Commonwealth Law School

Courthouse Steps Decision: Counterman v. Colorado Jul 06, 2023

In Counterman v. Colorado, the Court considered a question of free speech and criminal law: whether, in order for a statement to be categorized as a "true threat" and thus not protected under a right to free speech, the speaker must subjectively know or intend the threatening nature of the statement, or whether it is enough that an objective "reasonable person" would regard the statement as a threat of violence. On June 27, 2023 the Court held that “The State must prove in true-threats cases that the defendant had some subjective understanding of his statements’ threatening nature, but the First Amendment requires no more demanding a showing than recklessness.”
In this Post-Decision Courthouse Steps webinar, where broke down and analyzed the Court’s decision.
Featuring:
--Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation

Courthouse Steps Decision: Samia v. United States Jul 05, 2023

On June 22, 2023, the Supreme Court released its decision in Samia v. United States. The main question at issue in the case was whether the admission of a codefendant’s redacted out-of-court confession that incriminates the defendant due to its content violates the Confrontation Clause of the Sixth Amendment. The Court held “the Confrontation Clause was not violated by the admission of a nontestifying codefendant’s confession that did not directly inculpate the defendant and was subject to a proper limiting instruction.”
In this Post-Decision Courthouse Steps webinar, we will broke down and analyzed the Court’s decision.
Featuring:
--Robert McBride, Partner-in-Charge, Northern Kentucky, Taft Stettinius & Hollister LLP

Courthouse Steps Decision: Groff v. DeJoy Jul 05, 2023

On June 29, 2023 SCOTUS issued an opinion concerning Title VII, religious liberties, and employment law. In deciding Groff v. DeJoy, the Court held “ Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”
The case involved Gerald Groff, a Christian who due to his religious convictions treated Sundays as a sabbath and thus did not work on those days, who formerly worked for the U.S. Postal Service in Pennsylvania. His refusal to violate his beliefs to work Sunday shifts led to disciplinary action and his eventual resignation. Groff sued and the following litigation raised two questions that the Court considered. Both concerned the protections provided to employees who seek to practice their religious beliefs in the context of the workplace. One was whether the Court should overrule the “more-than-de-minimis-cost” test for refusing religious accommodations under Title VII of the Civil Rights Act of 1964 established in Trans World Airlines, Inc. v. Hardison. The other concerned whether burdens on employees are sufficient to constitute “undue hardship on the conduct of the employer’s business” for the employer under Title VII.
In this Post-Decision Courthouse Steps webinar, where we broke down and analyzed the Court’s decision.
Featuring:
--Stephanie Taub, Senior Counsel, First Liberty Institute
--Bruce Cameron, Senior Atorney, National Right to Work Legal Defense Foundation

Courthouse Steps Decision: SFFA v. Harvard Jun 30, 2023

On Thursday, June 29, 2023, the Supreme Court issued its decision in Students for Fair Admissions Inc. v. President and Fellows of Harvard College. The opinion jointly addressed the issues presented in SFFA v. Harvard and SFFA v. University of North Carolina. The question before the Court was whether the race-conscious admissions systems used by Harvard and UNC violate the Equal Protection Clause of the Fourteenth Amendment.
In a 6-3 decision, the Court held that Harvard and UNC’s admissions programs violate the Equal Protection Clause of the Fourteenth Amendment. Chief Justice Roberts wrote for the Court; Justices Thomas, Gorsuch, and Kavanaugh filed concurring opinions; Justices Sotomayor and Jackson filed dissenting opinions. Justice Jackson took no part in the consideration or decision of SFFA v. Harvard.
Listen to this recorded webinar where Curt Levey discusses the decision.
Featuring:
--Curt Levey, President, Committee for Justice

Courthouse Steps Decision: Mallory v. Norfolk Southern Railway Co. Jun 29, 2023

On Tuesday, June 27, 2023, the Supreme Court issued its decision in Mallory v. Norfolk Southern Railway Co. The question before the Court was whether a Pennsylvania law governing out-of-state corporations registered to do business inside the state that purports to confer general personal jurisdiction over the registrant violates the Due Process Clause of the Fourteenth Amendment.
The Court vacated and remanded the case in a 5-4 opinion authored by Justice Gorsuch holding that the law comports with the Due Process Clause as set forth in Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co. (243 U.S. 93). Justice Barrett filed a dissenting opinion.
In this recorded webinar Ashley Keller, John Masslon, and Professor Brian Fitzpatrick discuss the decision.
Featuring:
--Ashley Keller, Partner, Keller Postman
--John Masslon, Senior Litigation Counsel, Washington Legal Foundation
--[Moderator] Brian Fitzpatrick, Milton R. Underwood Chair in Free Enterprise, Vanderbilt University Law School

Courthouse Steps Decision: Wilkins v. United States Jun 28, 2023

On March 28, 2023, the Supreme Court handed down its decision in Wilkins v. United States. The case involves a suit by neighbors to quiet title over a road easement that the United States interprets as allowing for public use. The United States argued the claim was jurisdictionally barred by the the Federal Quiet Title Act’s 12-year time limit.
The Court held that the Act’s statute of limitations is a nonjurisdictional claims-processing rule because a procedural requirement is only jurisdictional if Congress clearly states that it is. Justice Clarence Thomas, joined by Chief Justice Roberts and Justice Alito, dissented and would have held the time-bar jurisdictional because it is a waiver of sovereign immunity.
Jeffrey W. McCoy, attorney at the Pacific Legal Foundation, joined us for a courthouse steps decision teleforum moderated by Adam Griffin.
Featuring:
--Jeffrey McCoy, Attorney, Pacific Legal Foundation
--Moderator: Adam Griffin, Law Clerk, US District Courts

Courthouse Steps Decision: Moore v. Harper Jun 28, 2023

On Tuesday, June 27, 2023, the Supreme Court issued its decision in Moore v. Harper. The case concerned the Elections Clause of the U.S. Constitution and “the claim that the Clause vests state legislatures with authority to set rules governing federal elections free from restrictions imposed under state law,” 600 U.S. ___ (2023).
In a 6-3 decision, the Court rejected the “independent state legislature” doctrine recognizing the North Carolina Supreme Court’s authority to review the legislature’s rules for federal elections. Chief Justice Roberts issued the opinion of the Court; Justice Kavanaugh filed a concurring opinion; Justice Thomas filed a dissenting opinion.
In this recorded Teleforum Andrew Grossman discussed the Court’s opinion.
Featuring:
--Andrew Grossman, Partner, Baker & Hostetler LLP

The FCC's Digital Discrimination Rulemaking: Facilitating Equal Access to Broadband Services Jun 28, 2023

The Infrastructure Investment and Jobs Act, signed into law on November 15, 2021, requires the Federal Communications Commission (FCC), within two years, to promulgate rules to facilitate equal access to broadband internet services and to prevent "digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin." Significantly, the statute also requires that the rules take into account "issues of technical and economic feasibility." The FCC issued a notice of proposed rulemaking on December 22, 2022, and comments and reply comments have now been submitted.
Given the importance of widespread access to broadband services, the "Digital Discrimination" proceeding is one of the most important items on the FCC's agenda. Does the agency have authority to adopt rules that would impose liability on broadband providers based only on a showing of unintentional disparate impact or is evidence of intentional discrimination required? In considering liability, how should the agency take into account claims relating to the technical and economic feasibility of making available access? What impact will the rules have on investment and innovation under various scenarios? What type of process should the Commission employ in considering complaints of digital discrimination?
A panel of experts joined us for a lively discussion of these and other questions as the FCC prepares to adopt final rules in the digital discrimination proceeding.
Featuring:
--Seth L. Cooper, Director of Policy Studies & Senior Fellow, The Free State Foundation
--Harold Feld, Senior Vice President, Public Knowledge
--Clint Odom, Vice President, Strategic Alliances & External Affairs, T-Mobile
--Moderator: Randolph J. May, President, The Free State Foundation

Major Questions Doctrine and the Tech and Telecom Sectors After West Virginia v. EPA Jun 27, 2023

Last year, the Supreme Court issued a landmark decision in West Virginia v. EPA, in which the Court reinvigorated the “Major Questions Doctrine” of administrative law. Given the Federal Trade Commission’s efforts to expand its rulemaking powers under Section 5 of the FTC Act and the likely return of the “net neutrality” fight at the Federal Communications Commission once a third Democratic commissioner is confirmed, this webinar explored how the reinvigorated “Major Questions Doctrine” may impact tech and telecom policy.
Featuring:
--Ian Heath Gershengorn, Partner and Chair, Appellate & Supreme Court Practice, Jenner & Block LLP; Former Acting Solicitor General
--Thomas M. Johnson, Jr., Partner and Chair, Issues & Appeals Practice, Wiley Rein LLP; Former General Counsel, Federal Communications Commission
--Hon. Maureen K. Ohlhausen, Partner and Chair, Antitrust & Competition Practice, Baker Botts LLP; Former Acting Chairman and Commissioner, Federal Trade Commission
--Christopher J. Wright, Partner and Co-Chair, Issues & Appeals Practice, Harris, Wiltshire & Grannis LLP; Former General Counsel, Federal Communications Commission
--Moderator: Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal & Economic Public Policy Studies

Courthouse Steps Decision: Haaland v. Brackeen Jun 27, 2023

On Thursday, June 15, 2023, the Supreme Court issued its decision in Haaland v. Brackeen. The case was primarily concerned with the constitutionality of the Indian Child Welfare Act (ICWA), a federal law enacted in 1978 that governs state-level adoption and foster care cases involving Native American children. Among other provisions, the ICWA gives tribal governments jurisdiction over the adoption of Native American children who reside on a reservation or have certain tribal connections.
In a 7-2 decision, the Court affirmed the Fifth Circuit’s finding that the ICWA is constitutional, rejected petitioners’ Tenth Amendment argument, and found that petitioners lacked the standing required for other challenges made. Justice Barrett delivered the opinion for the Court; Justices Gorsuch and Kavanaugh filed concurring opinions; Justices Thomas and Alito filed dissenting opinions.
In this recorded webinar Jennifer Weddle discussed the Court’s findings.
Featuring:
--Jennifer Weddle, Principal Shareholder & Co-Chair, American Indian Law Practice Group, Greenberg Traurig, LLP

Talks With Authors: Judge Amul Thapar on "The People's Justice" Jun 27, 2023

On June 20, Judge Amul Thapar of the Sixth Circuit published "The People's Justice," in which he explores "the human stories behind twelve illustrative cases on which Justice [Clarence] Thomas has ruled."
In this video podcast, Judge Thapar joined the Federalist Society's Dean Reuter to discuss the book and Justice Thomas's legacy.
Featuring:
Hon. Amul R. Thapar, U.S. Court of Appeals for the Sixth Circuit
Moderator: Dean Reuter, Senior Vice President and General Counsel, Federalist Society
Transcript

Courthouse Steps Decision: United States v. Hansen Jun 26, 2023

On Friday, June 23, 2023, the Supreme Court released its decision in United States v. Hansen. At issue in Hansen was whether 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), a federal criminal statute that prohibits encouraging or inducing unlawful immigration for commercial or financial benefit sometimes termed “the encouragement provision,” violates the First Amendment.
Helamen Hansen operated an advising service for undocumented immigrants who wanted to pursue U.S. citizenship. Under the encouragement provision, Hansen was convicted of two counts of encouraging or inducing illegal immigration for financial gain (along with other federal crimes). He challenged those convictions, contending the law is facially overbroad. The Ninth Circuit agreed, vacating his convictions on those counts. The Court heard Oral Argument on March 27, 2023.
In this recorded Post-Decision Courthouse Steps webinar, where we broke down and analyzed the Court’s decision.
Featuring:
--Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland

Transatlantic Debate: Evaluating the EU-US Data Privacy Framework Jun 26, 2023

In October 2022, President Biden issued an executive order regarding the European Union - U.S. Data Privacy Framework. The Framework allows for data flows between the EU and the U.S., and it was established after the European Court of Justice struck down a prior agreement known as the EU-U.S. Privacy Shield. The executive order addresses U.S. collection of signals intelligence, which has been a source of concern for EU regulators and privacy advocates. The executive order limits signals intelligence collection to defined national security objectives, requires the privacy and civil liberties of all persons be considered regardless of nationality, and the collection must be proportionate. In addition, the executive order calls for a multi-layered review process that will allow individuals to lodge complaints regarding the collection of signals intelligence.
Our experts discussed whether the Framework addresses the concerns of privacy advocates in the EU and the U.S., and they considered the implications of the review process for U.S. intelligence collection. This program also explored whether the EU and U.S. can reach a durable privacy agreement given the tension between EU privacy preferences and U.S. national security needs.
Featuring:
--Max Schrems, Founder, NOYB
--Stewart Baker, Of Counsel, Steptoe & Johnson LLP
--Moderator: Matthew R. A. Heiman, General Counsel & Corporate Secretary, Waystar Health; Senior Fellow and Director of Planning, National Security Institute

Burnett v. Smith & Implied Rights of Action Jun 22, 2023

If a federal agent violates a citizen’s constitutional rights, does a justiciable cause of action arise? If yes, do federal courts have the power to award damages for constitutional violations? These questions have been considered by the U.S. Supreme Court in cases like Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) and Egbert v. Boule (2022).
Three state supreme courts have recently issued competing decisions on whether similar separation of powers concerns arise when state courts recognize rights under state constitutions.
Burnett v. Smith, issued on May 5, 2023, was the latest of these three decisions. The case arose after the plaintiff, garbage truck driver Cory Burnett, was pulled over by Iowa Department of Transportation Officer Philip Smith for a cracked windshield. Burnett was eventually arrested by Officer Smith for interference with official acts (Iowa Code §719.1). The charges were ultimately dismissed following a trial. Later, Burnett sued Officer Smith for, among other things, an unreasonable seizure directly under the Iowa Constitution. On appeal, the Supreme Court of Iowa unanimously affirmed the district court’s judgment against Burnett and, in the process, held that courts in Iowa cannot imply remedies directly under the Iowa constitution, overruling Godfrey v. State (898 N.W.2d, 2017).
In alignment with recent federal precedent, the court held that letting plaintiffs bring constitutional claims without the Iowa legislature first authorizing them “undermined the established allocation of responsibility between the legislative and the judicial branches of government.” This holding is at odds with decisions in Michigan (Bauserman v. Unemployment Insurance Agency) and Nevada (Mack v. Williams) where plaintiffs are allowed to sue without a legislative cause of action, provided certain conditions are met.
Are state courts allowed to recognize remedies directly under their state constitutions? Or are they similarly constrained by separation of powers? In this recorded webinar discussion Anya Bidwell and Erin Hawley consider these questions and more.
Featuring:
--Anya Bidwell, Attorney, Institute for Justice
--Erin Hawley, Senior Counsel, Alliance Defending Freedom

Dueling Decisions on the Regulation and Distribution of Mifepristone: AHM v. FDA & WA v. FDA Jun 21, 2023

Two cases concerning the FDA’s approval of Mifepristone, Alliance for Hippocratic Medicine v. United States Food and Drug Administration (AHM v. FDA) and Washington v. United States Food and Drug Administration (WA v. FDA) have caused significant conversations concerning the FDA’s approval processes, statutes of limitation for challenges to approvals, standing, administrative review, and judicial authority. The cases present interesting questions concerning the regulatory process, separation of powers, and the role of judges.
In AHM v. FDA, a judge out of the Northern District of Texas blocked the FDA’s approval of the drug, meaning it could no longer be distributed as an FDA-approved drug. The same day, in WA v. FDA, however, a separate district judge ruled the FDA was being overly restrictive and barred it from altering the regulatory status of Mifepristone in approximately a third of the country. Perhaps due to the drastic split between the courts, both cases have quickly ascended through the courts of appeals.
Join our panel of experts, including Adam Unikowsky --a partner at Jenner & Block who has written substantively on the issue and and whose firm submitted an amicus brief on behalf of numerous organizations in support of the FDA in AHM v. FDA, and Thomas Jipping –a Senior Legal Fellow at the Heritage Foundation where he has published on these issues, in a conversation moderated by Jennie Lichter as they discuss these cases, their substance, and the possible ramifications of future decisions.
Featuring:
Thomas Jipping, Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
Adam Unikowsky, Partner, Jenner & Block LLP
[Moderator] Jennie Lichter, Deputy General Counsel, The Catholic University of America

New START, Nuclear Weapons, and the New Landscape: Arms Control and Deterrence Post-Ukraine Jun 20, 2023

In February 2023, Russian President Vladimir Putin announced that Russia would withdraw from the New START arms reduction treaty, which was the last remaining arms control treaty between the two nations that together control almost 90% of the world’s nuclear warheads. Then, in March, Putin announced that Russia would place nuclear-capable ballistic missile systems in Belarus, which shares a border with Poland. Harvard Professor and national security expert Stephen P. Rosen discussed the implications of these events for the U.S. security and arms-control efforts, as well as the broader strategic landscape for nuclear weapons.
Featuring:
--Stephen P. Rosen, Beton Michael Kaneb Professor of National Security and Military Affairs, Harvard University
--Moderator: Dan West, Director, SCF Partners

Courthouse Steps Decision: Sackett v. Environmental Protection Agency Jun 20, 2023

In Sackett, the Court clarified one of the longest-standing environmental law challenges: defining “waters of the United States.” The Court unanimously rejected the “significant nexus” test for jurisdiction and adopted the “relatively permanent waters” test from the plurality decision in the 2006 case, Rapanos v. United States. Also in Sackett, a 5-4 majority narrowed the definition of adjacent wetlands significantly.
Listen to a recording of this panel as they discuss the Court’s decision, how it might impact the Biden EPA’s recently adopted regulation, and the future of the Clean Water Act.
Featuring:
--Moderator: Hon. Thomas Griffith, Fmr. Judge, US Court of Appeals, DC Circuit; Special Counsel, Hunton Andrews Kurth
--Deidre Duncan, Partner & Environmental Practice Group Leader, Hunton Andrews Kurth
--Tom Ward, Vice President for Litigation, National Association of Home Builders
--Sambhav Sankar, Senior Vice President of Programs, Earthjustice
Professor William W. Buzbee, Director, Environmental Law & Policy Program, Georgetown Law

Courthouse Steps Decision: Allen v. Milligan Jun 15, 2023

On Thursday, June 8, 2023, the Supreme Court issued its decision in Allen v. Milligan. The case considered whether the districting plan adopted by the State of Alabama for its 2022 congressional elections violated §2 of the Voting Rights Act. §2 of the Voting Rights Act reads – “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.”
In a 5-4 decision with one concurring and two dissenting opinions, the Court held that “plaintiffs demonstrated a reasonable likelihood of success on their claim that HB1 violates §2,” 598 U.S. ___ (2023). The 112-page opinion is complex; it examines a considerable body of court precedent and law. Some court watchers and media outlets have described the Court’s opinion as a surprise.
In this recorded webinar, Professor Michael R. Dimino discusses the Court’s opinion and what might come next.
Featuring:
--Professor Michael R. Dimino, Professor of Law, Widener University Commonwealth Law School

City Hall and Chevron: Administrative Deference at the Local Government Level Jun 14, 2023

Most of the public debate about administrative deference has been focused on federal agencies and the Chevron and Auer doctrines. There is an old adage though that “You can’t fight City Hall.” This panel discussion among current and former local government attorneys took a critical look at this adage through the lens of administrative deference at the local level. Topics included an evaluation of Chevron and Auer-type deference at the local level when interpreting municipal ordinances (noting, for example, that Florida has recently barred Chevron deference for localities), whether the lack of separation of powers within local governments alters how administrative deference should be assessed, whether deferential standards of appellate review for local government decisions provides an adequate judicial check, and what procedural due process safeguards have been effective in ensuring that “you can fight City Hall” when a litigant has a meritorious case.
Featuring:
--Amanda Conn, General Counsel, WSSC Water; Professorial Lecturer in Law, George Washington Law School
--Craig E. Leen, Partner, K&L Gates; Professorial Lecturer in Law, George Washington Law School; Former OFCCP Director and Former Coral Gables City Attorney
--Michael Murawski, Executive Director, City of Naples Commission on Ethics and Government Integrity
--(Moderator) Hon. Alexander S. Bokor, Judge, Florida Third District Court of Appeal; Former Assistant County Attorney for Miami-Dade County

New Voices in Administrative Law: The Emerging Debates on AI Regulation Jun 13, 2023

Artificial intelligence is a remarkable, disruptive force. AI services like ChatGPT already perform tasks once thought impossible for computers to complete. And AI's capabilities are growing exponentially. Although AI promises many benefits, it also carries risks and potential for abuse, which has led some commentators across the ideological spectrum to call on the government to regulate AI. What is the government's role, if any, in the AI revolution? Is the government capable of regulating AI without creating excessive externalities? Join three new voices in administrative law for a framing of the key debates emerging around AI regulation.
Featuring:
Eli Nachmany, Law Clerk to Hon. Steven J. Menashi, U.S. Court of Appeals for the Second Circuit
Laura Stanley, Law Clerk to Hon. Stephen Schwartz, U.S. Court of Federal Claims
Seanhenry VanDyke, Law Clerk to Hon. Gregory Katsas, U.S. D.C. Circuit Court of Appeals
[Moderator] Prof. Aram Gavoor, Associate Dean for Academic Affairs; Professorial Lecturer in Law, The George Washington University Law School

504 Regulations Under the Current Administration Jun 08, 2023

Section 504 of the Rehabilitation Act of 1973 protects qualified "individuals with disabilities" from discrimination by "programs or activities" that receive federal funding. The word disability is defined in Title 42 USC Section 12102, and it is noted that the definition "shall be construed in favor of broad coverage." Similarly, 504 regulations cover a wide array of "programs or activities" - colleges, corporations, state government entities, even local government entities, including public schools, can meet the definition of a covered "program or activity."
The Biden Administration has wrestled with Section 504 on issues like remote learning, masking, transgender status, child welfare, and more. Additionally, there has been increased discussion surrounding Section 504's applicability to private schools. Some disability advocates have argued that Section 504 is outdated and needs to be revamped before the end of President Biden's first term.
What updates to Section 504 can we expect? What trends have experts observed in 504 regulations before and after President Biden took office? Does Section 504 inadequately address disability discrimination today? Please join us as Kim Richey and Professor Robert Dinerstein consider these questions and more.

What is the Future of Textualism? Jun 01, 2023

Recently, the application of Textualism by the Supreme Court of the United States--the predominant method of statutory interpretation that favors the plain meaning of text over legislative intent, statutory purpose, or legislative history--has given rise to rich debate as to its legitimacy, vitality, and future application. This webinar explored and advanced that debate with some of the leading minds in the field.
Featuring:
--Prof. Nicholas Bagley, Professor of Law, University of Michigan Law School
--Prof. William Baude, Professor of Law, University of Chicago Law School
--Prof. Emily Bremer, Associate Professor of Law, University of Notre Dame Law School
--Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School
--[Moderator] Hon. Gregory G. Katsas, Circuit Judge, U.S. Court of Appeals for the District of Columbia Circuit
Related Links:
The 2023 Scalia Lecture: Beyond Textualism?, Harvard Journal of Law and Public Policy, Vol. 46, 2023, available at https://papers.ssrn.com/sol3/p...
Interpreting the Administrative Procedure Act: A Literature Review, 98 Notre Dame L. Rev. (forthcoming 2023), available at https://ssrn.com/abstract=4340363.

Courthouse Steps Decision: Amgen Inc. v. Sanofi May 30, 2023

On May 18, the Supreme Court ruled unanimously in favor of Sanofi in its dispute with Amgen over alleged patent infringement. The case involved the application of the statutory enablement requirement of Section 112 of the patent laws to what is referred to as a "genus claim" as it applies in the context of pharmaceutical applications. The two patents in dispute relate to antibody drugs that reduce low-density lipoprotein (“LDL”) cholesterol.
Specifically at issue was "whether enablement is governed by the statutory requirement that the specifications teach those skilled in the art to 'make and use' the claimed invention, or whether it must instead enable those skilled in the art 'to reach the full scope of claimed embodiments' without undue experimentation—i.e., to cumulatively identify and make all or nearly all embodiments of the invention without substantial 'time and effort.'"
Robert Rando, an intellectual property attorney who filed an amicus brief in the case, joined us to unpack the decision.
Featuring:
--Robert J. Rando, Partner, Greenspoon Marder LLP

Courthouse Steps Decision: Tyler v. Hennepin County, Minnesota May 30, 2023

On Thursday, May 25, 2023, the Supreme Court issued a unanimous decision in Tyler v. Hennepin County, Minnesota, a landmark case addressing property rights under the Takings Clause. The case specifically focuses on the issue of "home equity theft," which refers to a practice of local governments seizing a property’s entire value to settle a much smaller delinquent property tax debt.
Hennepin County foreclosed on Geraldine Tyler's home to cover her delinquent property taxes, having sold the home for $40,000 and retained the $25,000 surplus as profit. Tyler argued that the county could not take the equity in her home and asked the Supreme Court to declare the forfeiture of her home's equity as an unconstitutional taking and excessive fine. The county maintained that Tyler had sufficient time to pay her taxes and was not entitled to any refund.
The Court unanimously ruled that such practices qualify as takings requiring the payment of "just compensation" under the Takings Clause of the Fifth Amendment. It also concluded that state law is not the sole source of the definition of property rights under the Takings Clause, and therefore state governments cannot seize private property without compensation simply by redefining it as the state's property.
Listen to Tony Francois's analysis of the decision and discussion the potential implications from this landmark ruling.
Featuring:
--Tony Francois, Partner, Briscoe Ivester & Bazel

Courthouse Steps Decision: Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith May 30, 2023

On May 18, the Supreme Court ruled in favor of rock and roll photographer Lynn Goldsmith in a dispute between Goldsmith and the Andy Warhol Foundation regarding Warhol’s works based on Goldsmith’s photo of the musician Prince. The fair use doctrine excuses from liability certain unlicensed uses of copyrighted works, and the question before the Court was whether Warhol’s creation of a series of paintings copied from the photo, and the licensure of those paintings to periodicals, constituted a fair use. In a 7-2 decision, the Court ruled that it did not.
Intellectual property law professor Zvi Rosen, who filed an amicus brief in the case in support of Goldsmith, joined us to break down the decision and answer audience questions.
Featuring:
--Zvi Rosen, Assistant Professor, Southern Illinois University School of Law

Courthouse Steps Decision: Gonzalez v. Google & Twitter, Inc. v. Taamneh May 22, 2023

On Thursday, May 18, 2023, the Supreme Court issued opinions in Gonzalez v. Google and Twitter v. Taamneh. In the Twitter case, the Court unanimously reversed the Ninth Circuit and held that plaintiffs “failed to state a claim under [18 U.S.C.] §2333(d)(2).” Justice Thomas wrote for the Court and Justice Jackson issued a concurring opinion. In Gonzalez, the Court issued a per curiam opinion vacating and remanding the case to the Ninth Circuit for reconsideration in light of the Twitter holding.
The Gonzalez and Twitter cases were of great interest to some Court watchers because of their potential ramifications for Section 230 and social media platforms’ liability for bad outcomes connected to hosted content.
In this recorded webinar Erik Jaffe discussed the Court’s opinions and what comes next.
Featuring:
--Erik Jaffe, Partner, Schaerr | Jaffe LLP

Higher Ed & DEI May 18, 2023

In recent years, American organizations of all kinds have dedicated resources towards diversity, equity, and inclusion (DEI) initiatives. These initiatives have become a staple of policy, hiring practices, personnel training, organizational structure, and more. Educational institutions, and higher education in particular, have shown a commitment to DEI.
Do DEI practices in colleges and universities result in a better product for students? Do they improve campus communities?
Some argue that, yes, DEI is integral to a high-functioning university. These practices improve viewpoint diversity, make students feel more at home on their campuses, and help marginalized groups attain a quality education. Others argue that commitment to DEI has resulted in bloated administrations that increase tuition costs without delivering a better product. Moreover, DEI initiatives support some identity groups at the cost of others, and a fervent commitment to DEI can produce exclusive and unfair outcomes.
In this program, Ilya Shapiro and Professor Todd Clark discussed the merits of DEI initiatives and how state-level policy could shape the future of DEI on campus.
Featuring:
--Ilya Shapiro, Director of Constitutional Studies, Manhattan Institute
--Professor Todd Clark, Associate Dean of Academic Affairs and Professor of Law, St. Thomas University Law School
--[Moderator] Devon Westhill, President and General Counsel, Center for Equal Opportunity

Debating State Sentences for Violent Crime: How Tough is Tough Enough? May 16, 2023

Following a surge in many types of violent crime in 2020 and 2021 that has only recently begun to ebb in some places, many state legislatures, especially in southern states, have passed or are considering policies that are designed to result in longer periods behind bars for those convicted of serious violent crimes. Policy proposals include imposing or lengthening mandatory minimums, removing parole eligibility in certain cases, and requiring that a high percentage of the sentence be served behind bars (often referred to as “truth-in-sentencing”). However, there are also countervailing trends in states like California. Determining the right approach to sentencing and time served raises several questions:

What is the proper balance between uniformity and discretion and the degree of influence exercised by legislators versus prosecutors and judges?
To what degree is the focus on the length of the sentence or period of incarceration, as opposed to certainty that a significant percentage of the sentence, whatever its length, be served behind bars?
Given that elderly individuals have the lowest recidivism rates, would we be shortchanging public safety if we allocate too much prison space to those who committed a heinous crime decades ago as opposed to those who are in the midst of a crime spree involving less serious offenses and have failed at diversion and probation? How do we know whether a jurisdiction is efficiently allocating correctional resources to maximize public safety or perhaps is spending too much or too little on corrections?
Should the inquiry at parole solely be a forward-looking one which assesses future risk, as is the case in Michigan due to reforms a few years ago, or should paroling agencies also consider whether further punishment is warranted?
What are the merits of concurrent versus consecutive sentences in light of the Lara case that was argued before the Supreme Court in March? How does this relate to whether the primary goal of incarceration is punishment, incapacitation, or rehabilitation?

Featuring:
---Dr. Nazgol Ghandnoosh, Co-Director of Reasearch, The Sentencing Project
--Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation
--[Moderator] Marc Levin, Chief Policy Counsel, Council on Criminal Justice and Senior Advisor, Right on Crime

Litigation Update: LTL Management’s Chapter 11 Bankruptcy May 11, 2023

LTL Management LLC (LTL) is a subsidiary of Johnson & Johnson (J&J) that was established in 2021 to hold and manage claims related to a mass tort alleging that J&J’s talc-based baby powder caused many cases of ovarian cancer, mesothelioma, and other serious health issues. J&J claims that settling the mass tort in this manner is a reasonable and legitimate course of action. Some plaintiffs’ attorneys claim that J&J is using a bad faith strategy that serves no legitimate business purpose, and the tort litigation should be allowed to continue.
The case began in the United States Bankruptcy Court for the District of New Jersey. Chief Judge Michael Kaplan ruled in favor of LTL in February 2022 holding that LTL’s filing for Chapter 11 protection was “unquestionably a proper purpose under the Bankruptcy Code.” Upon an expedited appeal, a three-judge panel of the Third Circuit reversed and narrowly held in favor of claimants.
Hours later, LTL once again filed for Chapter 11 protection; the new filing includes an $8.9 billion settlement offer. Some – including the U.S. Department of Justice’s Trustee Program – continue to argue that J&J is misusing bankruptcy law through LTL, but others think the massive settlement is in the best interest of claimants. Both LTL and parent J&J reject that its bankruptcy filing is illegitimate, illegal, or in bad faith.
This webinar served as a second installment of the February 16, 2023 webinar titled Chapter 11 Bankruptcy & Mass Torts: A Review of the Third Circuit’s LTL Opinion with Professors Lindsey Simon and Tony Casey.
Featuring:
--Professor Tony Casey, Deputy Dean, Donald M. Ephraim Professor of Law and Economics & Faculty Director, The Center on Law and Finance, University of Chicago Law School
--Professor Lindsey Simon, Robert Cotten Alston Associate Chair in Corporate Law, University of Georgia School of Law
--Mikal C. Watts, Partner, Watts Guerra LLP

American Trade Law in a Post-WTO Appellate Body World May 11, 2023

For decades, the WTO Appellate Body regularly ruled that American laws violated the various WTO treaties. This forced Congress to rewrite WTO non-compliant statutes and altered U.S. policy on issues related to trade, the environment, and taxes - amongst others. In December 2019, however, a U.S. campaign to block Appellate Body judge nominations paralyzed the entire WTO Appellate Body system. As a result, the WTO cannot render final decisions in disputes between its member-states, and in recent years new laws like the Inflation Reduction Act's Electric Vehicle tax credit scheme openly flout WTO treaty rules.
How did the Appellate Body constrain U.S. laws pre-2019? Why did the U.S. choose to block nominations to the Appellate Body and what are the prospects that the Appellate Body returns? And if the Appellate Body does not return, how will this impact U.S. trade and trade-related laws? Join us for a panel where two leading experts on trade law and policy will discuss these issues.
Featuring:
--Jamieson Greer, Partner, King & Spalding
--David Ross, Partner, WilmerHale
--Moderator: Trevor R. Jones, JD Candidate, Harvard Law School

Courthouse Steps Oral Argument: Tyler v. Hennepin County May 04, 2023

On Wednesday, April 26th, the Supreme Court heard oral argument in Tyler v. Hennepin County, Minnesota.
Hennepin County foreclosed on Geraldine Tyler's home to cover her delinquent property taxes, selling the home for $40,000 and keeping the $25,000 surplus as profit. Tyler argues that the county cannot take the equity in her home and has asked the Supreme Court to declare the forfeiture of her home's equity an unconstitutional taking and excessive fine. The county maintains that Tyler had time to pay her taxes and is not entitled to any refund.
The Supreme Court will consider whether the county’s actions violate the Takings Clause and whether the forfeiture of property worth far more than the debt plus interest, penalties, and costs is an excessive fine within the meaning of the Eighth Amendment.
After the oral argument, Christina Martin, Counsel of Record in the case for Pacific Legal Foundation, joined us to break down the proceedings.
Featuring:
--Christina Martin, Senior Attorney, Pacific Legal Foundation
--Moderator: Tony Francois, Partner, Briscoe Ivester & Bazel

"The Diversity Lie" 20 Years Later May 02, 2023

In 2003, Professor Brian Fitzpatrick published a piece titled "The Diversity Lie" in which he discussed the recently decided Grutter v. Bollinger case. Twenty years later, the Supreme Court is on the precipice of deciding two important affirmative action cases in SFFA v. Harvard and SFFA v. UNC. How has Professor Fitzpatrick's analysis held up against the test of time? How has the Supreme Court changed? What does the future hold for affirmative action? Can universities install a program of race-neutral affirmative action?
Professors Brian Fitzpatrick and Randall Kennedy joined us to consider these questions and more as we reflect on the 20th anniversary of Grutter v. Bollinger.
Featuring:
--Professor Brian Fitzpatrick, Milton R. Underwood Chair in Free Enterprise, Vanderbilt Law School
--Professor Randall Kennedy, Michael R. Klein Professor, Harvard Law School
--[Moderator] Ted Frank, Director, Hamilton Lincoln Law Institute

Answering Threats to Taiwan Part II: Understanding the Military Dynamics of a US-China Conflict Apr 21, 2023

The announcement that the Taiwan President will visit the United States in early April has brought renewed attention to the potential conflict between the US and China over Taiwan. Additionally, some experts assert that the ongoing conflict between Russia and Ukraine has further intensified the need for the US and China to prepare for a possible military confrontation.Despite this perceived urgency, much of the discourse surrounding a Taiwan conflict focuses on the security concerns motivating both powers and the geopolitical fallout that would occur as a result. Our panel of defense and national security law experts will go beyond this analysis to examine the specific scenarios that could trigger conflict and the strategies that the US might deploy to protect its interests.
This recorded webinar features a robust discussion on one of the most pressing security challenges of our time.
Featuring:
--Col. Mark Cancian, (USMCR, ret.) Senior Adviser, International Security Program, CSISProf.
--Julian Ku, Senior Associate Dean for Academic Affairs, Faculty Director of International Programs, and Maurice A. Deane Distinguished Professor of Constitutional Law, Maurice A. Deane School of Law at Hofstra University
--Moderator: Prof. Jamil Jaffer, Adjunct Professor, NSI Founder, and Director, National Security Law & Policy Program, Antonin Scalia Law School, George Mason University
Part I: Where does Law Matter

Courthouse Steps Oral Argument: Counterman v. Colorado Apr 20, 2023

On April 19, 2023, the Court considered a question of free speech and criminal law: whether, in order for a statement to be categorized as a "true threat" and thus not protected under a right to free speech, the speaker must subjectively know or intend the threatening nature of the statement, or whether it is enough that an objective "reasonable person" would regard the statement as a threat of violence.
The facts of the case that poses this question for the Court, Counterman v. Colorado, are as follows. Billy Raymond Counterman was convicted and sentenced to four-and-a-half years in the state of Colorado for stalking a local female musician. According to Colorado Law, stalking entails “mak[ing] any form of communication with another person … in a manner that would cause a reasonable person to suffer serious emotional distress.”
Over the course of two years, Counterman sent the woman direct messages on Facebook in which he suggested that he had seen her while driving and made comments such as “Die” and “(expletive) off permanently.” The woman told a family member that she was “extremely scared” after receiving these messages.
Lower courts in Colorado upheld Counterman’s conviction, ruling that the appropriate test for whether Counterman’s statements qualified as a “true threat,” was whether a reasonable person would regard the statement as a threat of violence. The question now comes before the Court as to whether that “reasonable person” test is correct, or whether intent must be established.
In this recorded Teleforum we broke down and analyzed how oral argument went before the Court the day after this case is heard.
Featuring:
--Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation

A Seat at the Sitting - April 2023 Apr 19, 2023

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.

Slack Technologies v. Pirani (April 17) - Securities, Financial Services; Whether, to bring a securities lawsuit alleging misstatements in a registration statement, a plaintiff must plead and show that he bought shares registered under the allegedly misleading statement.
US ex rel. Schutte v. SuperValu Inc. & United States ex rel. Proctor v. Safeway [Consolidated] (April 18) - Financial Services; Whether and when a defendant’s subjective knowledge about whether its conduct was legal is relevant to whether it “knowingly” submitted false claims for payment to the government or “knowingly” made false statements in support of such claims in violation of the False Claims Act.
Groff v. Dejoy (April 18) - Labor, Religious Liberties; Whether to overrule the Supreme Court’s 1977 decision in Trans World Airlines v. Hardison, on the accommodations that employers must provide for their employees’ religious practices.
Counterman v. Colorado (April 19) - Free Speech; To determine whether statements are “true threats” that are not protected by the Constitution, should courts apply an objective test that considers whether a reasonable person would regard the statement as a threat of violence, or instead a subjective test that requires prosecutors to show that the speaker intended to make a threat?
Lac du Flambeua Band v. Coughlin (April 24) - Tribal Law; Whether the Bankruptcy Code unequivocally expresses Congress’s intent to abrogate the sovereign immunity of Native American tribes.
Tyler v. Hennepin County (April 26) - Property Rights; Whether the foreclosure on and sale of a home that was worth $25,000 more than the owner owed in taxes violated the Fifth Amendment’s takings clause, which bars the government from taking private property for public use without adequately compensating the property owners.

Featuring:
--Thomas F. Gede, Counsel, Morgan, Lewis & Bockius LLP
--Sharon Fast Gustafson, Principal, Sharon Fast Gustafson, Attorney at Law, PLC
--Brian Hauss, Senior Staff Attorney, Speech, Privacy & Technology Project, ACLU
--Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
--Moderator: Anastasia P. Boden, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute

Courthouse Steps Preview: Tyler v. Hennepin County Apr 19, 2023

Geraldine Tyler, a ninety-three-year-old homeowner, owed Hennepin County, Minnesota, nearly $12,700 in delinquent property taxes, plus interest, penalties, and costs. To cover her debt, the County foreclosed on her home and sold it for $40,000. However, the County also kept the surplus $25,000 as profit.
Minnesota, along with thirteen other states, authorize various government agencies to satisfy assorted government debts associated with real property by confiscating all title and equity in an owner’s property. Equity means the value in a piece of property beyond the encumbering debt. No one disputes the government’s ability to forfeit property to cover debts but Ms. Tyler argues the county cannot take the equity in her home.
Tyler asks the United States Supreme Court to rule Hennepin County’s forfeiture of the equity in her home an unconstitutional taking and excessive fine. However, the County argues that Tyler failed to pay her property taxes for five years, she had time to pay those taxes, and therefore the County was not required to refund Tyler any money from forfeiting her house to pay the property taxes.
Nancie Marzulla, who filed an amicus brief with the Atlantic Legal Foundation on behalf of the petitioner’s position, and John Bursch, who filed a petition for a writ of certiorari in Meisner v. Hall asserting the respondent’s position in Tyler joined us to discuss this important case.
Featuring:
--Nancie Marzulla, Partner, Marzulla Law
--John Bursch, Founder, Bursch Law PLLC
--Moderator: Tony Francois, Partner, Briscoe Ivester & Bazel

Courthouse Steps Oral Argument: Groff v. Dejoy Apr 18, 2023

In Groff v. Dejoy the Court was set to address two issues concerning the protections provided employees who seek to practice their religious beliefs in the context of the workplace. The Court was considering whether to overrule the “more-than-de-minimis-cost” test for refusing religious accommodations under Title VII of the Civil Rights Act of 1964 established in Trans World Airlines, Inc. v. Hardison. Also at issue was whether burdens on employees are sufficient to constitute “undue hardship on the conduct of the employer’s business” for the employer under Title VII.
Gerald Groff, a Christian who due to his religious convictions treated Sundays as a sabbath and thus did not work on those days, worked for the U.S. Postal Service in Pennsylvania. Although his sabbath-taking was not a problem at the beginning of his tenure with the USPS, following a 2013 agreement with Amazon, USPS began to provide service on Sundays and holidays. This meant that postal workers now had to work Sundays. Initially, Groff was able to avoid working Sundays by trading shifts with co-workers, but that eventually became untenable as co-workers were not willing or available to trade, resulting in Groff being scheduled for Sunday shifts he could not work due to his convictions. Following disciplinary action for missed shifts, and facing termination, Groff chose to resign. He sued USPS for refusing to accommodate his religious beliefs and practices as required by Title VII. The Third Circuit, following Hardison, ruled in favor of USPS, citing as sufficient to constitute the “undue hardship” test the burden placed on Groff’s coworkers who had to take more Sunday shifts and lessened workplace morale.
Groff appealed, and SCOTUS heard oral arguments in the case on April 18, 2023. In this Courthouse Steps webinar where we broke down and analyzed how oral argument went in the case the same day argument occurred.
Featuring:
--Hiram Sasser, Executive General Counsel, First Liberty Institute

Litigation Update: Gonzalez v. Trevino – When the Courts Wrestle with Qualified Immunity Apr 13, 2023

Gonzalez v. Trevino involves an alleged retaliatory conspiracy of city officials from Castle Hills, Texas to arrest Sylvia Gonzalez—a 72-year-old councilwoman—for spearheading a nonbinding petition criticizing the city’s manager. Gonzalez acknowledges that there was probable cause for her arrest and appellants asserted a qualified immunity defense. The district court denied Appellants’ motion to dismiss.
On appeal, the Fifth Circuit reversed the district court’s order denying Appellant’s motion to dismiss, finding Appellee failed to establish a violation of her constitutional rights. Notable dissents were issued by Judges Oldham (from the panel opinion) and Ho (from the denial of en banc review). Anya Bidwell and the Institute for Justice have petitioned the Supreme Court for review.
Please join us as Ms. Bidwell discusses qualified immunity, the First Amendment, and the Fifth Circuit’s decision in Gonzalez v. Trevino.

Public Defenders and Political Advocacy: What Is a Public Defender's Role? Apr 05, 2023

Over the past several years, a debate has erupted within the world of indigent defense: to what degree is it appropriate or indeed vital for public defenders to be involved in political advocacy? Some contend such advocacy is outside the role and responsibility of public defenders, who should instead focus on defending their clients to the best of their ability. Others assert that involvement on social issues that arguably affect their clients is integral to the public defender’s mission and work.
In this Teleforum former public defenders discussed these questions on the role of public defenders in political advocacy.
Feauring:
--Maud Maron, Interim Executive Director, Foundation Against Intolerance and Racism
--Tiffany Roberts, Public Policy Director, Southern Center for Human Rights
--[Moderator] Matthew Cavedon, Robert Pool Fellow in Law and Religion & Senior Lecturer in Law, Emory University School of Law

Courthouse Steps Oral Argument: Amgen Inc. v. Sanofi Apr 04, 2023

On November 4, 2022, the Supreme Court granted cert in Amgen Inc. v. Sanofi, a patent infringement case that involves the application of the statutory enablement requirement of Section 112 of the patent laws to what is referred to as a "genus claim" as it applies in the context of pharmaceutical applications. The two patents in dispute relate to antibody drugs that reduce low-density lipoprotein (“LDL”) cholesterol.
The Court heard oral arguments in the case on March 27, 2023. Specifically at issue was "whether enablement is governed by the statutory requirement that the specifications teach those skilled in the art to 'make and use' the claimed invention, or whether it must instead enable those skilled in the art 'to reach the full scope of claimed embodiments' without undue experimentation—i.e., to cumulatively identify and make all or nearly all embodiments of the invention without substantial 'time and effort.'"
Robert Rando, an intellectual property attorney who filed an amicus brief in the case, joined us to break down the arguments.
Featuring:
--Robert J. Rando, Partner, Greenspoon Marder LLP

Abraham Accords: Promise-Potential; Risk-Reality Apr 03, 2023

As Indonesia, Somalia, Niger, and Mauritania may be next to join the Abraham Accords, what interests unify these countries on Accord agreement? What will be the impact of Saudi Arabia’s alignment with Iran? What are the balance of power dynamics for the Iran-concerned Accord countries of Israel, Bahrain, UAE? What binds signatories to the Accords as regional political pressures mount?
Discussants will assess the impact of the normalization of relationships they have evolved in the two and a half years since Accords were negotiated. Cultural shifts are already reported after two years of active Accords with Hebrew frequently spoken on the streets of Dubai. Trade has flourished. Flights and overflights are routine. But the United States’ role has shifted for a variety of reasons. Is America’s leadership critical to salutary Accord developments?
Featuring:
--David P. Goldman, President, Macrostrategy LLC
--Hon. Brian Hook, Founder, Latitude, LLC
--Prof. Bernard Haykel, Professor of Near Eastern Studies & Director of the Institute for Transregional Study of the Contemporary Middle East, Princeton University
--Moderator: Prof. Jamil Jaffer, Adjunct Professor, NSI Founder, and Director, National Security Law & Policy Program, Antonin Scalia Law School, George Mason University

Courthouse Steps Oral Argument Combo: Smith v. United States & Samia v. United States -Cases on Criminal Law Procedure Mar 29, 2023

In this two-for-one Teleforum, we covered two cases with questions concerning criminal law and procedure that are set to be argued before the Court.
On March 28, 2023, the Supreme Court heard oral argument in Smith v. United States. Two issues were presented to the Court by this case.

One, whether, when there are multiple charges associated with a trial, lack of venue as to one count requires vacatur of the convictions for other counts?
Two, what is the proper remedy when someone is tried in an improper venue? Is the government’s failure to prove venue equal to an acquittal barring re-prosecution of the offense, or can the government may re-try the defendant for the same offense in a different venue?

The next day, the Supreme Court heard oral argument in Samia v. United States. In it, the Court considered whether the admission of a codefendant’s redacted out-of-court confession that incriminates the defendant due to its content violates the Confrontation Clause of the Sixth Amendment.
In this recorded webinar, we broke down and analyzed how oral argument went before the Court in these two cases, united by the Court before which they are set to be argued and the fact they pose questions of proper procedure in criminal cases.
Featuring:
--Robert McBride, Partner-in-Charge, Northern Kentucky, Taft Stettinius & Hollister LLP

Courthouse Steps Oral Argument: Jack Daniel’s Properties, Inc. v. VIP Products LLC Mar 29, 2023

In Jack Daniel’s Properties, Inc. v. VIP Products LLC, the Supreme Court is considering "Whether humorous use of another’s trademark as one’s own on a commercial product is subject to the Lanham Act’s traditional likelihood-of-confusion analysis, or instead receives heightened First Amendment protection from trademark-infringement claims; and (2) whether humorous use of another’s mark as one’s own on a commercial product is “noncommercial” and thus bars as a matter of law a claim of dilution by tarnishment under the Trademark Dilution Revision Act."
Following oral arguments in the case, IP expert Adam Mathews joined us to break down the case and answer audience questions.
Featuring:
--Adam Mathews, State Representative, Ohio, and Attorney, Ashbrook Byrne Kresge

Should We Heed Pleas for Plea Bargaining Reform? Mar 29, 2023

Although a right to trial is enshrined in the American Constitution, practically the nation’s criminal justice system now resolves almost all cases through plea bargaining. This has raised many questions, including whether innocent people are effectively coerced into pleading guilty, whether similarly situated defendants are treated equally, and whether there is enough transparency to evaluate the system’s effectiveness and correct injustices.
In February 2023, a task force assembled by the Criminal Law Section of the American Bar Association released a report that made numerous recommendations for changing current policy and practice on plea bargaining. Amid a system struggling with COVID-era backlogs and rates of serious crimes that largely remain above 2019 levels, are there ways to bolster the effective availability of the right to trial without jeopardizing public safety or requiring an unrealistic increase in system capacity?
Featuring:
--Clark Niely, Senior Vice President for Legal Studies, Cato Institute
--Kent Volkmer, Pinal County Attorney, Pinal County, Arizona
--[Moderator] Marc Levin, Chief Policy Counsel, Council on Criminal Justice

Litigation Update: The Stop WOKE Act Cases Mar 28, 2023

In 2022, the Florida Legislature passed a bill titled the Individual Freedom Act. The bill is better known as the Stop Wrongs to Our Kids and Employees Act, or the Stop WOKE Act, and it has become a cultural flashpoint across the country.
The bill seeks to “protect individual freedoms and prevent discrimination in the workplace and in public schools.” While the bill explicitly authorizes “age-appropriate” classroom discussion of topics such as sexism, slavery, and racial discrimination, it prohibits instruction meant to “indoctrinate or persuade students to a particular point of view inconsistent with the principles of individual freedom or state academic standards.” The bill went into effect on July 1, 2022, and it places new restrictions on Florida’s public schools, colleges, universities, and corporations.
Proponents of the bill argue that aspects of progressive ideology – often referred to as wokeness – are being aggressively pushed on students, parents, and employees, and the effect is tantamount to ideological oppression and indoctrination. Opponents of the bill say that the Stop WOKE Act infringes upon freedom of speech and thought. Several opponents – including prominent organizations like the ACLU and FIRE – have taken to the courts to block or pare back the bill’s influence.
Ryan Newman serves as General Counsel to Florida Governor Ron DeSantis, and he is responsible for driving Florida’s litigation defense of the Stop WOKE Act in cases such as Pernell v. Florida Board of Governors, Novoa v. Diaz, and Honeyfund.com Inc. v. DeSantis.
Featuring:
--Ryan Newman, General Counsel, Executive Office of Florida Governor Ron DeSantis

Courthouse Steps Oral Argument: United States v. Hansen Mar 27, 2023

On Monday, March 27, 2023 the Supreme Court heard oral argument in United States v. Hansen. At issue in Hansen is whether 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), a federal criminal statute that prohibits encouraging or inducing unlawful immigration for commercial or financial benefit sometimes termed “the encouragement provision”, violates the First Amendment.
Helamen Hansen operated an advising service for undocumented immigrants who wanted to pursue U.S. citizenship. Under the encouragement provision, Hansen was convicted of two counts of encouraging or inducing illegal immigration for financial gain (along with other federal crimes). He challenged those convictions, contending the law is facially overbroad. The Ninth Circuit agreed, vacating his convictions on those counts.
Hansen follows on the heels of another case with similar questions. Back in 2020, in United States v. Sinening-Smith, SCOTUS reversed a Ninth Circuit Court decision that attempted to strike down the encouragement provision on the grounds the decision attempted to address an issue that was outside of the issue before the court. Hansen now brings those same constitutional issues to the fore.
In this Courthouse Steps webinar, we will broke down and analyzed how oral argument went before the Court the same day it is argued.
Featuring:
--Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland

Litigation Update: Apache Stronghold v. United States Goes En Banc at the Ninth Circuit Mar 24, 2023

This case presents an intersection between Native Americans’ free exercise rights and the Government’s power to regulate its territories.
In 2014, Congress enacted the Southeast Arizona Land Exchange and Conservation Act. The Act effectuated a trade of land between Resolution Copper, a mining company, and the federal government. Resolution Copper gave the government 5,300 acres of environmentally sensitive and culturally important lands. In exchange, the Government gave Resolution Copper 2,400 acres containing the third largest copper deposit in the world.
Within the 2,400-acre tract of land is Chi’chil Bildagoteel, or “Oak Flat”, a place of central spiritual importance to the Western Apache. It is the direct corridor to their Creator and the site of numerous religious ceremonies. If Resolution Copper is given the land, the religious site will be destroyed and turned into a mine.
Apache Stronghold sued to prohibit the land trade under the Religious Freedom Restoration Act (RFRA), the Free Exercise Clause, and under a theory that the trade violates the Government’s trust obligation to the Apaches. The United States argued that pursuant to its constitutional authority over the territories and existing caselaw that the trade was lawful.
The District Court rejected a preliminary injunction and the Ninth Circuit Court of Appeals affirmed that judgment by a 2–1 vote. Judge Patrick Bumatay dissented. And the Ninth Circuit agreed to rehear the case en banc this month.
Apache Stronghold again presses its three claims. Centrally, it argues that the United States has substantially burdened the Apaches’ religious exercise by authorizing the transfer and destruction of Oak Flat—rendering their religious exercise impossible.
The United States argues a line of precedent—culminating in Employment Division v. Smith—bar Apache Stronghold’s claims. The Government particularly relies on Lyng v. Northwest Cemetery Protective Association, which permitted the U.S. Forest Service to develop a road through government land that would traverse a tribal holy site, stating, “Whatever rights the Indians may have to the use of the area, however, those rights do not divest the Government of its right to use what is, after all, its land.” The United States argues that RFRA and the remainder of Apache Stronghold’s claims do not undermine the holding in Lyng.
At stake is a religious site of central importance to a native tribe that cannot be replaced and development of the third largest copper deposit in the world.
In this recorded webinar, an excellent debate team discuss this en banc hearing. On behalf of Apache Stronghold, Luke Goodrich, VP and Senior Counsel for Becket, who is serving as lead counsel for Apache Stronghold. And defending the United States’ position, Anthony J. Ferate, who filed an Amicus Brief on behalf of the Arizona Chamber of Commerce and Industry in Support of Appellee United States.
Featuring:
--Luke Goodrich, Vice President & Senior Counsel, Becket
--Anthony J. Ferate, Of Counsel, Spencer Fane LLP
--Moderator: Adam Griffin, Law Clerk, US District Courts

A Seat at the Sitting - March 2023 Mar 16, 2023

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below.

Abitron Austria GMBH v. Hetronic Intl. Inc. (March 21) - Intellectual Property, International Law; Whether the owner of a U.S.-registered trademark can bring a lawsuit for damages for infringement overseas.
Coinbase, Inc. v. Bielski (March 21) - Litigation, E Commerce; Whether a non-frivolous appeal of the denial of a motion to compel arbitration ousts a district court’s jurisdiction to proceed with litigation pending appeal.
Jack Daniel’s Properties v. VIP Products (March 22) - Intellectual Property; Whether and when trademark law prohibits a spoof of a company’s brand.
Amgen Inc. v. Sanofi (March 27) - Intellectual Property, Medicine; When a patent applicant must provide a description of its invention that would enable a “skilled artisan” to make and use the invention, what must the applicant show to meet that requirement?
Smith v. United States (March 27) - Criminal Law; What is the proper remedy – acquittal or a new trial – when an appeals court concludes that one of the counts on which a defendant was convicted was tried in the wrong place?
Lora v. United States (March 28) - Criminal Law; Whether federal criminal sentencing laws require a New York man convicted for his role in a drug-trafficking murder to be sentenced to consecutive, rather than concurrent, sentences.
Samia v. United States (March 29) - Criminal Law; Whether prosecutors violated a defendant’s right under the Sixth Amendment when they admitted a confession from one of his co-defendants, redacted so that it did not use the defendant’s name.

Featuring:
--Prof. Jennifer Jenkins, Associate Professor of Law, Ave Maria School of Law
--Prof. Stephen Ware, Frank Edwards Tyler Distinguished Professor of Law, University of Kansas School of Law
--Robert Rando, Partner, Greenspoon Marder LLP
--Adam Mathews, Senior Intellectual Property Attorney, Faurecia
--Robert "Bob" McBride, Partner, Taft Stettinius & Hollister
--Moderator: Elizabeth Slattery, Senior Legal Fellow, Pacific Legal Foundation

Is Crypto Legislation Coming? Mar 16, 2023

Along with the "crypto crackdown" by financial regulators in the wake of huge cryptocurrency losses and bankruptcies, Congress is discussing crypto legislation.
The House Financial Services Committee has a new Subcommittee on Digital Assets, Financial Technology and Inclusion chaired by Congressman French Hill (R-AR). Chairman Hill will join us for a keynote presentation, followed by an expert panel discussion. Among other questions, the webinar will consider: Will there be crypto legislation? What might it and what should it provide or not provide? What will be the most contentious issues? What related oversight should Congress provide?
J.C. Boggs will moderate the program and the panel will feature Dina Ellis Rochkind, Alexandra Harrison Gaiser, Patrick McCarty, and Patrick Daugherty.

The Camp Lejeune Justice Act - What Happens Next? Mar 13, 2023

In 1982, the U.S. Marine Corps discovered that one quarter of the water wells on Marine Corps Base Camp Lejeune were contaminated with volatile organic compounds. The U.S. Department of Health & Human Services has estimated that as many as one million military and civilian staff and their families might have been exposed to contaminated drinking water between the early 1950s and late 1980s.
The Camp Lejeune Justice Act of 2022 – one section of the larger PACT Act – was signed into law by President Joe Biden on August 10, 2022. The law provides veterans who served on Camp Lejeune between 1953 and 1987 with two years to bring claims in the Eastern District of North Carolina related to this toxic water exposure. Over 15,000 claims have already been filed and some news outlets have suggested that there could be as many as 500,000 CLJA claims.
Among many interesting topics presented by these claims are fees. Personal injury law firms stand ready to collect billions. The American Tort Reform Association estimates that firms have spent more than $41 million on targeted advertisements. However, there is some debate about if a fee cap is in place. A 2021 version of the Camp Lejeune Justice Act limited attorneys’ fees to between 20 and 25%, but the 2022 version does not contain such a provision. While some firms are prepared to charge up to 40%, others think the Federal Tort Claims Act will cover the Camp Lejeune cases and limit fees to 20% of claimant recovery.
In this recorded webinar, legal experts provide an update and a discussion of the many issues associated with the large scale litigation.
Featuring:
--Mark A. Behrens, Partner and Co-Chair, Public Policy Group, Shook Hardy & Bacon LLP
--Prof. Paul Figley, Professor of Legal Rhetoric, American University Washington College of Law
--Ashley Keller, Partner, Keller Postman

Sweet v. Cardona: The Administration’s Other Student-Loan Cancellation Program Mar 09, 2023

President Biden has directed the Department of Education to implement a national program of blanket cancellation of federal student loans. The Department has complied by announcing two debt-cancellation programs. The first program—a plan to cancel $10,000 of loans per debtor—proceeds under the Higher Education Relief Opportunities for Students Act of 2003 (HEROES) Act. On February 28, 2023, the Supreme Court heard argument in two cases challenging the Department’s claim of statutory authority for this program (Nebraska v. Biden and Department of Education v. Brown).
Less well known—but equally significant—is the Department’s other loan-cancellation program. This program is being accomplished through settlement of a nationwide APA class-action that was brought solely to compel the Department to restart lawful adjudications of “borrower-defense” claims. Instead of defending against this limited claim, the Biden Administration has instead entered a settlement agreement that dispenses with adjudication and automatically cancels billions in loans for hundreds of thousands of debtors. The Department claims it has authority for this blanket loan-cancellation program under the Higher Education Act—a claim that would apply to all loans even outside of litigation. A federal district court approved the settlement in November, but several intervening educational institutions have appealed to the Ninth Circuit.
Is this settlement legal? Is it an example of the reemergence of the sue-and-settle practices of the Obama Administration? How does this case intersect with Nebraska and Brown? This recorded webinar features a discussion with Jesse Panuccio, who represents one of the appealing intervenors.
Featuring:
--Jesse Panuccio, Partner, Boies Schiller Flexner LLP

Title IX and the Major Questions Doctrine Mar 09, 2023

In West Virginia v. EPA, the Supreme Court held that the major questions doctrine requires courts to, “expect Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and political significance.” Some argue that the Court’s opinion in the case leaves doubt as to how the doctrine will be applied in future cases and how it will impact future regulatory policy.
In the past, Executive branch agencies have invoked Title IX to introduce many new rules and regulations. Some of these rules and regulations have faced significant opposition from inside and outside of government. Do elements of modern Title IX administration constitute a major question that Congress is best suited to consider? If so, how will this impact the future administration of Title IX regulations?
Join us as Jennifer Braceras and Professor Daniel Farber discuss the future of Title IX in the wake of West Virginia v. EPA.
Featuring:
Jennifer Braceras, Director, Independent Women's Law Center
Professor Daniel Farber, Sho Sato Professor of Law, Berkeley Law
[Moderator] Farnaz Farkish Thompson, Partner, McGuireWoods LLP

The D.C. Crime Bill: What Happens Next? Mar 08, 2023

In November 2022, the District of Columbia City Council passed the Revised Criminal Code Act of 2022 (RCCA) that significantly reformed the D.C. Criminal Code to “modernize and overhaul” the District’s criminal laws including a reduction in penalties for many violent offenses.
D.C. Mayor Muriel Bowser initially vetoed the bill citing concerns about some of the changes, but the Council overrode her veto in early 2023. Because D.C. government is not autonomous from the federal government, the legislation requires Congressional approval.
The U.S. House voted to nullify the bill, and the Senate is slated to vote on whether to block the bill this week. Should the Senate vote to block the D.C. bill, it could be the first time in almost 3 decades that Congress has nullified a D.C. law.
If the Senate votes to nullify the law, the bill will go to President Biden to sign or to veto. While many had anticipated he would veto the resolution, President Biden indicated in a March 2 tweet that he would sign the resolution should it pass.
On March 6, D.C. Council Chairman Phil Mendelson wrote a letter to the Senate attempting to withdraw the legislation. Such a withdrawal has not been attempted before. The Senate is still slated to take the issue to a vote later this week.
As the Senate vote approaches, please join us for a webinar featuring an opening address from U.S. Senator Bill Hagerty, followed by a discussion of the bill and what may come next.
Opening Address Featuring:
--Hon. Bill Hagerty, United States Senator, Tennessee
Discussion Featuring:
--Zack Smith, Legal Fellow and Manager, Supreme Court and Appellate Advocacy Program, Edwin Meese III Center for Legal and Judicial Studies, Heritage Foundation

Government Censorship, Disinformation, and Scientific Consensus – A Litigation Update on Missouri v. Biden & Hoeg v. Newsom Mar 02, 2023

How are we to understand scientific consensus? Who is authorized to speak on behalf of doctors and scientists as a whole, and how do those who present themselves as messengers of the majority reach their material findings? In the aftermath of the COVID-19 pandemic, these questions, and others like them, have important consequences for the future of American science and medicine.
The complaint in Missouri v. Biden arises from the controversy surrounding the Great Barrington Declaration, a declaration written in October 2020 and authored by renowned epidemiologists criticizing contemporary, aggressive COVID-19 policies. Plaintiffs allege that the federal government coerced social media companies to silence opposing viewpoints under the pretense of halting “disinformation” and “misinformation” thereby violating the First Amendment.
Hoeg v. Newsom is born of similar allegations at the state level. On September 30, 2022, the California State Legislature passed Assembly Bill No. 2098 that purports to rein in “disinformation” and “misinformation” about the COVID-19 virus and vaccines. The Bill states that “It shall constitute unprofessional conduct for a physician and surgeon to disseminate misinformation or disinformation related to COVID-19, including false or misleading information regarding the nature and risks of the virus, its prevention and treatment; and the development, safety, and effectiveness of COVID-19 vaccines.” Plaintiffs – all physicians licensed by the Medical Board of California – allege that the Bill violates their First and Fourteenth Amendment rights by interfering with their ability to freely communicate to patients and dissent from mainstream viewpoints in their professional capacity as trained doctors.
Observers have noted that achieving scientific consensus on an emergent and politicized disease is very difficult. For example, the purported scientific consensus on masks, lockdowns, natural immunity, and various other COVID-related matters has remained in flux over the past three years. Some argue that government attempts to stifle debate are concerning and illustrate the purpose of the First Amendment.
Jenin Younes is Litigation Counsel for the New Civil Liberties Alliance (NCLA) and represents plaintiffs in both cases. In this recorded webinar Jenin delivers updates on these cases and discusses the ongoing power struggle over the dissemination of medical information.
Featuring:
--Jenin Younes, Litigation Counsel, New Civil Liberties Alliance
--[Moderator] Margaret A. Little, Senior Litigation Counsel, New Civil Liberties Alliance

The Role of the Modern State Solicitor General: Current and Former SGs Weigh In Feb 28, 2023

This virtual event featured a panel of current and former state solicitors general exploring and discussing how state SGs balance their duty to defend state sovereignty with different political priorities. There are some areas in which the states seem to be more on the same page (such as criminal law) and others that involve sharp disagreements among the states in terms of the duty to defend state sovereignty (e.g. DACA). Focusing on the role of the SG—as opposed to the presumably more overtly political state attorney general position—how do different SGs approach these issues?
Featuring:
--Benjamin M. Flowers, Solicitor General, Ohio
--Elbert Lin, Chair, Issues & Appeals, Hunton Andrews Kurth LLP; Former Solicitor General, West Virginia
--Ryan Park, Solicitor General, North Carolina
--Moderator: Hon. Britt C. Grant, Judge, United States Court of Appeals, Eleventh Circuit; Former Solicitor General, Georgia

Courthouse Steps Oral Argument: Dept. of Ed. v. Brown & Biden v. Nebraska Feb 28, 2023

February 28, 2023, the U.S. Supreme Court heard oral argument in two cases challenging the Biden Administration's Student Loans forgiveness program: Board of Education v. Brown and Biden v. Nebraska.
In August 2022, the Biden Administration's Department of Education announced plans to forgive up to $20,000 in federal student loans for borrowers who qualified. In order to do this, the DOE relied on the HEROES Act, which allows the government to modify student loans, among other things, during a national emergency.
Both cases challenge this action. Biden v. Nebraska involves a challenge to the Executive action from six states who contend they will suffer direct harm based on a loss of tax revenue. In Department of Education v. Brown, two individual borrowers, one of whom has loans that are fully intelligible for forgiveness under the program, and one of whose loans only qualify for part of the maximum relief possible, also challenge the legitimacy of the program.
The Court will be faced with two questions in both cases: first, do the challengers, whether they be the states or the individual borrowers, have standing to sue? The Biden administration contends neither of the respondents possess standing. Second, assuming the Court decides there is standing to sue, the Court will face the question “Does the plan exceed the statutory authority available to the Secretary of Education, and adopted in a procedurally proper manner?”
We broke down and analyzed how oral argument went in both cases in this Courthouse steps program.
Featuring:
--Mark Chenoweth, President and General Counsel, New Civil Liberties Alliance

America's Expanding Semiconductor Export Controls Feb 28, 2023

Much of global economic competition today centers around gaining market share in the semiconductor industry. Over the past decade, the Chinese Government has attempted to expand its market share across the semiconductor value chain through a complex regime of subsidies and state-owned enterprises.
Beginning in the Trump Administration, the United States launched targeted export controls to restrict certain Chinese firms - like Huawei - from obtaining American semiconductor technology. Over the past two years, the Biden Administration has built on and broadened these efforts. In the Fall of 2022, the Commerce Department announced two new rules that restricted the sale of advanced semiconductors, semiconductor manufacturing equipment, and related software or technical assistance to China. Earlier this January, U.S. officials announced the existence of a deal with Japan and the Netherlands to craft broad, multinational export controls on semiconductor exports to China.
Can the Chinese semiconductor industry survive these new restrictions? How will they impact U.S. firms and researchers in this sector? Do they form a blueprint for new export control restrictions on other technology exports to China? This panel with two leading experts on strategic technology and trade controls discussed these and other questions.
Featuring:
--Hon. Nazak Nikakhtar, Partner, Wiley Rein LLP
--Thomas Krueger, Senior Policy Advisor, Akin Gump LLP; Adjunct Senior Fellow, Center for a New American Security
--Moderator: Trevor Jones, JD Candidate, Harvard Law School

Courthouse Steps Oral Argument: Dubin v. United States Feb 27, 2023

On February 27, 2023, the United States Supreme Court heard Oral Argument in Dubin v. United States.
At issue in the case is whether, when using (reciting, mentioning, or employing) someone else’s' name or identifying information in the committing a predicate offense, one also commits aggravated identity theft.
Petitioner David Dubin was convicted of healthcare fraud for submitting a factually inaccurate reimbursement claim to Medicaid that mischaracterized the nature of the provider, the time spent on the testing in question, and the date of the test. Additionally, because he used the name and identifying information of a real patient, Dubin was also convicted of one count of aggravated identity theft. Both the district court and the Fifth Circuit upheld the convictions on appeal.
Dubin claims that the Fifth Circuit’s decision, if upheld, has massive and undesirable implications for a spectrum of other white collar crimes.
In this webinar, we broke down and analyzed how oral argument went before the Court the same day this case is argued.
Featuring:
--John C. Richter, Partner, King & Spalding

Courthouse Steps Oral Argument: Gonzalez v. Google Feb 21, 2023

On February 21, 2023, the U.S. Supreme Court heard oral argument in Gonzalez v. Google.
After U.S. citizen Nohemi Gonzalez was killed by a terrorist attack in Paris, France, in 2015, Gonzalez’s father filed an action against Google, Twitter, and Facebook. Mr. Gonzalez claimed that Google aided and abetted international terrorism by allowing ISIS to use YouTube for recruiting and promulgating its message. At issue is the platform’s use of algorithms that suggest additional content based on users’ viewing history. Additionally, Gonzalez claims the tech companies failed to take meaningful action to counteract ISIS’ efforts on their platforms.
The district court granted Google’s motion to dismiss the claim based on Section 230(c)(1) of the Communications Decency Act, and the U.S. Court of Appeals for the Ninth Circuit affirmed. The question now facing the Supreme Court is does Section 230 immunize interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limit the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information?
In this recorded webinar, Erik Jaffe broke down oral argument in this case.
Featuring:
--Erik S. Jaffe, Partner, Schaerr | Jaffe LLP

A Seat at the Sitting - February 2023 Feb 21, 2023

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this episode are included below.
Gonzalez v. Google (February 21) - Telecommunications; Whether Section 230(c)(1) of the Communications Decency Act allows social media companies to make targeted recommendations of information provided by another content provider, or only limits the liability of such services when they engage in traditional editorial functions.
Twitter v. Taamneh (February 22) - Telecommunications; Whether a defendant providing generic services “knowingly” provided substantial assistance to terrorists using the platform under 18 U.S.C. § 2333 because it allegedly could have taken more “meaningful” or “aggressive” action to prevent such use.
Dubin v. United States (February 27) - Criminal Law; Whether a person commits aggravated identity theft any time they mention or otherwise recite someone else’s name while committing a predicate offense.
New York v. New Jersey (February 27) - Whether the Supreme Court should issue declaratory judgment and/or enjoin New Jersey from withdrawing from its Waterfront Commission Compact with New York, which grants the Waterfront Commission of New York Harbor broad regulatory and law-enforcement powers over all operations at the Port of New York and New Jersey.
Biden v. Nebraska (February 28) - Federalism, Administrative Law; (1) Whether six states have Article III standing to challenge the Department of Education's student-debt relief plan; and (2) whether the plan exceeds the secretary of education's statutory authority or is arbitrary and capricious.
Department of Education v. Brown (February 28) - Federalism; (1) Whether two student-loan borrowers have Article III standing to challenge the Department of Education's student-debt relief plan; and (2) whether the department's plan is statutorily authorized and was adopted in a procedurally proper manner.
Featuring:
--Karen Harned, President, Harned Strategies LLC
--John Richter, Partner, King & Spalding
--Prof. Adam Candeub, Professor of Law & Director of the Intellectual Property, Information & --Communications Law Program, Michigan State University
--Moderator: Robert S. Driscoll, Shareholder, Reinhart Boerner Van Deuren s.c.

Does the Administrative Procedure Act Provide for Universal Vacatur? Feb 17, 2023

Section 706 of the Administrative Procedure Act instructs courts to "set aside" agency action that is unlawful. These two words—"set aside"—have sparked much debate among lawyers, jurists, and scholars. In particular, administrative law enthusiasts disagree about whether the "set aside" language means that courts must enter universal injunctions against unlawful regulations. Some suggest that "set aside" contemplates wholesale invalidation of regulations. Others take the position that the scope of the "set aside" remedy is more limited. In United States v. Texas, which is before the Supreme Court this term, the Court is set to decide whether the "set aside" language requires universal vacatur of regulations. In advance of the Court's ruling, this teleforum panel discussed discuss this difficult question.
Featuring:
--Hon. Beth A. Williams, Member, United States Privacy & Civil Liberties Oversight Board, Professorial Lecturer in Law at the George Washington University Law School, and former Assistant Attorney General for the Office of Legal Policy, United States Department of Justice
--Prof. John Harrison, James Madison Distinguished Professor of Law and Thomas F. Bergin Teaching Professor at the University of Virginia School of Law
--Prof. Ron Levin, William R. Orthwein Distinguished Professor of Law at the Washington University in St. Louis School of Law
--[Moderator] Judge Steven J. Menashi, U.S. Court of Appeals for the Second Circuit

Chapter 11 Bankruptcy & Mass Torts: A Review of the Third Circuit’s LTL Opinion Feb 16, 2023

In 2021, LTL Management LLC (LTL), a newly created and separate subsidiary of Johnson & Johnson that was established to hold and manage claims in the cosmetic talc litigation, filed for voluntary Chapter 11 bankruptcy protection. The goal was to resolve all current and future claims fairly and efficiently. Opposition filed a motion to dismiss the case arguing it does not serve a valid restructuring purpose and suggesting J&J filed it in bad faith.
In February 2022, Chief Judge of the United States Bankruptcy Court for the District of New Jersey Michael Kaplan ruled in favor of LTL, holding that LTL’s filing for Chapter 11 protection was “unquestionably a proper purpose under the Bankruptcy Code.” Upon an expedited appeal, a three-judge panel of the Third Circuit reversed Chief Judge Kaplan and narrowly held in favor of claimants. The case is now under appeal for en banc review by the Third Circuit. Given the enormous national significance of the issue for corporate liability and civil justice, this case may advance to the Supreme Court for further adjudication.
In this recorded webinar a panel of bankruptcy law experts discuss the Third Circuit ruling, its impact, significance, and the path forward, including how to assess both the split between Chief Judge Kaplan and the Third Circuit. The panel discusses the purpose of Chapter 11 in preserving economic and social value and discuss the Third Circuit’s ruling in light of other Circuits that are reviewing similar legal questions. The panel will review core questions that the Third Circuit left unanswered and share their expert perspectives on the ruling’s precedent and what it may mean for mass tort litigation going forward.
Featuring:
--Professor Tony Casey, Deputy Dean, Donald M. Ephraim Professor of Law and Economics & Faculty Director, The Center on Law and Finance, University of Chicago Law School
--Professor Lindsey Simon, Robert Cotten Alston Associate Chair in Corporate Law, University of Georgia School of Law

The Respect for Marriage Act & Religious Liberty: At Odds or Unaffected? Feb 15, 2023

In December 2022, Congress passed and President Biden signed the Respect for Marriage Act (RFMA). The bill (1) repeals section 2 of the Defense of Marriage Act, which permitted states to deny recognition of same-sex marriages created in other states; (2) forbids those acting “under of state law” to withhold recognition of marriages created in other states on the basis of sex, race, ethnicity, or national origin; (3) creates mechanisms to enforce that prohibition; and (4) requires the federal government to recognize marriages validly created in one or more states. The RFMA also includes provisions relating to religious liberty.
Supporters of the bill claimed that portions of the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization raised the specter of the Court overturning Obergefell v. Hodges (which established a constitutional right to same-sex marriage). They argued that the bill would be needed in the event the Court ever overturned Obergefell. Debate centered on (1) whether legislation to protect same-sex marriage was necessary; (2) the extent to which it would threaten the religious liberty of those who believe that marriage is between one man and one woman and (3) the efficacy of the religious liberty provisions in the bill.
Now in the wake of the RFMA passing, those discussions continue. To what degree does the RFMA affect or possibly impinge on religious liberty? Has anything really changed, or is this simply the codification of the status quo? Is this a statute ripe for abuse that threatens the exercise of religious liberty, or are the warnings issued concerning it perhaps overblown?
Our panel of experts discussed these questions and others in this panel analyzing the Respect for Marriage Act, what it is, and what it means for religious liberty.
Featuring:
--Carl H. Esbeck, R.B. Price Professor Emeritus of Law / Isabelle Wade & Paul C. Lyda Professor Emeritus of Law, University of Missouri School of Law
--Gregory S. Baylor, Senior Counsel & Director of the Center for Religious Schools, Alliance Defending Freedom
--[Moderator] Matt Clark, President, Alabama Center for Law and Liberty

The OFCCP Under the Current Administration Feb 09, 2023

The Office of Federal Contract Compliance Programs (OFCCP) reports to the Secretary of Labor and is tasked with overseeing federal contractors and subcontractors ensuring they adhere to nondiscrimination laws and regulations.
OFCCP’s priorities and budget tend to vary greatly between presidential administrations. The Biden Administration has announced a number of reforms since 2020 including a focus on parental leave policies, intersectional discrimination, affirmative action, and more.
How have these reforms fared? And what does the future hold? Craig Leen, OFCCP Director under President Trump, and Shirley Wilcher, OFCCP Deputy Assistant Secretary under President Clinton, will join us to discuss these questions and more.
Featuring:
Craig E. Leen, Partner, K&L Gates and Former Director, OFCCP, U.S. Department of Labor
Shirley J. Wilcher, Executive Director, American Association for Access Equity and Diversity (AAAED) and Former Deputy Assistant Secretary, OFCCP, U.S. Department of Labor
[Moderator] Robert J. Gaglione, Arbitrator, American Arbitration Association and Former Deputy Director, OFCCP, U.S. Department of Labor

Litigation Update: Groff v. DeJoy: Religious Liberty in the Workplace? Feb 07, 2023

Join Stephanie Taub, Bruce Cameron, Blaine Hutchinson for discussion on Groff v. Dejoy, which was recently added to the Supreme Court docket. This case highlights questions at the intersection of religious liberty and workplace accommodation.
Gerald Groff alleges workplace discrimination by the U.S. Postal Service based on his faith under Title VII of the Civil Rights Act. His refusal to work Sunday shifts due to Sabbath observance resulted in a penalty and sparked a contentious legal debate. Register now to stay up-to-date on this important case that has the potential to shape the future of religious liberty in the workplace.
Featuring:
--Stephanie Taub, Senior Counsel, First Liberty Institute
--Bruce Cameron, Staff Attorney, National Right to Work Legal Defense Fund
--Blaine Hutchison, Staff Attorney, National Right to Work Legal Defense Fund

Arbitration and the Supremes: A Roundup of Recent and Anticipated Supreme Court Arbitration Precedents Feb 02, 2023

Domestic and international arbitration has been the subject of considerable activity before the U.S. Supreme Court over most of the last decade. The Supreme Court’s last term (2021-2022) was no exception, with the Court deciding five arbitration-related cases, with additional cases in the Court’s current term. This program concentrated on recent and currently Supreme Court pending cases concerning international and domestic arbitration, as well as hot topics before the Circuit Courts that may rise to the Court in the near future.
Featuring:
--Manuel Farach, Shareholder, Mrachek, Fitzgerald, Konopka, Thomas & Weiss, P.A.
--Joshua B. Simmons, Partner, Wiley Rein LLP
--Moderator: Harout Jack Samra, Of Counsel, DLA Piper

Section 230 Goes to Court: Gonzalez v. Google and the Future of the Electronic Town Square Jan 31, 2023

Social media platforms have emerged as the new “town square” and a key forum for public debate, but some have questioned whether that debate is as open and robust as it should be. On the other hand, some worry that efforts to regulate social media platforms may themselves crimp debate. At the heart of the discussion is Section 230 of the Communications Decency Act. A panel of experts discussed what Section 230 permits and doesn’t permit—a question now before a number of courts, including the U.S. Supreme Court in Gonzalez v. Google.
Featuring:
--Ashkhen Kazaryan, Senior Fellow, Free Speech & Peace, Stand Together
--Randolph May, President, The Free State Foundation
--Joel Thayer, President, Digital Progress Institute
--Moderator: Boyd Garriott, Associate, Wiley Rein LLP

Ukraine's National Bar: Reform, Renewal, and Independence Jan 30, 2023

In an abrupt shift away from decades of tradition, Ukraine’s current National Bar arose from the adoption of a new model in 2013. The “Law On the Bar and Practice of Law” emerged amid recurring east-west tensions and pressures for domestic reform. This legislation produced an all-Ukrainian, non-governmental, non-profit organization that promotes adjudicatory reform. It has been recognized by the International Bar Association and the European Council of Bars and Law Societies.
In this podcast, Dr. Valentyn Gvozdiy, Vice President of the Ukrainian National Bar Association has a conversation led by George Bogden regarding the origin of this independent body.
Featuring:
--Dr. Valentyn Gvozdiy, Vice President, Ukrainian National Bar Association
--Moderator: Dr. George Bogden, George F. Kennan Fellow, Kennan Institute, and Olin Fellow, Columbia Law School.

Clean Water Act – Forward to the Past? Jan 27, 2023

The federal Clean Water Act regulates discharges to “navigable waters,” which the Act defines as “waters of the United States, including the territorial seas.” For decades the Environmental Protection Agency interpreted “waters of the US” very broadly through regulations, but in the past 20 years the agency lost two Supreme Court cases that have required amendments to the regulations. With a third significant decision pending from the Court in Sackett v. EPA, the agency just released the fourth major revision to the regulations defining “navigable waters” in the last eight years. This panel discussed what is old and what is new in the Biden Administration’s bid to finally capture what “waters of the US” means, and what impact the Sackett decision may have when it comes down.
Featuring:
--Kevin Minoli, Partner, Alston & Bird
--[Moderator] Tony Francois, Partner, Briscoe Ivester & Bazel

Is Cy Pres Defensible? Jan 25, 2023

Cy pres is the practice of awarding class-action settlement funds to third-party organizations when distribution of settlement funds directly to class members is considered impractical. Champions of cy pres awards – which can amount to tens of millions of dollars – claim that the practice directly aids the causes in question. They also note its convenience and the importance of deterrence. Cy pres critics contend that such awards lead to conflicts of interest, the failure of class attorneys to prioritize class recovery, and First Amendment concerns over the compelled support of political beneficiaries.
By a 6-5 vote, the Eighth Circuit recently declined en banc review of an opinion affirming approval of a Monsanto settlement that paid $16 million to cy pres while leaving 98% of the class uncompensated. The Second Circuit affirmed approval of a settlement with Navient that paid the class of student debtors nothing with all settlement proceeds going to a few nonprofits affiliated with the teachers' union funding the class action. Both courts rejected objectors' First Amendment and Rule 23 arguments, and both cases are now the subject of cert petitions.
Ted Frank, who argued Frank v. Gaos and is counsel of record in St. John v. Jones and Yeatman v. Hyland, and Brian Fitzpatrick, author of The Conservative Case for Class Actions, will debate the pros, cons, and legality of cy pres and discuss possible Supreme Court review.
Featuring:
--Theodore "Ted" Frank, Director of Litigation & Senior Attorney, Hamilton Lincoln Law Institute
--Brian T. Fitzpatrick, Milton R. Underwood Chair in Free Enterprise, Vanderbilt University Law School

Litigation Update: United States v. Moore-Bush Jan 20, 2023

In 2017, ATF agents placed a surveillance camera on a pole across the street from Daphne Moore’s home in Massachusetts. They suspected Moore’s daughter of dealing drugs and guns.
They watched the house for eight months until they obtained enough evidence to get a warrant. The warrant led to a prosecution. Moore and her daughter moved to suppress the evidence. The district court granted this motion but the First Circuit later reversed.
Now, Moore and her daughter are asking the Supreme Court to decide “[w]hether long-term police use of a surveillance camera targeted at a person’s home and curtilage is a Fourth Amendment search.” A nearly identical certiorari petition arose from the Seventh Circuit a year ago but was denied. The Federalist Society covered that petition on a previous teleforum featuring a debate about whether the word “search” in the Fourth Amendment should be interpreted in accord with the reasonable-expectation-of-privacy test or in accord with the word’s plain meaning.
In this program, Institute for Justice Senior Attorney, Robert Frommer, provides a litigation update on this interesting Fourth Amendment question and the petition before the Court. The Institute for Justice filed an amicus brief urging the court to grant the petition for certiorari.
Featuring:
--Robert Frommer, Senior Attorney, Institute for Justice
--Moderator: Adam Griffin, Law Clerk, US District Courts

Courthouse Steps Oral Argument: Turkiye Halk Bankasi A.S. v. United States Jan 18, 2023

On January 17, 2023, the US Supreme Court heard oral argument in Turkiye Halk Bankasi A.S. v. United States.
Turkiye Halk Bankasi A.S. (“Halkbank”) was indicted by a grand jury in 2019, and charged with involvement in a scheme to launder billions of dollars worth of proceeds from Iranian oil and natural gas, which was in violation of U.S. sanctions against Iran at the time.
Halkbank, is majority-owned by the government of Turkey and moved to dismiss this indictment, arguing that the court lacked jurisdiction. Halkbank contended that the Foreign Sovereign Immunities Act (FSIA) and the fact that the government of Turkey had a majority of its ownership made it immune to criminal prosecution in U.S. federal court. In relying on FSIA, Halkbank asserted that exceptions in FSIA apply only to civil cases, and that even if such exceptions applied in criminal cases, Halkbank Would still be immune under common law standards.
The U.S. District Court rejected the argument put forward by Halkbank, and the Second Circuit affirmed. This Supreme Court granted certiorari on the question of whether US district courts may exercise subject matter jurisdiction over criminal prosecutions against foreign sovereigns and their instrumentalities under 18 U.S.C. § 3231 and in light of FSIA.
This program, held on January 18, 2023 broke down and analyzed the oral argument.
Featuring:
--Mike Hurst, Partner, Phelps Dunbar LLP

Courthouse Steps Oral Argument: Glacier Northwest, Inc. v. International Brotherhood of Teamsters Jan 10, 2023

The U.S. Supreme Court appears ready to clarify when and under what circumstances federal labor law preempts state tort claims for strike-related misconduct. Next week, it will hear oral arguments in Glacier Northwest, Inc. v. International Brotherhood of Teamsters Local No. 174, a case involving the intentional destruction of an employer’s property. The employer, Glacier Northwest, manufactures ready-mix concrete. Ready-mix concrete hardens quickly and must be poured on the same day it’s mixed. In August 2017, a union representing Glacier’s employees called a sudden strike. The union allegedly timed the strike so that concrete would be left to harden in Glacier’s trucks. Predictably, the concrete was ruined, and Glacier sued the union for damages. But state courts rejected the suit. They held that the suit was preempted by the National Labor Relations Act (NLRA) because (a) the union’s conduct was arguably protected by federal law, and (b) the conduct fell outside an existing exception for intentional-tort claims because it involved no violence or “outrageous conduct.”On January 10, the Supreme Court will hear arguments on both of those conclusions. The central issue for the Court is whether the NLRA preempts intentional tort claims except when they’re accompanied by violence or outrageous conduct. The union argues that the state courts got it right: violence or outrageous conduct is necessary. Glacier, on the other hand, argues that violence or outrageous conduct has never been required. In fact, the Supreme Court itself has long recognized that intentional property destruction is unprotected and falls outside the NLRA’s preemptive reach.Regardless of who wins that argument, the resulting decision will likely clarify the scope of NLRA preemption. And potentially, it will offer guidance on the bounds of acceptable strike-related conduct.Join Alex MacDonald the afternoon of the oral arguments to stay informed on one of the most important cases currently before the Supreme Court. The webinar will be held on January 10 at 4:00 PM ET. Sign up today to reserve your spot.
Featuring:
--Alex MacDonald, Director, Future of Work and Labor Law, Instacart

A Seat at the Sitting - January 2023 Jan 04, 2023

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this episode are included below.

In re Grand Jury (Jan. 9) - Professional Responsibility; whether a communication involving both legal and non-legal advice is protected by attorney client privilege when obtaining or providing legal advice was one of the purposes behind the communication.
The Ohio Adjutant General’s Department v. Federal Labor Relations Authority (Jan. 9) - Labor Law; whether the Civil Service Reform Act of 1978, which empowers the Federal Labor Relations Authority to regulate the labor practices of federal agencies only, empower it to regulate the labor practices of state militias.
Glacier Northwest, Inc. v. International Brotherhood of Teamsters (Jan. 10) - Labor Law; Whether the National Labor Relations Act impliedly preempts a state tort claim against a union for intentionally destroying an employer's property in the course of a labor dispute.
Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, Inc. (Jan. 11) - Federalism; whether the Puerto Rico Oversight, Management, and Economic Stability Act’s general grant of jurisdiction to the federal courts over claims against the Financial Oversight and Management Board for Puerto Rico and claims otherwise arising under PROMESA abrogate the Board’s sovereign immunity with respect to all federal and territorial claims.
Santos-Zacaria v. Garland (Jan. 17) - Immigration; whether the court of appeals correctly determined that 8 U.S.C. 1252(d)(1) prevented the court from reviewing petitioner's claim that the Board of Immigration Appeals engaged in impermissible factfinding because petitioner had not exhausted that claim through a motion to reconsider.

Featuring:
--William Hodes, Professor Emeritus of Law, Indiana University; Co-Author, The Law of Lawyering
--Tessa E. Shurr, Litigation Associate, The Fairness Center
--Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
--Moderator: Anna St. John, President and General Counsel, Hamilton Lincoln Law Institute

Whither “Neo-Brandeisian” Antitrust Enforcement: A Candid Conversation with Jonathan Kanter Dec 20, 2022

The Biden administration has made aggressive antitrust enforcement a priority, and appointed Jonathan Kanter to be the nation’s chief antitrust law enforcer as the Assistant Attorney General in charge of the Antitrust Division of the U.S. Department of Justice. Though Kanter’s background is in big law, he is a leading advocate of the neo-Brandeisian school of antitrust that seeks to expand the scope and importance of antitrust. His aggressive agenda has yet to be fully revealed; however, the courts do not appear sympathetic and have handed the Division a series of defeats in recently-litigated merger challenges.
At this luncheon event, Rick Rule, the head of the Antitrust Division under President Reagan (and a former partner of Kanter), probed Kanter on what he is hoping to achieve during his tenure and how he is going to deal with the skepticism of the courts.
Featuring:
- Hon. Jonathan S. Kanter, Assistant Attorney General for the Antitrust Division, U.S. Department of Justice
- Moderator: Hon. Charles "Rick" Rule, Partner, Rule Garza Howley LLP

Talks with Authors: An Introduction to Constitutional Law: 100+ Supreme Court Cases Everyone Should Know Dec 16, 2022

Professors Randy Barnett and Josh Blackman will discuss the most important Supreme Court cases of all time, as featured in their new book, An Introduction to Constitutional Law: 100+ Supreme Court Cases Everyone Should Know. Plus, they will debut a new video series, including previews of Dobbs and Bruen.
Featuring:
Prof. Randy Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center
Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston
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To register, please click the link above.

Litigation Update: Volokh et al v. James Dec 15, 2022

In early December, Prof. Eugene Volokh, Rumble Canada, and Locals Technology filed a complaint in federal court against New York Attorney General Letitia James, seeking to stop a new New York state law from taking effect. The suit challenges a recently enacted section of New York’s General Business Law, “Social media networks; hateful conduct prohibited.”
The new law originated, in part, as a response to a 2022 mass shooting in Buffalo that left 10 dead as the result of what is alleged to be a racially motivated crime. The law aims to restrict "hateful" speech on social media platforms and requires social media networks to “provide and maintain a clear and easily accessible mechanism for individual users to report incidents of hateful conduct.” Additionally, the networks must establish and publish a policy outlining how they will “respond [sic] and address the reports of incidents of hateful conduct on their platform.”
The State of New York has asserted that hate speech moderation of this sort can be a useful tool in preventing hate crimes. Plaintiffs are represented by the Foundation for Individual Rights and Expression (FIRE) and argue that the law violates the First Amendment and forces social media networks to police their users. They further submit that enforcement of the law requires a subjective determination of what constitutes “hateful conduct,” thereby instituting viewpoint discrimination and chilling constitutionally protected speech.
Please join us for this Litigation Update from Prof. Eugene Volokh.
Featuring:
Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law; Founder, The Volokh Conspiracy
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To register, click the link above.

Parental Rights and Religious Liberty: Examining New Conflicts Between Parents and the State Dec 14, 2022

The Supreme Court has articulated that parents have the unenumerated right rooted in the Fourteenth Amendment to direct the care, custody, and upbringing of their children since the 1920s in such cases as Pierce v. Society of Sisters, Meyer v. Nebraska, Parham v. J.R. and Troxel v. Granville. However, the precise contours of the right have long been uncertain, as has the level of scrutiny to be applied.
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court established a clear threshold for unenumerated rights, that they must be rooted in history and tradition and essential to ordered liberty. The Court noted that its decision does not call into question its line of cases on parental rights. Nevertheless, the question remains: do parental rights meet the Court’s threshold? Are there reasons to believe that parental rights will be affected by the Dobbs decision?
The Dobbs decision comes as a new series of conflicts between parents and the state are arising in education and healthcare around the country. Many of these conflicts over ideas about gender and race. These new conflicts implicate parental rights and are raising questions for courts such as:

Who has the primary responsibility for the formation of a child’s identity and values?
Do parental rights extend beyond the schoolhouse gate to include instruction and policies in schools?
And who gets to decide the treatment of a child’s mental health, including gender distress?

These questions and more have been raised in a series of recent lawsuits against school districts over policies concerning race and gender-based curriculum and policies where challengers have invoked parental rights theories. How do those arguments square with existing doctrine? How might they extend existing doctrine?
Featuring:
--Professor James Dwyer, Arthur B. Hanson Professor of Law at William and Mary Law School
--Ryan Bangert, Senior Vice President, Strategic Initiatives and Special Counsel to the President, Alliance Defending Freedom
--[Moderator] Professor Richard W. Garnett, Paul J. Schierl/Fort Howard Corporation Professor of Law and Director, Program on Church, State & Society, University of Notre Dame Law School

Back to the Future: Biden Administration Seeks Return to Restrictive Standards for Businesses and Independent Contractors Dec 12, 2022

The Department of Labor recently closed its open comment period for its proposed rulemaking regarding Employee or Independent Contractor Classification under the Fair Labor Standards Act. As such, this webinar explores what the proposed rule seeks to do, and how the affected stakeholder community has responded. In addition, the proposed rule comes out of litigation and may in fact create additional litigation in 2023. In addition, the speakers highlight other actions that impact independent workers including the NLRB's pending decision in Atlanta Opera as well as the DOL joint employer rulemaking. On this teleforum we will hear from Maury Baskin (Littler-Mendelson) who led a winning effort against the DOL in Coalition for Workforce Innovation (CWI) v. Secretary Walsh as well as the Chair of CWI, Evan Armstrong.
Featuring:
--Evan Armstrong, Vice President, Government Affairs, Retail Industry Leaders Association
--Maury Baskin, Shareholder, Littler Mendelson P.C.

Courthouse Steps Oral Argument - Moore v. Harper Dec 07, 2022

On December 7, 2022, the U.S. Supreme Court will hear oral argument in Moore v. Harper.
Following the most recent census, North Carolina gained a House seat, and its legislature adopted a new district map. The state’s supreme court deemed that map a partisan gerrymander and substituted in its place the court’s own map. That result, it concluded, was required by four separate parts of the state constitution, including clauses protecting the “freedom of speech” and guaranteeing “free” elections. Although the Supreme Court denied an emergency request to block that ruling for the 2022 election, it agreed to take the case to answer the broader question of state-court authority over the laws governing federal elections.
Supporters of legislature primacy—often called the “independent state legislature” doctrine—say that a decision enforcing the doctrine will cut back on election-litigation gamesmanship, end the disruption of last-minute rule changes, and put primary responsibility back in the hands of democratically accountable legislators. Opponents, however, say that a decision for the state would threaten voting rights and democracy itself.
We will break down the oral argument for this case on the same day, December 7, 2022.
Featuring:
Andrew M. Grossman, partner at Baker & Hostetler LLP, co-leader of the firm’s Appellate and Major Motions practice, and Adjunct Scholar at the Cato Institute
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What is the future of U.S. Counterintelligence and the National Counterintelligence and Security Center? Dec 07, 2022

The Senate Select Committee on Intelligence released a detailed report in September 2022 on the state of the U.S. Counterintelligence (CI) mission. Among other things, the report noted that the National Counterintelligence and Security Center (NCSC), the nation's head agency for CI, does not have a clear mission and is limited in its authorities. The Committee further warned that NCSC's work is being hampered by bureaucracy and funding issues. The report also noted that foreign intelligence entities pose a more harmful threat to U.S. interests now than they have at any point in the past. We will discuss the report, its fallout, and the potential solutions to the problem with the former Director of NCSC, The Honorable William Evanina.
Featuring:
Jamil Jaffer, Adjunct Professor, NSI Founder, and Director, National Security Law & Policy Program, Antonin Scalia Law School, George Mason University
William Evanina, CEO, The Evanina Group; Former Director of the National Counterintelligence and Security Center

Courthouse Steps Oral Argument: 303 Creative v. Elenis Dec 05, 2022

On December 5,2022, the U.S. Supreme Court will hear oral argument in 303 Creative LLC v. Elenis. Petitioner Lorie Smith, an artist in Colorado and owner/founder of the graphic design firm 303 Creative LLC. is challenging Colorado’s Anti-Discrimination Act (CADA) on the grounds it is unconstitutional, arguing, among other things, it violates her right to free speech.
Ms. Smith was looking to expand her business to include designing websites for weddings but would only design for weddings that were in line with her religious convictions, which meant she would not design websites for same-sex weddings. Further, in expanding her business, she wanted to post a message to her own professional website to communicate what wedding websites she would do, and explain her religious objections to same-sex weddings.
Because 303 Creative LLC. is a business open to the public, however, it falls under CADA, which prohibits any business from discriminating against possible patrons based on a list of characteristics, one of which is sexual identity. Further, CADA defines discrimination not only as the refusal to provide goods or services but also as the promulgation of messaging that says or implies that a potential patron’s business would be unwelcome based on them possessing a protected trait. Under CADA, both the refusal to create webpages for same sex weddings and the promulgation of a message that Ms. Smith would not create such webpages, even if she is never asked so to do, would be illegal.
Before any action was taken against her under CADA, Ms. Smith and 303 Creative LLC. challenged CADA in federal court, alleging its unconstitutionality. The district court granted summary judgement in favor of Colorado, and upon appeal, the Tenth Circuit affirmed that decision.
Our panel of experts will break down and analyze how the Supreme Court oral argument went the same day.
Featuring:
Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity
Prof. Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law
[Moderator] Prof. Michael Dimino, Professor of Law, Widener University Commonwealth Law School

NC NAACP v. Moore: The Impact of Unconstitutional Legislative Maps on a State Legislature's Ability to Propose Constitutional Amendments Nov 29, 2022

In 2018, the North Carolina General Assembly placed several constitutional amendments before voters for ratification. Voters approved the amendments, which included amendments related to voter ID and a cap on the state income tax. But in August 2022, a sharply divided Supreme Court of North Carolina held that these amendments may be invalid. The majority's opinion focused on a federal court decision issued before the amendments were placed on the ballot which declared several of the state legislative districts to be the result of an unconstitutional racial gerrymander. It concluded that the General Assembly may have lost the ability to propose constitutional amendments given the fact that many of its members were elected from unconstitutionally gerrymandered legislative districts.
Our panel of experts discussed this case and considered its implications for North Carolina and states across the country.
Featuring:
--Jeanette Doran, President and General Counsel, North Carolina Institute for Constitutional Law
--Rick Glazier, Executive Director, North Carolina Justice Center
--Prof. Derek T. Muller, Ben V. Willie Professor in Excellence, University of Iowa College of Law
--Moderator: Hon. Robert T. Numbers, II, U.S. Magistrate Judge, Eastern District of North Carolina

Post-Oral Argument Courthouse Steps: Percoco v. United States Nov 28, 2022

On November 28, 2022, the U.S. Supreme Court is set to hear oral argument in Percoco v. United States.
Justice Scalia once commented “[t]hough it consists of only 28 words, the [honest services] statute has been invoked to impose criminal penalties upon a staggeringly broad swath of behavior.”
In this case, which has potentially broad implications for the continued criminalization of politics and lobbying, the Court is asked to decide if a private citizen who holds no elective office or government employment owes a fiduciary duty to the general public sufficient to be convicted of honest-services fraud if they have informal “influence” over government decisions.
Joseph Percoco was a longtime friend of New York Governor Andrew Cuomo and served as Governor Cuomo’s Executive Deputy Secretary until he decided to leave government service to manager Governor Cuomo’s reelection campaign. While he was working on Governor Cuomo’s campaign, he was paid by a New York businessman to reach out to a state agency to resolve a labor issue. According to the trial court and the Court of Appeals for the Second Circuit, this effort deprived the citizens of New York of Mr. Percoco’s honest services.
According to both courts, the fact that Mr. Percoco was not a state employee was not dispositive -- what mattered was that Mr. Percoco “dominated and controlled” government business and that government officials “actually relied on” Percoco based on some “special relationship” between Mr. Percoco and the government.
If upheld, the Second Circuit’s test has the potential to greatly expand the application of federal honest services charges to people engaged in politics and lobbying.
This talk, featuring Mr. Gary Lawkowski, who is counsel of record for an amicus brief submitted on behalf of Citizens United, Citizens United Foundation, and the Presidential Coalition in Percoco v. United States, will break down the issues in this case and provide instant analysis on the oral argument heard by the Court.
Featuring:
Mr. Gary M. Lawkowski, Counsel at Dhillon Law Group and Senior Fellow with the Institute for Free Speech.

A Seat at the Sitting - December 2022 Nov 22, 2022

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases that will be covered are included below.
Percoco v. United States (Nov. 28) - Criminal Law; whether a private citizen who can influence government decision-making owes a duty to the public, so that he can be convicted of bribery.
Ciminelli v. United States (Nov. 28) - Criminal Law; whether a defendant can be convicted under the federal wire-fraud statute based on a “right to control” theory.
United States v. Texas (Nov. 29) - Immigration; a challenge to the Biden administration’s policy of prioritizing certain groups of unauthorized immigrants for arrest and detention.
Wilkins v. United States (Nov. 30) - Property Rights, whether the 12-year statute of limitations to bring a lawsuit under the Quiet Title Act is jurisdictional and cannot be waived.
303 Creative v. Elenis (Dec. 5) - Civil Rights; whether applying Colorado’s public-accommodation law to require an artist to speak or stay silent violates the Constitution’s free speech clause.
MOAC Mall Holdings LLC v. Transform Holdco LLC (Dec. 5) - Bankruptcy; whether a provision of federal bankruptcy law limits the power of the courts of appeals over an order approving the sale of a debtor’s assets.
Bartenwerfer v. Buckley (Dec. 6) - Bankruptcy; whether a bankruptcy debtor can be held liable for another person’s fraud.
Moore v. Harper (Dec. 7) - Election Law; whether a state supreme court’s order invalidating a state’s congressional map and ordering the state to draw a new one violates the Constitution’s elections clause.
Featuring:
Andrew Grossman, Partner, Baker & Hostetler LLP; Adjunct Scholar, The Cato Institute
Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity Network
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
Moderator: Samuel D. Adkisson, Associate Attorney, Gibson Dunn

Recent DOJ Policy for Charging Cases under the Computer Fraud and Abuse Act: Fair or Foul? Nov 17, 2022

The Justice Department recently announced the issuance of a revised internal policy for charging cases brought under the Computer Fraud and Abuse Act (CFAA), our nation's main computer crime statute. This revised policy was issued in the wake of the Supreme Court case of United States v. Van Buren, which held that the CFAA’s “exceeds authorized access” provision does not cover those who have improper motives for obtaining information that is otherwise available to them. Additionally, the new DOJ policy for the first time directs federal prosecutors that good-faith security research should not be charged under the CFAA, but also acknowledges that claiming to be conducting security research is not a free pass for those acting in bad faith.
Does the new DOJ charging policy strike a reasonable balance between privacy and law enforcement interests? Do its protections for security research go far enough, or do they extend too far? In the wake of Van Buren and this policy, does the federal government have adequate tools to address insider threats, especially where such threats are focused on invasions of privacy and confidentiality instead of being motivated by financial gain?
Join us as our panel of experts break down these questions.
Featuring:--Prof. Orin Kerr, Willam G. Simon Professor of Law, University of California, Berkeley School of Law
--Prof. Michael Levy, Adjunct Professor of Law, Penn Carey Law, University of Pennsylvania
--[Moderator] John Richter, Partner, King & Spalding

Courthouse Steps Oral Argument: Mallory v. Norfolk Southern Nov 15, 2022

On November 8, 2022, the U.S. Supreme Court will hear oral argument in Mallory v. Norfolk Southern Railway.
Petitioner Robert Mallory, a Virginia resident, sued Virginia-based Norfolk Southern in sued in the Court of Common Pleas, the court of general jurisdiction in Pennsylvania, claiming that exposure to carcinogens while working for the company caused him to develop colon cancer. According to his complaint, Mallory was exposed to harmful carcinogens while employed by Defendant in Ohio and Virginia between 1988 through 2005. He did not allege that he suffered any harmful occupational exposures in Pennsylvania but sued in Pennsylvania court on a theory that the court could exercise jurisdiction over the Virginia company because it had registered to do business in Pennsylvania.
Under Pennsylvania law, a foreign corporation “may not do business in this Commonwealth until it registers” with the Department of State of the Commonwealth. State law further establishes that registration constitutes a sufficient basis for Pennsylvania courts to exercise general personal jurisdiction over that foreign corporation. Norfolk Southern Railway objected to the exercise of personal jurisdiction, arguing that the exercise violated the Due Process Clause of the Fourteenth Amendment. The trial court agreed and held Pennsylvania’s statutory scheme unconstitutional. The Pennsylvania Supreme Court affirmed.
The Supreme Court is to decide if a state registration statute for out-of-state corporations that purports to confer general personal jurisdiction over the registrant violates the Due Process Clause of the Fourteenth Amendment.
Please join us for analysis of how oral argument went before the Court.
Featuring:
John Masslon, Senior Litigation Counsel, Washington Legal Foundation.
Associated Blog Post: Mallory v. Norfolk Southern: Oral Argument Preview
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Humphrey’s Executor and Presidential Removal Power Nov 15, 2022

In one of its most significant separation of powers opinions, the U.S. Supreme Court decided Humphrey’s Executor v. United States 87 years ago, in which it held that President Roosevelt’s authority to remove a commissioner that his predecessor nominated and the Senate confirmed to the Federal Trade Commission was not “illimitable” under the Constitution. The Court held that the President’s discretion to remove the commissioner based on his differing policy views was bounded by the Federal Trade Commission Act’s limitation on removal only for "inefficiency, neglect of duty, or malfeasance in office."
Humphrey’s continues to have significant implications today, in cases like FTC v. Walmart (N.D. Ill.) where Walmart has argued that by virtue of Humphrey’s, the “quintessentially executive law-enforcement power” that the FTC has under its authorizing statute is unconstitutional because its commissioners are not removable at will by the President.
This teleforum will analyze the contemporary implications of Humphrey’s and its continuing vitality in U.S. Supreme Court’s administrative law jurisprudence.
Featuring:
Gregory Dolin, Senior Litigation Counsel, New Civil Liberties Alliance
Daniel Epstein, Director, Trust Ventures
Roger Severino, Vice President, Domestic Policy and The Joseph C. and Elizabeth A. Anderlik Fellow, The Heritage Foundation
Kimberly Wehle, Professor of Law, University of Baltimore Law School; Visiting Professor, Washington College of Law, American University
[Moderator] Aram A. Gavoor, Associate Dean for Academic Affairs and Professorial Lecturer in Law, the George Washington University Law School

Courthouse Steps Oral Argument: SEC v. Cochran Nov 08, 2022

On November 7, 2022, the U.S. Supreme Court will hear oral argument in Michelle Cochran v. U.S. Securities and Exchange Commission. In April 2016, the Securities and Exchange Commission (SEC) brought an enforcement action against Michelle Cochran, a certified public accountant, alleging that she had failed to comply with federal auditing standards. A SEC administrative law judge (ALJ) determined Cochran had violated federal law, fined her $22,500, and banned her from practicing before the SEC for five years. The SEC adopted the ALJ’s decision, and Cochran objected.
Before the SEC could rule on Cochran’s objection, the Supreme Court decided Lucia v. SEC, in which it held that SEC ALJs are officers of the United States under the Appointments Clause, who must be appointed by the President, a court of law, or a department head. In response to the Lucia ruling, the SEC remanded all pending administrative cases for new proceedings before constitutionally appointed ALJs, including Cochran’s.
Cochran filed a federal lawsuit arguing that while Lucia may have addressed one constitutional issue with ALJs, it left uncorrected another problem: because SEC ALJs enjoy multiple layers of "for-cause" removal protection, they are unconstitutionally insulated from the President's Article II removal power. The district court dismissed her case for lack of subject-matter jurisdiction based on five circuit courts of appeal ruling that the Exchange Act implicitly stripped district courts of the jurisdiction to hear challenges to ongoing SEC enforcement proceedings. Arguing that in 2010, the Supreme Court had unanimously ruled in Free Enterprise Fund that nothing in the Exchange Act stripped federal court jurisdiction either explicitly, or implicitly, Cochran appealed to the U.S. Court of Appeals for the Fifth Circuit. A three judge panel affirmed the dismissal 2-1, but later, the Fifth Circuit sitting en banc, reversed 9-7, holding that Cochran had district court jurisdiction to bring her challenge to the SEC ALJ’s removal protections.
The case is set to be argued on Nov 7, 2022. We will break down the oral argument for this case on the next day, November 8, 2022.
Featuring:
Margaret A. Little, Senior Litigation Counsel, New Civil Liberties Alliance

Tiwari v. Friedlander: Which Rational Basis Test is it Anyway? Nov 07, 2022

In Tiwari v. Friedlander, the Petitioners ask the Supreme Court to grant certiorari to address whether the Fourteenth Amendment requires meaningful review of restrictions on the right to engage in a common occupation. The petition argues that the right to engage in a common occupation is deeply rooted in the nation’s history and tradition, but its protection has been inconsistent, sometimes leading to conflicting results across the lower courts. The petition also contends this inconsistency is caused by the standard under which courts review economic-liberty challenges— the rational basis test.
The Petitioners, Dipendra Tiwari and Kishor Sapkota, challenge Kentucky’s Certificate-of-Need (CON) Law as an unconstitutional infringement on their right to earn an honest living. The CON law prevents them from opening a healthcare agency they designed to provide home services to the large community of Nepali-speaking refugees and immigrants in Louisville. By contrast, Kentucky contends that the CON law is necessary for lowering competitive pressure and increasing profits for incumbents who can pass their gains to the public.
The petition raises questions about the proper articulation of the rational basis test and whether the right to engage in a common occupation is deeply rooted in history and tradition under the Court’s recent landmark decision Dobbs v. Jackson Women’s Health Organization.
Which Rational Basis Test is it anyway? Is the Right to Engage in a Common Occupation Deeply Rooted in History and Tradition and does the Fourteenth Amendment Guarantee Meaningful Protection for that Right?
To discuss the petition and these questions, please join the lead attorney for the Petitioners, Andrew H. Ward, attorney at the Institute for Justice, and Professor David Upham, Director of Legal Studies and Associate Professor at the University of Dallas.
Featuring:
--Andrew Ward, Attorney, Institute for Justice
--Prof. David Upham, Director of Legal Studies & Associate Professor, University of Dallas
--Moderator: Adam Griffin, Law Clerk, US District Courts

Litigation Update: Garrison v. U.S. Dept. of Ed.: A Challenge to Biden’s Student Loan Forgiveness Nov 04, 2022

In August 2022, the Biden administration announced plans to cancel up to $20,000 in student loan debt per person for more than 40 million Americans. To do this, the Department of Education relies on the HEROES Act which, as an aid to veterans and their families, allows the government to modify student loans during times of war or national emergency. On September 27, 2022, the Pacific Legal Foundation, on behalf of Frank Garrison, filed suit against the U.S. Department of Education to block the Department’s move to cancel more than $500 billion in student loan debt. Plaintiff seeks a temporary restraining order from the U.S. District Court for the Southern District of Indiana to prevent the loan cancellation from going into effect. Mr. Garrison, as a part of an existing, congressionally authorized Public Service Loan Forgiveness (PSLF) program, will receive debt forgiveness after making 10 years of payments on his loans. The challenged program, however, will, as a result of cancelling his loans, stick him with a new state tax bill which he would not have under his existing PSLF program. Indiana is one of seven states that plans to tax any debt forgiven in Biden's plan, and thus Garrison would owe more than $1,000 in state and local taxes.
This Litigation Update from Caleb Kruckenberg will provided a current look at Garrison v. U.S. Department of Education.
Featuring
--Caleb Kruckenberg, Litigation Counsel, Pacific Legal Foundation
--[Moderator] Diana Furchtgott-Roth, Director, Center for Energy, Climate, and Environment and The Herbert and Joyce Morgan Fellow in Energy and Environmental Policy, The Heritiage Foundation

Courthouse Steps Oral Argument: SFFA v. Harvard Nov 02, 2022

On October 31, 2022, the U.S. Supreme Court heard Students for Fair Admissions Inc. v. President & Fellows of Harvard College.
In perhaps the most anticipated case of this term, the court considers a challenge to the use of racially preferential undergraduate student admissions practices at Harvard University and the University of North Carolina.
Our experts broke down the oral argument on the same day, October 31, 2022.
Featuring:
--Prof. Amanda Shanor, Assistant Professor of Legal Studies & Business Ethics, The Wharton School
--Devon Westhill, President and General Counsel, Center for Equal Opportunity
--Moderator: Curt Levey, President, Committee for Justice

What Are the Limits of Emergency Executive Powers? Nov 01, 2022

The use of presidential emergency powers has raised controversy under administrations of both parties. President Trump’s attempt to transfer funds to build his border wall, the CDC’s eviction moratorium and OSHA vaccine mandate, Title 42 border expulsions, and President Biden’s student loan forgiveness plan have all raised questions of overreach. This panel explored the pros and cons of executive emergency powers and whether or not there should be tighter constraints on their use.
Featuring:
Daniel J. Dew, Legal Policy Director, Pacific Legal Foundation
Elizabeth Goitein, Senior Director, Liberty & National Security Program, Brennan Center for Justice at New York University Law School
Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
Moderator: Ilya Shapiro, Senior Fellow and Director of Constitutional Studies, Manhattan Institute

Is the Office of Foreign Assets Control's Sanctioning of Tornado Cash a Threat to the Future of Financial Privacy? Oct 27, 2022

Tornado Cash is an open source, decentralized cryptocurrency tumbler that was introduced in 2019. The service allows users to mix identifiable Ethereum cryptocurrency funds with others, thus obscuring the trail back to the funds original source. On August 8, 2022, the Treasury’s Office of Foreign Assets Control (OFAC) sanctioned Tornado Cash, making it illegal for United States citizens, residents, and companies to receive or send money through the service. OFAC claims that Tornado cash is responsible for laundering more than $7 billion in virtual currencies, including money believed to be stolen by North Korea and criminal groups.
As opposed to sanctioning people, organizations, or particular addresses associated with rogue regimes, OFAC has sanctioned the code of Tornado Cash itself, causing critics to claim that OFAC has exceeded its statutory authority .
Join our experts as they discuss OFAC’s blacklisting of Tornado Cash, potential litigation from opponents, and the broader implications for financial privacy, national security, and free speech.
Featuring:
Paul Brigner, Head of U.S. Policy and Strategic Advocacy, Electric Coin Company.
Michael Mosier, General Counsel, Espresso Systems
Kevin Werbach, Professor of Legal Studies and Business Ethics at the Wharton School, University of Pennsylvania
Moderator: J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University

A Seat at the Sitting - November 2022 Oct 26, 2022

Each month, a panel of experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this program are included below.

Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (October 31) – Whether institutions of higher education can use race as a factor in admissions; and whether Harvard University is violating Title VI of the Civil Rights Act by purportedly penalizing Asian American applicants.

Students for Fair Admissions, Inc. v. University of North Carolina (October 31) – Whether institutions of higher education can use race as a factor in admissions; and whether a university can reject race-neutral admissions without proving that such action would damage the student body or standard of education.

Securities and Exchange Comm’n v. Cochran (November 7) – Whether a federal district has jurisdiction to hear a suit in which the respondent in an SEC administrative proceeding seeks to enjoin that proceeding based on an alleged constitutional defect regarding the removal of administrative law judges.

Axon Enterprise, Inc. v. Federal Trade Comm’n (November 7) – Whether Congress stripped federal district courts of jurisdiction over constitutional challenges to the FTC by granting the courts of appeals jurisdiction over FTC cease-and-desist orders.

Haaland v. Brackeen (November 9) – Equal protection clause; whether the Indian Child Welfare Act of 1978 violates the anti commandeering doctrine of the 10th amendment.

Featuring:

Jennifer Weddle, Shareholder, Greenberg Traurig
Margaret A. Little, Senior Litigation Counsel, New Civil Liberties Alliance
Alison Somin, Legal Fellow, Center for the Separation of Powers, Pacific Legal Foundation
Elyse Dorsey, Partner, Kirkland & Ellis LLP
Moderator: Amy Howe, Howe on the Court

Talks with Authors: Vincent Phillip Munoz on Religious Liberty and the American Founding Oct 25, 2022

What did the American Founders mean when they declared religious liberty to be an “inherent,” “natural” and “inalienable” right? Does the right to religious liberty provide religious exemptions from generally applicable laws? What is wrong with a state establishment of religion?
In Religious Liberty and the American Founding, Vincent Phillip Muñoz addresses these questions and others, offering a novel interpretation of Founders’ philosophy and constitutionalism of religious liberty. Drawing on early state constitutions, declarations of religious freedom, Founding-era debates, and the First Amendment’s drafting record, the book documents and articulates the Founders’ understanding of religious liberty as an inalienable natural right, uncovers what we can and cannot determine about the original meaning of the First Amendment’s Religion Clauses, and constructs a natural rights jurisprudence of religious liberty, exploring and explaining how the Founders’ principles would adjudicate First Amendment church-state issues. Contrary to what many might assume, Muñoz contends that adherence to the Founders would lead neither to consistently conservative nor consistently liberal results, but rather to a novel church-state jurisprudence that, in most cases, would return authority from the judiciary to the American people.
Join us for a conversation of Professor Muñoz’s new book, with Professor Muñoz himself and moderated by Michael McConnell, the director of Stanford Law School’s Constitutional Law Center.
Featuring:
--Vincent Phillip Muñoz , Tocqueville Associate Professor Department of Political Science and Concurrent Associate Professor of Law, University of Notre Dame Law School
--Moderator: Michael McConnell, Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School; Senior Fellow at the Hoover Institution

Courthouse Steps Oral Argument: National Pork Producers Council v. Ross Oct 19, 2022

In National Pork Producers Council v. Ross, the Supreme Court will address the dormant commerce clause in the context of a California law regarding the housing of farm animals. Specifically, the Court will decide "whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause..."
Oral arguments took place on October 11. That afternoon, the Manhattan Institute's Ilya Shapiro joined us to analyze the arguments and examine the issues underlying the case.
Featuring:
Ilya Shapiro, Senior Fellow and Director of Constitutional Studies, Manhattan Institute

Courthouse Steps Oral Argument: Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith Oct 18, 2022

The Supreme Court is considering a lawsuit between rock and roll photographer Lynn Goldsmith and the Andy Warhol Foundation regarding Warhol’s works based on Goldsmith’s photo of the musician Prince. The fair use doctrine excuses from liability certain unlicensed uses of copyrighted works. The question before the Court in Warhol v. Goldsmith is whether Warhol’s creation of a series of paintings copied from the photo, and the licensure of those paintings to periodicals, constitutes a fair use. Underlying the case are core intellectual property questions about the nature and scope of the fair use doctrine.
Following oral arguments on October 12, Zvi Rosen, who filed an amicus brief in the case in support of the respondent (Goldsmith), joined us to break down the case.
Featuring:
Zvi Rosen, Assistant Professor, Southern Illinois University School of Law

Energy Security After Ukraine: What are the Challenges and Opportunities for the U.S. and its Allies? Oct 12, 2022

Russia’s invasion of Ukraine shocked the world – and directed renewed attention to the global energy system. Suddenly, the topic of energy security rose to the forefront as consumers across the globe began to feel the impact of the conflict when filling their gas tanks and paying their electricity bills. As Europe struggles to disentangle itself from dependence upon Russian energy sources, the United States and others have directed renewed focus toward their supply chains for both hydrocarbon fuels and renewable power generation. Our panel of energy experts will discuss these recent events and consider the legal and policy levers available to the United States and its allies to enhance their energy security.
Featuring:
--Prof. James Coleman, Robert G. Storey Distinguished Faculty Fellow and Professor of Law, Southern Methodist University Dedman School of Law
--George Fibbe, Partner, Baker Botts, Former Deputy General Counsel, Department of Energy
--Moderator: Daniel G. West, Vice President, SCF Partners

Suing Religious Employers: The Extent of Exemptions in Title VII Oct 12, 2022

Religious employers are exempt under §§ 702(a) and 703(e)(1), 42 U.S.C.2000e—1(a) and 2000e—2(e)(1), when sued under Title VII of the Civil Rights Act of 1964, as amended. However questions can still arise when Religious employers undertake actions that would allegedly be problematic under Title VII for non-religious employers. What is the scope of the exemption? What is the definition of religion? What is the definition of a religious employer able to invoke the exemption?
Additionally, is the exemption waived if the employer is a recipient of federal financial assistance? How does the exemption in Title VII compare with other defenses available to the employer such as the ministerial exception (Church Autonomy Theory), Religious Freedom Restoration Act, and the First Amendment’s free-speech and free-exercise clauses? What if the religious employer is sued in a similar claim under a state or municipal human rights act?
Experts Sharon Gustafson, Jennifer Goldstein, and Carl Esbeck will discuss some of these questions in this webinar on the extent of exemptions extended to religious employers under Title VII.
Featuring:
--Carl H. Esbeck, R. B. Price Professor of Law Emeritus, University of Missouri
--Sharon Fast Gustafson, Principal, Sharon Fast Gustafson, Attorney at Law, PLC
--Jennifer Goldstein, Associate General Counsel, Equal Employment Opportunity Commission

Courthouse Steps Oral Argument: Sackett v. Environmental Protection Agency Oct 07, 2022

One of the longest-standing environmental law challenges is how to define the scope of waters regulated under the Clean Water Act known as “waters of the United States” (WOTUS). After decades of regulatory uncertainty, the Supreme Court has again taken up a case that may provide clarity. On October 3rd, the Court will hear oral argument in Sackett v. EPA, the first case of this new term and the second time the case will be reviewed by the high court. Perhaps this time the Court will definitively determine what is a WOTUS. Will the Court definitively determine what is a WOTUS?
Join us for a discussion on this important case with Damien Schiff (arguing for petitioners), Tony Francois (represented petitioners in the Ninth Circuit), and William Snape (Director of the American University Washington College of Law’s Program on Environment and Energy Law). The panel will be moderated by Hunton Andrews Kurth partner Matt Leopold, who served previously as EPA general counsel and assisted in drafting the 2020 Navigable Waters Protection Rule defining WOTUS.
Featuring:
Tony Francois, Senior Attorney, Pacific Legal Foundation
Damien Schiff, Senior Attorney, Pacific Legal Foundation
Prof. William Snape, Director of Program on Environmental and Energy Law, Assistant Dean of Adjunct Faculty Affairs, and Fellow in Environmental Law, American University Washington College of Law
Moderator: Matt Leopold, Partner, Hunton Andrews Kurth
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To register, click the link above.

Courthouse Steps Oral Argument: Merrill v. Milligan Oct 04, 2022

On October 4, 2022 the U.S. Supreme Court heard oral argument in Merrill v. Milligan.
Following the 2020 Census, the Alabama Legislature redrew its congressional district lines to account for shifts in the state’s population. With these new lines, only one of the state’s seven congressional districts was majority-minority. Several plaintiffs sued, asserting the districts violated Section 2 of the Voting Rights Act of 1965 and the Fourteenth Amendment to the United States Constitution, and sought the creation of an additional majority-minority district to account for the growing African American population in Alabama.
The District Court enjoined the districts, holding that they violated the VRA. Alabama appealed to the U.S. Supreme Court, which granted Certiorari and stayed the district court's injunctions.
We broke down the argument on the same day, October 4, 2022.
Featuring:
--David Warrington, Partner, Dhillon Law Group Inc.
--Moderator: Michael Dimino, Professor of Law, Widener University Commonwealth Law School

The 2022 Mike Lewis Memorial Teleforum: Peace in Cyberspace: How it was Lost and How to Restore It Oct 02, 2022

Faced with relentless cyberattacks and intrusions that could imperil democracy, how should Western nations respond? This teleforum will discuss problems in the application of existing law and norms to reduce international cyber conflict. It will also explore possible new approaches involving a concentrated and coordinated deterrence strategy as well as technological innovations to secure vital areas of cyberspace.
Mike Lewis was a naval aviator, and then a renowned law professor, widely admired by other scholars and practitioners. He was a great friend of the Federalist Society, appearing at dozens of lawyer and student chapter events, as well as the 2014 National Convention. He was also a member of the Executive Committee of the Society's International & National Security Law Practice Group. Each year, the Practice Group holds a Teleforum in his honor.
Featuring:
--Prof. Lucas Kello, Associate Professor of International Relations, Oxford University
--Prof. Eric Jensen, Associate Professor of Law, Brigham Young University J. Reuben Clark Law School
--Moderator: Vince Vitkowsky, Partner, Gfeller Laurie LLP
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A Seat at the Sitting - October 2022 Sep 27, 2022

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this program are included below.

Sackett v. Environmental Protection Agency (October 3) – environmental law; water policy regulations; administrative law
Delaware v. Pennsylvania and Wisconsin (October 3) – State claims dispute over travelers checks; financial services & e-commerce
Merrill v. Milligan (October 11) – election law; whether Alabama’s 2021 redistricting plan violated the Voting Rights Act
National Pork Producers Council v. Ross (October 11) – interstate commerce, dormant commerce clause
Helix Energy Solutions Group v. Hewitt (October 12) – labor law; regulatory policy on overtime pay and exemptions; Fair Labor Standard’s Act

Featuring:

Donald Kochan, Professor of Law and Deputy Executive Director, Law and Economics Center, Antonin Scalia Law School, George Mason University
Prof. Michael Dimino, Professor of Law, Widener University Commonwealth Law School
Charles Yates, Attorney, Pacific Legal Foundation
Prof. Patrick Parenteau, Professor of Law, Vermont Law School
Moderator: Adam Gustafson, Senior Counsel for Environmental and Regulatory Affairs at Boeing

"Digital Discrimination" Under the Infrastructure Investment and Jobs Act Sep 27, 2022

The 2021 Infrastructure Investment and Jobs Act requires the Federal Communications Commission and the Department of Justice to "ensure that Federal policies promote equal access to robust broadband internet access service by prohibiting deployment discrimination."
Watch this discussion on the FCC's ongoing efforts to effectuate this portion of the statute and how policymakers can best achieve the goal of equitable broadband deployment. The discussion considered what discrimination means in this context, whether broadband providers engage in it, and what regulatory actions would best ensure Americans have access to the broadband they need.
Featuring:
--Diana Eisner, Vice President, Policy & Advocacy, USTelecom
--Jenna Leventoff, Senior Policy Counsel, Public Knowledge
--Crystal Tully, Deputy Staff Director, United States Senate Committee on Commerce, Science & Transportation
--Sanford Williams, Special Advisor to Chairwoman Rosenworcel and Deputy Managing Director, The Office of the Managing Director, Federal Communications Commission
--Moderator: Joe Kane, Director of Broadband and Spectrum Policy, Information Technology and Innovation Foundation

Who Decides if January 6 Was an Insurrection Prohibiting the Election Of Participants? Sep 27, 2022

The Fourteenth Amendment prohibits anyone who has engaged in insurrection or rebellion against the United States after swearing an oath to support the Constitution from ever holding public office again. In light of this Disqualification Clause, some have called for participants in the riot that occurred on January 6, 2021 to be barred from future elections.
Who has the authority to enforce this provision, the states or Congress? Normally states cannot add requirements for holding public office, but is this different, or is enforcement left to Congress itself through its ability to expel members?
These questions took on new relevance on September 6, 2022, when New Mexico Judge Francis Mathew ordered that Otero County Commissioner Couy Griffin be removed from office effective immediately for his participation in the January 6 riot under the Disqualification Clause. While this decision is likely to be appealed, it could have serious implications for members of Congress and/or former President Donald J. Trump.
Watch a discussion on these important issues between James Bopp, Jr., who represented Congressman Madison Cawthorn against challenges to his office under the Disqualification Clause, and Pressly Millen, who represented the challengers to Congressman Cawthorn. That challenge was mooted after Congressman Cawthorn failed to win his primary, leaving the underlying questions unanswered. Joining Mr. Bopp and Mr. Millen will be Kory Langhofer, who successfully represented Congressman Andy Biggs before the Arizona Supreme Court on a Disqualification Clause challenge, and moderator Devin Watkins, an Attorney at the Competitive Enterprise Institute.
Featuring:
--James Bopp, Jr., General Counsel, James Madison Center for Free Speech
--Kory Langhofer, Managing Partner, Statecraft
--Pressly M. Millen, Partner, Womble Bond Dickinson
--Moderator: Devin Watkins, Attorney, Competitive Enterprise Institute

Answering Threats to Taiwan: Where Does Law Matter? Sep 19, 2022

The government of Communist China has insisted – and the U.S. government has officially acknowledged since 1979 – that Taiwan is part of China. Does that mean international law imposes no limits on Chinese coercion or intimidation of Taiwan? Do U.S. international agreements in the region require (or prohibit) U.S. military aid to Taiwan in the event of open conflict with China? Would the President need authorization from Congress to deploy U.S. forces there if conflict seems imminent? Our panelists will discuss the way these questions are likely to be viewed by other governments as well as by policymakers in Washington.
Featuring:
Michael Mazza, Nonresident Fellow, AEI
Mary Kissel, Executive Vice President and Senior Policy Advisor, Stephens, Inc.
Prof. Julian Ku, Senior Associate Dean for Academic Affairs, Faculty Director of International Programs, and Maurice A. Deane Distinguished Professor of Constitutional Law, Maurice A. Deane School of Law at Hofstra University
Moderator: Prof. Jeremy Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University
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To register, please click the link above.

What’s Next for Crypto: Implications of Deflated Prices and Turmoil in Cryptocurrency Markets Sep 14, 2022

Events of 2022 brought a "crypto winter," with average prices of cryptocurrencies falling about 70% from their 2021 highs, the bankruptcy of several crypto companies, the complete collapse of a popular so-called "stable" coin, unexpected suspensions of withdrawals by some crypto issuers, large losses by individual investors, and heightened efforts toward expanded regulation and legislation. What does this all mean going forward? Was this simply the end of another bubble and popular delusion which will now wither? Or was it the winnowing out of a typical innovative overexpansion, with a more mature ongoing cryptocurrency industry continuing, perhaps one with significant regulation? This webinar will examine where crypto will go from here.
Featuring:
Bert Ely, Principal, Ely & Company, Inc.
Alexandra Gaiser, Director of Regulatory Affairs, River Financial
Steven Lofchie, Corporate Partner, Fried Frank
J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University
Moderator: Alex Pollock, Senior Fellow, the Mises Institute
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The Original Meaning of the Fourteenth Amendment: Implications for Labor Law Sep 09, 2022

The past few years have witnessed a flurry of new scholarship related to the original meaning of the Fourteenth Amendment, particularly the Privileges or Immunities Clause and its associated citizenship declarations. Evan Bernick, a professor at Northern Illinois University, is the co-author with Randy Barnett of The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit. Christopher Green, a professor at the University of Mississippi, is the author of Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause, as well as a review of Evan's book, to which he and Barnett have responded. This historical debate is not merely of academic interest, however. If the Supreme Court were to view the original meaning of the Fourteenth Amendment in a new light, what would the implications be for labor law?
Featuring:
--Professor Evan D. Bernick, Assistant Professor, Northern Illinois University
--Professor Christopher R. Green, Associate Professor of Law and H.L.A. Hart Scholar in Law and Philosophy, University of Mississippi School of Law

Talks With Authors: Classified: The Untold Story of Racial Classification in America Sep 06, 2022

In his recent book, Classified: The Untold Story of Racial Classification in America, Professor David Bernstein breaks down the history of American racial classifications, and raises questions about the classifications’ coherence, logic, and fairness.
Professor Bernstein joined us to discuss his book and the role that racial classifications should or should not play in our society.
Featuring:
--Professor David Bernstein, University Professor and Executive Director, Liberty & Law Center, Antonin Scalia Law School, George Mason University
--Cory Liu, Partner, Ashcroft Law Firm

Religious Liberty at the Supreme Court 2022 Sep 01, 2022

Please join these experts as they review religious liberty at the Supreme Court in 2022.
Featuring:
--Prof. Mark L. Rienzi, President & CEO, Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, Catholic University
--Moderator: Prof. William L. Saunders, Professor, The Catholic University of America; Co-Director of the Center for Religious Liberty, and Fellow, The Institute for Human Ecology

Is Arizona's New Police Recording Law Constitutional? Aug 30, 2022

This summer, the state of Arizona passed a law that will prohibit the ability of the public and press to video record police officers in certain situations. Alexa L. Gervasi, the Executive Director for the Georgetown Center for the Constitution, will join this program to argue that this law is a prior restraint on free speech that does not pass judicial review under strict scrutiny. Larry H. James, the Managing Partner of Crabbe Brown & James LLP, will offer his perspective in defense of the new law. In addition to the constitutional implications of this restriction on recording, our speakers will explore what this regulation could mean for the future of policing.
Featuring:
--Alexa L. Gervasi, Executive Director, Georgetown Center for the Constitution
--Larry H. James, Managing Partner, Crabbe Brown & James LLP
--Moderator: Stephen Klein, Partner, Barr & Klein PLLC

Litigation Update: Reges v. Univ. of Washington – University Acknowledgement of Indigenous Land Aug 29, 2022

Stuart Reges is an award-winning professor at the University of Washington in the Allen School of Computer Science & Engineering. The Allen School encourages professors to include on their syllabi a statement recognizing that the land on which the university sits was once owned by indigenous tribes. Professor Reges disagreed with the University’s “Indigenous Land Acknowledgement Statement” — instead, he challenged his students and fellow faculty to consider the utility and performative nature of land acknowledgments by including a modified statement on his syllabus.
The University's administrators later concluded that the professor's viewpoint was “offensive” and “inappropriate,” and created a "shadow" section of Professor Reges's class. The school next launched an investigation of the professor under a policy that prohibits “unacceptable” and “inappropriate” speech. The investigation has been ongoing since March 2, 2022, and carries the threat of termination.
On July 13, 2022, Reges sued University of Washington officials to challenge the investigation and punishment as viewpoint discriminatory, and the policy as unconstitutionally overbroad and vague. Representing Reges is Josh Bleisch, Faculty Legal Defense Fellow at the Foundation for Individual Rights and Expression, who joins us to discuss the status of the case.
Featuring:
--Joshua Bleisch, Faculty Legal Defense Fund Fellow, The Foundation for Individual Rights and Expression

Do University Diversity Statement Requirements Violate the Constitution? Aug 29, 2022

In recent years, universities have increasingly required 'diversity statements' from faculty seeking jobs, tenure, or promotion. But statements describing faculty's contributions to diversity, equity, and inclusion are also increasingly under attack. Criticisms first made in tweets and blog posts have expanded into prominent opinion pieces and, more recently, law review articles. These attacks are having an effect. Within universities, faculty-wide resolutions for and against mandatory diversity statements have been called and academic freedom committees have been asked to intervene. Outside universities, lawyers are recruiting plaintiffs to challenge diversity statement requirements in court.
Join our experts in a discussion on Professor Brian Soucek’s recent article in the UC Davis Law Review about these diversity statements fleshing out the criticisms and developing a framework to address if universities can require diversity statements without violating either the Constitution or academic freedom.
Featuring:
--Professor Brian Soucek, Professor of Law and Chancellor’s Fellow, UC Davis School of Law
--Professor Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law

Litigation Update: Faust v. Vilsack - Race Discrimination in the American Rescue Plan Aug 29, 2022

The Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit in federal court challenging allegedly unconstitutional race discrimination in the American Rescue Plan’s provision to offer loan forgiveness based on racial categories. The plaintiffs are twelve farmers and ranchers from Wisconsin, Minnesota, South Dakota, Ohio, Missouri, Iowa, Arkansas, Oregon, and Kentucky. Each plaintiff would be eligible for the federal loan forgiveness program, but for their race. In response, U.S. District Judge William Griesbach issued a temporary restraining order on June 10, 2021 halting payments. Other cases subsequently resulted in similar orders.
These lawsuits challenge the extent to which the government can prefer one racial group over another based on allegations of generalized societal or industry discrimination. Prior litigation had addressed allegations of particularized discrimination by the government against black farmers but this more traditional focus on discrimination and tailored remedy was thought by the administration to be inadequate. How should courts respond?
Featuring:
--Rick M. Esenberg, Founder, President, and General Counsel, Wisconsin Institute for Law & Liberty
--Devon Westhill, President and General Counsel, Center for Equal Opportunity

Do Russian Oligarchs Retain Property Rights in the West? Aug 16, 2022

In response to Russia’s invasion of Ukraine, assets of Russian oligarchs have been frozen in Western Europe and the United States. Now some leaders in Western countries urge that these assets be assigned to reconstruction efforts in Ukraine. Are there legal limits on such diversion of foreign-owned property? Should that matter to U.S. policy? Is this rough justice or dangerous precedent? Our legal experts will discuss these questions on this timely webinar.
Featuring:
--Dean Ronald A. Cass, Dean Emeritus, Boston University School of Law; President, Cass & Associates, PC; Former Vice-Chairman and Commissioner, U.S. International Trade Commission
--Prof. Paul B. Stephan, John C. Jeffries, Jr. Distinguished Professor of Law, David H. Ibbeken '71 Research Professor of Law, University of Virginia School of Law
--Moderator: Jeremy Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University

Should the Future Be Determined by the Past? Bearing Arms After Bruen. Aug 11, 2022

Professor Nelson Lund will moderate a debate between Professors Adam Winkler and Robert Leider on the Supreme Court’s latest Second Amendment decision. In New York State Rifle & Pistol Association v. Bruen, the Supreme Court held that the Second Amendment guarantees a right to carry a handgun in public for self-defense. In justifying its holding, the Supreme Court engaged in a methodical historical inquiry, grappling with sometimes contradictory historical facts. In future cases, the Supreme Court also instructed lower courts to examine text, history, and tradition when deciding Second Amendment claims. The Court explicitly rejected the interest-balancing approach previously adopted by most courts of appeals. Bruen may prove to be a watershed decision in constitutional and criminal law.
Did Bruen correctly decide that the right to bear arms applies outside the home? Will Bruen’s text, history, and tradition test be a viable means of analyzing modern gun control laws that have no historical analogue? And now that the right to bear arms outside the home has been recognized as a constitutional right, what effects will Bruen have on state laws criminalizing the carrying of weapons and on police stop-and-frisk policies?
Featuring:
--Adam Winkler, Connell Professor of Law at UCLA School of Law
--Robert Leider, Assistant Professor, George Mason University, Antonin Scalia Law School
--Moderator: Nelson Lund, University Professor, George Mason University, Antonin Scalia Law School

Opioids: The Crisis in 2022 and Beyond Aug 10, 2022

After years of tragic deaths and through a global pandemic, some experts contend that the opioid epidemic has only gotten worse.
Three noted voices in the field provide their thoughts and opinions on the opioid crisis, how it began, why it persists, and how it finally can be solved.
Featuring:
--Trevor Burrus, Research Fellow, Robert A. Levy Center for Constitutional Studies, Cato Institute
--Joseph Grogan, Founder, Fire Arrow Consulting, and Former Director, United States Domestic Policy Council
--Paul Larkin, Senior Legal Research Fellow, the Center for Legal and Judicial Studies, The Heritage Foundation
--Moderator: Mike Hurst, Partner, Phelps Dunbar LLP and Former U.S. Attorney for the Southern District of Mississippi

Talks with Authors: Created Equal: Clarence Thomas in His Own Words Aug 09, 2022

Mark Paoletta and Michael Pack have co-edited a new book, Created Equal: Clarence Thomas in His Own Words, which is a follow-on project of Michael Pack’s very successful 2020 documentary of the same name. In making the film, Pack interviewed Justice Thomas for 25 hours. Created Equal is a book-length interview taken from those 25 hours of interviews, where Justice Thomas discusses in an informal and moving way his remarkable life – from being born into abject poverty in 1948 in the segregated Deep South of Georgia to being a justice on the U.S. Supreme Court. He talks about the challenges he faced and overcame, including his contentious confirmation battle in 1991. 95% of what is in the book did not appear in the film.
Co-editor Mark Paoletta joined us for a discussion of one of our most interesting justices. Mr. Paoletta served as a lawyer in the White House Counsel’s Office in the George H.W. Bush administration and worked on the confirmation of Justice Thomas. He is a partner at Schaerr-Jaffe.
Featuring:
--Mark Paoletta, Partner, Schaerr-Jaffe

Courthouse Steps Decision: Oklahoma v. Castro-Huerta Aug 09, 2022

On June 29, 2022, the Supreme Court decided Oklahoma v. Castro-Huerta. In a 5-4 decision, the Court reversed and remanded the judgment of the Court of Criminal Appeals of Oklahoma. The Court held that the federal government and the state have concurrent jurisdiction to prosecute crimes committed by non-Indians against Indians in Indian country.
Justice Kavanaugh delivered the opinion of the Court. Justice Gorsuch filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined.
Please join our legal expert to discuss the case, the legal issues involved, and the implications going forward.
Featuring:
David Casazza, Associate Attorney, Gibson Dunn
Anthony J. Ferate, Of Counsel, Spencer Fane LLP
Jason Manion, Associate Attorney, Gibson Dunn
Jennifer Weddle, Shareholder, Greenberg Traurig

The Future of Chevron Deference at the Supreme Court Aug 09, 2022

The Supreme Court decided multiple administrative law cases this term, but in no majority opinion did the Court cite its landmark 1984 precedent Chevron v. NRDC. The lack of citation to Chevron raises an important question: Is the Court ignoring the Chevron doctrine (which provides for judicial deference to agency interpretations of ambiguous statutes)? Whatever the status of Chevron at the Supreme Court, lower courts continue to apply the doctrine. Scholars have lodged thoughtful critiques of Chevron's rule, but after October Term 2021, its continued vitality is unclear.
This panel analyzes what's next for Chevron, with a particular focus on what Chevron's conspicuous absence in the Court's opinions this term might mean for the doctrine's future.
Featuring:
--Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School
--Yaakov M. Roth, Partner, Jones Day
--Moderator: Eli Nachmany, Editor-in-Chief, Harvard Journal of Law & Public Policy

Courthouse Steps Decision: Biden v. Texas Aug 09, 2022

On June 30, 2022, the Supreme Court decided Biden v. Texas.
In a 5-4 decision, the Court ruled that the Biden administration can end the Migrant Protection Protocols (MPP), an immigration enforcement program put in place under the Trump administration.
Under MPP (colloquially known as "Remain in Mexico"), many individuals seeking asylum in the United States after entering via the southern border were sent back to Mexico to await their court dates. Soon after taking office President Biden sought to end the program, but the administration was ordered to continue enforcing the Protocols by a federal district court and the Fifth Circuit Court of Appeals.
Please join Professor Ilya Somin as he breaks down the ruling and its implications for immigration policy and administrative law.
Featuring:
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
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Courthouse Steps Decision Webinar: West Virginia v. EPA Aug 09, 2022

On June 30, 2022, the Supreme Court decided West Virginia v. EPA. In a 6-3 decision, the Court held that EPA exceeded its authority under Clean Air Act Section 111 when it issued the 2015 Clean Power Plan, which sought to control carbon dioxide emissions from existing fossil fuel-fired power plants by imposing limits based on a “system” of shifting power generation away from fossil fuels and towards renewable fuels at the grid-wide level. Although the Supreme Court stayed the Clean Power Plan in February 2016 before it could take effect, the Court’s decision in West Virginia v. EPA was the first time it pronounced on the Plan’s merits.
This case is a major development in administrative law. For the first time, a majority opinion of the Supreme Court used the phrase “major questions doctrine” to describe its methodology. The Court determined that the Clean Power Plan dealt with issues of such “economic and political significance” that it required a clear statement of Congressional intent to authorize this specific type of action. Because the CAA contains no such clear statement, the Clean Power Plan was unlawful.
Justice Gorsuch, joined by Justice Alito, wrote a concurring opinion expanding on the “major questions doctrine” and its relationship to the constitutional principle of non-delegation. Justice Kagan, joined by Justices Breyer and Sotomayor, wrote a dissenting opinion arguing the Court improperly placed “major questions” at the beginning of its statutory analysis—instead of conducting a traditional Chevron-style textual inquiry and concluding with “major questions.” Further, the dissent states that Congress provided EPA with the authority to require “generation shifting” in the CAA’s use of broad language authorizing the Agency to identify a “system of emission reduction” to address air pollution.
Please join our legal experts to discuss the case, the legal issues involved, and the implications going forward.
Featuring:
David Fotouhi, Partner, Gibson, Dunn & Crutcher LLP, former Acting General Counsel, EPA
Justin Schwab, Founder, CGCN Law; former Deputy General Counsel, EPA.
Moderator: Garrett Kral, Associate Member of the Environmental Law & Property Rights Practice Group’s Executive Committee; former Special Advisor for Oversight, EPA.

The Future of Homemade Firearms: The Legal and Political Implications of ATF Final Rule 2021R-05F Jul 28, 2022

Americans have been privately manufacturing and assembling firearms since before this country’s founding. Now, thanks to the prevalence of commercially available firearm parts, “buy, build, shoot” kits, and 3D printers, it is easier than ever to build a gun in the comfort of one’s own home, which bypasses many of the statutory and regulatory regimes that govern buying a fully built firearm from a gun store.
To some, this represents a loophole in America’s gun laws. Others see this as a modern innovation in the tradition of home gun building that has always existed in America.
The Biden Administration shares the former view. On April 11, 2022, Attorney General Merrick Garland signed ATF Final Rule 2021R-05F. Among other measures, this rule changes the ATF’s definition of “firearm frame or receiver” found in the Gun Control Act of 1968, greatly expanding the list of what is considered a firearm by the agency, and therefore what can be strictly regulated under existing federal law. Furthermore, both houses of Congress currently have bills before them designed to increase the regulation of homemade firearms, and to ban certain types of these so-called “ghost guns”.
In this timely webinar, our experts will cover the ATF’s Final Rule, set to go into effect on August 24, 2022, and will discuss the legal and political implications surrounding homemade firearms and the regulation thereof.
Featuring:
--Matthew Larosiere, Director of Legal Policy at Firearms Policy Coalition
--Dru Stevenson, Wayne Fisher Research Professor, Professor of Law, South Texas College of Law Houston
--Moderator: Ryan Lacey, Assistant Director, Practice Groups, The Federalist Society

Litigation Update: State Legislatures, State Courts, and Federal Elections Jul 28, 2022

Who decides the rules for federal elections? The Constitution generally assigns that power to the “Legislature” of each state, but state courts are playing an increasing role. Recent elections have witnessed an increase in decisions applying broad provisions of state constitutions to override election laws and congressional maps adopted by legislators.
That is what happened in Moore v. Harper, which the Supreme Court will hear in its upcoming term. Recently North Carolina gained a House seat, and its legislature adopted a new district map. The state’s supreme court deemed that map a partisan gerrymander and substituted in its place the court’s own map. That result, it concluded, was required by four separate parts of the state constitution, including clauses protecting the “freedom of speech” and guaranteeing “free” elections. Although the Supreme Court denied an emergency request to block that ruling for the 2022 election, it agreed to take the case to answer the broader question of state-court authority over the laws governing federal elections.
Supporters of legislature primacy—often called the “independent state legislature” doctrine—say that a decision enforcing the doctrine will cut back on election-litigation gamesmanship, end the disruption of last-minute rule changes, and put primary responsibility back in the hands of democratically accountable legislators. Opponents, however, say that a decision for the state would threaten voting rights and democracy itself. Their Exhibit A: the Trump campaign’s failed strategy to convince state legislatures to overrule voters in the 2020 presidential election.
This webinar will provide an overview of the legal debate, background on the Moore case, and discussion of the key issues and controversies that the Court will confront.
Featuring:
Andrew M. Grossman, partner at Baker & Hostetler LLP, co-leader of the firm’s Appellate and Major Motions practice, and Adjunct Scholar at the Cato Institute
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To register, click the link above

Is the EEOC misusing the Freedom of Information Act to penalize employers that adopt mandatory employment arbitration programs? Jul 28, 2022

The EEOC is denying employers’ FOIA requests for the EEOC’s charge investigation files when resulting employment claims are proceeding in arbitration rather than litigation. Our panel will discuss whether the EEOC’s justifications for denying such FOIA requests are consistent with FOIA and other governing federal statutes. We will consider a number of related issues. What is the EEOC’s basis for treating litigation and arbitration differently in responding to employers’ FOIA requests? How long has the EEOC been making this distinction between litigation and arbitration? In light of the increasing prevalence of employment arbitration, should employers challenge the EEOC’s FOIA practices and, if so, how?
Featuring:
--Janet Dhillon, Commissioner, EEOC
--Eric Dreiband, Partner, Jones Day
--Moderator: Christopher C. Murray, Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart

A Response to: Ten Years On: The America Invents Act and the role of the Patent Trial and Appeal Board in resolving patent disputes Jul 28, 2022

Join us on July 27 to hear three experts give a response to our April 26th event on The America Invents Act and the role of Patent Trial and Appeal Board in resolving patent disputes.
Featuring:
--Prof. Thomas D. Grant, Senior Research Fellow (Wolfson College); Fellow (Lauterpacht Centre for International Law), Faculty of Law, University of Cambridge
--Prof. F. Scott Kieff, Fred C. Stevenson Research Professor of Law and Director, Planning and Publications, Center for Law, Economics, & Finance, George Washington University Law School
--Moderator: Hon. Paul Michel, U.S. Court of Appeals, Federal Circuit (ret.)

Consumers' Research v. FCC and the Legality of the Universal Service Fund Contribution Regime Jul 27, 2022

With billions of dollars allocated to broadband funding in the Infrastructure Investment and Jobs Act, the future of the FCC’s Universal Service Fund (USF) is a hotly debated topic. Now, with multiple lawsuits challenging the very legality of the USF contribution system, as well as new guidance from the Supreme Court on the limits of federal agencies’ power, the future of the Fund hangs in the balance. Join industry experts to discuss the issues raised in Consumers’ Research v. FCC and where the lawsuits stand in the aftermath of West Virginia v. EPA.
Featuring:
Robert Frieden, Emeritus Professor of Telecommunications and Law, Penn State University
Harold Furchtgott-Roth, Senior Fellow and Director, Center for the Economics of the Internet, Hudson Institute
Michael Romano, Sr. VP of Industry Affairs and Business Development, NTCA – The Rural Broadband Association
Moderator: Arielle Roth, Legislative Counsel, U.S. Senator Roy Blunt

Are IRS Defenses Crumbling? Jul 27, 2022

The continuous stream of regulations and other guidance the Internal Revenue Service (IRS) must publish to inform the public how it is going to implement, administer, and enforce the frequent, numerous, and complicated changes to the tax laws, along with the high dollar stakes involved, create constant opportunities and incentives to challenge the IRS.
Some contend that the IRS’s ability to defend itself against these challenges seems to be vanishing as one after another the IRS has lost a string of recent challenges to its guidance. A recent blog post summarizes some of these defeats.
Our speakers will discuss them in more detail, along with what they might portend for how the Internal Revenue Service and the Treasury Department issue future guidance. Another direction to watch is at the other end of Pennsylvania Avenue: will Congress begin to do a better job drafting laws and providing instructions and guidance about how they are to be implemented, administered, and enforced?
Featuring:
--Kristin Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School
--Gilbert Rothenberg, Adjunct Professor of Law, American University's Washington College of Law and the University of Pennsylvania's Carey Law School
--Interlocutor: Robert Carney, Senior Counsel, Caplin & Drysdale; Adjunct Professor of Law, Georgetown Law
--Moderator: Eileen O'Connor, Founder, Law Office of Eileen J. O'Connor PLLC

Liar, Liar: False Statements and the Freedom of Speech Jul 27, 2022

What can the government do to counter "disinformation" or other statements that it believes to be false? The Supreme Court famously protected some false defamatory statements in New York Times Co. v. Sullivan and extended that holding, in United States v. Alvarez, that the First Amendment prevented the government from punishing a speaker from falsely claiming to have won military honors. Yet other false statements, such as fraud and perjury, may be punished, and recently the question of the government's power to limit false speech has assumed more prominence.
In response to the Capitol attack of January 6, 2021 and President Trump's claims that the 2020 election was stolen, the governor of Washington State proposed a law punishing false speech that was likely to lead to violence. Elsewhere controversies surrounding the truth of COVID-related information have arisen and the Biden Administration's Department of Homeland Security had planned to create a board to counter disinformation. Amid free-speech outcries, the proposal was set aside, but the Administration remains focused on combating disinformation. This program will feature panelists with contrasting views of the government's authority in this field and whether efforts to limit false speech represent a threat to First Amendment values.
Featuring:
--Harmeet K. Dhillon, Founding Partner, Dhillon Law Group Inc.
--Catherine Ross, Lyle T. Alverson Professor of Law, The George Washington University Law School
--Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
--Moderator: Hon. Donald Palmer, Commissioner, U.S. Election Assistance Commission

A Discussion on Dobbs Jul 11, 2022

Please join the Federalist Society's Practice Groups for a virtual event on Dobbs v. Jackson Women's Health Organization. On June 24, 2022, the US Supreme Court decided this case in a 6-3 decision. The Court reversed and remanded the decision of the US Court of Appeals for the Fifth Circuit, holding that the Constitution does not confer a right to abortion; that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey are overruled; and that the authority to regulate abortion is returned to the people and their elected representatives.
Justice Alito delivered the opinion of the Court. Justices Thomas and Kavanaugh filed concurring opinions. Chief Justice Roberts filed an opinion concurring in the judgment. Justices Breyer, Sotomayor, and Kagan filed a dissenting opinion.
Please join our team of legal experts to discuss the significance of this case.
Featuring:
--Prof. Daniel Farber, Sho Shato Professor of Law, University of California - Berkeley; former law clerk, Justice John Paul Stevens
--Carrie Severino, President, Judicial Crisis Network; former law clerk, Justice Clarence Thomas
--Moderator: Hon. Thomas B. Griffith, former Circuit Judge, U.S. Court of Appeals, D.C. Circuit
--Host: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society

Private Sector Diversity Programs: Perks and Pitfalls Jul 07, 2022

It is growing practice within the business community to engage in diversity initiatives in hiring, promotion, and outside contracting. A network of interrelated state and federal laws and regulations including Title VII of the Civil Rights Act of 1964 and enforced by the EEOC outlaw discrimination on the basis of race, sex, religion, and national origin. But it may not be clear what the law permits when it comes to discrimination on the basis of race.
Should preferences for race or sex be unlawful in the context of hiring, promotions, professional opportunities or contracting?
How should diversity and inclusion officers navigate legal precedent in this area? Is diversity training helpful in the existing legal environment? Does functionally eliminating diversity training via government action benefit the public or create new pitfalls?
Featuring:
--Theodore M. Shaw, Julius L. Chambers Distinguished Professor of Law and Director of the --Center for Civil Rights, Uniersity of North Carolina School of Law
--Jonathan Berry, Partner, Boyden Gray & Associates
--Moderator: Hon. Paul B. Matey, Judge, United States Court of Appeals for the Third Circuit

Does the Federal Energy Regulatory Commission (FERC) Have Authority To Regulate the Climate? Jul 07, 2022

The Biden administration has pledged to meet what it calls “the accelerating threat of climate change” with a wide-ranging campaign to discourage the production and use of fossil fuels in order to control the emission of carbon dioxide and other greenhouse gases said to be the principal cause of global warming. The White House has directed regulatory agencies and departments across the executive branch to “tackle the climate crisis.” The administration has set a goal to eliminate carbon dioxide emissions from the electric power sector by 2035.
The Federal Energy Regulatory Commission, or FERC, is an independent regulatory agency whose enabling statutes include the Federal Power Act and the Natural Gas Act. FERC’s statutory responsibilities include regulation of the transmission and wholesale sale of electricity in interstate commerce, and authorization of proposals for the construction and operation of interstate natural gas pipelines and storage facilities.
Doing its part to tackle the climate crisis, FERC has proposed a new policy that will greatly expand the scope of the climate-related environmental impact analysis required for proposed natural gas projects. Traditionally, such analysis has been limited to an evaluation of the emissions that would result directly from the construction and operation of the proposed project. Going forward, FERC is proposing that such analysis will also evaluate the emissions that would result indirectly from the upstream production and downstream use of the natural gas to be handled by the proposed project.
In other policy statements having to do with the electric sector, FERC has announced that it will consider proposals from entities it regulates to add into wholesale electricity prices any charges that are levied by state regulators on greenhouse gases emitted by the power plants producing the electricity.
Does FERC have the legal authority to implement these new climate-related policies and, by doing that, dramatically expand the scope of its regulatory activities? Join us for a probing, wide-ranging discussion of the statutes and case law that provide the answer to this vitally important question.
Featuring:
--Bernard L. McNamee, Partner, McGuireWoods LLP; Former Commissioner, Federal Energy Regulatory Commission
--J. Kennerly Davis, Senior Attorney, Former Deputy Attorney General for Virginia

State Constitutions and Individual Liberty: State or Federal Government as Primary Custodian of Individual Rights? Jul 05, 2022

Join us for a discussion between David A. Carrillo, Christina Sandefur, and Robert F. Williams moderated by Braden Boucek on Thursday, June 23 at 4:00 PM ET / 1:00 PM PT.
The panelists will address the different purposes and rights guarantees within state constitutions and the federal constitution. What are the federalism implications of an increased focus on state constitutional rights, if that's really the trend? What does the map of states look like if some federal liberties roll back, and does the distribution depend on which rights roll back or expand. These topics and more will be explored by this excellent panel of knowledgeable state constitutional law experts.
Featuring:
David A. Carrillo, Lecturer in Residence and Executive Director, California Constitution Center, University of California, Berkeley, School of Law
Christina Sandefur, Executive Vice President, Goldwater Institute
Robert F. Williams, Distinguished Professor of Law and Director, Center for State Constitutional Studies, Rutgers University of School of Law
[Moderator] Braden Boucek, Director of Litigation, Southeastern Legal Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

The Use of Race in the Biden-Harris Administration, and Legal Challenges to Race-Based Policymaking Jul 05, 2022

Since taking office in January 2021, the Biden Administration and its Executive Branch agencies have embraced the use of race in federal programs. From COVID-19 relief to other federal subsidies, the Biden Administration has purported to advance equity by specifically advancing race-based policy-making. Daniel Lennington from the Wisconsin Institute for Law and Liberty will discuss these efforts, as well as the many legal challenges against them, including those in which he and WILL are involved.

Are We Still One People? Do We Hold These Truths? Jul 05, 2022

Much has been written, published and broadcast about a Divided America—especially now, with the Dobbs decision overturning Roe v. Wade.
Political divisions, often bitter, however, have existed since the Founding. But how can we know whether the so-called Divided America is something new, something traditional that has become more noticeable due to the ease of spreading information, or maybe a combination of the two?
Join us for a special webinar presentation from Dr. John S. Baker, Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University.
Featuring:
--Dr. John S. Baker, Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University
--Moderator: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society

Courthouse Steps Decision Webinar: Dobbs v. Jackson Women’s Health Organization Jul 05, 2022

On June 24, 2022, the US Supreme Court decided Dobbs v. Jackson Women’s Health Organization. In a 6-3 decision, the Court reversed and remanded the decision of the US Court of Appeals for the Fifth Circuit, holding that the Constitution does not confer a right to abortion; that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey are overruled; and that the authority to regulate abortion is returned to the people and their elected representatives.
Justice Alito delivered the opinion of the Court. Justices Thomas and Kavanaugh filed concurring opinions. Chief Justice Roberts filed an opinion concurring in the judgment. Justices Breyer, Sotomayor, and Kagan filed a dissenting opinion.
Featuring:
--Allyson Ho, Partner and Co-Chair, Constitutional and Appellate Law Practice Group, Gibson, Dunn & Crutcher LLP
--Moderator: Dean Reuter, Senior Vice President and General Counsel, The Federalist Societyy

Courthouse Steps Decision: New York State Rifle & Pistol Association Inc. v. Bruen Jun 27, 2022

On June 23, 2022, the Supreme Court decided New York State Rifle & Pistol Association Inc. v. Bruen. In a 6-3 decision, the Court struck down New York’s handgun licensing law that required New Yorkers to demonstrate a “proper cause” in order to be granted a license to carry a pistol or revolver in public. The petitioners, Brandon Koch and Robert Nash, were denied licenses to carry a firearm in public after listing their generalized interest in self-defense as the reason for seeking the license. New York denied their license application because a generalized interest in self-defense failed to satisfy the state’s proper cause requirement. Both men sued, claiming that New York had violated their Second Amendment and Fourteenth Amendment rights in doing so. A district court dismissed their claims, and the U.S. Court of Appeals for the Second Circuit affirmed.
Justice Thomas delivered the opinion of the Court, in the first major case on firearms regulation that the Court has considered in over a decade.
Please join our legal expert to discuss the case, the legal issues involved, and the implications for the future of firearm regulation in America.
Featuring:
--Prof. Mark W. Smith, Visiting Fellow in Pharmaceutical Public Policy and Law in the Department of Pharmacology, University of Oxford; Presidential Scholar and Senior Fellow in Law and Public Policy, The King’s College; Distinguished Scholar and Senior Fellow of Law and Public Policy, Ave Maria School of Law

Due Process Protections in Agency Enforcement Actions Jun 13, 2022

In February of 2019, then General Counsel of the Department of Transportation (DOT), Steven Bradbury, issued a memo later dubbed the "Bradbury Memo" that addressed concerns about civil enforcement abuse at the agency. Parts of the memo were subsequently made into binding DOT rules. DOT asserted that these rules were designed to protect the due process rights of those who were the subject of DOT enforcement actions, including a requirement that the agency disclose all exculpatory evidence to those targeted by civil enforcement and the prohibition of “fishing expedition” investigations without sufficient evidence to support a violation.
On April 2, 2021, DOT rescinded these rules without the opportunity for public comment. Thereafter Polyweave Packaging inc., a company that had been issued a civil penalty order by DOT over alleged regulatory violations, filed suit against DOT claiming the agency violated its due process rights by revoking the Bradbury Memo rules.
The U.S. District Court for the Western District of Kentucky ruled in favor of DOT, the case has been appealed to the Sixth Circuit Court of Appeals and oral arguments were on May 5, 2022.
Please join this litigation update of Polyweave Packaging v. Buttigieg as our experts discuss the case, the legal issues involved, and the implications for administrative rulemaking and due process.
Featuring:
--Hon. Steven Bradbury, Attorney; Former General Counsel, Department of Transportation
--Sheng Li, Litigation Counsel, New Civil Liberties Alliance
--Moderator: Hon. Beth Williams, Board Member, U.S. Privacy and Civil Liberties Oversight Board; former Assistant Attorney General, U.S. Department of Justice

The Future of Universal Service After the Infrastructure Act Jun 07, 2022

On November 15, 2021, President Biden signed the Infrastructure Investment and Jobs Act which commits approximately $65 billion towards broadband expansion. Wisely, Section 60104(c) of the Act directs the Federal Communications Commission to submit to Congress “a report on the options of the Commission for improving its effectiveness in achieving the universal service goals for broadband in light of this Act” within 270 days of enactment. Congress also invited the Commission to make “recommendations … on further actions the Commission and Congress could take to improve the ability of the Commission to achieve the universal service goals for broadband.” Last December, the FCC launched a Notice of Inquiry to begin this process. Please join us for a teleforum with industry experts to discuss the legal, economic and policy implications of this important proceeding.
Featuring:
--Patrick Halley, SVP, Policy & Advocacy and General Counsel, USTelecom
--Alexander Minard, Vice President & State Legislative Counsel, NCTA
--Angie Kronenberg, Chief Advocate and General Counsel, INCOMPAS
--Dr. George S. Ford, Chief Economist, Phoenix Center for Advanced Legal & Economic Public Policy Studies
--Moderator: Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal & Economic Public Policy Studies

Crypto Wars: Balancing Privacy versus National Security Jun 07, 2022

Senior officials in the Administration have expressed concern about cryptocurrencies being used for criminal activity and undermining the dollar as the global reserve currency. These concerns have been heightened with the Russian invasion of Ukraine, evasion of sanctions including North Korean sanctions, cyberattacks, and ransomware. Others contend that blockchain transactions are easier to trace than physical cash, and that the Administration’s concerns are exaggerated and could stifle innovation. China has banned cryptocurrencies and developed its own central bank digital currency (CBDC). It appears that the digital yuan will be used by the Chinese government for surveillance purposes to closely monitor personal transactions and behavior. A number of other regimes, including Canada, have used the banking and monetary system to silence dissidents. Some say that dissidents and citizens in countries that have unstable fiat currencies have turned to bitcoin and other cryptocurrencies to escape the national currency and protect their rights; other say cryptocurrencies are used by criminals and terrorists.
This very timely panel will discuss whether the US can develop policies on digital assets that both protect freedom and privacy and maintain our safety from bad actors, and what the trade-offs with the dollar’s international role might be.
Featuring:
--Hon. Mick Mulvaney, Co-Chair, Actum LLC; Former Director, Office of Management and Budget
--Hon. Kathy Kraninger, Vice President of Regulatory Affairs, Solidus Labs; Former Director, Consumer Financial Protection Bureau
--Michele Korver, Head of Regulatory, a16z Crypto
--Norbert Michel, Vice President and Director, Center for Monetary and Financial Alternatives, Cato Institute
--Moderator: Dina Ellis Rochkind, Counsel, Government Affairs and Strategy, Paul Hastings

Courthouse Steps Decision Webinar: Morgan v. Sundance Jun 01, 2022

On May 23, 2022, the U.S. Supreme Court decided Morgan v. Sundance. In a rare 9-0 decision, the Court vacated and remanded the judgment of the U.S. Court of the Appeals for the Eighth Circuit, holding that federal courts may not adopt an arbitration-specific rule conditioning a finding of waiver of the right to arbitrate on a showing of prejudice to the other party. Though this had been a relatively common analysis, the Court rejected it, cabining any concept that there is a “policy favoring arbitration.” The Court reinterpreted that to mean only that federal courts may not invent special, arbitration-preferring procedural rules. “[A] court must hold a party to its arbitration contract just as the court would to any other kind.” The Court went on to say that “a court may not devise novel rules to favor arbitration over litigation.” But the Court also left open the role of state law and what rules can apply, including waiver, forfeiture, estoppel, laches, or procedural timeliness.
Justice Kagan delivered the opinion of the Court.
Please join our legal experts to discuss the case, the legal issues involved, and the implications for these parties and other litigation parties going forward.
Featuring:
Erika Birg, Partner, Nelson Mullins Riley & Scarborough LLP
Richard D. Faulkner, FCIArb., Arbitrator, Attorney & Former Professor of ADR Law

Issue Update: Critical Race Theory Legislation Across the States Jun 01, 2022

This webinar will explore issues raised by the raft of state and federal initiatives on Critical Race Theory and related topics. Issues will include the scope of state authority over the content of education, with special attention to differences between K-12 and public universities. Varying features of state-level CRT bills will be discussed, as well as the characterization of their content from supporters and detractors.
On the state level, state education standards, "book banning", and legislation pertaining to curriculum transparency, “action civics,” and “diversity statements” will be discussed. Moves to control educational content at the federal level through grantmaking will also be covered.
Featuring:
--Stanley Kurtz, Senior Fellow, Ethics and Public Policy Center

Courthouse Steps: Cummings v. Premier Rehab Keller May 31, 2022

On April 28, 2022, The U.S. Supreme Court decided Cummings v. Premier Rehab Keller. The case involved the availability of emotional damages for discrimination on the basis of disability and, more generally, the scope of recoverable damages for private actions under Spending Clause statutes. After the respondent, Premier Rehab, declined to provide a sign language interpreter at Jane Cummings’ physical therapy sessions, Cummings sued the provider in federal court. Cummings claimed disability discrimination in violation of the Rehabilitation Act of 1973 and the Affordable Care Act. A trial court found that the only injuries allegedly caused by Premier were emotional in nature and dismissed the complaint, ruling that emotional damages are not recoverable under either statute. The Fifth Circuit affirmed.
In a 6-3 decision, the Court held that emotional damages are not recoverable in a private action under either the Rehabilitation Act of 1973 or the Affordable Care Act. The majority opinion was penned by Chief Justice Roberts. Justice Breyer wrote a dissenting opinion, joined by Justices Kagan and Sotomayor.
Please join our legal expert to discuss the case, the legal issues involved, and the implications for disabilities law going forward.
Featuring:
--Curt Levey, President, Committee for Justice

Due Process Protections in Agency Enforcement Actions May 31, 2022

In February of 2019, then General Counsel of the Department of Transportation (DOT), Steven Bradbury, issued a memo later dubbed the "Bradbury Memo" that addressed concerns about civil enforcement abuse at the agency. Parts of the memo were subsequently made into binding DOT rules. DOT asserted that these rules were designed to protect the due process rights of those who were the subject of DOT enforcement actions, including a requirement that the agency disclose all exculpatory evidence to those targeted by civil enforcement and the prohibition of “fishing expedition” investigations without sufficient evidence to support a violation.
On April 2, 2021, DOT rescinded these rules without the opportunity for public comment. Thereafter Polyweave Packaging inc., a company that had been issued a civil penalty order by DOT over alleged regulatory violations, filed suit against DOT claiming the agency violated its due process rights by revoking the Bradbury Memo rules.
The U.S. District Court for the Western District of Kentucky ruled in favor of DOT, the case has been appealed to the Sixth Circuit Court of Appeals and oral arguments were on May 5, 2022.
Please join this litigation update of Polyweave Packaging v. Buttigieg as our experts discuss the case, the legal issues involved, and the implications for administrative rulemaking and due process.
Featuring:
Hon. Steven Bradbury, Attorney; Former General Counsel, Department of Transportation
Sheng Li, Litigation Counsel, New Civil Liberties Alliance
Moderator: Hon. Beth Williams, Board Member, U.S. Privacy and Civil Liberties Oversight Board; former Assistant Attorney General, U.S. Department of Justice
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From Russia Without Love: U.S. Energy Policy, Environmental Goals, Foreign Wars, and the Administrative State May 26, 2022

The United States is – perhaps now more than ever before – a global energy powerhouse. From oil and gas production to the expansion of new energy technologies, the United States has made gains in achieving long-heralded calls for energy independence and energy security, while also reducing environmental impacts associated with energy production, generation, transportation, and use. Many are calling for even more accelerated environmental progress, particularly on the climate front. While rapidly changing geopolitical dynamics – in Europe and elsewhere – are placing the United States’ energy sector and its capabilities to meet global energy needs at the forefront, a host of federal and state environmental regulatory regimes continue to pose substantial hurdles to energy-related goals and priorities. Energy pipelines, export facilities, oil and gas production, mining projects, transmission systems, and a host of other energy projects must navigate a labyrinth of regulatory reviews and approvals – from NEPA to the Clean Water Act to the Endangered Species Act and beyond. This panel of distinguished legal and policy experts will debate the goals and priorities of U.S. energy and environmental policy, administrative law dynamics affecting the energy sector, the role of climate policy and energy technologies, and the implications of these factors for our Nation’s national security in light of the war in Ukraine and other recent geopolitical events.
Featuring:
--Tristan Abbey, President of Comarus Analytics LLC
--Eric Grant, Partner, Hicks Thomas LLP
--Julia Olson, Executive Director at Our Children's Trust; Chief Legal Counsel for plaintiffs in Juliana v. U.S.
--Moderator: Hon. Ryan Nelson, Judge, United States Court of Appeals, Ninth Circuit

College Admissions: Fair or Fixed? May 26, 2022

As the Supreme Court prepares to hear two cases this fall that challenge race preferential admissions policies at Harvard University and the University of North Carolina, questions have arisen about how colleges typically use race preferences and whether such use is fair and lawful. This webinar will address how and when race is commonly used in college admissions, whether colleges and universities are generally following the existing law, and what if any safeguards colleges use to ensure that line admissions officers use race to further only legally permissible goals. The panelists will also discuss what some find the surprising fact that Asian American applicants are more likely to be displaced by race-preferential admissions than white students and whether this practice is fair. Finally, the presenters may also address the fairness of other non-academic factors widely used in admissions, such as preferences for legacies, recruited athletes, or the children of large donors.
Featuring:
Art Coleman, Managing Partner and Co-Founder, EducationCounsel
Cory Liu, Partner, Ashcroft Law Firm
Moderator: Alison Somin, Legal Fellow, Center for the Separation of Powers, Pacific Legal Foundation
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The Government’s Arms Around Cryptocurrency: Hug or Stranglehold? May 24, 2022

As the cryptocurrency industry grows, state and federal governments are considering how that industry should be regulated. The President has directed the Secretary of the Treasury to report soon on the issues involved. A draft bill that would regulate stablecoins has been released in the U.S. Senate. Meanwhile, states are competing with one another to adopt regulatory laws that may attract cryptocurrency firms to their welcoming, but taxing, arms striving for economic growth.
Will regulation be designed to avoid discouraging innovation in a highly creative environment? Fears have been expressed that unregulated cryptocurrency could theoretically present systemic risk, and consumers may need to be protected--particularly in light of the recent collapse of the Luna cryptocurrency and its related Terra stablecoin. Some believe that regulation may be an opportunity to include those presently unserved by the banking system. Complicating this already complicated picture may be rivalry among multiple federal agencies, including the banking regulators, the Securities and Exchange Commission, the Commodities Futures Trading Commission, and the Federal Trade Commission, each of which may make a case for potential authority over aspects of the cryptocurrency industry. Our panel of experts will address these timely and controversial questions.
Featuring:
--Douglas Elliott, Partner, Oliver Wyaman
--Michael Piwowar, Executive Director, Milken Institute Center for Financial Markets
--Dawn Stump, Former Commissioner, U.S. Commodity Futures Trading Commission
--Thomas Vartanian, Executive Director, Financial Technology & Cybersecurity Center
--Moderator: Paul N. Watkins, Managing Director, Patomak Global Partners
Related:
Central Bank Digital Currency--Efficient Innovation or the End of the Private Banking System?
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Hollywood’s Recent Best Picture Winner Shines a Spotlight on the Harms of the Administrative State May 24, 2022

A Hollywood depiction of the lives of fishermen tells a real life story about how Executive Branch overreach damages American families. Hear from two practitioners challenging the administrative state on these very regulations depicted in “Coda” and learn why telling clients’ stories is critical to reform.
Featuring:
--Eric Bolinder, Managing Policy Counsel, Americans for Prosperity Foundation; Counsel, Cause of Action Institute
--John Vecchione, Senior Litigation Counsel, New Civil Liberties Alliance
--Moderator: Eileen O'Connor, Founder, Law Office of Eileen J. O'Connor PLLC

Central Bank Digital Currency--Efficient Innovation or the End of the Private Banking System? May 17, 2022

Central Bank Digital Currencies (CBDC) are the subject of a global debate. In one version, individuals and businesses would hold deposits directly with the central bank. Critics point out that the Federal Reserve would then control how these deposits are used, allocating credit to private-sector borrowers and to government spending, arguing that CBDCs would eviscerate the private banking industry and create government surveillance of all financial transactions in the accounts. An alternate version is that CBDCs take the form of a tokenized dollars, distributed through the banking system and operating in parallel with paper currency and bank accounts. Supporters say this could yield lower transaction costs and more rapid settlement of payments, and could strengthen the international role of the U.S. dollar.
Featuring:
--Bert Ely, Principal, Ely & Company, Inc.
--Chris Giancarlo, Senior Counsel, Willkie Digital Works LLP; Former Chairman, US Commodity Futures Trading Commission
--Greg Baer, President & Chief Executive Officer, Bank Policy Institute
--Moderator: Alex J. Pollock, Senior Fellow, the Mises Institute
Related:
The Government’s Arms Around Cryptocurrency: Hug or Stranglehold?
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How the Largest Whistleblower Award in History Came About May 17, 2022

On October 21, 2021, the Commodity Futures Trading Commission announced a nearly $200 million whistleblower award, the largest in history. The award was related to more than $3 billion in sanctions by the CFTC and foreign regulators. The award, so large that it emptied the Commodity Futures Trading Commission's fund for whistleblower awards, was criticized as "relating to an action by a foreign futures authority to address harm outside the United States." Join us as we speak with David Kovel, attorney for the whistleblower and managing partner of Kirby McInerney LLP, as he discusses his role in this record-shattering award, the challenges he faced, and the public policy questions we face.
Featuring:
--David Kovel, Managing Partner, Kirby McInerney LLP
--Moderator: Prof. Gary Kalbaugh, Special Professor of Law, Maurice A. Dean School of Law
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Courthouse Steps Decision Webinar: Hemphill v. New York May 17, 2022

On January 20, 2022, the U.S. Supreme Court decided Hemphill v. New York. In an 8-1 decision, the Court reversed and remanded the judgment of the Court of Appeals of New York, holding that the trial court’s admission—over Hemphill’s objection—of the plea allocution transcript of an unavailable witness violated Hemphill’s Sixth Amendment right to confront the witnesses against him.
Justice Sotomayor delivered the opinion of the Court. Justice Alito filed a concurring opinion, in which Justice Kavanaugh joined. Justice Thomas filed a dissenting opinion.
Please join our legal expert to discuss the case, the legal issues involved, and the implications going forward.
Featuring:
--Mike Hurst, Partner, Phelps Dunbar LLP and former United States Attorney, Southern District of Mississippi

Courthouse Steps Decision: Determining Finality for Pursuing Liability: The Implications of Thompson v. Clark May 17, 2022

In Thompson v. Clark, the plaintiff sought to bring a civil suit claiming he was the victim of a wrongful seizure after police allegedly entered his apartment without a warrant based on unsubstantiated allegations of child abuse. Thompson was charged with resisting arrest amid the warrantless raid, but prosecutors subsequently elected to drop this criminal case. The question that then arose was whether this result, though short of a formal exoneration, was sufficient to meet the requirement that there be a favorable conclusion of the criminal case against Thompson before he could pursue his civil suit. In this discussion, attorneys for amici on both sides will explore which justices got it right and the implications of this ruling in future cases for prosecutors, defendants, and civil litigants.
Background
Thompson v. Clark was decided on April 4 with the Supreme Court holding Larry Thompson’s showing that his criminal prosecution ended without a conviction satisfies the requirement to demonstrate a favorable termination of a criminal prosecution in a Fourth Amendment claim under Section 1983 for malicious prosecution. The majority rejected the dissenting view that an affirmative indication of innocence should be required. Justice Kavanaugh delivered the 6-3 opinion of the Court. Justice Alito filed a dissenting opinion, in which Justices Thomas and Gorsuch joined.
Featuring:
Vincent Stark, Bureau Chief, Legal Affairs Unit, Albany County District Attorney's Office
Marie Miller, Attorney, Institute for Justice
Moderator: Marc Levin, Chief Policy Counsel, Council on Criminal Justice and Senior Advisor, Right on Crime

The Biden Administration’s Enhanced Policies On Corporate Criminal and Regulatory Enforcement May 05, 2022

Last fall, Deputy Attorney General Lisa Monaco announced significant changes to Department of Justice policies on corporate criminal enforcement, including the use of monitors, review of prior misconduct, and cooperation. As Monaco stated, "This is a start -- and not the end -- of this administration's actions to better combat corporate crime." These changes and the Administration's formation of a Corporate Crime Advisory Group signal a shift in DOJ's commitment to ferreting out corporate crimes and more rigorous enforcement activities. The U.S. Securities and Exchange Commission (SEC) has announced its own intention to conduct faster investigations, bring bigger cases, and to seek harsher penalties. In his first speech on enforcement, SEC Chairman Gary Gensler quoted the agency's first Chair, Joseph Kennedy, to summarize his own agenda: "The Commission will make war without quarter on any who sells securities by fraud or misrepresentation." Chairman of the Commodity Futures Trading Commission (CFTC), Rostin Behnam, has also requested that Congress expand the CFTC's enforcement powers and professed the agency's readiness to serve as the "primary cop on the beat" for cryptocurrency markets.
Former DOJ prosecutor Luke Cass and Britt Biles, who held former senior legal roles at the SEC, the White House, and the U.S. Small Business Administration will explain these policy shifts and discuss the risks for corporate America under this new era, additional priority enforcement areas for the Administration, and what these new policies mean for the future of corporate compliance.
Featuring:
--Luke Cass, Partner, Womble Bond Dickinson
--Britt Biles, Partner, Womble Bond Dickinson
--Moderator: Nicholas Marr, Assistant Director, Practice Groups, The Federalist Society

Environmental Justice, Property Rights, and Zoning May 05, 2022

This panel will focus on the pros and cons of zoning, its relation to environmental justice, its detrimental (or beneficial) impacts on minorities, and its consistency (or inconsistency) with property rights. Importantly, the discussion will engage with the scope of modern zoning and what, if anything, should be done to alter, increase, or decrease the government's zoning power. Given the rise of environmental justice in administrative policy and academic debate, this event presents a timely discussion of environmental justice's application to debates over zoning policy in the United States. Criticisms of zoning are on the rise from both the right and left. Critics focus on the ignoble racial history of zoning and its detrimental impacts on the housing market and property values. Defenders instead look to the community stability provided by zoning and the separation of industrial from residential property uses. This panel will present varying views from across the intellectual spectrum featuring both criticisms and defenses of zoning from the right and left.
Featuring:
Prof. Nicole Stelle Garnett, John P. Murphy Foundation Professor of Law, University of Notre Dame
Randall O'Toole, Blogger, The Antiplanner
Richard Rothstein, Distinguished Fellow of the Economic Policy Institute and a Senior Fellow (emeritus) at the Thurgood Marshall Institute of the NAACP Legal Defense Fund
Prof. Christopher Serkin, Elisabeth H. and Granville S. Ridley Jr. Chair in Law and Professor of Management at the Owen Graduate School of Management
Moderator: Adam Griffin, Law Clerk, U.S. District Courts

Courthouse Steps Decision Webinar: Badgerow v. Walters May 04, 2022

On March 31, 2022, the U.S. Supreme Court decided Badgerow v. Walters. In an 8-1 decision, the Court reversed and remanded the judgment of the U.S. Court of the Appeals for the Fifth Circuit, holding that Vaden’s “look-through” approach to determining federal jurisdiction does not apply to requests to confirm or vacate arbitral awards under Sections 9 and 10 of the FAA.
Justice Kagan delivered the opinion of the Court. Justice Breyer filed a dissenting opinion.
Please join our legal experts to discuss the case, the legal issues involved, and the implications going forward.
Featuring:
--Bradley Hubbard, Senior Associate and Member, Appellate and Constitutional Law Practice -Group, Gibson, Dunn & Crutcher
--Elizabeth Kiernan, Associate and Member, Appellate and Constitutional Law Practice Group, Gibson, Dunn & Crutcher

Ten Years On: The America Invents Act and the role of the Patent Trial and Appeal Board in resolving patent disputes May 04, 2022

On September 16, 2011, President Obama signed the American Invents Act (AIA) into law. The first major overhaul of the U.S. patent system since the 1952 Patents Act, the AIA received overwhelming bipartisan support in both chambers when enacted. But, with the recent ten-year anniversary of the AIA, a new director poised to take the helm at the USPTO, and Congress ramping up debate on reforms to the AIA, is now the time for a reexamination? Our speakers will consider the role of the PTAB in resolving patent disputes and the legality of the exercise of significant discretionary authority by the USPTO Director to implement policy outside the authority granted the director under the AIA.
Featuring:
Joseph Matal, partner in the Intellectual Property Practice Group in the Washington, D.C. office of Haynes and Boone, LLP
Paul Brian Taylor, who served over 20 years as Counsel and Chief Counsel for the House Judiciary Committee's Subcommittee on the Constitution and Civil Justice. He also served as Senior Counsel at the House Committee on Oversight.
Moderator: Hon. Bob Goodlatte, Former Congressman, United States House of Representatives

Courthouse Steps Oral Argument Webinar: Kennedy v. Bremerton School District Apr 28, 2022

On April 25, 2022, the U.S. Supreme Court will hear oral argument in Kennedy v. Bremerton School District.
Bremerton School District in Washington state removed Coach Joe Kennedy from his job as a public high school football coach after kneeling in brief, quiet prayer on the field after football games. Coach Kennedy filed suit alleging that the school district’s ban on “demonstrative religious activity” violated his First Amendment rights under the Free Speech and Free Exercise Clauses.
In 2019, on appeal of the denial of a preliminary injunction, the U.S. Supreme Court declined the petition for review, allowing further factual development. Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh, issued a statement respecting the denial of certiorari, writing that the “Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”
This year, the Supreme Court granted cert on two questions concerning the interplay of the Free Speech, Free Exercise, and Establishment Clauses:
Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection.
Whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause nevertheless compels public schools to prohibit it.
We will break down the argument on the same day, April 25, 2022.
Featuring:
--Stephanie Taub, Senior Counsel, First Liberty
Note: Coach Kennedy is represented by Kirkland & Ellis and First Liberty Institute.

Courthouse Steps Decision Webinar: United States v. Tsarnaev Apr 28, 2022

On March 4, 2022, the U.S. Supreme Court decided United States v. Tsarnaev. In a 6-3 decision, the Court reversed the judgment of the U.S. Court of the Appeals for the First Circuit, holding that the court improperly vacated Dzhokhar Tsarnaev's capital sentences.
The Court held that the judge's conduct of voir dire conformed to its precedents and reversed the First Circuit's holding that the judge had violated a rule established by that circuit under its supervisor power. The Court held that courts of appeals have no power to circumvent or supplement legal standards established in Supreme Court precedents.
The Court also held that the judge was within his authority to exclude from the penalty trial hearsay evidence of Tsarnaev's brother's involvement in an unrelated murder. The Court rejected the argument that the Eighth Amendment requires admission of all mitigating evidence no matter how dubious or how weakly mitigating.
Justice Thomas delivered the opinion of the court, in which Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett joined. Barrett filed a concurring opinion, in which Gorsuch joined. Justice Breyer filed a dissenting opinion, in which Justices Sotomayor and Kagan joined.
Please join our legal expert to discuss the case, the legal issues involved, and the implications going forward.
Featuring:
--Kent Scheidegger, Legal Director, Criminal Justice Legal Foundation

Judicial Ethics in the Modern Era Apr 28, 2022

In the modern era, U.S. Supreme Court justices have been cited for what some critics characterize as “controversial” statements, sometimes relating to actual or potential matters before the Court. In some instances, these critiques have been accompanied by calls for recusal in specific cases. More recently, critics have turned to the statements not only of the justices themselves, but of the spouse of one particular justice. In light of these recent developments, what are the free speech considerations for justices and their family members? Although there is no formal code of judicial conduct applicable to spouses or even the justices of the Supreme Court, what are the ethical considerations of these actions? Does Congress have authority to impose an ethical code on this co-equal branch of government, particularly at the level of the Supreme Court?
Featuring:
--Prof. Rebecca Roiphe, Trustee Professor of Law and Co-Dean for Faculty Scholarship, New York Law School
--Prof. Thomas D. Morgan, Oppenheim Professor Emeritus of Antitrust and Trade Regulation Law, George Washington University Law School
--Prof. Michael I. Krauss, Professor Emeritus of Law, Antonin Scalia Law School, George Mason University
--Moderator: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society

Ukraine in Crisis Apr 28, 2022

A war is raging in Europe. Russia invaded Ukraine on February 24, 2022. Arguing that Ukraine was controlled by nationalists and Nazis, Russia sought to seize major cities including the capitol, Kyiv, and trigger a regime change. After failures to achieve these objectives, Russia now appears to be regrouping its forces to target Ukraine’s eastern region. Russia’s aggression has resulted in significant civilian deaths, the alleged commission of war crimes, and the displacement of millions of Ukrainians. The invasion has also unified the West, with Germany pledging to increase military spending, broad sanctions against Russian leadership and industry, and discussions in Sweden and Finland about joining NATO. Our experts will review events to date, what we can expect from the Kremlin, the Biden administration’s policy, and what comes next. Please join us for this timely conversation.
Featuring:
--Michael Allen, Managing Director, Beacon Global Strategies; Former Special Assistant to the President and Senior Director for Counter-proliferation Strategy, National Security Council; Author, Blinking Red Light: Crisis and Compromise in American Intelligence after 9/11
--Prof. Angela Stent, Director, Center for Eurasian, Russian and East European Studies; Professor of Government and Foreign Service, Georgetown University
--Moderator: Matthew Heiman, General Counsel & Corporate Secretary, Waystar Health; Senior Fellow and Director of Planning, National Security Institute

Criminal Market Allocation or Pro-Competitive Agreement: The Debate over DOJ’s “No Poach” Prosecutions Apr 26, 2022

No poaching allowed! No, you have not wandered into a Hunter’s Safety Forum, but rather an in depth discourse regarding the Department of Justice, Antitrust Division’s recent criminal investigations and prosecutions of “No Poach” conduct. These agreements, which generally establish that Company A will not hire Company B’s employees and in exchange Company B agrees to do the same, have been in the DOJ crosshairs since 2016, but only in the last year have they been specifically referenced in public charging documents. DOJ’s decision to now criminally prosecute “no poach” agreements has resulted in approximately six charged cases from January 2021 to the present. The criminal antitrust defense bar, as well as some academics, have cried foul given that from their perspective the DOJ has created a new form of criminal antitrust conduct out of whole cloth and is prosecuting individuals and corporations who had no intent to violate the law nor had any indication that discussing employment concerns with another company was unlawful. The enforcers have responded just as forcefully and argue that it has always been criminal under Section 1 of the Sherman Act to allocate markets and “no poach” is nothing more than the allocation of the market for employees. Amidst this backdrop, our panel will examine the evolution of “no poach” from the DOJ’s 2016 Guidance for Human Resource Professionals to the cases that are currently pending before judges and at least one jury.
Our panel will include former Principal Deputy Assistant Attorney General for Antitrust Barry Nigro, Co-Chair of the ABA Antitrust Section’s Cartel & Criminal Practice Committee Lindsey Vaala, former United States Attorney for the Eastern District of Virginia Zach Terwilliger, and Pepper Crutcher, chair of the Labor and Employment practice group at the Federalist Society and partner at Balch & Bingham, who will wrangle our panel and serve as moderator.
Featuring:
--Barry Nigro, Partner, Fried Frank, and former Principal Deputy Assistant Attorney General for Antitrust
--Lindsey Vaala, Counsel, Vinson & Elkins, and Co-Chair, ABA Antitrust Section's Cartel and Criminal Practice Committee
--Zach Terwilliger, Partner, Vinson & Elkins, and former United States Attorney for the Eastern District of Virginia
--Moderator: Pepper Crutcher, Partner, Balch & Bingham and Chairman, Labor & Employment Practice Group at the Federalist Society

A Seat at the Sitting - April 2022 Apr 26, 2022

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases that will be covered are included below.
United States v. Washington (April 18) – workers’ compensation; state and federal law
Siegel v. Fitzgerald (April 18) – Bankruptcy Judgeship Act; Bankruptcy Clause of the U.S. Constitution
George v. McDonough (April 19) – veterans’ claims and Department of Veterans Affairs agency interpretation
Kemp v. United States (April 19) – Federal Rule of Civil Procedure 60(b)(1)
Vega v. Tekoh (April 20) – Habeas motions under 42 U.S.C. 1983 and relief for Miranda violations
Kennedy v. Bremerton (April 25) – the Speech and Establishment Clauses of the First Amendment
Nance v. Ward (April 25) – method of execution and 42 U.S.C. 1983 habeas motions
Biden v. Texas (April 26) – remain in Mexico immigration policy
Shoop v. Twyford (April 26) – the All Writs Act and habeas petitions
Oklahoma v. Castro-Huerta (April 27) – Indian Law
Featuring:
--Noel J. Francisco, Partner-in-Charge Washington, Jones Day
--Allyson Newton Ho, Partner and Co-Chair, Constitutional and Appellate Law Practice Group, Gibson, Dunn & Crutcher LLP
--Aaron M. Streett, Chairman, Supreme Court and Constitutional Law Practice, Baker Botts LLP
--Misha Tseytlin, Partner, Troutman Pepper Hamilton Sanders LLP
--Moderator: Elbert Lin, Partner, Hunton Andrews Kurth LLP

Talks with Authors: John Fisher and Thomas More: Keeping Their Souls While Losing Their Heads Apr 19, 2022

In his recent book John Fisher and Thomas More: Keeping Their Souls While Losing Their Heads, Robert Conrad, who serves as a federal district court judge in the Western District of North Carolina, details the lives, trials, and executions of two Catholic saints who opposed King Henry's bid for ecclesiastical approval of his divorce. Thomas More, an attorney and close advisor to the king, underwent a trial filled with grievous errors, the deprivation of due process, and more.
Judge Conrad will join us to discuss his book, these two men, and the enduring relevance of their stories.
Featuring:
--Hon. Robert Conrad, District Judge, Western District of North Carolina
--Moderator: William Saunders, Professor, The Catholic University of America; Co-Director of the Center for Religious Liberty, and Fellow, The Institute for Human Ecology

Issue Update: Woke Capital Apr 19, 2022

Following the prominent events of early 2020, as part of what’s often referred to as a national, racial reckoning, countless institutions altered their policies. Large publicly traded corporations (including Coca-Cola Company, Novartis AG, McDonald’s Corporation, Starbucks Coffee Company, Lowe’s Companies, Inc., NASDAQ, Inc., and much of the financial services industry) rolled out new policies — under banners invoking diversity, equity, and inclusion — concerning matters ranging from their selection of vendors, to hiring and promotions, to election of future directors to (in NASDAQ’s case) willingness to list customers at all. Those policies have raised concern among some over their potential violation of civil rights law (both state and federal), including Dan Morenoff, the Executive Director of the American Civil Rights Project. Do officers and directors of publicly traded companies advancing these policies run afoul of existing corporate law, with possible personal liability for breaches of fiduciary duty and for their use of corporate resources pursuing ultra vires actions?
Citing the related concerns of shareholders, the ACR Project demanded the public retraction of such policies by Coke last year — Coke acceded in all but name in March, declaring that the policies at issue “have not been and are not policy of the company[.]” The ACR Project has since made demands on behalf of shareholders to the officers and directo
rs of Lowe’s, Novartis, McDonald’s, and Starbucks. America First Legal appears to have taken a related tack this week in publicly demanding on behalf of shareholders that the Walt Disney Company’s officers and directors launch investigations into alleged violations of employee's civil rights.
Featuring:
Dan Morenoff, Executive Director, American Civil Rights Project
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Courthouse Steps Oral Argument: Egbert v. Boule Apr 14, 2022

A federal statute allows citizens to sue state and local officers for violating constitutional rights, but there is no federal law that does the same for federal officers. In 1971, in a case called Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court held that a cause of action for damages against federal officers could be inferred from constitutional provisions. But in the 50 years since, the Court has struggled to explain how, or even if, a Bivens cause of action applies in different cases.
In 2014, Erik Egbert, a Customs and Border Patrol Agent, went to the Smugglers Inn, which sits at the U.S.-Canada border, and approached a car carrying a guest from Turkey. The inn’s owner, Robert Boule, asked Egbert to leave. Egbert refused to do so and pushed Boule to the ground. After Boule complained to Egbert’s supervisors, Egbert suggested to the IRS that it investigate Boule. In Egbert v. Boule, argued on March 2, the Court continued to grapple with Bivens questions, including whether Bivens applies to First Amendment retaliation and whether federal officers engaged in immigration-related functions are subject to Bivens suits for violations of Fourth Amendment rights.
Featuring:
Anya Bidwell, Attorney and Elfie Gallun Fellow in Freedom and the Constitution, Institute for Justice
Erin Hawley, Senior Legal Fellow, Independent Women's Law Center
Moderator: Hon. David Stras, Judge, United States Court of Appeals, 8th Circuit
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Revisiting Jacobson Apr 14, 2022

In 1905, the U.S. Supreme Court decided Jacobson v. Massachusetts, upholding a state's ability to enforce compulsory vaccination laws pursuant to its police powers and for the protection of its citizens. This precedent has recently come under scrutiny for its possible overbreadth. Two distinguished experts join us to discuss and debate the holding of the case, its merits, its relevance today, and ultimately, whether it should be limited or overruled.
Featuring:
--Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston
--Prof. Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and Professor of Government, University of Texas at Austin School of Law
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This Zoom event is open to public registration at the link above.

Title VI, College Admissions, and Public Opinion Apr 14, 2022

With the Supreme Court about to hear two cases involving the use of race in admissions at Harvard and the University of North Carolina, what do Americans actually think about preferential treatment? Dr. Althea Nagai, Senior Research Fellow at the Center for Equal Opportunity (CEO), will present her analysis of recent data from the Pew Research Center on what Americans believe colleges should consider when deciding whom to admit. Her study focuses on the attitudes of some of the beneficiaries of affirmative action, based on a large sample of black and Hispanic respondents as well as Asians and whites. Joining Dr. Nagai on the panel discussion will be Theodore Johnson, Director of the Fellows Program at the Brennan Center for Justice, and moderator Linda Chavez, CEO Chair.
Featuring:
Dr. Althea Nagai, Senior Research Fellow, Center for Equal Opportunity (CEO)
Theodore Johnson, Director, Fellows Program, Brennan Center for Justice
Moderator: Linda Chavez, Chairman, Center for Equal Opportunity (CEO)
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

The Separation of Powers, From Washington to Sacramento Apr 14, 2022

Are state governors subject to the same separation of powers restrictions as the federal president?
Expanding on the recent Regulatory Transparency Project panel discussion on emergency executive power during the pandemic, this event will feature experts engaging in a broader separation of powers discussion about the distinctions between the federal and state separation of powers doctrines, using California as an example.
In a conversation moderated by Braden Boucek, David. A. Carrillo, Luke A. Wake, and John C. Yoo will explore those distinctions, examine how they affect the latitude and options state and federal executives have, and debate the extent to which federal separation of powers doctrines can or should be applied to the states through judicial interpretation.
Featuring:
David A. Carrillo, Lecturer in Residence and Executive Director, California Constitution Center, University of California, Berkeley, School of Law
Luke A. Wake, Attorney, Pacific Legal Foundation
John C. Yoo, Emanuel S. Heller Professor of Law; Co-Faculty Director, Korea Law Center; and Director, Public Law & Policy Program, University of California, Berkeley, School of Law
[Moderator] Braden Boucek, Director of Litigation, Southeastern Legal Foundation
Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

Litigation Update: New York's Covid Therapeutics Case Apr 12, 2022

New York’s response to the Covid-19 pandemic has been widely criticized, triggered an FBI investigation, and repeatedly landed the state before the Supreme Court. The latest criticism comes coupled with litigation alleging that New York State’s Department of Health (NYHD) is illegally discriminating on the basis of race in administering antiviral medication for covid treatment.
On December 27, 2021, the NYHD issued guidelines for the administration of the antivirals paxlovid and molnupiravir. Citing the short supply of both treatments, the NYHD directed that the drugs could only be administered to patients with Covid who also had “a medical condition or other factors that increase their risk for covid.” While New York’s guidelines link to the CDC’s “People with Certain Medical Conditions” page to describe “risk factors for severe illness,” New York specifically added consideration of race as a factor for prescription.
The guidelines state: “Non-white race or Hispanic/Latino ethnicity should be considered a risk factor, as longstanding systemic health and social inequities have contributed to an increased risk of severe illness and death from Covid-19.”
As a result, in some cases identically situated "whites" and non-white are ineligible or eligible for certain treatments. Although the NYHD disputes the characterization of their guidelines as impermissibly racially discriminatory, many lawsuits have been filed challenging the guidelines as impermissible and illegal race discrimination. The first of those lawsuits was filed by Professor William Jacobson of Cornell who joins us to discuss the pending litigation in New York and in other states across the country.
Featuring:
--Prof. William Jacobson, Clinical Professor of Law and Director of the Securities Law Clinic, Cornell Law School; President, Legal Insurrection
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To register, click the link above.

Citizen Suits, Separation of Powers, and the Future of the Supreme Court's Standing Jurisprudence Apr 11, 2022

Internal tensions in the Supreme Court's standing doctrine have led to some unexpected fractures. Last term, in Transunion LLC v. Ramirez, the Court considered a class action arising from Transunion's errors in the processing and use of the plaintiffs' personal credit information. By a vote of 5-4, the Court held that, while Congress had created a cause of action that on its face let all of the class members sue, only those whose information was shared with third parties had sufficiently concrete injuries to establish standing. Justice Thomas joined the court's three more liberal justices in dissent, arguing that Congress's creation of a cause of action was sufficient and pointing out numerous inconsistencies in the Court's standing doctrine. Of particular note, Justice Thomas cited a provocative concurring opinion from the 11th Circuit's Judge Newsom, who argued that standing has no basis in the original meaning of Constitution and that courts should instead look at whether a congressionally created cause of action violates the Constitution's separation of powers. Judge Newsom's opinion, and both the majority and the dissent in Transunion, spent considerable time discussing how courts should approach citizen suits, which have always been on the outer edge of the Court's standing jurisprudence and which several justices have said raise other serious separation of powers concerns.
This webinar will have a lively discussion among three leading experts about what the future may hold for citizen suits, standing doctrine, and the separation of powers
Featuring:
--Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
--Prof. Robin Craig, Robert C. Packard Trustee Chair in Law, USC Gould School of Law
--Jonathan Brightbill, Partner, Winston & Strawn LLP and former Acting Assistant Attorney General for the Environment & Natural Resources Division of the U.S. Department of Justice
--Moderator: Michael Buschbacher, Counsel, Boyden Gray & Associates PLLC

Litigation Update: Ducey v. Treasury Mar 31, 2022

On January 21, 2022, Arizona Governor Doug Ducey filed suit against Janet Yellen and the Treasury Department over its threat to withdraw federal funding if Governor Ducey did not alter school masking conditions. Ducey allocated over $160 million for schools but conditioned the money on those schools remaining open and not mandating masks.
Two attorneys on the ground in Arizona join us to discuss this case.
Featuring:
--Anni Foster, General Counsel, Governor Doug Ducey
--Moderator: Michael Bailey, General Counsel, Arizona Chamber of Commerce & Industry
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This Zoom link is open to public registration at the link above.

Where's the Beef? Inflation at the Grocery Store and Proposed Regulatory Responses Mar 29, 2022

Although inflation has broadly scattered across the economy, it is the food we buy where inflation's bite is the most obvious. The Biden Administration has pointed the finger at industry consolidation as the culprit. It proposes a rewrite of the regulations implementing agricultural antitrust statutes as the remedy. Industry disagrees that consolidation is to blame and looks warily at the proposed regulations as harbingers of what is to come for antitrust policy more generally. What is to blame for $18/pound beef, and what if anything can be done to counteract the rapid price increases at the grocery store? How will businesses respond to the proposed regulatory changes? Sean Heather of the U.S. Chamber of Commerce; Mark Dopp, Chief Operating Officer and General Counsel of the North American Meat Institute; and Joe Maxwell, president of Farm Action and former Lieutenant Governor of Missouri will discuss the policy and legal options available. Judge Stephen Alexander Vaden of the U.S. Court of International Trade and former General Counsel of the U.S. Department of Agriculture will moderate the panel.
Featuring:
--Mark Dopp, General Counsel, the North American Meat Institute
--Sean Heather, U.S. Chamber of Commerce
--Joe Maxwell, President, Farm Action
--Moderator: Hon. Stephen Vaden, Judge, U.S. Court of International Trade
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Spectrum Policy in the 5G Era Mar 24, 2022

This webinar will focus on spectrum policy in the 5G era and the recent increase in inter-agency spectrum turf wars. In recent years, there has been an uptick in the amount of involvement by other agencies, including the Department of Transportation, Department of Defense, Department of Energy, and the National Oceanic and Atmospheric Administration, to name a few, in FCC spectrum band proceedings. As spectrum demands continue to increase and the importance of sharing rises, some of this proceeding involvement has led to conflicts of interest, delays, and other challenges. The webinar will explore some of the most recent conflicts, such as C-band and 5.9 GHz band, the 6 GHz court challenge, as well as the potential long-term impacts of these battles on spectrum policy at the FCC and beyond.
Featuring:
--Prof. Adam Candeub, Professor of Law, Michigan State University
--Harold Feld, Senior Vice President, Public Knowledge
--Tricia Paoletta, Partner, Harris, Wiltshire & Grannis LLP
--Moderator: Danielle Thumann, Legal Advisor, Commissioner Brendan Carr
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This Zoom webinar is open to public registration at the link above.

Legal Review: Dobbs and the Holdings of Roe and Casey Mar 21, 2022

Before the Supreme Court this term is the question of whether all pre-viability bans on abortion are unconstitutional. In Dobbs v. Jackson Women's Health, the Court must address this question in light of its previous holdings in Roe v. Wade and Planned Parenthood v. Casey. Shortly after oral argument in December 2021, law professor Richard Re encouraged the Court to adopt a gradualist approach, making room for the possibility that the justices could uphold both Mississippi's prohibition on abortions before 15-weeks gestation and its prior precedents in Roe and Casey. Law professor Eric Claeys has written a forthcoming article for the Georgetown Journal of Law and Public Policy in which he takes a deep dive into the abortion precedents, concluding that the Court must either reaffirm or overturn those prior rulings.
These two distinguished scholars join us to discuss the argument, the stakes, and more.
Featuring:
Prof. Eric Claeys, Professor of Law, Antonin Scalia Law School, George Mason University
Prof. Richard Re, Joel B. Piassick Research Professor of Law, University of Virginia School of Law
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This Zoom webinar is open to public registration at the link above.

A Seat at the Sitting - March 2022 Mar 18, 2022

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. Issues presented in the March 2022 sitting included arbitration and the Federal Arbitration Act, international law, states rights, civil procedure, and more.

Morgan v. Sundance, Inc. (March 21) – arbitration and contract law
Berger v. North Carolina State Conference of NAACP (March 21) – states rights, intervention, and civil procedure
Golan v. Saada (March 22) – international law; the Hague Convention on the Civil Aspects of International Child Abduction
ZF Automotive US, Inc. v. Luxshare, Ltd. consolidated for argument with Alixpartners, LLP v. Fund for Protection of Investors’ Rights (March 23) – rules of evidence before international arbitral tribunals; what constitutes a “foreign or international tribunal” under 28 U.S.C. § 1782(a)
Ledure v. Union Pacific Railroad Co. (March 28) – The Locomotive Inspection Act
Southwest Airlines Co. v. Saxon (March 28) – the definition of “transportation workers” under the Federal Arbitration Act
Torres v. Texas Dept. of Public Safety (March 29) – state sovereign immunity, the constitutional war power, and the Uniformed Services Employment and Reemployment Act of 1994
Viking River Cruises, Inc. v. Moriana (March 30) – enforcement of bilateral agreements under the Federal Arbitration Act

Featuring:

Theane Evangelis, Partner, Gibson Dunn
Jonathan Urick, Association Chief Counsel, U.S. Chamber of Commerce Litigation Center
John Elwood, Partner, Arnold Porter
Evan Caminker, Dean Emeritus and Branch Rickey Collegiate Professor of Law at Michigan Law
Moderator: Jess Bravin, Supreme Court Correspondent, The Wall Street Journal

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Talks with Authors: Who Decides? States as Laboratories of Constitutional Experimentation Mar 16, 2022

As federalism becomes an increasingly important principle of our constitutional structure, Chief Judge Jeffrey Sutton of the U.S. Court of Appeals for the Sixth Circuit has published a timely book titled, Who Decides? States as Laboratories of Constitutional Experimentation (Oxford, 2021). Judge Sutton, a former law clerk to Justices Lewis Powell and Antonin Scalia, argues that constitutional law in America--encompassing the systems of all 51 governments--should have a role in assessing the right balance of power among all branches of our state and federal governments.
A distinguished group of legal thinkers and practitioners joins us to discuss this book.
Featuring:
--Hon. William H. Pryor, Jr., Chief Judge, U.S. Court of Appeals for the Eleventh Circuit
--Hon. Jeffrey S. Sutton, Chief Judge, U.S. Court of Appeals for the Sixth Circuit
--Moderator: Prof. Jennifer L. Mascott, Assistant Professor of Law and Co-Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School
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This Zoom event is open to public registration at the link above.

Draft SEP Policy Statement Mar 15, 2022

Before the Supreme Court this term is the question of whether all pre-viability bans on abortion are unconstitutional. In Dobbs v. Jackson Women's Health, the Court must address this question in light of its previous holdings in Roe v. Wade and Planned Parenthood v. Casey. Shortly after oral argument in December 2021, law professor Richard Re encouraged the Court to adopt a gradualist approach, making room for the possibility that the justices could uphold both Mississippi's prohibition on abortions before 15-weeks gestation and its prior precedents in Roe and Casey. Law professor Eric Claeys has written a forthcoming article for the Georgetown Journal of Law and Public Policy in which he takes a deep dive into the abortion precedents, concluding that the Court must either reaffirm or overturn those prior rulings.
These two distinguished scholars join us to discuss the argument, the stakes, and more.
Featuring:
--Prof. Eric Claeys, Professor of Law, Antonin Scalia Law School, George Mason University
--Prof. Richard Re, Joel B. Piassick Research Professor of Law, University of Virginia School of Law
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This Zoom webinar is open to public registration at the link above.

Courthouse Steps Decision Webinar: Cameron v. EMW Women’s Surgical Center Mar 11, 2022

On March 3, 2022, the U.S. Supreme Court decided Cameron v. EMW Women's Surgical Center. Writing for the 8-1 majority, Justice Samuel Alito explained how the the U.S. Court of Appeals for the Sixth Circuit erred in denying the Kentucky attorney general’s motion to intervene on the commonwealth’s behalf in litigation concerning Kentucky House Bill 454, related to the rights of the unborn. Justice Thomas filed a concurring opinion. Justice Kagan filed an opinion concurring in the judgment, in which Justice Breyer joined. Justice Sotomayor filed a dissenting opinion.
Our expert will cover the case, the ruling, and its implications.
Featuring:
--Philip D. Williamson, Partner, Taft, Stettinius & Hollister LLP
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This Zoom event is open to public registration at the link above.

Litigation Update: Wooden v. United States Mar 10, 2022

Join us for a webinar featuring Vikrant Reddy to discuss the Supreme Court decision in Wooden v. United States.
Speaker:
Vikrant Reddy, Senior Research Fellow, Charles Koch Institute

Litigation Update: In re: LTL Management Mar 10, 2022

In October 2021, LTL Management LLC (LTL), a newly created and separate subsidiary of Johnson & Johnson (J&J) that was established to hold and manage claims in the cosmetic talc litigation, filed for voluntary Chapter 11 bankruptcy protection. J&J also entered into a funding agreement with LTL that assures that LTL will have the same, if not greater, ability to satisfy talc claims once the parties reach a plan of reorganization. J&J submits that the Chapter 11 restructuring is the only means by which LTL and its affiliates can reach a swift and equitable resolution for current and future claimants. Opposition argues the case does not serve a valid restructuring purpose, suggesting J&J filed it in bad faith. On February 25, the bankruptcy court in New Jersey sided with LTL and denied claimants’ motion to dismiss. The claimants have indicated they will appeal the ruling.
A divisional merger is a state-law transaction where a business entity divides itself into two new entities. It is similar in substance to other state-law transactions that result in the emergence of new legal entities. Controversy has arisen when—following the divisional merger—one of the new entities initiates Chapter 11 bankruptcy proceedings, as LTL did.
Professor Tony Casey of the University of Chicago Law School will address the interplay of divisional mergers and Chapter 11 of the United States Bankruptcy Code in the context of the J&J litigation and LTL bankruptcy. He will review the purpose of Chapter 11 in preserving economic and social value, explain how a divisional merger can further that purpose in the mass tort context, and discuss how existing law protects against the potential for abuse.
Featuring:
--Prof. Anthony Casey, Deputy Dean, Donald M. Ephraim Professor of Law and Economics, ---Faculty Director, The Center on Law and Finance, University of Chicago Law School
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This Zoom event is open to public registration at the link above.

Opioid Litigations and Public Nuisance: Updates From California, Oklahoma, and Ohio Mar 09, 2022

On February 25, 2022, Johnson & Johnson, Teva Pharmaceutical Industries, Ltd., McKesson Corp., Cardinal Health, Inc., and Amerisourcebergen Corp. announced that they had agreed to finalize a reported $26 billion settlement to resolve approximately 3,000 lawsuits from state and local governments regarding the opioid abuse crisis. The private plaintiffs’ trial firms representing the counties and municipalities filed the first lawsuit in California in 2014. The proposed settlement allocates approximately $2.3 billion for the plaintiffs' attorneys’ fees and costs. The most controversial legal issue was whether the defendants’ marketing created a “public nuisance.”
The companies continue to face claims in Alabama, Washington, West Virginia and Oklahoma, where in November 2021 the Oklahoma Supreme Court ruled that the state’s public nuisance statute did not extend to the manufacturing, marketing, and selling of prescription opioids.
On November 23, 2021, an Ohio federal jury found CVS, Walgreens, and Walmart pharmacies liable for recklessly distributing opioids in Lake and Trumbull counties in Ohio. Rite Aid and Giant Eagle settled in 2021. U.S. District Court Judge Dan Polster is scheduled to decide damages this spring.
Please join us on Tuesday, March 8, 2022, at 2:00pm EST/11:00am PST, as John Shu, who has been following the national litigations, will hold a Zoom webinar to update us on the litigations in California, Oklahoma, and Ohio, and discuss their legal and strategic issues.
Featuring:
--John Shu, Professor, Attorney, and Legal Commentator

Book Review: Unborn Human Life and Fundamental Rights: Leading Constitutional Cases under Scrutiny Mar 08, 2022

In Unborn Human Life and Fundamental Rights: Leading Constitutional Cases under Scrutiny (Peter Lang, 2019), editors William L. Saunders and Pilar Zambrano have collected a series of essays covering over 10 different nations and jurisdictions and addressing human rights and the role of judiciaries at home and abroad in protecting those rights. Concluding reflections are offered by legal philosopher John Finnis.
Professor Gerard Bradley will discuss his contribution to the volume, as well as the relevant and current issues both here and around the world.
Featuring:
Prof. Gerard V. Bradley, Professor of Law, University of Notre Dame Law School
Moderator: Prof. Robert P. George, McCormick Professor of Jurisprudence, Princeton University
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This Zoom event is open to public registration.

The Future of the Supreme Court Mar 07, 2022

Please join the Practice Groups for a timely webinar on how the upcoming Supreme Court nominee might shape law in the future. Prof. Dan Epps and Ethan Davis will consider the nominee's influence on criminal law, while Prof. William Marshall and Roger Severino will analyze possible effects on civil rights law.
Featuring:
--Prof. Dan Epps, Professor of Law, Washington University in St. Louis
--Ethan Davis, Partner, Special Matters and Government Investigations, King & Spalding
--Prof. William Marshall, Kenan Professor of Law, University of North Carolina
--Roger Severino, Senior Fellow, Ethics and Public Policy Center
--Moderator: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society

Switchbacks at the DOJ: the Sessions, Brand, and Garland Memos Mar 07, 2022

During President Biden’s first year in office, Attorney General Merrick Garland rescinded two key memos that were part of the Trump Administration’s stated regulatory reform agenda: the Sessions Memo, which prohibited Department of Justice (DOJ) components from issuing “guidance documents” that effectively bound the public without undergoing notice-and-comment rulemaking, and the Brand Memo, which prohibited the Department from using noncompliance with DOJ's or other agencies' nonbinding guidance documents as a basis for affirmative civil enforcement actions. Calling the procedures laid out in the Sessions and Brand memos “overly restrictive,” Attorney General Garland replaced these memos with the Garland memo, which largely makes it easier for the Department to issue guidance and to rely on its own or other agencies' guidance documents in enforcement actions.
What will be the impacts and effects of the Garland memo? Is this a sea change in favor of regulation by guidance, or a recognition by DOJ that guidance documents do not have the force of law? How have regulated entities responded? Acting Associate Attorney General (2017-2019) Jesse Panuccio and Assistant U.S. Attorney (2011-2019) Christopher Sabis will discuss these issues, moderated by Assistant Attorney General (2017-2020) Beth Williams.
Featuring:
--Jesse Panuccio, Partner, Boies Schiller Flexner LLP
--Christopher Sabis, Member, Sherrard Roe Voigt Harbison
--Moderator: Hon. Beth A. Williams, Board Member, U.S. Privacy and Civil Liberties Oversight Board; Former Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice
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March 2022 Virtual DC Lunch with Ed Whelan Mar 03, 2022

Join us virtually on Tuesday, March 1 to hear our speakers discuss the Supreme Court nomination.
Featuring:
--Edward Whelan, Distinguished Senior Fellow and Antonin Scalia Chair in Constitutional Studies, Ethics and Public Policy Center
--Moderator: Steven A. Engel, Partner, Dechert LLP, former Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice

Litigation Update: Thomas Jefferson High Litigation Mar 02, 2022

Last year, Thomas Jefferson High School (TJ), ranked #1 in the nation for academic excellence, changed its admission policy discarding a merit-based entrance exam in favor of a “holistic evaluation” to determine admission. The school stated the change was made in the name of making the student body more demographically representative. Many concerned parents disagreed, contending that the modification was intended to change the racial makeup of the student body—specifically to exclude some Asian Americans in favor of more whites, blacks, and other racial groups.
Litigation followed. The Coalition for TJ—comprised of approximately 5,000 concerned parents, residents of Fairfax County, and parents of eighth-graders who would be impacted by the admission policy change—sued the Fairfax County School Board and Superintendent Scott Brabrand alleging that the new policy was adopted with racially discriminatory intent in violation of the Equal Protection Clause of the Fourteenth Amendment.
Last Friday, February 25, a District Court granted summary judgment for the Coalition for TJ. In light of the Supreme Court’s recent cert grant in the pair of Students for Fair Admission's cases—Students for Fair Admission v. Harvard and Students for Fair Admission v. UNC Chapel Hill—the Thomas Jefferson litigation is rapidly gaining national attention.
Nicki Neily, President of Parents Defending Education, joined us for a litigation update on the summary judgment decision and its implications.
Featuring:
Nicki Neily, President of Parents Defending Education
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Courthouse Steps Oral Argument: West Virginia v. EPA Mar 01, 2022

On February 28, 2022, the U.S. Supreme Court will hear West Virginia v. EPA, one of the most anticipated environmental law cases on the Court’s docket in recent years. By way of background, in 2015, EPA issued the “Clean Power Plan.” Using the Agency’s authority under Clean Air Act Section 111(d), and styled as a rule to control greenhouse gas emissions from existing coal- and gas-fired power plants, the Clean Power Plan would have required states to shift their electric generation mix away from fossil fuels towards renewables, employing a “cap and trade” credit scheme.
The Supreme Court stayed the Clean Power Plan in 2016, and in 2019 the Trump Administration rescinded it and replaced it with the Affordable Clean Energy rule, concluding that the Clean Power Plan’s design was unambiguously beyond the limits of the Agency’s authority under Section 111. In 2021, and over a dissent from Judge Walker, the D.C. Circuit disagreed. And in American Lung Association v. EPA (985 F.3d 914), the D.C. Circuit vacated the Clean Power Plan repeal and Affordable Clean Energy rule, staying the vacatur indefinitely pending further rulemaking because EPA, under the current administration, has declared it will not enforce either rule.
The issue before the Court in West Virginia v. EPA is whether, when designing rules under Section 111, EPA is limited to identifying “systems of emission reduction” that can be applied to and at the level of an individually regulated facility, or whether there are no limits to EPA’s authority other than the textual commands to consider cost, nonair quality health and environmental impacts, and energy requirements. Federal respondents argue the case is moot and should be dismissed as improvidently granted.
This teleforum will discuss the legal issues involved, questions from the bench, and anticipate where the law could be headed. A broader discussion on West Virginia v. EPA, with additional speakers and analysis, will be provided after the Court renders its decision.
For accompanying document, click here
Featuring:
Speaker: Justin Schwab, Founder, CGCN Law; former Deputy General Counsel, EPA.
Moderator: Garrett Kral, Associate Member of the Environmental Law & Property Rights Practice Group’s Executive Committee; former Special Advisor for Oversight, EPA.

Courthouse Steps Decision: Unicolors, Inc v. H&M Hennes & Mauritz, LP Mar 01, 2022

Join us virtually to hear a discussion on the Supreme Court's recent decision in Unicolors, Inc v. H&M Hennes & Mauritz, LP.
Featuring:
Zvi Rosen, Assistant Professor at SIU Law, and was a Visiting Scholar and Professorial Lecturer in Law at George Washington University School of Law. He has previously taught at University of New Hampshire School of Law as an adjunct professor and New York Law School as an adjunct assistant professor.

Freedom of Thought on Campus: Discussion and Debate at Georgetown Feb 24, 2022

Is open discussion and debate essential to the function of the university?
Many universities, including Georgetown, have adopted strong policies on academic freedom, affirming that deliberation or debate may not be suppressed because ideas put forth might be offensive, unwise, immoral or ill conceived.
But when controversy arises on campus, concrete complaints about offensive speech can displace these abstract principles of academic freedom.
What does an environment conducive to learning require? What kinds of limits should govern the ideas that students are exposed to by their teachers and classmates? Should students be exposed to ideas or opinions that are offensive? Should students have recourse to administrative action when faced with an offensive opinion? What kind of harm does offense entail?
On the other hand, when administrators step in to punish offending speech, does that decision come with consequences? And who bears the resulting harm attendant on limiting who can speak or what opinions can be expressed? Who measures what kind of opinions or statements are harmful or not?
Featuring:
Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
Prof. Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law
Moderator: Hon. Stephanos Bibas, Judge, United States Court of Appeals for the Third Circuit
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Litigation Update: Merrill v. Milligan Feb 24, 2022

On February 7, 2022, the Supreme Court noted probable jurisdiction and granted certiorari before judgment in a case involving Alabama's new congressional district map. It also granted a stay allowing the map to go into effect for Alabama's upcoming primary elections. The Alabama State Conference of the NAACP and others had challenged the map adopted by the Alabama State legislature before a three-judge federal district court panel. They argued that the state's redistricting plan dilutes minority votes in violation of Section 2 of the Voting Rights Act. The district court, agreeing with the plaintiffs, enjoined Alabama from implementing the legislature's map and gave the state legislature 14 days to implement a remedial redistricting plan that "include[s] two districts in which Black voters either comprise a voting-age majority or something quite close to it"--or the court would itself retain an expert to draw, on an expedited basis, a congressional map compliant with federal law for purposes of the 2022 congressional elections.
By a 5-4 vote, the Supreme Court stayed that order.
Many commentators have weighed in, some critiquing the Court's order, others dissecting the vote breakdown and still others considering possible implications. Professor Michael T. Morley of FSU College of Law joins us for a litigation update to discuss the issues.
Featuring:
Professor Michael T. Morley, Assistant Professor of Law, Florida State University College of Law
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Cert Petition Litigation Update: United States v. Tuggle and the Meaning of “Search” Feb 22, 2022

An exciting petition for certiorari pending before the U.S. Supreme Court, United States v. Tuggle presents the question "Whether long-term, continuous, and surreptitious video surveillance of a home and its curtilage constitutes a search under the Fourth Amendment." The central question deals with the meaning of the word "search." Under Katz v. U.S., the reasonable expectation of privacy test defines a "search." Many argue Katz is incorrect. Instead, the Court should interpret search to have its ordinary public meaning--a purposeful, investigative act. Please join our speakers in a discussion about United States v. Tuggle, the Fourth Amendment, textualism, the meaning of the word "search," and importantly, whether the Court should grant cert in this case.
Featuring:
Professor Orin Kerr, William G. Simon Professor of Law at UC Berkeley School of Law
Josh Windham, attorney at the Institute for Justice
Moderator: Adam Griffin, Law Clerk, U.S. District Courts; former Constitutional Law Fellow, Institute for Justice

A Seat at the Sitting - February 2022 Feb 17, 2022

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. Issues presented in the next sitting include the regulatory authority of the Environmental Protection Agency, the Controlled Substances Act, states rights, and Indian law.
Ysleta del Sur Pueblo v. Texas (Feb. 22) Indian tribes and state law
Denezpi v. United States (Feb. 22) Indian law
Arizona v. San Francisco (Feb. 23) states’ rights
West Virginia v. EPA (Feb. 28) regulatory authority of the EPA under the Clean Air Act
North American Coal Corp. v. EPA (Feb. 28) regulatory authority of the EPA
Westmoreland Mining Holdings LLC v. EPA (Feb. 28) regulatory authority of the EPA
North Dakota v. EPA (Feb. 28) regulatory authority under the EPA
Ruan v. United States (March 1) defenses under the Controlled Substances Act
Kahn v. United States (March 1) defenses under the Controlled Substances Act
Marietta Memorial Hospital v. Davita Inc. (March 1) – Medicare Secondary Payer Act
Egbert v. Boule (March 2) – Bivens, Fourth Amendment
Featuring:
Anthony J. "A.J." Ferate, Of Counsel, Spencer Fane LLP
Elizabeth Murrill, Solicitor General, Louisiana
Robert V. Percival, Robert F. Stanton Professor of Law, University of Maryland Carey School of Law
Kenji Price, Partner, McDermott Will & Emery
Jeff Beelaert, Partner, Stein Mitchell Beato & Missner LLP
Moderator, Adam Liptak, Supreme Court Correspondent, The New York Times
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This event has concluded. Watch above or on our YouTube page.

Foreign Sovereign and International Organization Immunity in U.S. Courts: Recent Developments and the Way Forward Feb 14, 2022

The Foreign Sovereign Immunities Act and its lesser-known sibling, the International Organizations Immunities Act, enacted in 1945, codify the immunities afforded to foreign states and certain international organizations in U.S. courts. Sovereign and international organization immunity stand at the nexus of international affairs, policy, and the law. This program will concentrate on developments in this dynamic area of the law, particularly in light of the recent Supreme Court case, JAM v. IFC. The panel features prominent legal practitioners who have litigated these issues and served as directors of international organizations.
Featuring:
--Rick Herz, Senior Litigation Attorney, EarthRights International
--Eliot Pedrosa, Partner, Jones Day
--Moderator: Harout Samra, Counsel, DLA Piper

The Biden Administration on Policing: What's the Verdict? Feb 10, 2022

Rising homicide rates, challenges in fully staffing police departments, and a shortfall in trust between some communities and law enforcement agencies have focused attention on whether and how the federal government should respond. This session will examine the Biden administration’s record on policing during its first year in office and, most importantly, the path forward. In light of stalled congressional talks on policing legislation and constitutional limits on federal power in this traditionally local area, what can and should the administration do in areas such as pattern and practice investigations, use of force, certification and de-certification, training, and qualified immunity?
Featuring:
Andrew McCarthy, Senior Fellow, National Review Institute and Former U.S. Attorney
Renee Mitchell, Co-Founder, American Society of Evidence-Based Policing and Senior Police Researcher, RTI International
Marc Levin, Council on Criminal Justice, Moderator

The (Mis)Use of Anti-Suit Injunctions in International IP Litigation: Can foreign courts enjoin enforcement of US patent rights? Feb 08, 2022

The propriety of anti-suit injunctions—that is, orders issued in one jurisdiction prohibiting a party from initiating or continuing litigation in another jurisdiction—has recently become a hot topic in international IP disputes. Chinese courts involved in these disputes are a primary reason why: the Shenzhen People’s Court has recently blocked litigants from enforcing their patent rights in other countries, including the United States. During this panel, we will discuss the use of anti-suit injunctions in international IP litigation, including the panelists’ views on recent anti-suit injunction cases and the future viability of this very powerful tool.
Featuring:
--Steve Akerley, Head of Litigation, Interdigital
--Prof. Ann Bartow, University of New Hampshire Franklin Pierce School of Law
--Judge Paul Michel, U.S. Court of Appeals for the Federal Circuit (ret.)
--Moderator: Eliza Beeney, Associate, McKool Smith PC

Who Runs the FDIC in a New Administration? Feb 04, 2022

The FDIC board of directors has been convulsed by the widely publicized dispute over who controls the agenda for FDIC board meetings -- the Board chair or a majority of its members. Currently, the FDIC Board has four members -- Chairperson Jelena McWilliams, Director (and former Chairman) Martin Gruenberg, and serving as ex-officio members, Michael Hsu (Acting Comptroller of the Currency) and Rohit Chopra, Director of the Consumer Financial Protection Bureau; there is one vacancy, that of Vice Chairman.
Director Gruenberg and the two ex-officio directors, both Biden appointees, moved to take control of the board agenda, specifically with regard to bank merger policies, which led McWilliams, a Trump appointee, to resign as chairman, effective February 4. Gruenberg may likely become the acting chairman of what will be, for the time being, a three-member board.
The dispute between McWilliams and the other three directors has raised several issues not just for the FDIC but for other agencies governed by boards, such as the Federal Reserve, the SEC, the NCUA, the CFTC. The FDIC is unique, though, with two directors serving at the pleasure of the President, and who head their own agencies without colleagues who have a vote on their actions.
The webinar panelists will discuss the implications of the turmoil at the FDIC and what it may mean for not just the FDIC but also for the boards of other independent regulatory agencies.
Featuring:
--Thomas Vartanian, Executive Director, The Financial Tech and Cybersecurity Center
--Michael Krimminger, Senior Counsel, Cleary Gotlieb
-- Bert Ely, Principal, Ely & Company, Inc.
-- Moderator: Brian Johnson, Partner, Alston & Bird

Cochran v. SEC: Vindicating Article III Jurisdiction over the Structural Constitution and ALJs Feb 03, 2022

In Cochran v. SEC the Fifth Circuit court of appeals sitting en banc opened the doors of federal district courts in Texas, Mississippi and Louisiana to constitutional challenges to agency administrative law judges (ALJs) who enjoy multiple layers of protection from removal. This means that persons administratively charged by the SEC will no longer have to first endure years of pointless administrative proceedings before judges they claim are unconstitutional. By contrast, in six other circuits (Second, Fourth, Seventh, Eleventh, D.C. and Ninth), administrative agencies such as the SEC and FTC can instigate unconstitutional proceedings and evade judicial review by an Article III court for years on end. Defendants are thereby forced to settle or bankrupted before ever receiving meaningful judicial review.
Cochran is not only a groundbreaking course-correction vindicating Americans’ access to Article III courts for redress of their constitutional rights, but it creates a circuit split that may well prompt Supreme Court review. The Fifth Circuit, by a 9-7 vote (Haynes, Jones, Smith, Elrod, Willett, Duncan, Engelhardt, Oldham and Wilson) held that § 78y of the Exchange Act neither explicitly nor implicitly stripped jurisdiction from federal courts to hear this challenge.
Judge Oldham, joined by Judges Smith, Willett, Duncan, Engelhardt and Wilson, concurred separately in a remarkable opinion that set forth the origins of the administrative state in § 78y’s transfer of power “far away from the three branches of government the Founders worked so hard to create, separate and balance … [a]nd … as far away from democracy and universal suffrage as possible.” They said that critical disjuncture has allowed “administrative agencies to operate in a separate, anti-constitutional, and anti-democratic space—free from pesky things like law and an increasingly diverse electorate.”
Please join Peggy Little, Senior Litigation Counsel of the New Civil Liberties Alliance (NCLA), who argued the en banc, and Gregory Garre, former U.S. Solicitor General and now partner at Latham & Watkins, who worked with another NCLA client in 2020 on a petition for certiorari to the Supreme Court on this point, for a discussion of this landmark decision and the concurrence’s open engagement with administrative power. Peggy and Greg will discuss how this structural constitutional question was litigated in district courts in California, Texas and the Fifth, Ninth and Eleventh Circuits, what the Fifth Circuit got right that so many other circuits got wrong, and how this separation of powers question might reach the Supreme Court in the near future.
Featuring:
Peggy Little, Senior Litigation Counsel, New Civil Liberties Alliance
Gregory Garre, Partner, Latham & Watkins

Litigation Update: Cert Granted in Students for Fair Admission v. Harvard and Students for Fair Admission v. UNC Chapel Hill Feb 02, 2022

Breaking news: The Supreme Court granted certiorari in two petitions pending before the Supreme Court which have gained national attention. Students for Fair Admission Inc. v. President and Fellows of Harvard College and Students for Fair Admission, Inc. v. University of North Carolina both ask the Court to overrule Grutter v. Bollinger, a nearly twenty-year-old Supreme Court decision that allowed higher education institutions to consider race in admission decisions.
Beyond challenging Grutter, the petitioners suing Harvard allege the college’s admissions policies discriminate against Asian Americans in violation of Title VI of the Civil Rights Act.
In both the Harvard and UNC cases, lower courts have so far upheld the use of race in admissions. And after the Court called for the views of the Biden Administration, the United States filed a brief urging the Court not to get involved in the Harvard matter. Nevertheless, the case is proceeding to the Court in what is sure to be a significant battle on the topic of whether schools can consider a student's race when making admissions decisions.
Join Will Trachman, former Deputy Assistant Secretary to the Office for Civil Rights, Department of Education, for a litigation update discussing both cases. Will is currently General Counsel to Mountain States Legal Foundation, which filed an amicus brief in both the Harvard and UNC petitions, urging the Court to grant certiorari.
Featuring:
Will Trachman, General Counsel, Mountain States Legal Foundation
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Fireside Chat with Nadine Strossen Feb 01, 2022

Free speech champion and icon Nadine Strossen joins Erik Jaffe for a virtual “fireside” chat spanning a variety of free speech topics, including: the perpetual and inevitable conflict between process- and outcome-oriented approaches to free speech cases (i.e., whether to defend the speech or speaker you hate); how does a lawyer or public interest group decide whether to take a case raising such a conflict; does more speech always solve the problems of bad speech; how much risk or harm should be tolerated before it is acceptable to restrict speech; the prospective conflict between freedom and equality if speech is claimed to create a hostile environment on campus or in the workplace; balancing private versus public power questions in the free speech and other contexts; how the ACLU has grappled with such issues; and are there areas of or approaches to the First Amendment that might have bipartisan appeal.
Featuring:
Nadine Strossen, John Marshall Harlan II Professor of Law, Emerita, New York Law School
Moderator: Erik Jaffe, Partner, Schaerr Jaffe LLP
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Litigation Update: New York's "Rent Stabilization Act" Jan 28, 2022

Does New York’s “rent stabilization” law violate the federal Constitution? The law, which regulates approximately 1 million apartments in New York City, was enacted more than fifty years ago and remains in effect based on an every-three-year declaration of a housing “emergency.” The law does not merely regulate rent levels. It also limits a property owner’s right to determine who uses an apartment, to convert the property to new uses or to replace the existing building with a new structure, and to occupy the property for use by the owner and his or her family.
A lawsuit filed in 2019 asserts that the New York law—including 2019 amendments that significantly increased the restrictions on property owners— violates due process and effects both physical and regulatory takings of the property that it regulates. After being dismissed at the District level, the case now moves to the United States Court of Appeals for the Second Circuit.
Rent regulation is not just a New York phenomenon. Other cities across the country have enacted, or are considering, rent regulation legislation. Andrew Pincus, lead counsel for the plaintiffs, and Dean Reuter, Federalist Society Senior Vice President and General Counsel, will discuss the constitutional challenge in the context of the Supreme Court’s evolving property rights jurisprudence—including last Term’s decision in Cedar Point Nursery v. Hassid.
Featuring:
Andrew Pincus, Partner, Mayer Brown
Moderator: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society
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Litigation Update: FEC v. Cruz for Senate Jan 26, 2022

On January 19, 2022, the United States Supreme Court will hear an appeal by the Federal Elections Commission (FEC) from a successful challenge to campaign finance restrictions brought by Sen. Ted Cruz. The action centers on a provision of the Bipartisan Campaign Reform Act (BCRA) of 2002, otherwise known as McCain-Feingold, that restricts candidates’ ability to use campaign donations received after the election to pay back personal loans made to their campaign.
Pursuant to BCRA, the case was heard by a 3-judge district court panel in Washington, D.C. and, after the court struck down the limitation, the FEC appealed directly to the Supreme Court, which set it for oral argument. The case offers an opportunity for the Court to clarify and/or refine its campaign finance jurisprudence, including reviewing the real-world effect of such restrictions on political speech, the distinction devised in Buckley v. Valeo between expenditures and contributions, and the various levels of scrutiny for each.
The webinar will review the traditional free speech issues in the case (including the extent of any risk of corruption or its appearance presented by a candidate's loan to his or her own campaign), as well as practical concerns about the effect these limitations might have on campaigns -- including on the kinds of candidates who will be able to run for office.
Featuring:
Donald A. Daugherty, Jr., Senior Litigator, Institute for Free Speech
Harmeet Dhillon, Founding Partner, Dhillon Law Group Inc.
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The New Mass Arbitration: Just Deserts or Just Another Abuse? Jan 25, 2022

In recent years, many companies have required consumers and employees to agree to individually arbitrate any disputes that might arise, eliminating aggregate dispute resolution devices like class actions. In response, plaintiffs’ lawyers have begun filing masses of individual arbitration demands on behalf of employees and consumers against companies like Intuit, Uber, and American Express. The demands place companies on the hook for millions of dollars in arbitration fees, and companies have begun resisting payment and asking to return to court for aggregate dispute resolution, or to create aggregate arbitration procedures. Is this just deserts for corporations or an abuse of the system by plaintiffs’ lawyers? What about the claimants: does mass arbitration deliver for them? Our speakers will explore these and other questions in this lively and timely event.
Featuring:
Daniel Fisher, Chartered Financial Analyst, Walden Consultants, LLC
Maria Glover, Professor of Law, Georgetown University Law Center
Moderator: Brian Fitzpatrick, Milton R. Underwood Chair in Free Enterprise, Vanderbilt University Law School

Litigation Update: Investigating Title VI and Title IX Complaints Jan 25, 2022

Title IX of the Education Amendments of 1972 supplemented Title VI of the Civil Rights Act of 1964 to include, in addition to barring discrimination on the ground of race, color, or national origin, sex as a protected class in federally funded education programs or activities. The purpose of enacting Title IX was to ensure that everyone, regardless of sex, would enjoy a discrimination-free educational experience.
In the years since their enactment, observers have accused colleges and universities of violating Titles VI and IX in various ways. Many Title IX concerns have involved single-sex, female-only programs, scholarships, awards, fellowships, camps, clubs, etc. Others have involved single-sex, male-only programs. And recently, programs or scholarships for BIPOC-only or people of color have invoked Title VI concerns. One such observer of these potential civil rights violations is professor emeritus of economics at the University of Michigan, Mark Perry.
Over the last three years, Professor Perry has identified more than 1,200 Title IX and Title VI alleged violations and has filed complaints with the Department of Education’s Office for Civil Rights (OCR) against nearly 400 colleges and universities which have resulted in nearly 200 federal investigations and more than 100 resolutions, mostly in his favor.
However, after years of this work, Professor Perry announced recently that he has noticed what he describes as a “significant departure from past practices” in what OCR now requires of Title VI and Title IX complaints. Please join us for an update from Professor Perry on his civil rights advocacy and what he views as “troubling signs” at the Biden-Cardona-Lhamon OCR for a discrimination-free educational experience for all.
Featuring:
-- Mark Perry, Senior Fellow, American Enterprise Institute
-- Moderator: Devon Westhill, President and General Counsel, Center for Equal Opportunity

Talks with Authors: The Great Dissenter: The Story of John Marshall Harlan Jan 25, 2022

The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero is a new book exploring the life and legacy of a towering but sometimes forgotten jurist. Harlan, who served over 30 years on America's highest court, earned a reputation for being a champion of civil liberties -- notably, he was the lone dissenter in the Civil Rights Cases and Plessy v. Ferguson.
Author Peter Canellos joins us to discuss his new book and Justice Harlan's legacy.
Featuring:
Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston
Peter S. Canellos, Managing Editor, Politico
Moderator: Hon. Victor Wolski, Senior Judge, U.S. Court of Federal Claims
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This Zoom event is open to public registration at the link above.

The Fourth Amendment at the High Court: Last Term in Review and the Future Jan 24, 2022

The Federalist Society's Criminal Law and Procedure and Environmental Law and Property Rights Practice Groups bring you a roundtable discussion with leading Fourth Amendment scholars and litigators reviewing the major Fourth Amendment decisions from the 2020-2021 term and previewing the future of the Fourth Amendment at the High Court. What is the fate of Katz, the third-party doctrine, and the exigent-circumstances exception to the warrant requirement? What is the best method of interpreting the Amendment and will we see a revival of its original meaning? Four Fourth Amendment experts review:
Caniglia v. Strom, a unanimous opinion written by Justice Thomas rejecting the warrantless search of a home under the “community caretaking exception.”
Lange v. Caniglia, an opinion written by Justice Kagan rejecting a categorical exception to the warrant requirement for a fleeing misdemeanant.
Torres v. Madrid, a 5-3 decision by Chief Justice Roberts with a resounding dissent by Justice Gorsuch, debating what constitutes a "seizure"--is mere touch sufficient or must an officer take actual possession?
Bovat v. Vermont, Justice Gorsuch, joined by Justices Kagan and Sotomayor, dissenting from the denial of certiorari in a case involving the “knock and talk” exception to the warrant requirement.
The last term was a busy one for the Fourth Amendment and no doubt many questions remain in this important area of constitutional law. Join the nation's leading scholars and litigators as they discuss the most recent developments in Fourth Amendment law and preview the Amendment's future at the High Court.
Featuring:
Professor Jeffrey Bellin, Mills E. Godwin, Jr., Professor of Law and Robert E. and Elizabeth S. Scott Research Professor at William & Mary Law School.
Professor Laura Donohue, Anne Fleming Research Professor; Professor of Law at Georgetown Law.
Robert Frommer, Senior Attorney, Institute for Justice.
James K. Vines, Partner, King & Spalding LLP
Moderator: Adam Griffin, Law Clerk, U.S. District Courts; former Constitutional Law Fellow, Institute for Justice

Vaccine Policy: Who Decides? Jan 21, 2022

The Supreme Court recently issued its decisions in two federal vaccine mandate cases. Several states and interest groups sought emergency relief on regulations issued by the Occupational Safety and Health Administration as well as the Centers for Medicare and Medicaid Services.
The OSHA rule required large employers to require vaccination or regular testing of their employees. CMS required vaccination of staff at health care facilities participating in Medicare or Medicaid programs. The Court granted a stay of the OSHA rule pending merits review in the Sixth Circuit, but stayed an injunction of the CMS rule allowing it to go into effect.
But federal agencies are not the only actors setting vaccine policy. Effective January 15th, the D.C. government will require restaurants and other businesses to check customer vaccine status. Meanwhile Florida has taken a different approach, and has barred businesses from checking employee or customer vaccine status.
This panel will review the decisions and also consider the appropriate role for the various levels of government authority in setting vaccine policy, as well as competing interests of private businesses, employees, and consumers.
Featuring:
Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
Dorit Reiss, Professor of Law and the James Edgar Hervey '50 Chair of Litigation, UC Hastings Law
Ryan Dean Newman, General Counsel, Governor Ron DeSantis
David Dewhirst, Solicitor General, Montana
Moderator: Kate Todd, Managing Partner, Ellis George Cipollone
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To register, click the link above.

A Seat at the Sitting - January 2022 Jan 06, 2022

Join us for the fourth episode of the Federalist Society's Supreme Court Show: A Seat at the Sitting. Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. During the first two weeks of January, the Justices will hear eight oral arguments on cases including the First Amendment – both the speech and religion clauses, immigration, tax law, and Medicaid, and more.This episode will also feature discussion of the OSHA vaccine mandate oral argument scheduled for January 7.

Gallardo v. Marstiller – reimbursement under the Federal Medicaid Act for tort recovery (Jan. 10)
Johnson v. Arteaga-Martinez – immigration (Jan. 11)
Garland v. Gonzalez – immigration (Jan. 11)
Boechler, P.C. v. Commissioner of Internal Revenue – tax law (Jan. 12)
Shurtleff v. Boston – First Amendment – speech and religion (Jan. 18)
Cassirer v. Thyssen-Bornemisza Collection Foundation – Foreign Sovereign Immunities Act and choice of law (Jan. 18)
Federal Election Commission v. Ted Cruz for Senate – federal campaign contribution limits and the Free Speech Clause (Jan. 19)
Concepcion v. United States – First Step Act (Jan. 19)

Featuring:-- Prof. Suzanna Sherry, Herman O. Loewenstein Chair in Law Emerita, Vanderbilt Law School
-- Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason Univeristy
-- Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
-- Sarah M. Harris, Partner, Williams & Connelly
-- Moderator: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society

Roiling the Waters: Clean Water Act “Navigable Waters” Definition – Litigation and Regulatory Developments Dec 21, 2021

The Clean Water Act authorizes the Environmental Protection Agency and U.S. Army to regulate discharges to “navigable waters,” defined in the statute as “waters of the United States, including the territorial seas.” The agency regulations further defining these terms have engendered controversy and litigation for decades.
Since 2015, the agencies have modified their Navigable Waters regulations three times, and dozens of federal lawsuits have challenged the various versions. Meanwhile, the validity of these regulations have been the key issue in several enforcement cases.
On December 7, 2021, the agencies proposed yet a fourth revision in six years to the regulatory definition of Navigable Waters.
This teleforum will update listeners on the key pending cases that may have an ultimate effect on the agency regulations, and provide an overview of the proposed new regulation.
Featuring:
Charles Yates, attorney in Pacific Legal Foundation’s environmental practice group, where he litigates to defend private property rights and uphold the structural protections guaranteed by the Constitution’s separation of powers.
Tony Francois, who is experienced in Water and Real Property Law, Land Use and Zoning, Environmental Regulation, Natural Resources Development, Agricultural Law, and Constitutional Law. He has represented homeowners, builders, farmers and ranchers, trade associations, and water districts in administrative, civil, and criminal proceedings before state and federal administrative agencies and state and federal trial and appellate courts.

Admitting Expert Evidence Under Rule 702: By What Standard? Dec 17, 2021

This webinar will host a debate over the pending amendments to Federal Rule of Evidence 702, which governs the admissibility of expert testimony. In August 2021, the federal judiciary’s Advisory Committee on Evidence Rules published proposed amendments to Rule 702 to include within the text of the rule language directly stating that the proponent of expert testimony must establish each of Rule 702’s elements by a preponderance of the evidence. Currently, Rule 702 does not explicitly include a preponderance standard, but merely cross-references the preponderance standard included under another evidentiary rule. A year’s worth of research into federal cases analyzing the current Rule 702 reveals that some courts apply a preponderance standard while others apply a more relaxed policy favoring admissibility.
The Advisory Committee will host a public hearing on January 21, 2022, and those wishing to testify are asked to reserve a spot 30 days in advance. The Committee is also accepting public comments on the proposed amendment until February 16, 2022.
The webinar discussion will be moderated by Leah Lorber, Assistant General Counsel of Dispute Resolution and Prevention at GSK. Participants will include Lee Mickus, a Partner at Evans, Fears & Schuttert, who has written and spoken extensively in support of Rule 702 reforms; David Wool, a Partner at the Wagstaff Law Firm who has litigated Rule 702 and Daubert issues extensively and questioned the need for the proposed amendment; and Katie Jackson, an Associate at Shook, Hardy & Bacon and Fellow with Lawyers for Civil Justice who has conducted research regarding the courts’ application of Rule 702.
Here is a link to a webpage with several Rule 702 resources for those wishing to file a comment, testify at the hearing, or simply learn more about the proposed amendments.
Featuring:
Kateland Jackson, Associate at Shook, Hardy & Bacon LLP in Washington, D.C.
Leah Lorber, Assistant General Counsel of Dispute Resolution and Prevention at GSK.
Lee S. Mickus, Partner, Evans Fears & Shuttert LLP
David Wool, Partner, Wagstaff Law Firm

Litigation Update: the OSHA Vaccine Mandate Dec 16, 2021

Late in 2020, several pharmaceutical companies developed vaccines for Covid-19 that received FDA approval, first for emergency use and then for general use. Next came the question of whether the federal or state governments should mandate vaccination or leave that decision to individuals. The states have generally deferred to the federal government, and Congress punted punted the question to President Joe Biden. At first, he tried to persuade the public, and numerous people were vaccinated. In September 2021, however, the President changed course, expressing dissatisfaction with the rate of vaccination. Among other things, he ordered the Occupational Safety and Health Administration (OSHA) to promulgate an Emergency Temporary Standard (ETS) requiring all employees at companies with 100 or more employees to be vaccinated or receive weekly negative test results to remain at the workplace. Numerous parties challenged the OSHA Vaccination Mandate. The U.S. Court of Appeals for the Fifth Circuit stayed the effect of the ETS, and OSHA agreed not to enforce it for the time being. All related cases have now been transferred to the Sixth Circuit, and the federal government has asked that court to dissolve the stay.
Featuring:
-- Paul Larkin, who is the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Meese Center for Legal and Judicial Studies. Larkin works on criminal justice policy, drug policy, and regulatory policy.
-- Larry Stine, a Senior Principal in the firm of Wimberly, Lawson, Steckel, Schneider & Stine P.C., and an AV rated attorney, who enjoys a diverse practice in which he covers a broad range of labor and employment matters. Larry is the former Region IV Counsel for OSHA in the Office of the Solicitor for the U.S. Department of Labor. He is nationally known for his expertise in Occupational Safety and Health
-- Moderator: R. Pepper Crutcher, General Counsel to the Mississippi Manufacturers Association. Pepper Crutcher advises and advocates for a wide range of Southeast U.S., private sector employers. As the leader of the firm's Affordable Care Act practice, Pepper also helps employers, insurers, brokers, administrators and providers achieve ACA compliance and appeal ACA assessments. Labor negotiation and arbitration, OSHA, work site immigration enforcement, and intellectual property protection also are in Pepper's portfolio.

Talks with Authors: The Dictatorship of Woke Capital Dec 16, 2021

Please join us for the latest installment in our Talks with Authors Series, in which author Stephen Soukup sits down for an interview with Eileen O’Connor about his book The Dictatorship of Woke Capital. Perhaps you recall learning that the obligation of a corporation is to maximize profits, thus preserving and increasing shareholder value. Perhaps you even thought that was still a top priority of corporate executives. But more likely, if you hadn’t been aware of it already, it came to your attention during the last year or two that corporations were inserting themselves into public policy debates, and making decisions about where and how to operate based on considerations far removed from their businesses. In The Dictatorship of Woke Capital, Stephen Soukup describes how the focus of corporate attention went from shareholder value to woke capital. He takes us step by step through the evolution, from its beginning. He identifies the people and groups who have played and continue to play a major role in the development of woke capital. Published by Encounter Books, The Dictatorship of Woke Capital is available at its website, as well as Scribd, Amazon, and wherever books are sold.
Featuring:
-- Stephen Soukup, Author, The Dictatorship of Woke Capital: How Political Correctness Captured Big Business
-- Interviewer: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor PLLC

Courthouse Steps Decision Webinar: Whole Woman's Health v. Jackson Dec 16, 2021

On December 10, 2021, the U.S. Supreme Court decided Whole Woman's Health v. Jackson and dismissed the federal government's suit against Texas in United States v. Texas. The Court held 8-1 in Jackson that plaintiff abortion providers can pursue claims against licensing officials.
Justice Gorsuch wrote the majority opinion, joined in full by Justices Alito, Barrett, and Kavanaugh, with Justice Thomas joining as to all but one part. Justices Roberts wrote an opinion concurring in judgment in part and dissenting in part which Justices Breyer, Kagan, and Sotomayor joined, while Justice Sotomayor wrote a separate opinion concurring in the judgment in part and dissenting in part which Justices Breyer, Kagan, and Sotomayor joined.
A pair of distinguished federal-courts scholars join us to discuss the cases, the legal issues involved, and the implications going forward.
Featuring:
Prof. Stephen Sachs, Antonin Scalia Professor of Law, Harvard Law School
Prof. Howard Wasserman, Professor of Law, Florida International University College of Law
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This Zoom event is open to public registration at the link above.

Courthouse Steps Oral Argument Litigation Update: American Hospital Association v. Becerra Dec 14, 2021

On Tuesday, November 30, 2021, the Supreme Court heard oral argument in American Hospital Association v. Becerra. One of the certified questions asks the Court to revisit the famed Chevron doctrine which has been subjected to much criticism since its implementation. The petitioners ask the Court whether Chevron allows the Department of Health and Human Services to set reimbursement rates for hospital groups and whether 42 U.S.C. 1395I(t)(12) precludes the petitioners' suit. Rich Samp of the New Civil Liberties Alliance which filed an amicus brief in the litigation before the Court joins us to discuss the oral argument.
Featuring:
Richard A. Samp, Senior Litigation Counsel, New Civil Liberties Alliance
Moderator: Eli Nachmany, Student Member, Administrative Law and Regulation Practice Group Executive Committee; 3L Student, Harvard Law School
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To register, click the link above.

Courthouse Steps Oral Argument: New York State Rifle and Pistol Association v. Bruen Dec 14, 2021

In District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), the Supreme Court decided for the first time that the Second Amendment protects the right of individual Americans to keep a handgun in their homes for self-defense. In New York State Rifle & Pistol Association v. Bruen, the Court is expected to decide whether New York violated the Second Amendment by denying the applications of two law-abiding citizens to carry a concealed weapon in public.
Oral argument in this case was held on November 3. In this webinar, two Second Amendment experts will discuss the arguments, as well as the effects that the decision, whichever way it goes, might have on government power to enforce the criminal law.
Featuring:
Robert Leider, Assistant Professor of Law, George Mason Univeristy, Antonin Scalia Law School
Adam Winkler, Professor of Law, UCLA School of Law
Moderator: Nelson Lund, Professor of Law, George Mason University, Antonin Scalia Law School
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To register, click the link above.

Courthouse Steps Oral Argument Webinar: Carson v. Makin Dec 10, 2021

On December 8, 2021, the U.S. Supreme Court will hear oral arguments in Carson v. Makin on the question of whether a state violates the Religion Clauses or Equal Protection Clause by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious instruction.
We are joined by two experts, one of whom will argue the case before the Supreme Court for the petitioner, to discuss the legal issues involved and the implications of oral arguments.
Featuring:
Michael Bindas, Senior Attorney, Institute for Justice
Daniel Mach, Director, ACLU Program on Freedom of Religion and Belief
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This Zoom event is open to the press and public.

Courthouse Steps Oral Argument Webinar: Dobbs v. Jackson Women's Health Organization Dec 10, 2021

On December 1, 2021, the U.S. Supreme Court will hear Dobbs v. Jackson Women's Health Organization, one of the most anticipated cases on the Court's docket in recent years, on the question of whether all pre-viability prohibitions on elective abortions are unconstitutional.
This distinguished panel will review the oral arguments, explore the legal issues involved, and anticipate where the law might be headed.
You can view our pre-argument webinar here.
Featuring:
Prof. Daniel Farber, Sho Sato Professor of Law, University of California, Berkeley
Prof. Richard W. Garnett, Paul J. Schierl/Fort Howard Corporation Professor of Law, University of Notre Dame Law School
Prof. Julia Mahoney, John S. Battle Professor of Law, University of Virginia School of Law
Prof. Richard Re, Joel B. Piassick Research Professor of Law, University of Virginia School of Law
Prof. Mary Ziegler, Stearns Weaver Miller Professor, Florida State University College of Law
Moderator: Jennifer C. Braceras, Director, Independent Women's Law Center, Independent Women's Forum

Litigation Update: Vaccination Mandates Nov 22, 2021

The ongoing, high-decibel, public debate over vaccine mandates has entered its litigation phase. Please join us for a conversation with one of the country’s leading vaccine and civil rights litigators, Aaron Siri of Siri|Glimstad. Mr. Siri will provide a litigation update and summarize the issues and strategic challenges facing litigators, their clients, and policy makers. Our host will be Robert Destro, former U.S. Assistant Secretary of State for Democracy, Human Rights and Labor and Professor of Law at The Catholic University of America. Together, they will discuss the evidentiary and human rights issues facing lawyers who plan to challenge the public health regime.
Featuring:
Aaron Siri, Managing Partner, Siri Glimstad
Moderator: Robert Destro, Professor of Law, Catholic University of America
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To receive a copy of the documents referenced during this webinar, please email pg@fed-soc.org with the subject line "Vaccination Mandate Documents."

Courthouse Steps Pre-Argument Webinar: Dobbs v. Jackson Women's Health Organization Nov 22, 2021

On December 1, 2021, the U.S. Supreme Court will hear Dobbs v. Jackson Women's Health Organization, one of the most anticipated cases on the Court's docket in recent years, on the question of whether all pre-viability prohibitions on elective abortions are unconstitutional.
In defending its ban on abortions after 15-weeks gestation, Mississippi asks the Court to overrule Planned Parenthood v. Casey and Roe v. Wade, arguing that the cases were egregiously wrong because a right to abortion has no basis in the text, structure or history of the Constitution. Mississippi further argues that the various frameworks have proved hopelessly unworkable; that the cases have inflicted severe damage on democratic self-government, on the country, and on the understanding that the Supreme Court is a neutral arbiter of the law; that they have been overtaken by a better legal and factual understanding; that reliance interests do not support upholding Roe and that accordingly stare decisis principles counsel in favor of overruling them. Respondents argue that the viability standard is the central line that underpins these rulings, and that the Court's decision to retain it in Casey, in the face of repeated requests to abandon it both in the years leading up to Casey and in Casey itself, makes the bar for overruling it particularly high. They further note stare decisis's centrality to the rule of law and to public confidence in the courts. They add that the viability standard is well-grounded in the Constitution and that a right to abortion remains critical to women's equal participation in the workforce.
Our panel explored these and other arguments and considered whether overruling these decisions, maintaining the viability line in some form, or some other approach best serves the rule of law.
Featuring:
Prof. Daniel Farber, Sho Sato Professor of Law, University of California, Berkeley
Prof. Sherif Girgis, Associate Professor of Law, University of Notre Dame Law School
Prof. Julia Mahoney, John S. Battle Professor of Law, University of Virginia School of Law
Prof. Richard Re, Joel B. Piassick Research Professor of Law, University of Virginia School of Law
Prof. Mary Ziegler, Stearns Weaver Miller Professor, Florida State University College of Law
Moderator: Hon. Thomas B. Griffith, formerly U.S. Court of Appeals, D.C. Circuit
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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 speaker.

A Seat at the Sitting - December 2021 Nov 22, 2021

Join us for the third episode of the Federalist Society's Supreme Court Show: A Seat at the Sitting. Each month, a panel of constitutional experts will convene to discuss the Court’s upcoming docket and debrief oral arguments from the previous month. During the first two weeks of December, the Justices will hear ten oral arguments on cases including abortion, religious freedom, habeas, Chevron deference, and the Civil Rights Act.

Becerra v. Empire Health Foundation - Medicare (Nov 29)
Cummings v. Premier Rehab Keller P.L.L.C. – compensatory damages under the Civil Rights Act for victims of discrimination/emotional distress (Nov. 30)
American Hospital Association v. Becerra – Chevron deference and preclusion, HHS (Nov. 30)
Dobbs v. Jackson Women’s Health Organization – abortion (Dec. 1)
Patel v. Garland – immigration, federal courts jurisdiction (Dec. 6)
Hughes v. Northwestern University – ERISA, breach of fiduciary duty (Dec. 6)
United States v. Taylor – Hobbs Act, criminal law, armed robbery (Dec. 7)
CVS Pharmacy Inc. v. Doe – disparate impact, discrimination, under Section 504 of the Rehabilitation Act (Dec. 7)
Carson v. Makin – religious freedom (Dec. 8)
Shinn v. Ramirez – habeas and the Antiterrorism and Effective Death Penalty Act (Dec. 8)

Featuring:
-- Nicole Garnett, John P. Murphy Foundation Professor of Law, The University of Notre Dame Law School -- Ilya Shapiro, Vice President and Director, Robert A. Levy Center for Constitutional Studies, Cato Institute
-- Mary Ziegler, Stearns Weaver Miller Professor, Florida State University College of Law
-- Brandon J. Moss, Partner, Wiley Rein
-- Moderator: Adam Liptak, The New York Times

Courthouse Steps Oral Argument Webinar: Whole Woman's Health v. Jackson and United States v. Texas Nov 05, 2021

On November 1, the U.S. Supreme Court heard oral arguments in Whole Woman's Health v. Jackson on whether a state can insulate from federal-court review a law that may prohibit the exercise of a constitutional right by delegating to the public the authority to enforce that prohibition; and in United States v. Texas on the authority of the federal government to bring suit and obtain injunctive or declaratory relief against a state, state court judges, and other states officials or all private parties to prohibit SB 8, a Texas abortion regulation, from being enforced.
A distinguished pair of scholars joined us to discuss the cases, their history, the legal issues involved, and the implications going forward.
Featuring:
Prof. Stephen Sachs, Antonin Scalia Professor of Law, Harvard Law School
Prof. Howard Wasserman, Professor of Law, Florida International University College of Law
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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 speaker.

A Seat at the Sitting Nov 02, 2021

Join us for the second episode of the Federalist Society’s Supreme Court Show: A Seat at the Sitting. Each month, a panel of constitutional experts will convene to discuss the Court’s upcoming docket and debrief oral arguments from the previous month. During the first two weeks of November, the Justices will hear ten oral arguments on cases including the Second Amendment, free speech, abortion, and religious freedom.
The case names, issues, and dates of argument are listed below:
Whole Women's Health v. Jackson – Abortion – November 1
United States v. Texas (2021) - Abortion, Federal Jurisdiction - November 1
Houston Community College Sys. v. Wilson – First Amendment – November 2
Badgerow v. Walters – Arbitration – November 2
New York State Rifle & Pistol Assn. v. Bruen – Second Amendment – November 3
FBI v. Fazaga – National Security – November 8
Unicolors, Inc. v. H&M – Intellectual Property – November 8
United States v. Vaello Madero – Equal Protection challenge to Social Security – November 9
Ramirez v. Collier – Religious Freedom – November 9
Austin v. Reagan National Advertising - First Amendment – November 10
Featuring:
Hon. Beth A. Williams, Former Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice
David H. Thompson, Managing Partner, Cooper & Kirk PLLC
Andrew J. Pincus, Partner, Mayer Brown
Jennifer Lichter, Deputy General Counsel, Catholic University of America
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To register, click the link above.

The FTC in the Current Administration: Buckle Your Seatbelts Nov 02, 2021

The last few months have seen significant changes at the Federal Trade Commission. The new FTC has set an ambitious agenda that revives the agency, propelling it in directions we haven’t previously seen. The FTC is poised to engage in wide-ranging antitrust and consumer protection investigations, issue industry-wide rules, and blend antitrust and consumer missions for a better outcome.
Featuring:
Adam Cella, Attorney Advisor, Office of Hon. Christine Wilson, Federal Trade Commission
Debbie Feinstein, Partner and Chair, Global Antitrust, Arnold & Porter
Jessica Rich, Of Counsel, Kelley Drye; former Director, Bureau of Consumer Protection, Federal Trade Commission
Moderator: Svetlana Gans, former Chief of Staff, Federal Trade Commission
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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 speaker.

China Fully Engaged in Latin America: What Is the U.S. Plan? Oct 26, 2021

China’s Belt and Road Initiative’s (BRI) global ambitions have involved more than seventy countries. For the United States, these BRI developments and independent influence operations in South America raise security and strategy concerns. In the region south of Mexico and related seas, China is reportedly participating in more than two dozen deep-water port expansion and building projects. The PRC’s deepening relationship with Panama’s government has raised alarm, but China is also engaging with Bolivia, Argentina, Cuba, and Venezuela. China’s People’s Liberation Army operates a space station from the south of Argentina. Is China exporting digital authoritarianism through surveillance architecture, as seen most recently with the Fatherland Identity Card in Venezuela? Are there long-term implications for the ability of Latin American countries to make autonomous sovereign decisions, and for longevity of U.S. relationships in the region?
Featuring:
-- Dr. Evan Ellis, Latin America Research Professor, U.S. Army War College Strategic Studies Institute
-- Ryan Berg, Senior Fellow, Americas Program; Head of the Future of Venezuela Initiative, Center for Strategic and International Studies
-- Erick A. Brimen, CEO & Chairman of the Board, Honduras Próspera
-- Moderator: Julian Ku, Senior Associate Dean for Academic Affairs, Faculty Director of International Programs, and Maurice A. Deane Distinguished Professor of Constitutional Law, Maurice A. Deane School of Law at Hofstra University

Discussion: The OCR's Investigation of State Mask Mandate Bans Oct 21, 2021

The U.S. Department of Education’s Office for Civil Rights has launched an investigation into the legality of state bans forbidding schools from imposing mask mandates on their students. OCR indicated two major bases for potential illegality: Section 504 of the Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act of 1990, which prohibit discrimination against students on the basis of a disability and guarantee students with disabilities access to a public education.
Opponents of the mask mandate bans argue that students with disabilities cannot access public education if other students and staff are not required to be masked. Proponents of the bans argue that parents should not be deprived of the right to make health decisions for their children. Other arguments concern the proper scope and limits on federal involvement in school matters.
Featuring:
Prof. Robert Dinerstein, Professor of Law, American University Washington College of Law
Sarah Perry, Legal Fellow, Heritage Foundation, Edwin Meese Center
Moderator: Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law
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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 speaker.

What is the Right Way Forward on Clemency Reform? Oct 19, 2021

The Biden administration has announced it is considering clemency for convicted drug offenders among the approximately 4,000 prisoners released early from federal prison due to the pandemic, who are subject to being returned when the national emergency declaration expires. Some argue this does not go far enough, noting the administration has not proposed structural changes to a process they describe as marred by delays and political favoritism in administrations of both parties. Among the key questions are how to balance expectations for finality among prosecutors, victims, and the public with the benefits of second chances earned after an objective review. Also, this discussion will explore whether the clemency process should be partly or fully moved out of DOJ.
Featuring:
Rachel Barkow, Vice Dean and Charles Seligson Professor of Law; Faculty Director, Center on the Administration of Criminal Law, NYU School of Law
Paul J. Larkin, Jr., Senior Legal Research Fellow, Meese Center for Legal and Judicial Studies, Institute for Constitutional Government, The Heritage Foundation
Moderator: Marc Levin, Chief Policy Counsel at the Council on Criminal Justice; Senior Advisor to Right on Crime, Texas Public Policy Foundation

The DOJ, Domestic Terrorism, and School Boards Oct 19, 2021

Widespread concern over continued covid-19 related measures and the implementation of critical race theory in public school curricula has prompted many people to speak out at school board meetings in recent months. On September 29, 2021, the National School Boards Association submitted a letter to President Joe Biden requesting federal assistance in responding to alleged "acts of violence affecting interstate commerce because of threats to their [NSBA's] districts, families, and personal safety" which in the NSBA’s opinion "could be the equivalent to a form of domestic terrorism and hate speech." Last week, President Biden’s Attorney General Merrick Garland issued a memorandum directing the Department of Justice to investigate and partner with local law enforcement to address a "disturbing spike in harassment, intimidation, and threats of violence."
Featuring:
-- Hon. Michael B. Mukasey, Former United States Attorney General

Litigation Update: Eviction Moratoria Oct 18, 2021

On September 1, 2020, the U.S. Centers for Disease Control and Prevention took a step into nationwide housing policy, and issued a nationwide ban on evictions. With the order, the federal agency invoked a little-known WWII-era statute that empowered the agency to “make and enforce such regulations” that “are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” The agency asserted that evictions presented a unique and unacceptable danger to the public in light of Covid-19.
CDC’s order was challenged almost immediately by a variety of public interest groups on a variety of statutory and constitutional grounds. At the heart of these challenges was an objection to the agency’s determination that property owners could be forced to turn over their real property to tenants who refused to pay rent.
The order was, in months-long increments, in existence for most of the past year. Meanwhile, several district courts and the Sixth Circuit invalidated the moratorium, but only with respect to individual litigants. After one trip to the Supreme Court, another extension, and a final stop back at the Supreme Court, the moratorium ended. However, related rules issued by agencies like the Consumer Financial Protection Bureau, as well as local eviction moratoria, continue around the country.
This litigation update by Caleb Kruckenberg of the New Civil Liberties Alliance, which filed the first challenge to the CDC order, discussed the origins of the moratorium, including relevant congressional action (and inaction), the legal challenges to the moratorium, recent and possible future extensions of the moratorium, and why this case was bound for resolution by the Supreme Court.
Featuring:
Caleb Kruckenberg, Litigation Counsel, New Civil Liberties Alliance

HUD and the Disparate Impact Rule Oct 14, 2021

On June 25, 2021, President Biden’s newly appointed Housing Secretary Marcia Fudge proposed to rescind a Secretary Carson-era disparate impact rule designed to implement the Fair Housing Act. In its place, HUD would reinstate the 2013 Discriminatory Effect Standard because the 2013 rule "better states Fair Housing Act jurisprudence and is more consistent with the Fair Housing Act’s remedial purposes." By the time notice and comment ended on August 24, 2021, over ten thousand public comments had been submitted.
Critics of Secretary Fudge’s proposed rule, including Ranking Member Senator Pat Toomey, argue that the change not only flouts the Supreme Court’s decision in Texas Department of Housing and Community Affairs v. Inclusive Communities but also ultimately hurt consumers. Proponents argue that the change will move the housing market towards greater equity. Our panel of experts with a diversity of views discussed the pros and cons in a teleforum on October 11, 2021.
Featuring:
Paul Compton, Founding Partner, Compton Jones Dresher
Moderator: Devon Westhill, President and General Counsel, Center for Equal Opportunity

Cancel Culture and Higher Education Oct 06, 2021

Has American higher education gone too far — or in the wrong direction — in how it sanctions normatively disfavored conduct? Some of these sanctions (“cancellations," as they are sometimes called) are ephemeral and others career-ending. Some are based on transgressions that almost all condemn, others on conduct that some find praiseworthy. Is higher education now more intolerant than it once was, or is it just intolerant about different things? And if academia is now intolerant about different things, has the change been beneficial or harmful? If the answer depends on how we feel about free speech, do “cancelations” — however understood -- impair free speech or advance it?
Join us for Part 1 of a thoughtful series discussing cancel culture and its effect on American culture featuring:
J.C. Hallman, an acclaimed author who wrote a piece entitled “In Defense of Cancel Culture” following the publication of the Harper’s Magazine letter on Justice and Open Debate.
Dr. Charles Murray, the F.A. Haye Chair Emeritus in Cultural Studies at the American Enterprise Institute who experienced academic and social backlash notably his publication of The Bell Curve.
Featuring:
-- J.C. Hallman, Author and Columnist
-- Dr. Charles Murray, W.H. Brady Scholar, American Enterprise Institute
-- Moderator: Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law

Redistricting: Discussing the John R. Lewis Voting Rights Advancement Act Oct 05, 2021

This webinar addresses the impact that changes proposed in HR 4, the John R. Lewis Voting Rights Advancement Act of 2021, may have on drawing voting districts and litigating redistricting cases and features two renowned voting rights experts.
Featuring:
-- Mark Braden, Of Counsel, BakerHostetler
-- Jeffrey M. Wice, Adjunct Professor of Law, New York Law School; Director, N.Y. Census and Redistricting Institute
-- Moderator: Maya Noronha, Visiting Fellow, Independent Women's Law Center

Litigation Update: Alabama Association of Realtors v. HHS Sep 30, 2021

On August 26, 2021, the Supreme Court of the United States ruled in Alabama Association of Realtors v. HHS that the Centers for Disease Control and Prevention (CDC) had exceeded its authority in issuing a nationwide ban on evictions. Brett Shumate, counsel of record for the Alabama Association of Realtors, joins us to discuss the litigation, the implications of the Supreme Court’s decision, and other pending cases involving the CDC’s eviction moratorium.
Featuring:
-- Brett Shumate, Partner, Jones Day
-- Moderator: Daniel Suhr, Senior Attorney, Liberty Justice Center

A Seat at the Sitting - October 2021 Sep 30, 2021

Streamed live on September 30, 2021
Join us for the inaugural episode of the Federalist Society’s Supreme Court Show: A Seat at the Sitting. Each month, a panel of constitutional experts will convene to discuss the Court’s upcoming docket and debrief oral arguments from the previous month. During the first two weeks of October, the Justices will hear eight oral arguments on cases ranging from national security and civil procedure to criminal law and water law. The case names, issues, and dates of argument are listed below:

Mississippi v. Tennessee – water law and original jurisdiction – October 4
Wooden v. United States – the Armed Career Criminal Act – October 4
Brown v. Davenport – Federal habeas petitions under 28 U.S.C. § 2254 – October 5
Hemphill v. New York – the Federal Rules of Evidence and the Confrontation Clause – October 5
United States v. Zubaydah – the CIA and the state secret’s privilege – October 6
Cameron v. EMW Women’s Surgical Center – state civil procedure and abortion – October 12
Thompson v. Clark – procedure for civil claims for deprivation of rights under 42 U.S.C. § 1983 – October 12
United States v. Tsarnaev – challenges to the capital conviction of the Boston marathon bomber – October 13
Babcock v. Kijakazi – civil service pensions and the Social Security Act – October 13

Featuring:
-- Sarah Harris, Partner, Williams & Connolly
-- Jonathan Adler, Johan Verheij Memorial Professor of Law and Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law
-- Kate Comerford Todd, Former Deupty White House Counsel

Corporate Social Responsibility, Investment Strategy, and Liability Risks Sep 30, 2021

Environmental, Social and Corporate Governance (ESG) investing is growing in popularity, especially after major investment firm BlackRock signaled support for what it called "ESG Integration," or the practice of incorporating material ESG information into investment and divestment decisions. However, since this strategy is relatively young, the short- and long-term merits and potential harm to investors are both unclear.
A distinguished panel joins us to discuss a new paper, titled "Corporate Collusion" and written by former U.S. Ambassador and White House Counsel C. Boyden Gray, and to offer their differing views on the legal issues involved, including ESG, ERISA requirements, fiduciary duty, and more.
Additional reading includes: "What Milton Friedman Missed About Social Inequality" by Leo Strine, Jr. and Joey Zwillinger; "Restoration: The Role Stakeholder Governance Must Play in Recreating a Fair and Sustainable American Economy," by Leo Strine, Jr.
Featuring:
David J. Berger, Partner, Wilson Sonsini
Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates
Hon. Hester Peirce, Commissioner, U.S. Securities and Exchange Commission
Hon. Leo E. Strine, Jr., Of Counsel, Wachtell Lipton; former Chief Justice, Delaware Supreme Court
Moderator: Hon. Paul S. Atkins, Chief Executive Officer, Patomak Global Partners; former Commissioner, U.S. Securities and Exchange Commission

Can Congress Forbid A State from Cutting its Taxes? Sep 28, 2021

On March 11, 2021, President Biden signed into law the American Rescue Plan Act (the Act). Purportedly intended to help the U.S. economy recover from the COVID virus and the steps taken to prevent its spread, it calls for the Federal Treasury to provide approximately $350 billion in aid to state governments. The Act imposes on states that accept the aid a four-year prohibition against lowering taxes. By April 2, sixteen states – including Ohio, Kentucky, Tennessee, Arizona - filed suit to challenge the prohibition, claiming that the Constitution does not permit Congress to dictate how states handle their budgets.
The U.S. District Court for the Southern District of Ohio permanently enjoined application of the Act’s tax-cut prohibition to Ohio, concluding that it exceeded Congress’ authority. Other courts have dismissed the suits as premature or dismissed them for lack of standing.
The authority of Congress to dictate terms to the states is a perennial issue. It has been addressed before in numerous contexts, and the outcome of the current conflict could have far reaching implications.
Brett Nolan, Deputy Solicitor General of Kentucky and Professor Steven Schwinn of the University of Illinois Chicago Law School join for a webinar discussion moderated by Hon. Eileen J. O’Connor.
Featuring:
Brett Nolan, Deputy Solicitor General of Kentucky
Steven Schwinn, Professor of Law, University of Illinois Chicago Law School
Moderator: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor PLLC

Search Warrants, the Attorney-Client Privilege, and Federal Criminal Rule 41(g) Sep 27, 2021

In July, the Fifth Circuit Court of Appeals issued an opinion in Harbor Healthcare System v. United States, addressing the application of Federal Rule of Criminal Procedure 41(g) and motions to return documents improperly seized by the government in the context of a criminal False Claims Act matter. The Fifth Circuit took a more restrictive approach to seizing and segregating privileged material than we have traditionally seen, and raises interesting questions about the attorney-client privilege, search warrants, and the use of government “taint teams.”
Featuring:
William McClintock, Associate, King & Spalding

Fireside Chat: Alex Pollock and Fifty Years Without Gold Sep 23, 2021

Fifty years ago, on August 15, 1971, President Richard Nixon put the economic and financial world into a new era. Through his decision to "close the gold window," he fundamentally changed the international monetary system into the system of today, where the whole world runs on pure fiat currencies. "The dollar was the last ship moored to gold, with all the other currencies on board, and the U.S. cut the anchor and sailed off." Nobody knew how it would turn out. Fifty years later, we are completely used to this post-Bretton Woods monetary world with endemic inflation and floating exchange rates, and take it for granted. Nobody thinks it is even possible to go back to the old world: We are all Nixonians now. How shall we judge the momentous Nixon decision in its context and since? A fundamental question with pluses and minuses remains. Is the international monetary system now permanently open to more money printing and more monetization of government debt, making faith in central banks misplaced, and expectation of an ideal monetary policy foolish?
Featuring:
Alex J. Pollock, Distinguished Senior Fellow, R. Street Institute, Author of Fifty Years Without Gold
Moderator: Hon. Wayne A. Abernathy, Chairman, Federalist Society Financial Services & E-Commerce Practice Group

Talks with Authors: Woke, Inc.: Inside Corporate America's Social Justice Scam Sep 14, 2021

Join Mr. Peter Kirsanow and Mr. Vivek Ramaswamy in the latest installment of our Talks with Authors series to discuss Ramaswamy's newly published book: Woke, Inc.: Inside Corporate America's Social Justice Scam. A description of the book originally published here and republished below follows:
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A young entrepreneur makes the case that politics has no place in business, and sets out a new vision for the future of American capitalism. There’s a new invisible force at work in our economic and cultural lives. It affects every advertisement we see and every product we buy, from our morning coffee to a new pair of shoes. “Stakeholder capitalism” makes rosy promises of a better, more diverse, environmentally-friendly world, but in reality this ideology championed by America’s business and political leaders robs us of our money, our voice, and our identity. Vivek Ramaswamy is a traitor to his class. He’s founded multibillion-dollar enterprises, led a biotech company as CEO, he became a hedge fund partner in his 20s, trained as a scientist at Harvard and a lawyer at Yale, and grew up the child of immigrants in a small town in Ohio. Now he takes us behind the scenes into corporate boardrooms and five-star conferences, into Ivy League classrooms and secretive nonprofits, to reveal the defining scam of our century. The modern woke-industrial complex divides us as a people. By mixing morality with consumerism, America’s elites prey on our innermost insecurities about who we really are. They sell us cheap social causes and skin-deep identities to satisfy our hunger for a cause and our search for meaning, at a moment when we as Americans lack both. This book not only rips back the curtain on the new corporatist agenda, it offers a better way forward. America’s elites may want to sort us into demographic boxes, but we don’t have to stay there. Woke, Inc. begins as a critique of stakeholder capitalism and ends with an exploration of what it means to be an American in 2021—a journey that begins with cynicism and ends with hope.
Featuring:
Vivek Ramaswamy, Author, Woke Inc.: Inside Corproate America's Social Justice Scam
Interviewer: Peter Kirsanow, Partner, Benesch, Friedlander, Coplan & Aronoff LLP

Hijabs, Dreads, and Saturdays Off: Employees' Religious Rights in the Workplace Sep 09, 2021

This webinar is the first in a two-part series covering employee and employer religious rights and related labor issues. What are employees' rights to express or practice their religion at work? Can they be exempt from dress codes or grooming requirements? Can they take prayer breaks or a day off to observe the Sabbath? Can they avoid having to participate in holiday parties, abortion procedures (as medical providers), using LGBTQ pronouns, or other actions that may contradict their religious beliefs? This discussion will provide an overview of employees' rights under Title VII and other laws to religious expression, accommodation, and nondiscrimination in the workplace.
Featuring:
Rachel Morrison, Policy Analyst, Ethics & Public Policy Center; former Attorney Advisor, U.S. Equal Employment Opportunity Commission
Moderator: Evelyn Hildebrand, 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 speaker.

Litigation Update: SCOTUS and the Texas Heartbeat Bill Sep 09, 2021

On September 1, 2021, the Texas Heartbeat bill went into effect, banning abortions as soon as cardiac activity is present in an unborn child—around six weeks gestation. The bill also allows private citizens to sue and enforce the new law. Opponents of the bill appealed to the Supreme Court for an emergency stay and the Court denied relief, allowing the Texas law to go into effect. Joining us to discuss the Supreme Court’s decision and its implications is Ethics and Public Policy Distinguished Senior Fellow Ed Whelan. Read additional comment from Mr. Whelan on National Review.
Featuring:
Edward Whelan, Distinguished Senior Fellow and Antonin Scalia Chair in Constitutional Studies, Ethics and Public Policy Center
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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 speaker.

Taxation by International Consent? Sep 01, 2021

Finance ministers from leading industrial states have been trying, this summer, to work out an agreement on a minimum rate for corporate taxes. Does it matter that this agreement won’t be adopted by the constitutional procedure for making treaties? Will it still matter, by itself, to U.S. tax law and tax enforcement? Should we expect other nations to abide by an agreement of this kind? Discussion with:
-- Michael Ramsey, San Diego Law School (author of “Evading the Treaty Power?” FIU L.Rev 2016)
-- Joshua Wu, former Deputy Assistant AG, Tax Division
-- Stephen Krasner, Professor of International Relations, Stanford University (author of Power, The State and Sovereignty).
-- Moderator: Jeremy Rabkin, Scalia Law School.

Litigation Update: Brach v. Newsom Aug 31, 2021

In July 2021, the U.S. Court of Appeals for the Ninth Circuit ruled that California's recent school closures violated parental rights to direct the education of children, and reversed the lower court's decision upholding California's regulations as they relate to private education. Robert Dunn, who argued the case at the Ninth Circuit for plaintiffs, joins us to discuss the litigation, this ruling, and its implications.
Featuring:
Robert Dunn, Partner, Eimer Stahl LLP
Moderator: Hon. Jennifer Perkins, Division One, Arizona Court of Appeals
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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 speaker.

Fireside Chat: Professor George La Noue Aug 31, 2021

Professor George La Noue joined us to discuss his recently published article, “The Race Card in ARPA’s Food Supply Deck,” published by the Federalist Society Review on July 12, 2021. In his article, Professor La Noue discused the American Rescue Plan Act of 2021, which appropriated $1.9 trillion, $28.6 billion of which would be administered by the Small Business Administration. Since passage, numerous lawsuits have been filed against the SBA on Fifth Amendment grounds alleging unconstitutional sex-based and race-based discrimination. Other suits have been filed against the United States Department of Agriculture for an allegedly unconstitutional loan forgiveness scheme on the same Fifth Amendment grounds. Read Professor La Noue’s analysis of the arguments and country-wide pending litigation is here.
Featuring:
Professor George La Noue, Professor Emeritus of Political Science and Professor Emeritus of Public Policy, University of Maryland Baltimore County
Moderator: Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law
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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 speaker.

The Biden Administration’s Housing Policy Moves Aug 30, 2021

In a January 26, 2021 White House Memorandum, President Biden directed the Secretary of Housing and Urban Development to reexamine actions taken during the Trump presidency, and ordering the Secretary to ensure the 1968 Fair Housing Act, which bans discrimination, was being properly administered. On that initiative, Housing Secretary Marcia Fudge moved to reinstate two Obama-era Fair Housing rules rejecting former Secretary Ben Carson’s previous directives.
Secretary Fudge rescinded Secretary Carson’s interpretation of the disparate impact rule, rescinded the Preserving Community and Neighborhood Choice Rule, and reinstated the Affirmatively Furthering Fair Housing Rule.
Featuring:
Howard Husock, Senior Fellow, Domestic Policy Studies, American Enterprise Institute
Bryan Greene, Vice President, Policy Advocacy, National Association of Realtors
Daniel Huff, former General Deputy Assistant Secretary, United States Department of Housing and Urban Development
Moderator: Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law
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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 speaker.

Vaccine Mandates and Exemptions: Public Universities, Private Colleges, and More Aug 18, 2021

As students prepare return to universities across the country, many schools are putting in place Covid vaccine mandates. These mandates require proof of vaccination, and typically include medical and religious exemptions. But, as Professor Ronald Colombo's new paper raises, some kinds of exemption schemes may be unjustly discriminatory. Beyond the issue of exemptions, some students and staff object to the mandates as such. A group of students challenged one such mandate at Indiana University; in July, a district court judge sided with the university, and the ruling was recently upheld 3-0 by the U.S. Court of Appeals for the Seventh Circuit. These cases, the nature of the mandates and exemptions, and more were discussed in this virtual program.
Featuring:
-- Prof. Ronald J. Colombo, Professor of Law, Maurice A. Deane School of Law, Hofstra University
-- Moderator: Stephanie Taub, Senior Counsel, First Liberty
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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 speaker.

Litigation Update: Crowe v. Oregon State Bar Aug 17, 2021

Last year, the Oregon state bar Bulletin ran two controversial comments. State bar members objected, arguing that because membership in the state bar is mandatory, publication of the comments constituted impermissible political commentary, and mandatory state bar dues could not be used to subsidize activity unrelated to the regulation of the state bar.
The case landed in the Ninth Circuit which affirmed the district court without deciding whether the controversial comments were germane to the bar’s purpose. Instead, the Court held that the Supreme Court’s 1990 decision in Keller v. State Bar of California foreclosed the plaintiff’s speech claim, rejecting the plaintiffs’ argument that since Abood—which underwrote Keller—had been overruled, exacting scrutiny governed speech claims in the context of mandatory bar membership.
The plaintiffs appeal this question to the Supreme Court, asking the Court to either read Keller to require exacting scrutiny or to overrule Keller and provide clarity to the courts across the country that are fielding free speech claims from similarly situated attorneys who are also members of integrated state bars.
Featuring:
-- Jacob Huebert, Senior Attorney, Goldwater Institute
-- Moderator: Erik S. Jaffe, Partner, Schaerr Jaffe LLP
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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 speaker.

Litigation Update: InterVarsity Christian Fellowship/USA v. University of Iowa et al. Aug 04, 2021

On July 16, 2021, the U.S. Court of Appeals for the Eight Circuit issued a decision in InterVarsity Christian Fellowship/USA v. University of Iowa et al. A three-judge panel composed of Circuit Judges Loken, Grasz, and Kobes held that University officials violated the First Amendment when they deregistered a Christian student group, further holding that the university officials were not entitled to qualified immunity.
The University of Iowa deregistered two Christian student groups, finding that the groups violated the University’s “Human Rights Policy” by requiring their membership and/or leadership to sign a statement of faith in order to join. The first group—Business Leaders in Christ—sued and successfully received a preliminary injunction. Following that litigation, the University reviewed its human rights policy and then deregistered the second group—InterVarsity Christian Fellowship. InterVarsity fought the deregistration, then sued alleging the application of the human rights policy was discriminatory and arguing First Amendment free speech, free association, and free exercise violations in addition to several state law claims.
Not only did the District Court enter summary judgment for InterVarsity, but the Court also denied individual University defendants qualified immunity relying on the earlier Business Leaders in Christ preliminary injunction grant. The University appealed and the Eighth Circuit affirmed in a decision with implications for campus free speech, religious liberty after Fulton, and qualified immunity.
Featuring:
-- Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Propserity; Senior Fellow for Free Speech, Charles Koch Institute
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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 speaker.

Gender Based Board Quotas, the Fourteenth Amendment, and Meland v. Weber Aug 03, 2021

On June 21, 2021, the Court of Appeals for the Ninth Circuit ruled a shareholder-plaintiff had standing to sue California’s Secretary of State. Creighton Meland, a shareholder at OSI Systems, Inc., sued alleging that Senate Bill 826, which was signed into law in 2018, violates the Fourteenth Amendment because it requires corporations to elect a sliding scale quota of women to corporate board member seats. The District Court ruled Meland had no standing because SB 826 governed corporations, not shareholders, and at the time of Meland’s suit OSI was in compliance so any controversy was moot.
The Ninth Circuit disagreed, allowing Meland’s suit to go forward by finding that the practical effect of SB 826 was to govern shareholders and direct them to vote on the basis of gender to avoid the imposition of fines or penalties for noncompliance. The court further held that Meland’s suit alleged a direct harm and did not rely on prudential standing since he alleged personal harm rather than injury to the corporate entity.
Featuring:
Ann Ravel, Lecuter, Berkeley Law; Former Commissioner and Chair, Federal Election Commission
Anastasia P. Boden, Senior Attorney, Pacific Legal Foundation
Megan L. Brown, Partner, Wiley Rein
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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 speaker.

A Webinar on Central Bank Digital Currencies Aug 03, 2021

With expressions ranging from enthusiasm to serious interest, central banks from China to Europe have been actively exploring the potential for Central Bank Digital Currencies (CBDCs). On June 28, Federal Reserve Board Vice Chairman for Supervision Randal Quarles offered comments that, far from equivocal, expressed great doubt about the feasibility and desirability for the Federal Reserve sponsoring such a currency.
Controversies focus on CBDC implications for privacy, greater personal financial inclusion, government control of credit, innovation, government assumption of banking activities, broadening the tax base, and more.
Featuring:
-- Bert Ely, Principal, Ely & Co. Inc.
-- Chris Giancarlo, Senior Counsel, Willkie Farr & Gallagher
-- Peter C. Earle, Writer, American Institute for Economic Research
-- Moderator: Alex J. Pollock, Distinguished Senior Fellow, R. Street Institute
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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 speaker.

Foreign Policy in the Biden Administration Aug 02, 2021

This virtual event examined current national security issues, including relations with China, as well as coordination with allies, utilization of available legal tools, and whether those tools might be effective.
Featuring:
-- Hon. Nazak Nikakhtar, Partner, Wiley Rein LLP. Nazak served as Assistant Secretary for Industry and Analysis at the U.S. Department of Commerce’s International Trade Administration. She also served as the U.S. government’s top official for export controls on dual-use items and technologies, performing the non-exclusive functions and duties as Under Secretary for the Bureau of Industry and Security.
-- Adam J. Szubin, Of Counsel, Sullivan & Cromwell LLP. Mr. Szubin served for two years as Acting Treasury Department Under Secretary for Terrorism and Financial Intelligence. During his nearly 13 year tenure at the Treasury, Mr. Szubin served as the Director of Treasury’s Office of Foreign Assets Control (OFAC) for nine years and Senior Advisor to the Under Secretary for Terrorism and Financial Intelligence.
-- Moderator: Eric J. Kadel, Jr., Partner, Sullivan & Cromwell LLP
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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 speaker.

Congressional Oversight and Investigations: New Developments and Outlook for the 117th Congress Aug 02, 2021

With Democrats holding power in both houses of Congress and the White House, how will congressional oversight and investigations affect private industry and the Biden Administration during the 117th Congress? What should we expect if Republicans take back one or both houses of Congress in the midterm elections? What should private entities expect from congressional investigations, and what effect will recent court decisions such as Mazars have on industry? A panel of current and former congressional investigators will discuss these issues and more, as well as how recent investigations and judicial decisions will affect the structural relationship between Congress and the Executive Branch in the years ahead.
Featuring:
-- Ashley Callen, Deputy Staff Director, House Oversight and Reform Committee
-- Daniel Goshorn, Chief Investigative Counsel, U.S. Senate Committee on Finance
-- Allison Murphy, Former Chief Oversight Counsel of the House Select Subcommittee on the Coronavirus Crisis, Majority Staff; Partner in the Government, Regulatory & Internal Investigations Practice Group, Kirkland & Ellis
-- Christopher Armstrong, Former Chief Oversight Counsel, Senate Committee on Finance; Partner, Holland & Knight LLP
-- Moderator: Michael D. Bopp, Partner, Gibson Dunn & Crutcher LLP
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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 speaker.

Opioids in 2021: Enforcement Strategies and Policy Prescriptions Aug 02, 2021

Opioid deaths in the US rose 29% during the course of the recent COVID pandemic. More than 55,000 Americans die annually from opioid consumption. Overtaken to some extent by other events, the opioid crisis is still with us and might be getting worse. The four participants in this panel discussion brought a wealth of experience and insight to this ongoing problem from both a law enforcement and public health perspective. Discussion ranged from the successes and failures of various law enforcement strategies and experiences to the efficacy of various public health policies and their often unintended consequences. This panel examined and discussed what has been learned to date in the efforts and what those lessons should tell us about what needs to be done to end the opioids crisis.
Featuring:
-- Robert M. Duncan, Jr., Partner, Dinsmore & Shohl LLP
-- Christina E. Nolan, Shareholder, Sheehey Furlong & Behm PC
-- Prof. Tomas J. Philipson, Daniel Levin Professor of Public Policy, University of Chicago
-- Jeffrey A. Singer, Senior Fellow, Cato Institute
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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 speaker.

Talks with Authors: A Dubious Expediency Jul 27, 2021

A Dubious Expediency: How Race Preferences Damage Higher Education is a collection of eight essays written by experts in the field examining and analyzing the impact of racial diversity preferences and identity politics in American colleges and universities. The book’s title comes from a 1976 California Supreme Court opinion in Bakke v. UC Regents authored by Justice Stanley Mosk, who wrote:
“To uphold the [argument for race-preferential admissions] would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality.”
In the book, the authors take up the question of race-based preferences in higher education, arguing that mounting empirical evidence shows race-based solutions cause long term harm both to intended beneficiaries and to society as a whole.
Featuring:
Gail L. Heriot, Professor of Law, University of San Diego School of Law
Maimon Schwarzschild, Professor of Law, University of San Diego School of Law
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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 speaker.

Private Entities and Public Concern Jul 27, 2021

Aside from the purely legal questions already addressed in this programming series, how should we think about the practical and philosophical questions at stake? Many of us start with the presumption that the social media companies are private businesses and therefore may operate according to viewpoint norms as their owners see fit.
But the growing reliance on big tech platforms, combined with the behavior of such platforms in restricting the scope of permissible speech, has raised concerns across the political spectrum, including among those of generally libertarian policy preferences. And the new interest in considering a range of regulatory options is not breaking down along conventional left/right lines. How should we think about these larger philosophical questions?
Featuring:
Ashley Keller, Partner, Keller Lenker LLC
Genevieve Lakier, Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School
Randy E. Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center
William Baude, Professor of Law, Aaron Director Research Scholar, University of Chicago Law School
Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, D.C. Circuit
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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 speaker.

The Implications of the Latest Congressional Review Act Disapprovals Jul 15, 2021

The Congressional Review Act (CRA) was used in 2017 to overturn 15 rules issued near the end of the Obama administration. The shift in political control in the White House and Congress this year set the stage for a possible repeat with respect to Trump administration rules. The CRA’s period for expedited congressional procedures (free of the Senate filibuster) has now expired for late Trump era regulations, and Congress overturned only three such rules. On June 24, Congress finished action to repeal the EEOC conciliation rule and the OCC (Comptroller) true lender rule, and it took final action to repeal the EPA methane rule the following day. President Biden has since signed all three resolutions, making them law.
This latest cycle of CRA actions merit general exploration as well as consideration of the specific rules at issue. What process did Congress use to disapprove the three rules? Why did it use the CRA relatively sparingly this year, and what will the impact be of the three disapprovals? The answers to the last two questions are arguably related. When Congress uses the CRA to repeal federal regulations, the respective agencies are automatically barred from issuing another rule that is “substantially the same” as the one disapproved without new statutory authorization. Though there is no court ruling on what the CRA’s anti-circumvention clause means, the resulting uncertainty may have skewed the CRA’s use in interesting ways.
Join Todd Gaziano and Professor Jonathan Adler discuss the CRA, how it has been used, and the ramifications of its use on the three rules this year and on future federal regulations.
Featuring:
-- Todd F. Gaziano, Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers, Pacific Legal Foundation
-- Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Director of the Center for Business Law & Regulation, Case Western Reserve University School of Law
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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 speaker.

Courthouse Steps Decision Webinar: Transunion LLC v. Ramirez Jul 12, 2021

On June 25, 2021, the Supreme Court issued its decision in Transunion LLC v. Ramirez. In this case, a class of plaintiffs sued the credit reporting company TransUnion under the Fair Credit Reporting Act. The plaintiffs alleged that the process Transunion used to flag consumer credit worthiness accounts—running consumers names against the U.S. Treasury Departments’ Office of Foreign Assets Control database of terrorists, traffickers, and other criminals and flagging those names that matched database listed names—resulted in harm to the plaintiffs where the match was only a coincidence.
Although the initial class contained 8,185 members, only 1,853 class members incurred harm since Transunion only conveyed credit reports flags for that subset to third parties during the relevant period.
The District Court ruled the whole 8,185 member class had standing to sue. The Supreme Court reversed on the standing issue, ruling that the 6,332 class members whose information had not been conveyed to third parties during the relevant period had no Article III standing since they had suffered no cognizable injury.
Featuring:
-- Theodore "Ted" Frank, Director of Litigation and Senior Attorney, Hamilton Lincoln Law Institute
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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 speaker.

Courthouse Steps Decision Webinar: Penneast Pipeline Co. v. New Jersey Jul 12, 2021

On June 29, 2021, the Supreme Court held that the Eleventh Amendment did not bar Penneast Pipeline Co., exercising federal eminent domain authority under the Natural Gas Act, from suing the State of New Jersey to acquire state-owned property to construct a natural gas pipeline. The Supreme Court rejected New Jersey’s arguments that the federal eminent domain power had not been properly delegated to PennEast, and even if the authorization were appropriate, the State’s sovereign immunity precluded this federal court suit. The federal government has always had the supreme power to condemn state property,the Court ruled, and the tradition of delegating this power to build public infrastructure goes back to the days of the nation’s founding. Penneast was represented by former Solicitor General, Paul Clement.
Chief Justice Roberts delivered the opinion of the Court, joined by Justices Breyer, Alito, Sotomayor and Kavanaugh. Justice Gorsuch filed a dissent joined by Justice Thomas. Justice Barrett filed a dissent joined by Justices Thomas, Kagan, and Gorsuch.
Featuring:
Paul D. Clement, Partner, Kirkland & Ellis LLP
Moderator: Roger J. Marzulla, Partner, Marzulla Law
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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 speaker.

Severability and Article III Powers Jul 12, 2021

What should the Supreme Court do when it finds one provision of a statute unconstitutional? There is a significant split between current Justices on the question where Congress has not provided express instructions on severance within the statute. Several believe the Court should save the rest of the statute, while others have expressed skepticism towards this practice.
This distinguished panel will explore the foundations of the severability doctrine and the authority of Article III judges in such cases. Panelists will offer their differing views of severability and discuss where the doctrine may be headed.
Featuring:
Prof. William Baude, Professor of Law, University of Chicago Law School
Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston
Erin M. Hawley, Senior Legal Fellow, Independent Women's Law Center
Prof. Kevin C. Walsh, Assistant Professor, University of Richmond School of Law
Moderator: Megan L. Brown, Partner, Wiley
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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 speaker.

Courthouse Steps Decision Webinar: Brnovich v. Democratic National Convention Jul 12, 2021

On July 1, 2021, the Supreme Court issued its decision in Brnovich, Attorney General of Arizona v. Democratic National Convention. The DNC sued the state of Arizona arguing that two of the State’s election procedures—refusing to count ballots that were incorrectly cast out of precinct and forbidding most third parties from collecting vote-by-mail ballots for delivery—had a disparate impact on racial minority voters in violation of Section 2 of the Voting Rights Act (VRA). The DNC also alleged that the ballot-collection measure was enacted with discriminatory intent.
Although the District Court found no violation of the Voting Rights Act and a panel of the Ninth Circuit affirmed, an en banc panel of the Ninth Circuit reversed finding disparate impact and that the District Court had clearly erred in finding no discriminatory intent. The Supreme Court reversed and remanded the Ninth Circuit’s decision, holding 6-3 that Arizona’s voting rules did not violate Section 2 of the Voting Rights Act and that the ballot collection measure was not enacted with discriminatory intent.
Justice Alito delivered the opinion of the Court joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Justice Gorsuch filed a concurrence in which Justice Thomas joined. Justices Kagan, Breyer, and Sotomayor dissented.
Featuring:
Derek T. Muller, Professor of Law, University of Iowa College of Law
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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 speaker.

Questions of Federal Preemption Jul 09, 2021

Several states are considering how to regulate the content moderation practices of social media and other tech platforms. Some are focused primarily on protecting a wider range of expressible user viewpoints, while other states are concerned with strengthening incentives on platforms to engage in more aggressive moderation of potentially harmful speech. Some states are also pursuing antitrust enforcement actions against some tech platforms. Such state level regulation of national – even global – platforms, raises the prospect of a patchwork of competing state regulatory frameworks.
States have their own antitrust statutes that can differ from federal standards, and historically have had authority to regulate and set boundaries for material that cannot be published, such as libel, and content harmful to minors. How should we think about state regulatory efforts when applied to technology platforms - is regulatory federalism likely to be beneficial, or should federal law preempt such efforts? What role can or should the FCC play in preempting such state regulation? How does the Dormant Commerce Clause affect state level efforts to regulate content and content moderation policies of social media within state borders?
Featuring:
Hon. Brendan Carr, Commissioner, Federal Communications Commission
Daniel Francis, Furman Fellow, New York University School of Law
Paul Watkins, Managing Director, Patomak Global Partners
Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, D.C. Circuit
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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 speaker.

Courthouse Steps Decision Webinar: Nestle USA, Inc. v. Doe et al Jul 07, 2021

On June 17, 2021, the Supreme Court issued its 8-1 decision in Nestle USA, Inc. v. Doe et al and the consolidated case of Cargill, Inc. v. Doe I. In this case, six people from Mali who had been trafficked as child slaves onto cocoa farms in the Ivory Coast sued under the Alien Tort Statute, arguing that since the American companies Nestle and Cargill provided financial and technical support to those farms, they should be liable for aiding and abetting human trafficking.
The Ninth Circuit had reversed the District Court, finding that the respondents had adequately pled a domestic application of the Alien Tort Statute because the corporate decisions driving contracting with the Ivory Coast farms originated in the United States. The Supreme Court reversed the Ninth Circuit holding that the presumption against extraterritoriality required plaintiffs to establish relevant conduct in the United States and that general corporate activity like decision making was insufficient.
Justice Thomas announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which Chief Justice Roberts and Justices Breyer, Sotomayor, Kagan, Gorsuch, Kavanaugh and Barrett joined. Justices Thomas, Gorsuch and Sotomayor all filed concurring opinions and Justice Alito dissented.
Featuring:
Ilya Shapiro, Vice President and Director, Robert A. Levy Center for Constitutional Studies, Cato Institute
William S. Dodge, John D. Ayer Chair in Business Law and Martin Luther King Jr. Professor of Law, UC Davis School of Law
Moderator: Julian Ku, Senior Associate Dean for Academic Affairs, Faculty Director of International Programs, and Maurice A. Deane Distinguished Professor of Constitutional Law, Maurice A. Deane School of Law at Hofstra University
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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 speaker.

Courthouse Steps Decision Webinar: Americans for Prosperity v. Bonta Jul 07, 2021

On July 1, 2021, the Supreme Court issued its decision in Americans for Prosperity Foundation v. Bonta, Attorney General of California. California state law required charitable organizations soliciting donors in the state to register with the California Attorney General. To file, charities had to submit their IRS Form 990 along with all Schedules including Schedule B which discloses donor names and information.
Two conservative organizations refused to submit Schedule B and ultimately sued arguing that the compelled disclosure of their donor lists violated their First Amendment right to freedom of association. Disclosure would make their donors less likely to donate or associate with the charities of their choice.
The case went through multiple appeals to the Ninth Circuit finally arriving in the Supreme Court, which cited NAACP v. Alabama, clarified the applicable exacting scrutiny standard, and held California’s Schedule B disclosure requirement facially unconstitutional.
Joining us to discuss is Mr. Erik Jaffe, a Partner at Schaerr Jaffe LLP and the author of an amicus brief in support of the petitioners.
Featuring:
Erik Jaffe, Partner, Schaerr Jaffe LLP
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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 speaker.

Courthouse Steps Decision Webinar: Collins v. Yellen Jul 07, 2021

On June 23, 2021, the U.S. Supreme Court in Collins v. Yellen held 7-2 that 1) because the Federal Housing Finance Agency did not exceed its authority under the Housing and Economic Recovery Act of 2008, the anti-injunction provisions of the Recovery Act bar the statutory claim brought by shareholders of Fanne Mae and Freddie Mac; and 2) the Recovery Act’s structure violates the separation of powers.
Justice Alito wrote the majority opinion. Justice Gorsuch joined the opinion as to all but Part III–C, Justices Kagan and Breyer joined as to all but Part III–B, and Justice Sotomayor joined as to Parts I, II, and III–C. Justice Thomas filed a concurring opinion. Justice Gorsuch filed an opinion concurring in part. Justice Kagan filed an opinion concurring in part and concurring in the judgment, in which Justices Breyer and Sotomayor joined as to Part II. Justice Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined.
Featuring:
Jason Levine, Partner, Alston & Bird
Jeffrey McCoy, Attorney, Pacific Legal Foundation
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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 speaker.

Talks with Authors: Crisis of the Two Constitutions Jul 06, 2021

American politics grows embittered because it is increasingly torn between two rival constitutions, two opposed cultures, two contrary ways of life. American conservatives rally around the founders’ Constitution, as amended and as grounded in the natural and divine rights and duties of the Declaration of Independence. American liberals herald their “living Constitution,” a term that implies that the original is dead or superseded, and that the fundamental political imperative is constant change or transformation (as President Obama called it) toward a more and more perfect social democracy ruled by a Woke elite.
Crisis of the Two Constitutions details how we got to and what is at stake in our increasingly divided America. It takes controversial stands on matters political and scholarly, describing the political genius of America’s founders and their efforts to shape future generations through a constitutional culture that included immigration, citizenship, and educational policies. Then it turns to the attempted progressive refounding of America, tracing its accelerating radicalism from the New Deal to the 1960s’ New Left to today’s unhappy campus nihilists. Finally, the volume appraises American conservatives’ efforts, so far unavailing despite many famous victories, to revive the founders’ Constitution and moral common sense. From Ronald Reagan to Donald Trump, what have conservatives learned and where should they go from here?
Along the way, Charles R. Kesler argues with critics on the left and right, and refutes fashionable doctrines including relativism, multiculturalism, critical race theory, and radical traditionalism, providing in effect a one-volume guide to the increasingly influential Claremont school of conservative thought by one of its most engaged, and engaging, thinkers.
Featuring:
-- Prof. Charles R. Kesler, Author, Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness, Senior Fellow, The Claremont Institute
-- Moderator: Prof. Gerard V. Bradley, Professor of Law, Univeristy of Notre Dame Law School
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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 speaker.

Courthouse Steps Decision Webinar: Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System Jul 06, 2021

The Supreme Court issued its decision in Goldman Sachs Group, Inc., v. Arkansas Teacher Retirement System on June 21, 2021. Justice Barrett delivered the opinion of the Court, which Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh joined in full.
In this case, a group of Goldman shareholders sought to certify a class action suit against Goldman arguing that they had detrimentally relied on Goldman’s alleged misrepresentations about conflict management, which had resulted in inflation maintenance and subsequent shareholder loss. In arguing for class certification, the plaintiffs relied on the Supreme Court’s 1988 Basic Inc. v. Levinson decision allowing plaintiffs to prove reliance based on evidence common to the class. Goldman argued against certification and against the Basic presumption by presenting evidence showing the alleged misrepresentations had not affected stock prices.
On its second attempt, the District Court certified a class and the Second Circuit affirmed. In its decision, the Supreme Court remanded to the Second Circuit to consider the generic nature of the alleged misrepresentations even though that evidence might get to materiality not usually considered at the initial certification stage under Rule 23. The Court also clarified the Basic presumption holding that a defendant does bear the burden of persuasion to rebut the presumption of reliance allowed to class action plaintiffs.
Featuring:
Theodore "Ted" Frank, Director of Litigation and Senior Attorney, Hamilton Lincoln Law Institute
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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 speaker.

Courthouse Steps Decision Webinar: NCAA v. Alston Jul 01, 2021

On June 21, 2021, the Supreme Court unanimously decided NCAA v. Alston in favor of respondent. Writing for the Court, Justice Gorsuch explained that the district court's injunction on NCAA rules limiting the benefits schools can make available to student athletes is consistent with antitrust law and principles. Justice Kavanaugh filed a concurring opinion.
Featuring:
Michael Murray, Former Principal Deputy Assistant Attorney General, Antitrust Division, U.S. Department of Justice
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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 speaker.

Covid-19 Vaccines and Intellectual Property Jul 01, 2021

In October 2020, two countries, India and South Africa, that had been hit particularly hard by the COVID-19 virus and its variants and by inadequate supply of personal protective equipment, diagnostic tests, and medicines, requested a waiver of intellectual property protections covering COVID-19 vaccines. Specifically, these countries sought a waiver that would exempt World Trade Organization (WTO) member countries from obligations related to patents, copyrights, industrial designs, and trade secrets under TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights). Among other things, TRIPS requires member countries to provide minimum intellectual property protections and enforcement mechanisms that support these intellectual property rights.
In a move that surprised many, on May 5, 2021, United States Trade Representative Katherine Tai issued a statement announcing the current administration’s support for this waiver, but initially for vaccines only rather than the additional COVID-19 health technologies covered by the waiver proposal. In Tai’s announcement, she stated that “The Administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines.” The purpose of the waiver, as Tai noted, was to “get as many safe and effective vaccines to as many people, as fast as possible.”
Since Representative Tai’s statement, there has been much commentary in favor and against the waiver and the US support for it, but after the most recent TRIPS Council meeting, text-based negotiations have begun on the India/South Africa proposal and a European Union communication emphasizing elimination of trade barriers, voluntary agreements, and clarifications of the TRIPS Agreement’s compulsory licensing rules. In this webinar, experts in intellectual property and international trade helped to explain the pros and cons of the waiver proposal, what effects it may have on the pandemic, and what other impacts the waiver may have long term.
Featuring:
-- Jorge Contreras, Professor of Law, University of Utah College of Law
-- James Bacchus, Distinguished Professor of Global Affairs and Director, Center for Global Economic and Environmental Opportunity, University of Central Florida
-- Ana Santos Rutschman, Assistant Professor, Saint Louis University School of Law
-- Brook K. Baker, Professor of Law, Northeastern University School of Law
-- Moderator: Steven M. Tepp, President and CEO, Sentinel Worldwide
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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 speaker.

Courthouse Steps Decision Webinar: Holly Frontier Cheyenne Refining LLC v. Renewable Fuels Association Jun 30, 2021

On June 25, the Supreme Court issued its decision in Holly Frontier Cheyenne Refining LLC. v. Renewable Fuels Association. This case turned on the interpretation of the statutory term “extension” contained in the Renewable Fuel Program. In an effort to encourage refineries to produce renewable fuel, Congress directed the EPA to require refineries to blend certain percentages of renewable fuel into their products, while allowing certain exemptions to small refineries.
In this case, the exemptions granted to several small refineries had lapsed. When they reapplied and received exemptions, biofuels interests sued. They argued that, because these refineries' exemptions had lapsed, they were no longer eligible under the terms of the statute, which provides that small refineries can apply for “an extension of the exemption [for] . . . disproportionate economic hardship.”
The Tenth Circuit interpreted the statutory language to bar an exemption grant based on the lapse—granting an exemption after a lapse would not be an “extension.” The Supreme Court reversed, holding that “extension” as used in this statute does not require “unbroken continuity” and determining that the statutory language’s context indicated Congressional intent to allow small refineries to apply for an exemption even if they hadn't continuously received one before.
Justin Schwab, former EPA Deputy General Counsel and founder of CGCN Law, previewed the case for us on April 27, 2021. He joins us again to discuss the opinion.
Featuring:
-- Justin Schwab, Founder, CGCN Law, PLLC

Navigating High Profile Defamation Jun 30, 2021

The rise in cancel culture aided by online activity—and more recently by the national press—can result in significant harm to an individual’s or a company’s reputation. Speaking out on nearly any topic on an online platform has become increasingly risky because it takes no time for a profile or a post to move from virtual anonymity to notoriety. Join Libby Locke, a Partner at Clare Locke LLP, to discuss how individuals and companies can respond effectively to high-profile reputational attacks.
Featuring:
Libby Locke, Partner, Clare Locke LLP
Moderator: Hon. G. Barry Anderson, Associate Justice, Minnesota Supreme Court
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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 speaker.

Current Status of Police Reform Legislation Jun 30, 2021

Over the past year, police reform has become a priority for many at both the state and federal levels. In this teleforum, Zack Smith at The Heritage Foundation will recap some of the recent efforts to pass police reform legislation at the state and federal levels and will provide an update on where police reform stands in the 117th Congress.
Featuring:
-- Zack Smith, Legal Fellow, Meese Center for Legal and Judicial Studies, The Heritage Foundation

Courthouse Steps Decision Webinar: Yellen v. Confederated Tribes of the Chehalis Reservation Jun 30, 2021

The Supreme Court issued its decision in Yellen, Secretary of Treasury v. Confederated Tribes of the Chehalis Reservation on June 25, 2021. In this case, the Coronavirus Aid, Relief, and Economic Security (CARES) Act allotted 8 million dollars to “Tribal governments” defined as the “recognized governing body of an Indian tribe” under the Indian Self-Determination and Education Assistance Act.
Under this definition, Alaska Native Corporations (ANCs) qualified for CARES Act Covid-19 relief. Several other Indian tribes sued, arguing that the money should be reserved for federally recognized tribes.
The District Court entered summary judgment for the ANCs and the Department of the Treasury, the DC Circuit reversed, and the Supreme Court ultimately held that the ANCs do qualify for COVID-19 relief under the CARES Act.
Featuring:
Anthony "AJ" Ferate, Of Counsel, Spencer Fane LLP
Jennifer Weddle, Shareholder, GreenbergTraurig
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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 speaker.

Talks with Authors: Unsettling Climate Science Jun 30, 2021

Popular and political discussions of the climate invariably invoke “The Science” as settled. But a careful reading of the research, literature, and government assessment reports shows a different picture. In this Federalist Society book event, Dr. Koonin discussed his bestseller, Unsettled: What Climate Science Tells Us, What It Doesn’t, and Why It Matters. He will describe some of the surprises in the official science that he asserts belie the notion that the world has already broken the climate and faces certain doom unless we take prompt and drastic action. Dr. Koonin also examined whether society’s right to make fully informed decisions about climate and energy has been usurped in the assessment reports and media, and he will close with suggestions to improve the presentation of climate certainties and uncertainties to nonexperts.
Featuring:
-- Dr. Steven E. Koonin, Author, Unsettled: What Climate Science Tells Us, What it Doesn't, and Why it Matters; Professor, New York University
-- Moderator: Diana Furchtgott-Roth, Adjunct Professor, George Washington University
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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 speaker.

What Happened with the Texas Energy Grid Jun 30, 2021

When the Texas electric grid failed over Valentine’s Day weekend in February 2021, the recriminations were plentiful and contradictory: too many renewables that failed; too much natural gas-fired generation that didn’t show up; a flawed regulatory model that fell short on resource adequacy and weatherization; a competition model that gives customers apparent choice with over 70% of the market controlled by two retailers. While ideological priors explain many of the explainers’ explanations, the terrible fact is that the Texas grid went down, causing death and misery. The Texas legislature has now instituted reforms to correct the problems with the Texas market, but a hot summer already has Texans on edge whether the grid will meet the soaring demand. This teleforum explored the legal and regulatory fallout from the Texas electricity mess with a former Chairman of the Public Utility Commission of Texas, Barry Smitherman. The focus of the conversation was not be so much on recriminations, but on an assessment of what went wrong, the regulatory and institutional challenges and what the experience might mean for energy policy nationally.
Featuring:
-- Barry Smitherman, principle of BARRY SMITHERMAN, P.C. and a former partner at Vinson & Elkins LLP. He served on the Texas Railroad Commission from 2011 through 2014, and was Chairman of the Commission from March 2012 through August 2014.
-- Raymond L. Gifford, who counsels communications, electric and gas utilities, and information technology companies on state and federal aspects of regulation, administrative law, and competition policy. He is an expert in public utilities law, and the law and economics of regulation of network industries.
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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 speaker.

Limiting the Right to Exclude: Common Carrier and Market Dominance Jun 30, 2021

The recent concurrence by Justice Thomas in Biden v. Knight First Amendment Institute has raised new questions about how we might think about restrictions on speech and debate on social media. Where private, concentrated control over online content and platforms exists, can a solution be found in doctrines that limit the right of a private company to exclude?
While there is historical precedent for regulating communications networks in a similar manner as traditional common carriers, are social media platforms best understood as communications networks that “carry” information from one user to another? Or have they created a business model built more on “curated” speech that to some degree reflects their own expressive interest in acceptable debate and discussion? And how should we think about possible state regulatory efforts to regulate private companies in this way?
Featuring:
Adam Candeub, Professor of Law, Michigan State University
Geoffrey A. Manne, President and Founder, International Center for Law and Economics
Olivier Sylvain, Professor of Law, Fordham University
Charles M. Miller, Deputy Chief Counsel, Ohio Attorney General's Office
Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, D.C. Circuit
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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 speaker.

Courthouse Steps Decision Webinar: Mahanoy Area School District v. B.L. Jun 29, 2021

On June 23, 2021, the Supreme Court decided Mahanoy Area School District v. B.L., a high-school student, was disciplined for posting on Snapchat a vulgar message that was critical of the school's cheerleading team. By an 8-1 vote, the Court held that the discipline was unconstitutional. The Court concluded that a school has less authority to regulate students' off-campus speech than to regulate speech that occurs on-campus. The Court noted three reasons for its conclusion. First, where a student speaks off campus, it is generally the responsibility of parents, not school officials, to supervise students' conduct. Second, courts should be skeptical of off-campus regulation of speech, because allowing schools to regulate both on- and off-campus speech would subject all of a student's speech to potential school discipline. Third, since schools are the “nurseries of democracy,” they have an interest in protecting the freedom of speech and teaching respect for people's right to express messages over which there is disagreement. Applying those principles, the Court determined that the school could not discipline B.L. for her off-campus speech, which denigrated the school and its cheerleading team, but which did not substantially disrupt the operation of the school.
Featuring:
Michael R. Dimino, Professor of Law, Widener University Commonwealth Law School
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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 speaker.

Title IX: A Discussion Jun 29, 2021

On March 11, 2021, President Joseph R. Biden issued an Executive Order titled “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex….” President Biden’s Order requires the US Department of Education’s Office for Civil Rights (OCR) to undertake a comprehensive review of existing Title IX policies, including sexual harassment regulations that the Trump administration issued last year. Earlier this month, OCR conducted public hearings as part of its review. This webinar will provide differing perspectives on the issues that are now under OCR review, such as how best to address sexual assault, protect due process, and ensure that related public policy goals are met in schools and colleges.
Featuring:
-- Samantha Harris, Attorney, Allen Harris Law
-- Shiwali Patel, Director of Justice for Student Survivors and Senior Counsel, National Women's Law Center
-- Moderator: Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law
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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 speaker.

A CLE Webinar - Some Recent (and Ongoing) Developments in Legal Ethics Jun 29, 2021

In this CLE Webinar, Judge Jennifer M. Perkins of the Arizona Court of Appeals and Professor Emeritus of Law William Hodes will discuss the following three areas of lawyer professional responsibility.
* The American Bar Association adopted Model Rule 8.4(g) in August 2016 to provide enforceable regulations against discrimination and harassment by lawyers on the basis of sex, race, and several other characteristics. But the Rule has proven to be controversial, and even five years later the controversy seems to be increasing rather than fading from view.
* Wide adoption of computer-based and online technology has dramatically affected the practice of law, beginning well before the dawn of this century. Ramifications for legal ethics include responding to online criticism by clients or opposing parties, working remotely outside the state of licensure, preventing and dealing with data breaches involving confidential client information, maintaining competency to practice law beyond knowledge of legal doctrine and familiarity with procedural requirements, using artificial intelligence to conduct judge-specific legal research, and avoiding ex parte or other improper communications through interactions on social media.
* Model Rule 1.2(d) and its predecessors have always prohibited lawyers from knowingly assisting clients in carrying out fraudulent or criminal schemes. But how does a lawyer know when a client is up to no good? In suspicious circumstances, is there an unavoidable tension among client loyalty, client service, self-protection., and good citizenship? An uncomfortable "client audit" can become necessary, in litigation and non-litigation matters.
Featuring:
-- William Hodes, Owner and President, The William Hodes Law Firm
-- Judge Jennifer M. Perkins, Arizona Court of Appeals, Division One
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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 speaker.

Courthouse Steps Decision Webinar: Lange v. California Jun 29, 2021

The Supreme Court issued its decision in Lange v. California on June 23, 2021. Lange was pulled over by a California policeman for misdemeanor driving violations. Instead of stopping when the police officer initiated the stop, Lange drove home and fled into his garage. The officer followed him into his garage—without a warrant—and arrested him for drunk driving. Lange moved to suppress the evidence of his intoxication recovered after the police officer entered his garage. California state courts ruled against Lange, the California Supreme Court denied review, and Lange appealed the Fourth Amendment issue to the Supreme Court.
The Court held that the hot pursuit exigency exception to the warrant requirement of the Fourth Amendment is not a categorical exception where a police officer has probable cause to believe the suspect committed a misdemeanor. The 1976 decision in United States v. Santana cited by amici does not create a categorical flight exception. Instead, determining whether hot pursuit of a misdemeanant allows for a warrantless entry requires case by case analysis.
Featuring:
Clark Neily, Vice President for Criminal Justice, Cato Institute
Larry H. James, Managing Partner, Crabbe Brown & James LLP
Vikrant Reddy, Senior Research Fellow, Charles Koch Institute
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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 speaker.

Recent Evolution (or Revolution?) in Federal Trademark and Unfair Competition Law Jun 29, 2021

Recent rulings from the United States Supreme Court and regional circuit courts have shed new light on what have long been understood to be settled—if not always clear—principles in arenas such as protectability of product configurations, colors and even generally used commercial terms. The panel reviewed these developments, as well as recent changes of significance in the law of both injunctive and monetary remedies for trademark infringement.
Featuring:
-- Stephen Baird, Shareholder, GreenbergTraurig LLP
-- Antoinette Tease, Founder, Antoinette M. Tease PLLC
-- Moderator: Andrew Halaby, Shareholder, GreenbergTraurig LLP
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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 speaker.

Courthouse Steps Decision Teleforum: Cedar Point Nursery v. Hassid Jun 29, 2021

The Supreme Court issued its decision in Cedar Point Nursery v. Hassid today, June 23, 2021, holding 6-3 that a California regulation allowing California union organizers entry onto the private property of California growers constituted an uncompensated per se physical taking in violation of the Fifth and Fourteenth Amendments. The Ninth Circuit’s decision upholding the regulation was reversed and the case was remanded.
Featuring:
Wen Fa, Attorney, Pacific Legal Foundation
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Dial 888-752-3232 to access the call.

Courthouse Steps Decision Webinar: United States v. Arthrex Jun 24, 2021

On June 21, 2021, the US Supreme Court decided United States v. Arthrex, Inc. Writing for the 5-4 majority, Chief Justice Roberts explained that the patent judge's unreviewable authority is incompatible with his appointment as an inferior officer.
Justices Alito, Gorsuch, Kavanaugh, and Barrett joined Parts I and II of the opinion, and Justices Alito, Kavanaugh, and Barrett joined Part III of the opinion. Justice Gorsuch filed an opinion concurring in part and dissenting in part. Justice Breyer filed an opinion concurring in the judgment in part and dissenting in part, in which Justices Sotomayor and Kagan joined. Justice Thomas filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined as to Parts I and II.
Featuring:
Prof. Gregory Dolin, Associate Professor of Law and Co-Director, Center for Medicine and Law, University of Baltimore School of Law
Prof. Dmitry Karshtedt, Associate Professor of Law, The George Washington Law School
Moderator: Prof. Kristen Osenga, Austin E. Owen Research Scholar & Professor of Law, The University of Richmond School of Law
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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 speaker.

Courthouse Steps Decision Webinar: California v. Texas Jun 24, 2021

On June 17, 2021, the U.S. Supreme Court decided California v. Texas. Writing for the 7-2 majority, Justice Stephen Breyer explained that plaintiffs lack standing to challenge the Affordable Care Act's minimum essential coverage provision. Justice Thomas filed a concurring opinion. Justice Alito filed a dissenting opinion, in which Justice Gorsuch joined.
Two experts join us to discuss the ruling and offer their differing views on the important constitutional issues involved, including standing and severability.
Featuring:
Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law
Mario Loyola, Senior Fellow, Competitive Enterprise Institute
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This Zoom webinar is open to public registration at the link above.

McGirt: One Year Later Jun 24, 2021

As the 2020 term concluded, the US Supreme Court ruled in a 5-4 decision that the Muskogee Creek Reservation in Oklahoma was never disestablished by Congress. This has led to Oklahoma courts declaring that reservations for the Chickasaw, Cherokee, Choctaw and Seminole Nation reservations continue to exist as well, creating unanswered questions about state and tribal authority in much of the eastern half of the state.
The webinar explorde some of the litigation that has arisen after the ruling in McGirt, discussions between the state and the nations, and congressional discussions that have occurred in the past year.
Featuring:
Jennifer Weddle, Shareholder, GreenbergTraurig
Ryan Leonard, Special Counsel for Native American Affairs to Gov. Stitt
Moderator: Eric Grant, Deputy Assistant Attorney General, Environment and Natural Resources Division, U.S. Department of Justice
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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 speaker.

China Policy and the Pacific Trade Pact Jun 24, 2021

President Trump declined to join the Trans-Pacific Trade Partnership but many of China’s neighbors (with others) joined that trade agreement. Would U.S. accession now encourage Asian nations to resist Chinese expansionism? Can the agreement be renegotiated to satisfy U.S. objections? Can the Biden administration find supportive majorities in Congress to approve U.S. participation in a big new trade deal? An Asian affairs specialist (Michael Auslin, Hoover Institution), a trade law specialist (Jeffrey Gerrish, Skadden Arps) and nd a close observer of China policy and congressional currents (Nova Daly, Wiley Rein) will discuss the prospects, moderated by Jeremy Rabkin (George Mason University).
Featuring:
-- Dr. Michael R. Auslin, Payson J. Treat Distinguished Research Fellow in Contemporary Asia, Hoover Institution
-- Jeffrey Gerrish, Partner, CFIUS and Foreign Investment Reviews; National Security; International Trade, Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates
-- Nova J. Daly, Senior Public Policy Advisor, Wiley Rein LLP
-- Moderator: Prof. Jeremy A. Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University

Courthouse Steps Decision Teleforum: Sanchez v. Mayorkas Jun 24, 2021

The Supreme Court issued its unanimous decision in Sanchez v. Mayorkas on June 7, 2021.
Jose Santos Sanchez, a citizen of El Salvador, entered the United States illegally in 1997. Four years later, he applied for and was granted Temporary Protected Status (TPS) then in 2014, Sanchez applied for Lawful Permanent Resident (LPR) status.
The United States Citizenship and Immigration Services denied Sanchez’ LPR application, finding him ineligible based on his illegal entry—so Sanchez sued in District Court. The court sided with Sanchez, holding that the grant of TPS automatically made Sanchez eligible for LPR consideration.
On appeal, the Third Circuit reversed, finding Sanchez ineligible for LPR, based on his illegal entry, and the Supreme Court affirmed. The Court found that eligibility for LPR status under 8 U.S.C. Section 1255 requires “admission” defined as “the lawful entry of the alien into the United States after inspection and authorization by an immigration officer.” As a result, Sanchez’ illegal entry made him ineligible for LPR.
Featuring:
Hon. Grover Joseph Rees, III, retired United States Ambassador to East Timor, General Counsel of the US Immigration and Naturalization Service from 1991 through 1993
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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 speaker.

Talks with Authors: What Are the Extent and Limits of Executive Power? Jun 22, 2021

Three of the nation's leading scholars on constitutional law and executive power — Michael McConnell, Sai Prakash, and John Yoo — join us to discuss the true extent of executive power, and their new books on the subject.
The most recent book, The President Who Would Not Be King: Executive Power under the Constitution by Prof. McConnell, was reviewed in the pages of the Federalist Society Review by John Yoo. Before that, Profs. Prakash and Yoo joined the Federalist Society's Teleforum to debate the Constitution's grant of presidential power and whether (or to what extent) President Trump upheld that grant. The discussion continues with the new voice of former federal judge and distinguished originalist scholar Michael McConnell.
Featuring:
-- Prof. Michael W. McConnell, Richard and Frances Mallery Professor of Law, Director of the Constitutional Law Center, Stanford Law School; Senior Fellow, Hoover Institution
-- Prof. Saikrishna B. Prakash, James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law, University of Virginia School of Law
-- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, UC Berkeley School of Law; Visiting Fellow, Hoover Institution
-- Moderator: Dean A. Reuter, Senior Vice President, General Counsel and Director of Practice Groups, The Federalist Society

Courthouse Steps Decision Webinar: Fulton v. City of Philadelphia Jun 22, 2021

On June 17, 2021, the US Supreme Court unanimously decided Fulton v. City of Philadelphia for petitioners. Chief Justice John Roberts, writing for the Court in an opinion joined by Justices Breyer, Kagan, Sotomayor, Kavanaugh, and Barrett, explained that the city violated the First Amendment's Free Exercise Clause when it refused to contract with Catholic Social Services for foster-care services unless CSS agreed to certify same-sex couples as foster parents.
Justice Barrett filed a concurring opinion in which Justice Kavanaugh joined and Justice Breyer joined as to all but the first paragraph. Justice Alito filed an opinion concurring in the judgment, in which Justices Thomas and Gorsuch joined. Justice Gorsuch filed an opinion concurring in the judgment, in which Justices Thomas and Alito joined.
Featuring:
Prof. Mark L. Rienzi, President, Becket Fund for Religious Liberty; Professor of Law, Columbus School of Law, The Catholic University of America
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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 speaker.

China, the U.S., and Global Climate Policy: Cooperation, or Competition? Jun 21, 2021

The Biden Administration recently made headlines by announcing a greenhouse gas emissions reduction target for the U.S. of 50% by 2030 (relative to 2005 levels) when hosting a climate summit with world leaders. Indeed, in an executive order (Jan. 27, 2021), President Biden stated that “[i]t is the policy of my Administration that climate considerations shall be an essential element of United States foreign policy and national security.” China, on the other hand, is not only the world’s largest carbon emitter, but also considered by many to be a geopolitical rival to the U.S. It has gained prestige for committing to reaching net zero emissions by 2060, even while its emissions continue to increase significantly in the present. The teleforum will discuss the respective aspirational goals and current efforts of China and the U.S. with regard to climate change mitigation, as well as the legal frameworks within which each government attempts to implement policy. It will then discuss the impact of this issue upon the broader strategic interactions between the two nations, and consider paths forward for U.S. policy.
Featuring:
Gabriel Collins, Baker Botts Fellow in Energy & Environmental Regulatory Affairs, Center for Energy Studies, Baker Institute
Moderator: Dan West, Executive Committee, International and National Security Law Practice Group
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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 speaker.

Courthouse Steps Decision Teleforum: Terry v. United States Jun 21, 2021

On June 14, 2021, the Supreme Court issued its decision in Terry v. United States. Petitioner Tarahrick Terry plead guilty to possession of crack cocaine in 2008. Following the passage of the First Step Act in 2018, petitioner requested resentencing. The First Step Act makes the 2010 Fair Sentencing Act’s downward sentence modification for certain crack cocaine convictions retroactive. The Court found that since Terry’s initial crack cocaine conviction did not trigger a mandatory minimum, it was not modified by the Fair Sentencing Act. As a result, the First Step Act does not apply and Terry’s request for retroactive resentencing was properly denied.
Featuring:
Vikrant P. Reddy, Senior Research Fellow, Charles Koch Institute
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.

Talks with Authors: Religious Liberty in Crisis Jun 21, 2021

On June 16, 2021, The Federalist Society's Religious Liberties Practice Group hosted a teleforum titled "Talks with Authors: Religious Liberty in Crisis."
In his new book Religious Liberty in Crisis: Exercising Your Faith in an Age of Uncertainty, former U.S. Solicitor General Ken Starr explores the contemporary relationship between government, constitutional law, and religious freedom. Judge Starr is joined by Professor Robert P. George, Princeton's McCormick Professor of Jurisprudence, to discuss the book and related matters.
Featuring:
-- Hon. Kenneth W. Starr, U.S. Court of Appeals, District of Columbia Circuit (1983-1989); U.S. Solicitor General (1989-1993)
-- Moderator: Prof. Robert P. George, McCormick Professor of Jurisprudence; Director, James Madison Program, Princeton University

Certiorari and Stinson Deference Jun 21, 2021

On June 16, 2021, The Federalist Society's Administrative Law & Regulation Practice Group hosted a teleforum on "Certiorari and Stinson Deference."
The U.S. Supreme Court recently signaled a retreat from deference to agency guidance in Kisor v. Wilkie, in which the Court narrowed judicial deference available to agencies construing their own ambiguous regulations.
But what about judicial deference to the U.S. Sentencing Commission, the agency housed in “within the Judicial Branch,” and which Justice Scalia derided as a “junior varsity Congress,” making policy choices that should be committed to the legislature? In Stinson v. United States, the Supreme Court held that courts should defer to the commentary the Sentencing Commission issued construing their formally adopted Sentencing Guidelines, unless they are “inconsistent with, or a plainly erroneous reading of,” the relevant Guideline. The Stinson Court required such deference even if the Commission’s interpretation “may not be compelled by the guideline text.”
On June 17, the Supreme Court’s conference is slated to include discussion on a series of cases percolating up from the courts of appeals that all raise similar challenges to the use of Stinson deference in deciding criminal defendants’ sentences. The Court seems poised to grant certiorari to one or more of these cases challenging deference in order to resolve a broad and deep split among the circuits that reflects inconsistencies in sentencing nationwide. Or, at least, it would explain why the court has been holding some of these cert petitions for over six months in order to consider all of them together—perhaps in order to select the best vehicle from among the slew of petitions clamoring for the Court’s consideration.
Here to discuss the pending Stinson deference cert petitions is appellate attorney John Elwood, a partner at Arnold & Porter who is better known in some circles as the relist guru on SCOTUSblog. John filed a petition for certiorari on behalf of Zimmian Tabb in a case out of the Second Circuit—one of the first Stinson deference cases to reach the Supreme Court last fall. John will explain what’s at stake in the reconsideration of Stinson deference, including the following questions: Do constitutional due process and the rule of lenity preclude Stinson deference when commentary to a Sentencing Guideline would increase a sentence? Do courts owe deference to Guidelines commentary that appears to expand the scope of the Sentencing Guidelines? Post-Kisor, may courts defer to commentary without first determining whether the pertinent Guideline is ambiguous? Post-Kisor, must courts apply canons of construction like the rule of lenity before granting the agency deference? And, practically speaking, what might the Supreme Court be looking for to select the best vehicle for reconsideration of Stinson deference from among the pending cert petitions? Moderating the discussion will be New Civil Liberties Alliance Executive Director and General Counsel, Mark Chenoweth. NCLA authored another of the cert petitions pending before this week’s conference at the Court on behalf of a defendant in the Eighth Circuit, Marcus Broadway.
Featuring:
John P. Elwood, Partner, Arnold & Porter
Moderator: Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties Alliance
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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 speaker.

Department of Justice: Executive Supervision or Independence? Jun 21, 2021

On June 17, 2021, The Federalist Society's Federalism & Separation of Powers Practice Group hosted a teleforum exploring the "Department of Justice: Executive Supervision or Independence?".
With the change in presidential administration, some critics and scholars have argued that a need for independence at agencies like the Department of Justice should be reconsidered. To whom is the Department of Justice accountable? Whose interests does it represent?
When a change in executive leadership occurs, should the policies at agencies like DOJ be subject to change as well? And, if so, how far does that latitude extend—to prosecutorial policies, to enforcement discretion, to the questions of constitutional and statutory and criminal law interpretation delegated for resolution to DOJ? This distinguished panel discussion will address these issues and the core question of which governmental actors our constitutional system has charged with directing the arc of the use of that authority.
Featuring:
-- Bob Bauer, Professor of Practice and Distinguished Scholar in Residence, New York University Law School; former White House Counsel
-- Steven Engel, Partner, Dechert LLP; former Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice
-- Jamie Gorelick, Partner, WilmerHale; former Deputy Attorney General, U.S. Department of Justice
-- Hon. Michael Mukasey, Of Counsel, Debevoise & Plimpton; 81st Attorney General of the United States
-- Moderator: Hon. Chad Readler, U.S. Court of Appeals for the Sixth Circuit

OFCCP in the Biden Administration Jun 18, 2021

This session will cover changes – both observed to-date and anticipated – by OFCCP in the Biden administration. We will discuss the early initiatives the Biden administration has introduced, including a webpage for the Affirmative Action Verification Initiative that may substantially increase compliance obligations. Other topics will include OFCCP’s anticipated policy interests, areas of significant legal risk including compensation analysis, recent trends and expectations for audits, and the intersectionality of diversity equity and inclusion with OFCCP compliance.
Featuring:
-- Lauren B. Hicks, Of Counsel, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Courthouse Steps Decision Teleforum: Borden v. United States Jun 17, 2021

Charles Borden had been convicted three times of aggravated assault under Tennessee law. Federal law prohibits possession of firearms by convicted felons, and the Armed Career Criminal Act (ACCA) provides a mandatory minimum sentence of 15 years for those with three prior convictions of violent felonies. Two of Borden's convictions were under a subsection of Tennessee's aggravated assault law covering intentional or knowing violations, and one was under a subsection covering reckless violations. Borden was sentenced to the mandatory minimum over his objection that reckless aggravated assault is not a "violent felony" within the meaning of the ACCA.The federal courts of appeals were divided on the question of whether crimes with a reckless mens rea were included within the particular clause of the ACCA invoked in this case. That clause includes convictions of a crime which "has as an element the use, attempted use, or threatened use of physical force against the person of another."The Supreme Court reversed in a fractured decision, unable to reach majority agreement on a single rationale. The result is that any crime which has a definition permitting conviction on the basis of mental state of recklessness will not count for the ACCA.
Featuring:
Kent Scheidegger, Legal Director and General Counsel, Criminal Justice Legal Foundation
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Textual Challenges of Section 230 Jun 17, 2021

This panel addressed the textual questions of §230: is the statute correctly understood to permit discretionary content moderation on the part of social media platforms and other supporting tech entities, or does the text provide for a more limited range of moderation policies? Although several circuit courts have adopted a more expansive interpretation of the statutory protections, Justice Thomas has recently questioned whether the prevailing application is consistent with the text. Does viewpoint discrimination fall within the scope of §230 protection? Are decisions to ban individuals from participating on a platform covered by the statutory protections? To what extent does the statute preclude state regulatory initiatives to protect speech by platform users?
Featuring:
Philip A. Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia Law School; President, New Civil Liberties Alliance
Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
Mary Anne Franks, Professor of Law and Dean's Distinguished Scholar, University of Miami School of Law
Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, District of Columbia Circuit
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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 speaker.

Closing the Digital Divide: The Future of Broadband Access Jun 17, 2021

On June 15, 2021, The Federalist Society's Telecommunications & Electronic Media Practice Group sponsored a teleforum to discuss "Closing the Digital Divide: The Future of Broadband Access."
The COVID-19 pandemic has brought a renewed attention to closing the country’s digital divide. In response, Congress and the White House have made broadband infrastructure a top priority, with several different infrastructure proposals on the table. This massive investment to connect all Americans will require significant funding. This event, featuring FCC Commissioner Brendan Carr, will explore the different options available, potential roadblocks, and the continued importance of unleashing private sector investment in today’s broadband networks.
Featuring:
-- Hon. Brendan Carr, Commissioner, Federal Communications Commission
-- Moderator: Randolph J. May, President, Free State Foundation

Free Speech and Compelled Speech: First Amendment Challenges to a Marketplace of Ideas Jun 15, 2021

Section 230 has been understood to shield internet platforms from liability for content posted by users, and also to protect the platforms’ discretion in removing “objectionable” content.
But policy makers have recently taken a stronger interest in attempting to influence tech companies’ moderation policies. Some have argued the policies are too restrictive and unduly limit the scope of legitimate public debate in what has become something of a high-tech public square. Other policy makers have argued the platforms need to more aggressively target “hate speech,” online harassment, and other forms of objectionable content. And against that background, states are adopting and considering legislation to limit the scope of permissible content moderation to preclude viewpoint discrimination.
Some have suggested that the §230 protection, in combination with political pressure, create First Amendment state action problems for content moderation. Others argue that state efforts to protect the expressive interests of social media users would raise First Amendment concerns, by effectively compelling speech by social media and tech platforms.
What are the First Amendment limits on federal and state efforts to influence platform decisions on excluding or moderating content?
Featuring:
Eugene T. Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
Jed Rubenfeld, formerly Assistant United States Attorney, U.S. Representative at the Council of Europe, and professor at the Yale Law School
Mary Anne Franks, Professor of Law and Dean's Distinguished Scholar, University of Miami School of Law
Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, District of Columbia Circuit
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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 speaker.

Litigation Update: Vitolo v. Guzman Jun 14, 2021

On May 27, 2021, the Sixth Circuit issued a decision in Vitolo v. Guzman. Over a dissent written by Judge Donald, the Court held that the Small Business Act of the American Rescue Plan Act created unconstitutional racial, ethnic, and gender-based priority preferences in distributing covid-relief grants to small businesses. Upon finding the plaintiffs would win on their constitutional claim, the Court granted the plaintiffs a preliminary injunction pending appeal.
Joining us to discuss is Mr. Daniel Lennington, the attorney who represented Mr. Vitolo before the Sixth Circuit.
Featuring:
-- Daniel Lennington, Deputy Counsel, Wisconsin Institute for Law and Liberty

Courthouse Steps Decision Webinar: Van Buren v. United States Jun 11, 2021

On June 3, 2021, the U.S. Supreme Court decided Van Buren v. United States. Writing for the 6-3 majority, Justice Barrett explained that an individual exceeds authorized access when he accesses a computer with authorization but obtains information in a place on the computer off-limits to him. Justice Thomas filed a dissenting opinion, in which Chief Justice Roberts and Justice Alito joined.
Former Assistant U.S. Attorney for New York's Southern District Joseph DeMarco joins us to discuss the ruling and its implications.
Featuring:
Joseph DeMarco, Partner, DeMarco Law PLLC
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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 speaker.

COVID Lockdowns At The Border Jun 09, 2021

This teleforum will examine the president's use of travel bans during the SARS-2 pandemic Two of the nation's top experts in immigration law--Professor Ilya Somin of the Antonin Scalia Law School at George Mason University and Chris Hajec of the Immigration Reform Law Institute--will present their views of the law and policy in this area while also taking questions from the audience.
Featuring:
-- Christopher Hajec, Director of Litigation, Immigration Reform Law Institute
-- Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University

Courthouse Steps Decision Teleforum: United States v. Cooley Jun 07, 2021

In a 9-0 opinion written by Justice Breyer that could have far-reaching implications, the Supreme Court held in United States v. Cooley that a tribal police officer does have authority to temporarily detain a non-Indian where the officer has probable cause of a violation of state or federal law. Justice Alito filed a concurring opinion.
Joining us to discuss are Indian Law experts AJ Ferate and Jennifer Weddle.
Featuring:
Anthony J. "A.J." Ferate, Of Counsel, Spencer Fane LLP
Jennifer Weddle, Shareholder, GreenbergTraurig
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To register, click the link above.

Courthouse Steps Decision Teleforum: San Antonio, TX v. Hotels.com Jun 03, 2021

On May 27, the Supreme Court issued its 9-0 decision in San Antonio, TX v. Hotels.com holding that district courts lack the discretion to deny or reduce Federal Rule of Appellate Procedure 39 appellate costs. The judgment of the Court of Appeals for the Fifth Circuit is affirmed.
Joining us to discuss is Associate Professor of Law and Interim Dean Charles Campbell of Faulkner University Jones School of Law.
Featuring:
-- Charles Campbell, Associate Dean for Academic Affairs and Associate Professor of Law, Faulkner University, Jones School of Law

Talks with Authors: Administrative Law Theory and Fundamentals: An Integrated Approach Jun 02, 2021

Few fields are more in need of fresh thinking than administrative law. The author of Administrative Law Theory and Fundamentals: An Integrated Approach, a new casebook recently published by Foundation Press, seeks to provide such thinking. The new casebook proposes a theory of administrative power that better explains constitutional text and structure, as well as historical and modern practice, than competing accounts. It argues that there are “exclusive” powers that only Congress, the President, and the courts can respectively exercise, but also “nonexclusive” powers that can be exercised by more than one branch. This theory of “nonexclusive powers” allows students and scholars of administrative law to make more sense of—or better critiques of—administrative concepts such as delegation, quasi-powers, judicial deference, agency adjudications, the chameleon-like quality of government power, and of the separation of powers more broadly. Please join Professor Ilan Wurman, the casebook’s author, and Professor Richard Epstein, for a discussion of this new casebook and its theory of administrative power.
Featuring:
-- Ilan Wurman, Author, Associate Professor, Sandra Day O'Connor College of Law, Arizona State University
-- Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law

The Equal Rights Amendment: Then and Now Jun 02, 2021

First proposed in 1923 – yes, nearly one hundred years ago - the Equal Rights Amendment was finally passed by the U.S. Congress nearly 50 years later, in 1972, with a seven-year deadline for its ratification. With the deadline approaching, but the requisite 38 states not having voted to ratify, Congress approved, and President Carter signed, a three-year extension, to 1982.
Several states and the U.S. Congress are now revisiting the ERA, raising a variety of issues:
Whether it is constitutionally possible at this point to extend or eliminate the deadline for ratification of the 1972 ERA; the effectiveness (or not) of five states’ revocations of their votes to ratify; the effectiveness (or not) of the three states’ ratifications that came more than 35 years after the extended deadline;
The pros and cons and wisdom (or not) and necessity (or not) and ramifications of amending the United States Constitution with the ERA.
These and related matters will be discussed by Rep. Steven Andersson, founder of GOP4ERA.org, and Jennifer Braceras, Director of the Independent Women’s Law Center. Hon. Eileen J. O'Connor will moderate the discussion.
Featuring:
Rep. Steven Andersson, Founder, GOP4ERA.org
Jennifer Braceras, Director, Independent Women's Law Center
Moderator: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC
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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 speaker.

Litigation Update: Meriwether v. Hartop Jun 01, 2021

In a decision issued on March 26, 2021, the Sixth Circuit held Professor Nicholas Meriwether, a long-time philosophy professor at Shawnee State and a devout Christian, had plausibly alleged Shawnee State violated his First Amendment Speech and Free Exercise rights by subjecting him to discipline over use of pronouns.
On the Speech claim: the Sixth Circuit found the Supreme Court’s decision in Garcetti v. Cebalos did not apply to bar Meriwether’s claim since the Court had expressly withheld applying the precedent to “a case involving speech related to scholarship or teaching.”
On the Free Exercise claim: based on the hostility to religion demonstrated by Shawnee State officials, the Sixth Circuit found strict scrutiny under Lukumi Babalu v. City of Hialeah rather than rational basis under Employment Division v. Smith applied, so Meriwether had successfully established a Free Exercise claim sufficient to survive a motion to dismiss.
Joining us to discuss the implications of the decision for academic freedom, free speech and religious liberty is Mr. Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity.
Featuring:
-- Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity

H.R. 1, the For the People Act, Explained May 27, 2021

The For the People Act was introduced in the House of Representatives in 2019 as H.R. 1, the symbolic designation marking it as the top priority of the new Democratic House majority. Described by its author, Representative John Sarbanes, as addressing “voter access, election integrity and security, campaign finance, and ethics for the three branches of government,” the 570 page bill passed the House later that year, but was never voted on in the Republican-controlled Senate.
The measure was reintroduced in the 117th Congress as H.R. 1 in the House and S. 1 in the Senate, but with still more provisions expanding it to over 800 pages. Proponents supporting passage have cited the importance of expanding voter access and fighting "voter suppression." Opponents argue that the bill significantly restricts free speech by changing campaign finance rules, creates the potential for widespread voter fraud by relaxing necessary voting integrity safeguards, and constitutes a federal takeover of state-run elections.
The House passed the bill on a near party-line vote (1 Democrat voted "no"), and its fate now lies with the 50-50 divided Senate. Senate Republicans can block a vote with the filibuster, and H.R. 1 has been cited frequently as a reason to abolish the filibuster. But at least one Senate Democrat, Joe Manchin of West Virginia, has stated that he will not vote for the bill in its current form, depriving the legislation--for now--of even a simple majority.
Mr. Bradley A. Smith, Chairman and Founder of the Institute for Free Speech and one of the nation’s foremost experts on campaign finance law will join us to discuss some of the more important provisions and implications of H.R.1/S. 1, the For the People Act.
Featuring:
-- Bradley A. Smith, Chairman and Founder, Institute for Free Speech

A Discussion: Students for Fair Admissions v. President and Fellows of Harvard College May 27, 2021

In Students for Fair Admissions v. President and Fellows of Harvard College, petitioning Asian-American students argued that Harvard’s undergraduate admissions policies actively discriminated against them on the basis of race in violation of Title VI of the Civil Rights Act of 1964. The District Court and the Court of Appeals for the First Circuit disagreed, triggering SFFA’s pending petition to the Supreme Court for certiorari. If the Court accepts cert, the case will present it with the chance to address the legality of race-based admissions policies for the fifth time in as many decades.
Should and will the Court take the case? Is this an opportunity for a long-overdue correction of judicial error or a project doomed to fail? And what exactly does the trove of information from the record below mean for the Court’s decision, for admissions departments elsewhere, and for applicants?
Featuring:
Anna Ivey, Founder, Anna Ivey Consulting
Cory Liu, Partner, Ashcroft Law Firm
Moderator: Dan Morenoff, Executive Director, American Civil Rights Project
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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 speaker.

Infrastructure, Broadband, and the New Administration May 25, 2021

In March 2021, the Biden Administration unveiled its infrastructure plan, known as the American Jobs Act. An important part of the plan is technology, and a focus point is improving the nation's broadband network. A panel of experts joins us to discuss the plan and its implications.
Featuring:
Prof. Christopher Yoo, University of Pennsylvania Law School
Tony Clark, Senior Advisor, Wilkinson Barker Knauer LLP
Kate O’Connor, Chief Counsel, Subcommittee on Communications and Technology, House Committee on Energy and Commerce
Moderator: Hon. David Redl, Founder and CEO, Salt Point Strategies LLC and Senior Fellow, Silicon Flatirons
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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 speaker.

Courthouse Steps Decision Webinar: CIC Services LLC v. Internal Revenue Service May 25, 2021

On May 17, 2021, the Supreme Court issued its unanimous decision in CIC Services, LLC v. Internal Revenue Services, a case involving the Anti-Injunction Act and tax penalties. Justice Kagan delivered the opinion for the Court and Justices Sotomayor and Kavanaugh filed concurring opinions.
Joining us to discuss the decision and its implications are several experts in the field.
Featuring:
Susan C. Morse, Angus G. Wynne, Sr. Professor in Civil Jurisprudence, University of Texas at Austin School of Law
Kristin E. Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School
Moderator: Robert T. Carney, Senior Counsel, Caplin & Drysdale; Adjunct Professor, Georgetown University Law Center
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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 speaker.

A Conversation with Commissioner Brian D. Quintenz of the Commodity Futures Trading Commission May 25, 2021

In March 2021, a futures exchange, ErisX, voluntarily withdrew an application with the Commodity Futures Trading Commission ("CFTC," the main derivatives regulator) to list a futures contract tied to events in NFL games such as point spread and total points. It had become clear that the CFTC was going to reject it as a "prohibited event contract." The issue likely would have faded away except that one of the CFTC's five commissioners, Brian Quintenz, released a statement "blowing the whistle" on the non-public agency process and questioning the CFTC's authority. Join Commissioner Quintenz for a discussion.
Featuring:
-- Hon. Brian D. Quintenz, Commissioner, Commodity Futures Trading Commission
-- Moderator: Gary Kalbaugh, Special Professor of Law, Maurice A. Dean School of Law
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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 speaker.

Courthouse Steps Decision Teleforum: Edwards v. Vannoy May 24, 2021

Due to technical difficulties, this teleforum has been rescheduled for Friday, May 21 at 1:30 PM ET.
On May 17, 2021, the Supreme Court released its decision in the case of Edwards v. Vannoy, which focused on whether the Supreme Court’s decision in Ramos v. Louisiana applied retroactively to cases on federal collateral review. By a vote of 6-3, the judgment of the U.S. Court of Appeals for the Fifth Circuit is affirmed. Justice Kavanaugh's majority opinion was joined by the Chief Justice and Justices Thomas, Alito, Gorsuch, and Barrett. Justice Thomas filed a concurring opinion, joined by Justice Gorsuch. Justice Gorsuch filed a concurring opinion joined by Justice Thomas. Justice Kagan dissented, joined by Justices Breyer and Sotomayor. Kent Scheidegger joins us to discuss this decision and its implications.
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 Decision Teleforum: BP P.L.C. v. Mayor and City Council of Baltimore May 24, 2021

Nearly two dozen lawsuits against energy manufacturers seeking state tort damages over climate change have been filed in state courts. The defendants removed the cases to federal courts because the subject matter of the litigation involves exclusively federal issues, namely national energy policy over the worldwide uses of fossil fuels.
On May 17, 2021, The Supreme Court released its decision in one of the cases, BP P.L.C. v. Mayor and City Council of Baltimore. By a vote of 7-1, the judgment of the U.S. Court of Appeals for the Fourth Circuit was vacated and the case remanded. Justice Gorsuch's majority opinion was joined by all other members of the Court except Justice Sotomayor, who dissented, and Justice Alito, who took no part in the consideration or decision of the case.
Phil Goldberg and Karen Harned join us to discuss this decision and its implications.
Featuring:
-- Phil Goldberg, Special Counsel for the Manufacturers’ Accountability Project (MAP), a project of The National Association of Manufacturers (NAM), and Washington D.C. Office Managing Partner, Shook, Hardy & Bacon, LLP
-- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center

Courthouse Steps Decision Teleforum: Caniglia v. Strom May 19, 2021

On May 17, 2021, the Supreme Court released its decision in Caniglia v. Strom, which focused on whether the community-caretaking exception to the Fourth Amendment’s warrant requirement extended to the home. By a vote of 9-0, the judgment of the U.S. Court of Appeals for the First Circuit is vacated and the case remanded. Although Justice Thomas's opinion for the Court was unanimous, The Chief Justice filed a concurring opinion, joined by Justice Breyer. Justices Alito and Kavanaugh also filed concurring opinions. Our two experts join us to offer commentary on this decision.
Featuring:
Matt Cavedon, Criminal Defense Attorney, Gainesville, GA
Robert Frommer, Senior Attorney, Institute for Justice
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.

Litigation Update: Brown v. Becerra May 18, 2021

The U.S. Centers for Disease Control and Prevention (CDC) issued a moratorium on evictions nationwide on September 4, 2020 and coupled the moratorium with federal criminal penalties for those landlords who seek relief from state courts. In the first case filed against the moratorium, the New Civil Liberties Alliance took on the representation of several housing providers, including Rick Brown, and the National Apartment Association. In Brown v. Becerra, NCLA challenged the CDC’s moratorium on both statutory and U.S. Constitutional grounds in the Northern District of Georgia. A preliminary injunction in the case is now on appeal to the Eleventh Circuit with oral argument scheduled for May 14, 2021.
Joining us to discuss the Brown v. Becerra argument and the status of the case to date is NCLA attorney Caleb Kruckenberg.
Featuring:
-- Caleb Kruckenberg, Litigation Counsel, New Civil Liberties Alliance
-- Moderator: Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties Alliance

Courthouse Steps Decision Teleforum: Jones v. Mississippi May 12, 2021

On April 22, the Supreme Court released its decision in the case of Jones v. Mississippi. By a vote of 6-3, the judgment of the Court of Appeals of Mississippi was affirmed. The case concerns a Mississippi statute that allows imposition of a life without parole sentence, and a defendant who was a juvenile at the time of the commission of the offense. Justice Kavanaugh's majority opinion was joined by the Chief Justice and Justices Alito, Gorsuch, and Barrett. Justice Thomas concurred in the judgment. Justice Sotomayor dissented, joined by Justices Breyer and Kagan. Marc Levin joins us to discuss the decision and its implications.
Featuring:
Marc Levin, Chief Policy Counsel, Council on Criminal Justice and Senior Advisor, Right on Crime
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.

Litigation Update: Wisconsin Equal Protection and Race Based Scholarships May 11, 2021

A biracial Wisconsin couple—Konkanok Rabieba and Richard Freihoefer—is suing the state of Wisconsin over its Minority Grant Program: a state scholarship program which awards education grants to certain minorities but not to others or to whites. Although the plaintiffs’ son is half Thai, he is ineligible to apply for the Program because applications are only accepted from persons who are black, Hispanic, American Indian, or “admitted to the United States after December 31, 1975, and who either is a former citizen of Laos, Vietnam or Cambodia or whose ancestor was or is a citizen of Laos, Vietnam or Cambodia.” Rabieba and Freihoefer allege that administration of the program on this basis unconstitutionally discriminates against non-minorities and minorities not included in the program's defined class on the basis of race and national origin in violation of the Wisconsin state constitution.
Featuring:
-- Rick M. Esenberg, Founder, President, and General Counsel, Wisconsin Institute for Law & Liberty

Litigation Update: Johnson & Johnson v. Ingham May 07, 2021

Johnson & Johnson v. Ingham is a pending petition before the U.S. Supreme Court. It involves many important legal issues, specifically: (1) whether a court must assess if consolidating multiple plaintiffs for a single trial violates Due Process, or whether it can presume that jury instructions always cure both jury confusion and prejudice to the defendant; (2) whether a punitive-damages award violates Due Process when it far exceeds a substantial compensatory-damages award, and whether the ratio of punitive to compensatory damages for jointly and severally liable defendants is calculated by assuming that each defendant will pay the entire compensatory award; and (3) whether the “arise out of or relate to” requirement for specific personal jurisdiction can be met by merely showing a “link” in the chain of causation, as the Court of Appeals of Missouri held, or whether a heightened showing of relatedness is required, as the Ford Motor Company in Ford Motor Co. v. Montana Eighth Judicial District Court has argued.
Attorney John Reeves, who filed an amicus brief for petitioners on behalf of the Missouri Organization of Defense Lawyers, will discuss the case and its implications.
Featuring:
-- John Reeves, Founder and Member, Reeves Law LLC

Artificial Intelligence and Bias May 06, 2021

It is hard to find a discussion of artificial intelligence these days that does not include concerns about Artificial Intelligence (AI) systems' potential bias against racial minorities and other identity groups. Facial recognition, lending, and bail determinations are just a few of the domains in which this issue arises. Laws are being proposed and even enacted to address these concerns. But is this problem properly understood? If it's real, do we need new laws beyond those anti-discrimination laws that already govern human decision makers, hiring exams, and the like?
Unlike some humans, AI models don't have malevolent biases or an intention to discriminate. Are they superior to human decision-making in that sense? Nonetheless, it is well established that AI systems can have a disparate impact on various identity groups. Because AI learns by detecting correlations and other patterns in a real world dataset, are disparate impacts inevitable, short of requiring AI systems to produce proportionate results? Would prohibiting certain kinds of correlations degrade the accuracy of AI models? For example, in a bail determination system, would an AI model which learns that men are more likely to be repeat offenders produce less accurate results if it were prohibited from taking gender into account?
Featuring:
-- Stewart Baker, Partner, Steptoe & Johnson LLP
-- Nicholas Weaver, Researcher, International Computer Science Institute and Lecturer, UC Berkeley
-- Moderator: Curt Levey, President, Committee for Justice

Courthouse Steps Oral Argument Teleforum: Terry v. United States May 05, 2021

Thirteen years ago, Tarahrick Terry was charged with possession with intent to distribute 3.9 grams of cocaine base otherwise known as crack cocaine. He pled guilty and was sentenced under 21 U.S.C. 842(b)(1)(C) which set a range of 0-30 years. Terry received a sixteen-year term of imprisonment followed by six months of supervised release.
Congress passed comprehensive criminal justice reform twice in the years following: the Fair Sentencing Act (2010) and the First Step Act (2018) which modified the application of the Fair Sentencing Act. Terry appealed his sentence, arguing his offense was a “covered offense” under Section 404 of the First Step Act. The district court denied relief and the Eleventh Circuit affirmed.
On May 4, 2021, the Supreme Court will hear oral argument taking up the question whether Terry’s offense was a “covered offense” under Section 404 under the First Step Act and whether he is entitled to relief.
Featuring:
Vikrant Reddy, Senior Research Fellow, Charles Koch Institute
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.

Litigation Update: Coalition for Thomas Jefferson High v. Fairfax County School Board May 05, 2021

Thomas Jefferson High School for Science and Technology, or “TJ,” in Fairfax County, Virginia, is the nation’s top-ranked public high school. It’s also over 70% Asian-American. Until last fall, admission to TJ rested largely on a student’s performance on a race-blind standardized admissions test. Vocally displeased that the demographics of TJ’s student body do not match the demographics of its school district as a whole, the Fairfax County school board recently eliminated the standardized admissions test and instituted a new admissions system which the Plaintiff, Coalition for TJ, believes is designed to achieve the school board’s racial balancing goals. Under the new system, the Coalition for TJ projects that Asian-American enrollment—and only Asian-American enrollment—in the incoming TJ freshman class will drop by over 40%.
Represented by Pacific Legal Foundation, last month the Coalition for TJ filed a lawsuit in the U.S. District Court for the Eastern District of Virginia alleging that the school district’s new admission policy amounts to racial balancing in violation of the Equal Protection Clause of the Fourteenth Amendment. Against a backdrop of perceived increased anti-Asian bias and concerns over equity in admissions in secondary and higher education, Coalition for TJ v. Brabrand offers the chance to discuss whether school districts are attempting to racially balance public schools and why the facts of the Coalition for TJ case make it a particularly good vehicle for a strategic challenge.
Featuring:
Erin Wilcox, 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 annoucements, please contact us at 202-822-8138.

Courthouse Steps Oral Argument Teleforum: PennEast Pipeline LLC v. New Jersey May 04, 2021

On April 28, 2021, the Supreme Court will hear oral argument in the case of PennEast Pipeline LLC v. New Jersey. In this case, the Court will address the conflict between state sovereign immunity secured to the states by the Eleventh Amendment and the Federal Natural Gas Act which authorizes certain private actors to exercise Federal eminent domain power.
In this case, PennEast Pipeline used the Act to take forty-two New Jersey properties in order to build a pipeline. New Jersey fought the taking, arguing that PennEast was not appropriately authorized under the Act and even if the authorization were appropriate, sovereign immunity applied.
The District Court sided with PennEast, finding the exercise of eminent domain was authorized. The Third Circuit disagreed, holding that even though the authorization under the Act was appropriate, the Act does not abrogate state sovereign immunity. The Supreme Court takes up the question whether the Natural Gas Act does delegate federal eminent domain power and if so, whether that delegation removes Eleventh Amendment state sovereign immunity.
Featuring:
Hon. Paul D. Clement, Partner, Kirkland & Ellis LLP
Moderator: Roger J. 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.

Courthouse Steps Decision Teleforum: Carr v. Saul May 04, 2021

On April 22, 2021, the U.S. Supreme Court decided Carr v. Saul. Writing for the unanimous Court and in reversing the lower court, Justice Sonia Sotomayor explained that principles of issue exhaustion do not require Social Security disability claimants to argue at the agency level that the administrative law judges hearing their disability claims were unconstitutionally appointed. Justice Thomas filed an opinion concurring in part and concurring in the judgment, in which Justices Gorsuch and Barrett joined. Justice Breyer filed an opinion concurring in part and concurring in the judgment.
Thomas Berry, who filed an amicus brief on behalf of petitioners, joins us to discuss the ruling and its implications
Featuring:
Thomas Berry, Research Fellow, Robert A. Levy Center for Constitutional Studies, Cato Institute; Managing Editor, Cato Supreme Court Review
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: Mahanoy Area School District v. B.L. May 04, 2021

On April 28, 2021, the Supreme Court will hear oral argument in Mahanoy Area School District v. B.L., which presents the question whether, under Tinker v. Des Moines Indep. Comm. Sch. Dist., public high schools may discipline students for off-campus speech. B.L. was a high-school sophomore who had tried out unsuccessfully for the varsity cheerleading team, but was selected for the J.V. team instead. Upset, she Snapchatted a photo of herself raising her middle fingers and captioned the photo "F*** school f*** softball f*** cheer f*** everything." The school determined that her Snapchat violated school rules, and removed her from the J.V. team. Her parents sued on her behalf, claiming that the removal violated her First Amendment rights. Both the District Court and the Third Circuit ruled in B.L.'s favor.
Joining us to discuss is Professor Michael Dimino, Professor of Law at Widener University Commonwealth Law School.
Featuring:
Michael Dimino, Professor of Law, Widener University
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: United States v. Palomar-Santiago May 04, 2021

On April 27, 2021, the Supreme Court will hear oral argument in the case of U.S. v. Palomar-Santiago. Defendant Palomar-Santiago lost his permanent resident status in 1991 after a California felony DUI conviction. He was deported and subsequently reentered the country without authorization.
In the meantime, the Ninth Circuit held that felony DUI was not a crime of violence necessitating the deportation of a permanent resident-defendant. Now Palomar-Santiago challenges his current 8 U.S.C. 1326 illegal reentry indictment using Ninth Circuit precedent that his initial removal was fundamentally unfair since the crime underlying his deportation was improperly categorized.
The District Court agreed with Palomar-Santiago and the Ninth Circuit affirmed without addressing the merits of the government’s argument: that the Ninth Circuit's decision redefining felony DUI was wrongly decided.
The Supreme Court will address the question whether a defendant who was removed from the United States is automatically entitled to a defense of invalid removal where the crime underlying his removal is no longer a qualifying removal offense within his circuit.
Featuring:
Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland
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: Americans for Prosperity Foundation v. Becerra May 04, 2021

On April 26, 2021, the Supreme Court will hear oral arguments in the consolidated cases of Americans for Prosperity Foundation v. Becerra and Thomas More Law Center v. Becerra. The Court will address what level of scrutiny is necessary for a government to require the disclosure of donor lists, a disclosure which Petitioners and others argue chills the freedoms of speech and association protected by the First Amendment and is at odds with the holding in NAACP v. Alabama ex rel Patterson.
Joining us to discuss is Erik Jaffe, Partner at Schaerr | Jaffe LLP and the author of an amicus brief in the consolidated cases.
Featuring:
-- Erik Jaffe, Partner at Schaerr | Jaffe LLP

Courthouse Steps Oral Argument Teleforum: HollyFrontier Cheyenne Refining v. Renewable Fuels Association Apr 28, 2021

On April 27, 2021, the Supreme Court will hear oral argument in the case of HollyFrontier Cheyenne Refining v. Renewable Fuels Association.
In this litigation, three refineries are challenging the Tenth Circuit’s ruling, which limits the availability of an EPA hardship exemption under the Renewable Fuel Standard of the Clean Air Act to those small refineries that can show “disproportionate economic hardship” and who have applied for an exemption for all preceding years. While the Tenth Circuit relies on the textual structure of the RFS, the refineries argue the Court’s interpretation belies the purpose of the exemption which Congress stated should be available for application “at any time.”
The Supreme Court takes up a question of statutory interpretation deciding whether a small refinery must not only show “disproportionate economic hardship,” but also receive continuous uninterrupted hardship exemptions to qualify for an additional RFS hardship exemption.
Featuring:
Justin Schwab, Founder, CGCN Law, PLLC
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.

The Antitrust Paradox: A Conversation with Sen. Mike Lee and Robert Bork, Jr. Apr 27, 2021

On April 21, 2021, the Federalist Society's Corporations, Securities, & Antitrust Practice Group hosted a teleforum titled "The Antitrust Paradox: A Conversation with Sen. Mike Lee and Robert Bork, Jr." Judge Robert H. Bork's famous work, The Antitrust Paradox, has been republished so that the new generation of general practitioners and antitrust thinkers alike can bring his work to bear on their own. Senator Mike Lee, who wrote the republished edition's foreword, and Robert Bork, Jr., discussed the book, the present state of antitrust issues, and more.
Featuring:
Robert H. Bork, Jr., President, The Bork Foundation; President, Antitrust Education Project
Sen. Mike Lee, United States Senate, Utah
Moderator: 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 speaker.

Revisiting New York Times v. Sullivan Apr 27, 2021

On April 21, 2021, the Federalist Society's Free Speech & Election Law Practice Group hosted a teleforum titled "Revisiting New York Times v. Sullivan." The Supreme Court’s landmark decision in New York Times v. Sullivan came under scrutiny in a recent dissent by Judge Silberman of the DC Court of Appeals. Noted First Amendment scholars Glenn Reynolds and Floyd Adams weighed in on the discussion addressing whether or not the nearly sixty-year-old case should be revisited, and the impact of First Amendment driven defamation laws in the journalistic context and free public discourse.
Featuring:
Prof. Glenn Reynolds, Beauchamp Brogan Distinguished Professor of Law, University of Tennessee College of Law
Floyd Abrams, Senior Counsel, Cahill Gordon & Reindel LLP
Moderator: Erik Jaffe, Partner, Schaerr Jaffe LLP
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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 speaker.

Litigation Update: Ohio v. Yellen Apr 27, 2021

In mid-March 2021, the state of Ohio's attorney general filed suit against Janet Yellen and the U.S. Department of the Treasury, challenging a provision of the American Rescue Plan Act that involves federal and state tax policies. Benjamin Flowers, Ohio's solicitor general, joins us to give a litigation update, review the background of the case, and more.
Featuring:
-- Benjamin Flowers, Solicitor General, Ohio
-- Moderator: Dean Reuter, Vice President, General Counsel, and Director of Practice Groups, The Federalist Society

Courthouse Steps Oral Argument Teleforum: Minerva Surgical Inc. v. Hologic Inc. Apr 27, 2021

On April 21, 2021, the Supreme Court hears oral arguments in Minerva Surgical Inc. v. Hologic Inc. The case involves the issue of whether a defendant in a patent infringement action who assigned the patent, or is in privity with an assignor of the patent, may have a defense of invalidity heard on the merits.
Supreme Court practice expert Daniel Ortiz joins us to discuss the case and review the oral arguments.
Featuring:
Prof. Daniel Ortiz, Michael J. and Jane R. Horvitz Distinguished Professor of Law and Director, Supreme Court Litigation Clinic, University of Virginia School of Law

Courthouse Steps Decision Webinar: AMG Capital Management v. FTC Apr 26, 2021

On April 22, 2021, the Supreme Court decided AMG Capital Management, LLC v. Federal Trade Commission. Writing for the unanimous Court, Justice Breyer explained how Section 13(b) of the Federal Trade Commission Act does not authorize the FTC to seek, or a court to award, monetary relief such as restitution or disgorgement.
A panel of experts will discuss the ruling and its implications.
Featuring:
-- Alden Abbott, Senior Research Fellow, Mercatus Center, George Mason University; former General Counsel, Federal Trade Commission
-- Corbin Barthold, Director of Appellate Litigation, TechFreedom
-- Hon. Maureen Ohlhausen, Partner, Baker Botts; former Commissioner, Federal Trade Commission
-- Moderator: Asheesh Agarwal, Deputy General Counsel, TechFreedom

International Corruption and the Venezuela Indictments: The Case of Alex Saab Apr 26, 2021

One year ago, the United States Department of Justice announced a series of indictments against major figures of the Venezuelan regime lead by Nicolas Maduro, including of Mr. Maduro himself. One significant case involves a Colombian businessman, Alex Saab, who has been described in the press as “Maduro’s financier.” Just two weeks ago, a court in Cape Verde, West Africa, ordered Mr. Saab to be extradited to the United States, just as another regional court ordered that he be freed. He has resisted extradition based on an appointment by the Venezuelan government as a “diplomat” on a “humanitarian mission” to Iran.
This Teleforum will give listeners an update on where these cases stand as well as background on the nuances of prosecuting them. The speakers include Ryan Berg, a regional specialist at the American Enterprise Institute, and Michael Nadler, a partner with the firm SFS Law in Miami, Florida, and former Assistant United States Attorney in the Southern District of Florida and who served as lead counsel in the cases against Mr. Saab as well as other Maduro-regime figures.
Featuring:
-- Ryan Berg, Research Fellow, American Enterprise Institute
-- Michael B. Nadler, Partner, SFS Law
-- Moderator: Harout Samra, Of Counsel, DLA Piper

Transgender Policy in the Biden Administration Apr 26, 2021

The national conversation over transgender students’ inclusion in student athletics and school facilities has received unparalleled levels of attention in the past weeks. Some transgender advocates argue affording equal rights to transgender students requires forcing public schools to allow transgender students access to the sports team, the locker room, and the bathroom that matches the gender the trans student identifies with. Others oppose such mandatory access, arguing that treating transgender boys who identify as girls the same as biological girls undermines hard-fought women’s gains in developing women’s sports and safety-protections.
Join us for a discussion between Shannon Minter, transgender rights advocate and Legal Director of the National Center for Lesbian Rights, and Lauren Adams, noted feminist advocate and Legal Counsel at Women’s Liberation Front.
Featuring:
Shannon Minter, Legal Director, National Center for Lesbian Rights
Lauren Adams, Legal Counsel, Women's Liberation Front
Moderator: Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law
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This event is open to Federalist Society Members. Register at the link above.

Courthouse Steps Oral Argument: Yellen v. Confederated Tribes of the Chehalis Reservation Apr 23, 2021

On April 19, 2021, the Supreme Court will hear oral argument in Yellen v. Confederated Tribes of the Chehalis Reservation and the consolidated case of Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation. In these cases, the Court has the opportunity to consider whether certain Alaskan villages and corporations fall within the definition of “Indian tribes” for purposes of the Coronavirus Relief Fund.
Featuring:
Anthony J. Ferate, Of Counsel, Spencer Fane LLP
Jennifer Weddle, Shareholder, GreenbergTraurig
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: United States v. Gary Apr 23, 2021

On April 20, 2021, the Supreme Court will hear oral argument in the case of United States v. Gary. In this case, defendant Gary pled guilty in federal court to two counts of possession of a firearm as a convicted felon in violation of 18 U.S.C. 922(g)(1) and 924(a)(2) then appealed his sentence.
During the interim following his appeal, the Supreme Court decided Rehaif v. United States and held that for conviction under 922(g)(1) and 924(a)(2), the United States must prove both (1) knowing possession of the firearm and (2) knowledge of felon-status. Gary supplemented his appeal with the Rehaif decision, arguing he had not been informed of the knowing-felon-status element of the crime when he pled guilty.
The Ninth Circuit found the district court’s omission of the knowing-felon-status element was plain error, vacated Gary’s conviction, and remanded even though Gary did not show he would not have taken the plea but for the district court’s omission.
The Supreme Court will decide whether Gary is automatically entitled to the relief awarded by the Ninth Circuit even where Gary does not attempt to show prejudice caused by the district court’s failure to inform Gary on the knowing-felon-status element.
Featuring:
-- Robert Leider, Assistant Professor of Law, Antonin Scalia Law School, George Mason University

Courthouse Steps Oral Argument: City of San Antonio, Texas v. Hotels.com Apr 23, 2021

On April 21, 2021, the Supreme Court will hear oral argument in the case of City of San Antonio, Texas v. Hotels.com. In this case, the Court granted certiorari on the question whether the Fifth Circuit alone among all its sister circuits correctly held that District Courts have no discretion to deny or reduce appellate costs deemed taxable under Federal Rule of Appellate Procedure 39(e).
Featuring:
-- Dean Charles Campbell, Associate Professor of Law, Interim Dean, Faulkner University, Jones School of Law

Courthouse Steps Oral Argument: Sanchez v. Mayorkas Apr 22, 2021

On April 19, 2021, the Supreme Court will hear oral argument in the case of Sanchez v. Mayorkas. The Court will decide whether a grant of Temporary Protected Status (TPS) under the Immigration and Nationality Act satisfies the “admission” requirement laid out in section 1255(a) necessary for a grant of Legal Permanent Resident (LPR) status. In taking this case, the Court has the chance to resolve a circuit split: given the recent Third Circuit decision underlying this petition for cert, both the Third and Eleventh Circuits do not allow TPS admission to qualify for LPR admission, while the Sixth and Ninth Circuits allow LPR admission to qualify for TPS status.
Featuring:
Hon. Grover Joseph Rees, Writer, Advocate, and Former United States Ambassador to East Timor
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 Webinar: Google v. Oracle Apr 21, 2021

On April 5, 2021, the U.S. Supreme Court decided Google v. Oracle. In a 6-2 decision, Justice Stephen Breyer wrote that Google's use of a Java program constituted "fair use" under federal copyright law. Justice Thomas filed a dissenting opinion, which Justice Alito joined. Justice Barrett took no part in the consideration or decision of the case.
A panel of experts joined us to discuss the case, their differing views on the ruling, and its implications for copyright and intellectual property law.
Featuring:
--Prof. Michael Risch, Vice Dean and Professor of Law, Villanova University Charles Widger School of Law
--Prof. Zvi Rosen, Assistant Professor, Southern Illinois University School of Law
--Moderator: Prof. Sandra Aistars, Clinical Professor, Senior Scholar and Director of Copyright Research and Policy, Antonin Scalia Law School, George Mason University

Would a Wealth Tax Pass Constitutional Muster? Apr 21, 2021

Always on the lookout for new sources of federal revenue, some lawmakers are now drawn to the prospect of taxing wealth. In 2020, Sen. Sanders proposed a “Make Billionaires Pay Act,” described briefly here. In her Presidential campaign, Sen. Warren also proposed a tax on wealth. Now as a member of the Senate Finance Committee, Sen. Warren, along with Sen. Sanders and others, have proposed an “Ultra-Millionaire Tax.”
Because Article I, Section 2, Clause 3 of the Constitution requires that “direct taxes shall be apportioned among the several States,” it took the 16th Amendment, passed by Congress in 1909 and ratified in 1913, to enable Congress to tax incomes. Does the Constitution permit Congress to tax wealth? With co-author Prof. John R. Brooks, Prof. David Gamage wrote Why A Wealth Tax Is Definitely Constitutional. In The Warren Wealth Tax: A Response To Professor Bruce Ackerman, Prof. Jonathan Turley lays out some of the arguments to the contrary.
In this virtual discussion, Profs. Turley and Gamage will discuss the constitutional issues wealth tax proposals present.
Featuring:
-- Prof. Jonathan R. Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law, The George Washington University Law School
-- Prof. David Gamage, Professor of Law, Maurer School of Law
-- Interlocutor: Robert Carney, Senior Counsel, Caplin & Drysdale
-- Moderator: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC

Original Meaning or Framers' Intent? A New Book and an Age-Old Debate Apr 19, 2021

In his new book, The Hollow Core of Constitutional Theory: Why We Need the Framers, historian Donald Drakeman argues that in order to properly interpret the Constitution, one must consider the will of the lawmakers—in this case, those founding fathers who framed the charter—and, more specifically, their decisions about both the ends and the means of the provisions they designed. In the face of ascendant "public meaning" originalism, this book seeks to revive the importance of the framers' intent in constitutional theory and interpretation.
Joining Mr. Drakeman to review his new book are two distinguished constitutional theorists, Professors Lawrence Solum of the University of Virginia and Keith Whittington of Princeton. All three will offer their views on the matters at hand in a discussion moderated by Judge Britt Grant of the 11th Circuit Court of Appeals.
Featuring:
Donald L. Drakeman, Distinguished Research Professor, Program in Constitutional Studies, University of Notre Dame
Prof. Lawrence B. Solum, William L. Matheson and Robert M. Morgenthau Distinguished Professor of Law, University of Virginia School of Law
Prof. Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University
Moderator: Hon. Britt C. Grant, U.S. Court of Appeals for the Eleventh Circuit
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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 speaker.

Courthouse Steps Decision Teleforum: Florida v. Georgia Apr 19, 2021

On April 1, the Supreme Court ruled on an original jurisdiction dispute in Florida v. Georgia. Justice Barrett authored the Court's unanimous decision, holding that Florida did not prove by clear and convincing evidence that the collapse of Florida’s downstream oyster fisheries was caused by Georgia’s alleged overconsumption of water from the Apalachicola-Chattahoochee-Flint River Basin. The Court found that other factors besides Georgia’s upstream water consumption contributed to the collapse including overharvesting, a severe drought, and changing rainfall, so Florida could not successfully establish causation. Ultimately, the Court agreed with the report of the Special Master and took his recommendation to dismiss the case.
Featuring:
Tony 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.

Courthouse Steps Decision Teleforum: Facebook v. Duguid Apr 14, 2021

On April 1, 2021, the U.S. Supreme Court ruled in favor of Facebook in Facebook v. Duguid. Writing for the unanimous court, Justice Sonia Sotomayor explained that a device must have the capacity to store or produce a telephone number using a number generator. Justice Samuel Alito filed an opinion concurring in the judgment.
Telecommunications law experts Scott Delacourt and Daniel Lyons discuss the ruling and implications.
Featuring:
-- Scott D. Delacourt, Partner, Wiley
-- Prof. Daniel Lyons, Professor of Law, Boston College School of Law
-- Moderator: Danielle Thumann, Attorney Advisor, FCC Commissioner Brendan Carr

Courthouse Steps Decision Webinar: FCC v. Prometheus Radio Project Apr 13, 2021

On April 1, 2021, the U.S. Supreme Court decided Federal Communications Commission v. Prometheus Radio Project. Writing for the unanimous court, Justice Kavanaugh explained that the FCC's 2017 decision to modify its media-ownership rules was not arbitrary or capricious under the Administrative Procedure Act.
The distinguished panel that joined us to discuss oral arguments is returning to discuss the ruling and its implications.
Featuring:
Ms. Jane E. Mago, Consultant in Media Policy and Law; former General Counsel, Federal Communications Commission
Hon. Michael O'Rielly, Visiting Fellow, Hudson Institute; former Commissioner, Federal Communications Commission
Mr. Christopher J. Wright, Partner, Harris, Wiltshire & Grannis; former General Counsel, Federal Communications Commission
Moderator: Mr. Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal and Economic Public Policy Studies; Executive Committee Member, Federalist Society's Telecommunications & Electronic Media Practice Group
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This Zoom panel is open to public registration. See the above link.

A Discussion of ABA Model Rule 8.4(g) Apr 09, 2021

American Bar Association Model Rule 8.4(g) defines professional misconduct in relevant part as “conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Because the 8.4(g) professional misconduct definition is broad and applies to a wide swath of undefined activity, the model rule has prompted spirited debate in light of the serious competing interests implicated.
Join us for a discussion of contrasting views from Professor Josh Blackman and Mr. Robert Weiner.
Featuring:
-- Josh Blackman, Professor of Law, South Texas College of Law Houston
-- Robert Weiner, Partner, Arnold & Porter Kaye Scholer LLP
-- Moderator: Kim Colby, Director of the Center of Law and Religious Freedom, Christian Legal Society

Courthouse Steps Decision Teleforum: Ford Motor Company v. Montana Eighth Judicial Dist. Court Apr 09, 2021

On Thursday, March 25, 2021, the Supreme Court issued its decision in Ford Motor Company v. Montana Eighth Judicial Dist. Court and the consolidated case of Ford Motor Company v. Bandemer. The case turned on specific personal jurisdiction, the type of contacts required by the Fourteenth Amendment to satisfy Due Process, and the Court’s precedent in International Shoe Co. v. Washington, which sets the standards required for an out-of-state defendant to be constitutionally called into a foreign state court.
In this case, two plaintiffs sued Ford alleging product liability causes of action resulting from death and serious injury that occurred during accidents allegedly caused by product defects. Markkaya Gullett died and Adam Bandamer was seriously injured. The pair of wrongful death and serious bodily injury product liability claims were brought separately in the states where the death and the injury respectively took place: Montana and Minnesota.
Ford Motor Co., as an out of state defendant incorporated in Delaware and headquartered in Michigan, argued in both cases that insufficient contacts connected Ford to the two forum states so neither the Montana nor the Michigan state court could constitutionally exercise specific personal jurisdiction over Ford. Both state court cases were heard by their state Supreme Courts and both times, the Supreme Courts ruled against Ford holding Ford was properly subject to personal jurisdiction in their state judicial system.
Ford appealed both state Supreme Court decisions on the constitutional Due Process question. In an 8-0 decision, the Supreme Court ruled against Ford holding that Ford’s contacts with both forum states were sufficiently extensive and connected to the subject matter of each suit that an exercise of personal jurisdiction could satisfy Due Process and was reasonable and fair in line with International Shoe.
Featuring:
-- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
-- Jaime A. Santos, Partner, Goodwin Procter LLP

Nation-State Cybercrime: Perspectives on the Problem and Response with Two Former DOJ National Security Officials Apr 07, 2021

Recent cyber attacks by the Russian and Chinese governments involving SolarWinds and Microsoft exposed cyber-related vulnerabilities in the supply chains of many large and small companies that rely on SolarWinds and Microsoft for their internal security and IT services, which also experienced security breaches as a result of these attacks. Two former DOJ National Security officials from the Obama and Trump administrations will discuss the impact of these attacks, possible criminal and non-criminal responses, and pros and cons of each approach.
Featuring:
-- Kellen Dwyer, Adjunct Professor of Law, Antonin Scalia Law School, Former Deputy Assistant Attorney General, National Security Division
-- Alex Iftimie, Partner and Co-Chair, Global Risk & Crisis Management Practice, Morrison & Foerster LLP, former Deputy Chief of Staff and Counsel to the Assistant Attorney General, National Security Division
-- Moderator: Brian Lichter, Senior Director - Legal, Global Investigations & Cybersecurity Counsel, Cognizant Technology Solutions

Courthouse Steps Decision Teleforum: Brownback v. King Apr 05, 2021

In Brownback v. King, the Court addressed the Federal Tort Claims Act, (FTCA) which waives Federal sovereign immunity to allow plaintiffs to sue the United States for certain torts committed by Federal employees. The FTCA includes a judgment bar which precludes a plaintiff from suing a federal employee on a cause of action arising from the same subject matter as his FTCA claim.
Following a violent encounter with two undercover FBI agents, King sued alleging an FTCA cause of action and an implied Bivens claim. The District Court dismissed both claims. Then the Sixth Circuit reversed, finding the District Court’s dismissal of King’s FTCA claims did not invoke the FTCA judgment bar because it had not reached the merits so King’s Bivens claim should be able to go forward.
In a 9-0 opinion written by Justice Thomas, the Court reversed the Sixth Circuit holding the District Court’s decision reached the merits and implicated the FTCA judgment bar.
Featuring:
-- Roman Martinez, Partner, Latham & Watkins LLP
-- Patrick Jaicomo, Attorney, Institute for Justice

Litigation Update: Jack Phillips and Masterpiece Cakeshop Apr 05, 2021

Jack Phillips, of Masterpiece Cakeshop fame, is back in court for the third time since the Supreme Court’s 2017 decision. Phillips has most recently been sued in Colorado state court by Autumn Scardina, a transgender attorney who requested Phillips create a transgender transition cake. When Phillips declined, Scardina filed a complaint with the Colorado Civil Rights Commission. After being sued in Federal Court, Scardina dropped the CRC complaint then sued Phillips in state court, alleging discrimination and false advertising under Colorado state law. The false advertising claim was dismissed; trial on the remaining discrimination claim began on March 22, 2021 and a decision is expected soon.
Joining us to discuss the complicated litigation is Mark Trammell, General Counsel, Center for American Liberty.
Featuring:
Mark Trammell, General Counsel, Center for American 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: NCAA v. Alston Apr 02, 2021

On March 31, 2021, the Supreme Court hears oral arguments in the case of NCAA v. Alston. This case addresses a Ninth Circuit decision holding that the National Collegiate Athletic Association eligibility rules regarding compensation of student-athletes violate federal antitrust law. The Court is expected to review the decision according to circuit splits and general antitrust principles.
Joshua Wright, a former commissioner at the Federal Trade Commission, joins us to discuss the case, oral arguments, and implications.
Featuring:
-- Hon. Joshua D. Wright, University Professor and Executive Director, Global Antitrust Institute, Antonin Scalia Law School, George Mason University

Courthouse Steps Oral Argument: Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System Apr 01, 2021

On March 29, 2021, the Supreme Court will hear oral argument in the case of Goldman Sachs Group Inc. v. Arkansas Teacher Retirement System. The case turns on class action issues and the 1988 Supreme Court case Basic Inc. v. Levinson. In Goldman Sachs, the Court will address whether a class action defendant in a case alleging securities fraud may rebut a presumption of class-wide reliance on an alleged misstatement by pointing to the generic nature of the statement and if so, whether that defendant ultimately bears the burden of production or the burden of persuasion.
Featuring:
Ted Frank, Director, Center for Class Action Fairness, Hamilton Lincoln Law Institute
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: TransUnion LLC v. Ramirez Mar 31, 2021

On March 30, 2021, the Supreme Court will hear oral argument in the case of TransUnion LLC v. Ramirez. In this case, the Court will address the type of injury required by Rule 23 of the Federal Rules of Civil Procedure and Article III of the U.S. Constitution for a class of plaintiffs to sue where the injury alleged by the class representative is different (and arguably greater) than the injury alleged by the remaining class members.
Featuring:
-- Ted Frank, Director, Center for Class Action Fairness, Hamilton Lincoln Law Institute

Doctrine Briefing: The Ministerial Exception Mar 31, 2021

In Our Lady of Guadalupe v. Morrissey-Berru (2020), the Supreme Court expanded on the ministerial exception doctrine it outlined in an earlier case, Hosanna-Tabor v. EEOC (2012). The doctrine holds that federal nondiscrimination laws do not apply to religious organizations in their decisions to hire and fire their “ministers.” It is an increasingly relevant rule in First Amendment jurisprudence, one that deserves careful attention and understanding, especially as there are many outstanding questions left by Our Lady that are already being litigated. Joining us to explain the doctrine, and discuss its history and future, is Jones Day attorney Victoria Dorfman, who represented a distinguished group of law professors in an amicus brief in support of Our Lady of Guadalupe School.
Featuring:
-- Victoria Dorfman, Partner, Jones Day

Courthouse Steps Decision Teleforum: Torres v. Madrid Mar 30, 2021

On Thursday, March 25, the Supreme Court issued its decision in Torres v. Madrid. The case came before the court on a section 1983 claim filed by Roxanne Torres against two New Mexico police officers who were attempting to execute a warrant for her arrest. During the attempted arrest, Torres fled from the officers, who fired thirteen times after her fleeing car. Torres was hit twice and argued in her 1983 claim that those shots were an unreasonable seizure which violated her Fourth Amendment rights. The officers argued no seizure took place because Torres did not submit to the exerted force so there could be no Fourth Amendment claim.
In a 5-3 decision, over the dissent of Justices Gorsuch, Thomas, and Alito, the Supreme Court sided with Torres finding that a seizure for purposes of the Fourth Amendment does take place where a police officer intentionally exerts force upon the person of another even where that person does not submit to the force exerted and even where the force is exerted from a distance.
Featuring:
Kent Scheidegger, Legal Director and 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 Oral Argument: Caniglia v. Strom Mar 29, 2021

In Caniglia v. Strom, the U.S. Supreme Court will decide whether the community-caretaking exception to the Fourth Amendment’s warrant requirement extends to the home. The general rule under the Fourth Amendment is that before police perform a search or seizure they must obtain a warrant. The community-caretaking exception, by contrast, allows police to search and seize without a warrant when engaged in community-caretaking activities that are entirely unrelated to the enforcement of criminal statutes.
The Supreme Court first created the community-caretaking exception in a case called Cady v. Dombrowski, which involved a crashed car that police towed to a private garage and then searched without first obtaining a warrant. The Court’s decision upholding the officers’ actions noted the differences between homes and vehicles, including that car accidents on public thoroughfares are a “nuisance” requiring officers’ immediate attention.
The First Circuit in Caniglia extended the community-caretaking exception to the home. Edward and Kim Caniglia, a married couple, had a disagreement one night in their Rhode Island abode. After Mr. Caniglia retrieved his unloaded handgun and asked “why don’t you just shoot me and get me out of my misery?” Mrs. Caniglia left and spent the night in a motel.
The next morning, Mrs. Caniglia had the police escort her home. The police believed Mr. Caniglia could be a threat to himself, so they wanted to take him to a hospital for a psychiatric evaluation. Mr. Caniglia agreed to go based on the officers’ promise that they would not take his handguns while he was gone. But once Mr. Caniglia was admitted to the hospital, the officers entered the home without a warrant and seized his guns, claiming the community-caretaking exception justified their actions. And the First Circuit agreed.
Now, the Supreme Court is poised to address, for the first time, whether this community-caretaking exception to the warrant requirement can be applied to searches and seizures within the home. The Supreme Court accepted the case on November 20, 2020 and will hear oral arguments on March 24, 2021.Featuring:
Robert Frommer, Senior Attorney, Institute for Justice
Matt Cavedon, Assistant Public Defender, Northeastern Judicial Circuit
Dial 888-752-3232 to access the call.

When the Government Changes Sides in Ongoing Litigation Mar 26, 2021

On March 26, 2021, the Federalist Society's Federalism & Separation of Powers Practice Group hosted a webinar panel to discuss "When the Government Changes Sides in Ongoing Litigation."
In the early months of the Biden Administration, the US Solicitor General's Office (OSG) has switched the federal government's position in several high-profile cases and withdrawn from other cases. While some may think the moves are politically motivated, there are legal reasons OSG switches its position between presidential administrations. Some believe, however, that OSG risks undermining the rule of law when it makes such decisions.
Are we seeing an increase in altered litigation positions following administration change, or have the recent administrations’ decisions been consistent with prior practice? What are the appropriate factors to consider? What are some important such cases in the current and previous administrations, and are the decisions to switch sides or end those cases defensible? How should courts treat the switches?
Featuring:
-- Beth Brinkmann, Partner, Covington & Burling LLP; former Deputy Assistant Attorney General, Civil Division and Assistant to the Solicitor General, Department of Justice
-- Gene P. Hamilton, former Counselor to the Attorney General, Department of Justice
-- Hashim M. Mooppan, former Deputy Assistant Attorney General, Civil Appellate and Counselor to the Solicitor General, Department of Justice
-- Moderator: Hon. Beth A. Williams, former Assistant Attorney General, Office of Legal Policy, Department of Justice

Book Review: Unshackled: Freeing America's K-12 Education System Mar 26, 2021

Education policy has long been a bi-partisan priority, and education has played a significant role in the development of constitutional law—from First to Fourteenth Amendment—over the past century. During the COVID-19 pandemic, debates about the structure of the public school system and the parental right to choose private or home schooling have come to a head.
This program will focus on the debate over reform and school choice through the lens of a new book, Unshackled: Freeing America's K-12 Education System. Co-authors Clint Bolick and Kate
Featuring:
-- Hon. Clint Bolick, Supreme Court of Arizona
-- Kate Hardiman, William H. Rehnquist Fellow, Cooper & Kirk PLLC
-- Moderator: Prof. Nicole Stelle Garnett, John P. Murphy Foundation Professor of Law, University of Notre Dame Law School

Debate: The Outer Reaches of the Unitary Executive Theory and the Termination of EEOC General Counsel Sharon Gustafson Mar 26, 2021

This teleforum will include a discussion about the Unitary Executive Theory, its judicial and legislative history, and its applicability to the President’s recent termination of EEOC General Counsel Sharon Gustafson. Ms. Gustafson will share her thoughts regarding her duties at the EEOC and the challenges for any individual performing such duties. The panelists will debate and discuss the authority of the President to exercise “at-will” termination authority over Senate-confirmed individuals serving on 'independent' boards and commissions.
Featuring:
-- Hon. W. Neil Eggleston, Partner, Kirkland & Ellis LLP
-- Hon. Sharon Fast Gustafson, Former General Counsel, United States Equal Employment Opportunity Commission
-- G. Roger King, Senior Labor and Employment Counsel, HR Policy Association

Courthouse Steps Oral Argument: United States v. Cooley Mar 25, 2021

On March 23, 2021, the Supreme Court will hear oral argument in United States v. Cooley. The Court will address whether the Ninth Circuit erred in upholding the suppression of evidence obtained when an Indian tribe police officer temporarily detained a non-Indian crossing a reservation on a public right of way and discovered evidence of federal crime during the stop. Defendant Cooley argues the evidence should be suppressed because the officer’s stop and search exceeded the scope of jurisdiction permitted by the Indian Civil Rights Act of 1968.
Joining us to discuss the Oral Argument is Anthony J. Ferate, Of Counsel at Spencer Fane LLP.
Featuring:
Anthony J. Ferate, Of Counsel at Spencer Fane 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.

ICT Supply Chain Security: A Panel Discussion Mar 24, 2021

On February 24, 2021, President Biden signed an executive order (EO) on a whole-of-government strategy to secure supply chains for critical and essential goods. The EO institutes a parallel examination of supply chain vulnerabilities: (1) a 100-day review of four key industries, including semiconductors and (2) a one-year review of a broader range of industries, including information and communications technology (ICT). At the same time, the Biden Administration did not withdraw the ICT supply chain security rule from the Trump Administration that is scheduled to go into effect March 22. Citing security benefits to the ICT supply chain, the Acting Chairwoman of the FCC has teed up a Notice of Inquiry on Open Radio Access Networks (ORAN) for the FCC’s March 17 meeting. The Commerce Department’s National Telecommunication and Information Administration has launched its own Notice of Inquiry on 5G Open Stack Challenge on behalf of the Department of Defense.
What do these actions mean for the ICT sector, and the semiconductor industry particularly? Will ORAN result in more secure and trusted 5G networks? Will it be adopted due to perceived long-term cost savings and operational benefits, or will government mandate its adoption? If the ICT supply chain rule goes into effect this month, will there be enough semiconductors to power 5G? Join us for a panel of informed experts to discuss these critical issues.
Featuring:
-- Maryam Khan Cope, Director, Government Affairs, Semiconductor Industry Association
-- Kelsey Guyselman, Deputy Policy Director, U.S. Senate Committee on Commerce, Science & Transportation
-- Hon. John Kneuer, President and Founder, JKC Consulting LLC; former Assistant Secretary of Commerce for Communications and Information, U.S. Department of Commerce
-- Gregory Watson, Policy Advisor, Hon. Brendan Carr, Federal Communications Commission
-- Moderator: Patricia Paoletta, Partner, Harris, Wiltshire & Grannis LLP

ICT Supply Chain Security: A Panel Discussion Mar 24, 2021

On February 24, 2021, President Biden signed an executive order (EO) on a whole-of-government strategy to secure supply chains for critical and essential goods. The EO institutes a parallel examination of supply chain vulnerabilities: (1) a 100-day review of four key industries, including semiconductors and (2) a one-year review of a broader range of industries, including information and communications technology (ICT). At the same time, the Biden Administration did not withdraw the ICT supply chain security rule from the Trump Administration that is scheduled to go into effect March 22. Citing security benefits to the ICT supply chain, the Acting Chairwoman of the FCC has teed up a Notice of Inquiry on Open Radio Access Networks (ORAN) for the FCC’s March 17 meeting. The Commerce Department’s National Telecommunication and Information Administration has launched its own Notice of Inquiry on 5G Open Stack Challenge on behalf of the Department of Defense.
What do these actions mean for the ICT sector, and the semiconductor industry particularly? Will ORAN result in more secure and trusted 5G networks? Will it be adopted due to perceived long-term cost savings and operational benefits, or will government mandate its adoption? If the ICT supply chain rule goes into effect this month, will there be enough semiconductors to power 5G? Join us for a panel of informed experts to discuss these critical issues.
Register here to attend live
Featuring:
Maryam Khan Cope, Director, Government Affairs, Semiconductor Industry Association
Kelsey Guyselman, Deputy Policy Director, U.S. Senate Committee on Commerce, Science & Transportation
Hon. John Kneuer, President and Founder, JKC Consulting LLC; former Assistant Secretary of Commerce for Communications and Information, U.S. Department of Commerce
Gregory Watson, Policy Advisor, Hon. Brendan Carr, Federal Communications Commission
Moderator: Patricia Paoletta, Partner, Harris, Wiltshire & Grannis LLP
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This Zoom panel is open to public registration. See the above link.

Courthouse Steps Oral Argument: Cedar Point Nursery v. Hassid Mar 24, 2021

In Cedar Point Nursery v. Hassid, the Supreme Court will decide whether a California “Access Regulation” violates the Takings Clause of the Fifth Amendment. The Access Regulation allows union organizers to enter the private property of agricultural employers in the state for three hours per day, 120 days per year, for the purposes of soliciting employees to join the union.
Petitioners Cedar Point Nursery and Fowler Packing Company, Inc., are California agricultural employers subject to the Access Regulation. In 2015, union organizers came onto the property of Cedar Point Nursery, a strawberry plant harvester near the Oregon border. The same year, union organizers filed an unfair labor practices charge against Fowler Packing, a citrus and table grape grower, alleging that Fowler denied access to union organizers seeking to enter their property. Petitioners contend that the Access Regulation constitutes a per se taking by appropriating an easement for the benefit of third party union organizers. Petitioners add that, because there is no mechanism for providing just compensation to Petitioners, the Access Regulation violates the Takings Clause.Respondents are members of the Agricultural Labor Relations Board. They argue that per se taking analysis is inappropriate because of time, place, and manner limitations contained in the Access Regulation. They urge the Court to analyze the Access Regulation under the multi-factor balancing test invoked in cases involving regulatory takings.In 1979, a divided California Supreme Court rejected a takings claim brought by other California growers shortly after the Access Regulation went into effect. Petitioners in this case brought this case in federal court. A divided Ninth Circuit affirmed a district court’s decision rejecting Petitioners’ Fifth Amendment claim, and Petitioners’ petition for rehearing en banc was denied over the dissent of eight judges. The Supreme Court accepted the case in November 2020, and will hear oral arguments on March 22, 2021.
Featuring:
Wen Fa, Attorney, Pacific Legal Foundation
Dial 888-752-3232 to access the call.

Courthouse Steps Decision Teleforum: Federal Republic of Germany v. Philipp Mar 24, 2021

On February 3, 2021, the Supreme Court unanimously decided Federal Republic of Germany v. Philipp and Republic of Hungary v. Simon.
The plaintiffs in Federal Republic of Germany are heirs of German Jewish art collectors who purchased a collection of medieval relics termed the Welfenschatz. As the Third Reich took control of Germany and began assimilating the great cultural achievements of the West, the Nazis government bought the Welfenschatz for one third of its value. Following World War II, the Welfenschatz changed hands, ultimately landing in a Berlin museum owned by the Federal Republic of Germany and maintained by the Stiftung Preussischer Kulturbesitz (SPK).
After unsuccessfully seeking compensation from Germany, the heirs to the original owners brought common law property claims against Germany and SPK in United States District Court. Generally, the Foreign Sovereign Immunities Act (FSIA) would bar such a suit; Germany argued that the possibly applicable exception for “property taken in violation of international law” did not apply to domestic takings where a government takes the property of its own citizens. The heirs argued Germany’s coerced taking was an act of genocide bringing their suit within the exception since genocide violates international human rights law.
The Court relied on the long established history of international law to determine the phrase “property taken in violation of international law,” refers specifically to the law of expropriation, which includes the domestic taking rule. Violations of international human rights law do not fall within the phrase, so Germany retains sovereign immunity under FSIA and the heirs cannot recover in U.S. Courts. Relying on Federal Republic of Germany, the Court issued a per curiam decision in Republic of Hungary, directing the United States Court of Appeals for the D.C. Circuit to decide the case in light of its ruling in Federal Republic of Germany.
Featuring:
-- Professor Alberto R. Coll, Vincent de Paul Professor of Law and Director of Global Engagement, DePaul College of Law

Ricky Vaughn's Prosecution and the First Amendment Mar 18, 2021

The DOJ has charged Douglas Mackey, aka Ricky Vaughn, with conspiracy “to injure, oppress, threaten, or intimidate” people in the exercise of their constitutional rights. His crime? Using his social media platform in the months leading up to November 2016 to post memes about the Presidential election, including ones that – if taken literally – falsely state that people could vote for Hillary just by posting on Twitter and Facebook. Are such prosecutions consistent with the First Amendment? Are they authorized by federal law? Joining us to discuss is Professor Eugene Volokh, noted First Amendment scholar and the Gary T. Schwartz, Professor of Law at the UCLA School of Law, who recently wrote on the subject.
Featuring:
Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
Dial 888-752-3232 to access the call.

Courthouse Steps Decision Teleforum: Uzuegbunam v. Preczewski Mar 12, 2021

On March 8, 2021, the U.S. Supreme Court decided Uzuegbunam v. Preczewski. Writing for the 8-justice majority, Justice Clarence Thomas explained that a completed violation of a legal right does in fact satisfy the redressability element necessary for Article III standing. Justice Kavanaugh filed a concurring opinion, while Chief Justice Roberts filed a dissenting opinion.
John Bursch, head appellate litigator at Alliance Defending Freedom, the firm that represented petitioner Chike Uzuegbunam, joins us to discuss the case, ruling, and implications for religious liberty, free speech law, and more.
Featuring:
John Bursch, Senior Counsel and Vice President of Appellate Advocacy, Alliance Defending Freedom
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This Teleforum is open to the public and press. Dial 888-752-3232 to access the call.

Litigation Update: Apache Stronghold v. United States Mar 12, 2021

Apache Stronghold v. United States is an ongoing case involving religious land use. On February 18, 2021, a federal judge allowed the government's plans to swap a portion of Tonto National Forest for land owned by Resolution Copper. Inside the National Forest land is Oak Flat, a Native American sacred site.
Apache Stronghold, a nonprofit organization that defends these sites, and the Becket Fund for Religious Liberty are challenging the judge's preliminary injunction at the Ninth Circuit Court of Appeals.
First Amendment expert Stephanie Barclay, co-author of the recent Harvard Law Review article "Rethinking Protections for Indigenous Sacred Sites," and A.J. Ferate, formerly Vice President of Regulatory Affairs for the Oklahoma Independent Petroleum Association, will give an update on this case and discuss legal implications.
Featuring:
Prof. Stephanie Barclay, Associate Professor of Law and Director, Religious Liberty Initiative, University of Notre Dame Law School
Anthony J. Ferate, Of Counsel, Spencer Fane LLP
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This call is open to the public and press. Dial 888-752-3232 to access.

Courthouse Steps Decision Teleforum: U.S. Fish and Wildlife Service v. Sierra Club Mar 10, 2021

In this case, Sierra Club, Inc. submitted a FOIA request to the U.S. Fish and Wildlife Service requesting biological impact reports that were made in consultation with the Environmental Protection Agency. The EPA had planned to construct “cooling water intake structures” and in compliance with the Clean Water Act consulted with U.S. Fish and Wildlife on the question of biological impact. Citing FOIA Exemption 5, the deliberative process privilege, Fish and Wildlife withheld the draft reports. Sierra Club sued and both the District Court and Ninth Circuit sided with Sierra Club, holding to varying degrees that the deliberative process privilege did not cover the requested reports. In Justice Barrett’s first majority opinion and by a 7-2 margin, the Supreme Court overruled the Ninth Circuit’s decision finding that the deliberative process exemption covers “predecisional and deliberative” documents and so protects the draft biological impact reports from FOIA disclosure.
Featuring:
-- Nancie Marzulla, Partner, Marzulla Law
-- Damien Schiff, Senior Attorney, Pacific Legal Foundation

Courthouse Steps Decision Teleforum: Pereida v. Wilkinson Mar 09, 2021

In Pereida v. Wilkinson, the Supreme Court held 5-3 that an individual seeking relief from a lawful removal order under the Immigration and Nationality Act (INA) must “shoulder [the] heavy burden” of proving every element of eligibility for relief including the absence of a conviction for a crime of moral turpitude. Clemente Avelino Pereida argued on appeal that although he was recently convicted of a crime, he remained eligible for relief because he refused to disclose the nature of the crime so moral turpitude could not be proven. The Court disagreed with Pereida, siding with the Eight Circuit and finding Pereida must show the crime was not one of moral turpitude in order to be eligible for relief under the INA.
Featuring:
-- Brian M. Fish, Special Assistant, United States Attorney, Baltimore, Maryland

Courthouse Steps Oral Argument Teleforum: Lange v. California Mar 09, 2021

In Lange v. California, defendant Arthur Lange challenges the application of the exigent circumstances exception to the warrant requirement of the Fourth Amendment in California state court arguing exigent circumstances should apply only in genuine emergencies – not where the police are in hot pursuit following a misdemeanor traffic violation. Lange argues the evidence supporting his DUI arrest and conviction should be thrown out because it surfaced only after the police followed Lange into his garage following his commission of misdemeanor traffic offenses. California upheld Lange’s conviction favoring a case by case approach to applying the exigent circumstances exception to pursuit following probable cause of a misdemeanor. Other states have adopted a blanket ban on misdemeanors providing the exigent circumstances necessary to justify a warrantless search.
In granting certiorari, the Supreme Court will address the split among the states and consider whether pursuit following probable cause of a misdemeanor always qualifies as an exigent circumstance allowing warrantless entry. Oral argument is scheduled for February 24, 2021.
Panelists Larry James, Managing Partner at Crabbe Browne & James LLP and General Counsel of the National Fraternal Order of Police, Clark Neily, Vice President for Criminal Justice at the Cato Institute, and Vikrant Reddy, Senior Research Fellow at the Charles Koch Institute, will join us to discuss.
Featuring:
Larry James, Managing Partner at Crabbe Browne & James LLP and General Counsel of the National Fraternal Order of Police
Clark Neily, Vice President for Criminal Justice at the Cato Institute
Vikrant Reddy, Senior Research Fellow at the Charles Koch Institute
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: Brnovich v. Democratic National Committee Mar 05, 2021

In Brnovich v. Democratic National Committee and the consolidated case of Arizona Republican Party v. Democratic National Committee, the Supreme Court will address issues raised under Section 2 of the Voting Rights Act and the Fifteenth Amendment. Under Section 2, which restates and expands the protections of the Fifteenth Amendment, "no voting qualification or prerequisite to voting or standard, practice or procedure” may be imposed in a manner that is intentionally discriminatory or has a disparate impact on a racial or language minority.
In this case, the DNC challenged two of Arizona’s voting procedures: discarding out-of-precinct provisional votes where the ballot itself was filled out properly and disallowing third parties to collect and deliver completed vote-by-mail ballots. The DNC argued the provisional ballot rule has a disparate impact on African American, Native American, and Hispanic citizens and the ban on third party delivery was enacted with discriminatory intent. On appeal, the Arizona Republican Party challenges the Ninth Circuit’s finding of discriminatory intent and argues that race neutral and generally applicable voting laws which offer all citizens an equal opportunity to vote do not violate Section 2. Although Arizona won at the District Court level and a three judge panel of the Ninth Circuit affirmed, the Ninth Circuit reheard en banc and reversed, finding the District Court clearly erred.
Featuring:
-- Professor Derek Muller, Professor of Law at the University of Iowa College of Law

Courthouse Steps Oral Argument Teleforum: Carr v. Saul Mar 05, 2021

On March 3, 2021, the Supreme Court will hear oral arguments in Carr v. Saul. This case involves important constitutional questions of appointments and officer status. Specifically, the case deals with the question of whether a claimant seeking disability benefits under the Social Security Act forfeits an Appointments Clause challenge to the appointment of an administrative law judge by failing to present that challenge during administrative proceedings.
Profs. Jennifer Mascott and Richard Pierce, distinguished experts in the field of administrative law, join us to discuss the case, review oral arguments, and discuss implications, and offer their thoughts on related constitutional questions.
Featuring:
Prof. Jennifer L. Mascott, Assistant Professor of Law, Antonin Scalia Law School, George Mason University
Prof. Richard Pierce, Lyle T. Alverson Professor of Law, George Washington University Law School
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This call is open to the public and press. Dial 888-752-3232 to be connected.

Courthouse Steps Oral Argument Webinar: United States v. Arthrex Inc. Mar 03, 2021

The U.S. Supreme Court will hear oral argument in United States v. Arthrex Inc. on March 1, 2021. This case is an important one for the office of patent judges. At issue in the case is whether, for purposes of the Appointments Clause, administrative patent judges of the U.S. Patent and Trademark Office (USPTO) are principal officers, requiring presidential appointment and Senate confirmation, or are "inferior officers." Also at issue is whether if they are principal officers, the lower court properly cured any Appointments Clause defects in the current statutory scheme.
Profs. Greg Dolin and Dmitry Karshtedt join us review oral arguments, discuss the case, and offer their divergent views on the merits in a discussion moderated by Prof. Kristen Osenga.
Featuring:
Prof. Gregory Dolin, Associate Professor of Law and Co-Director, Center for Medicine and Law, University of Baltimore School of Law
Prof. Dmitry Karshtedt, Associate Professor of Law, The George Washington Law School
Moderator: Prof. Kristen Osenga, Austin E. Owen Research Scholar & Professor of Law, The University of Richmond School of Law
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This video Teleforum call is open to the public and press. Register above.

Law and Corporate Social Responsibility Mar 02, 2021

On February 25, 2021, The Federalist Society's Practice Groups and In-House Counsel Working Group hosted a lively panel on Law and Corporate Social Responsibility. With the start of the 2021 proxy season, the period when many public companies hold their annual shareholder meetings and consider proxy proposals, it seems timely to revisit the discussion around Milton Friedman’s essay, “The Social Responsibility of Business Is to Increase Its Profits.” Fifty years ago he published his view that the responsibility of business is “to use its resources and engage in activities designed to increase its profits so long as it stays within the rules of the game” and it has been debated by economists, scholars, shareholders, and CEOs since that time.
Featuring:
-- Hon. Myron T. Steele, Partner, Potter Anderson Corroon; former Chief Justice, Delaware Supreme Court
-- Hon. Elad L. Roisman, Commissioner and formerly Acting Chairman, U.S. Securities and Exchange Commission
-- Moderator: Hon. Paul S. Atkins, CEO, Patomak Global Partners; former Commissioner, U.S. Securities and Exchange Commission
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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 speaker.

Undue Delay or Due Process? Does the Due Process Clause Require a Prompt Post-Seizure Hearing When the Government Seizes an Individual’s Pro Mar 02, 2021

The Institute for Justice (IJ) has filed a petition for certiorari in Serrano v. CPB, asking the Court: “When the government seizes a vehicle for civil forfeiture, does due process require a prompt post-seizure hearing to test the legality of the seizure and continued detention of the vehicle pending the final forfeiture trial?” As Gerardo Serrano was driving his Ford F-250 truck across the U.S.-Mexico border, CBP agents searched the vehicle and found five .380 caliber bullets and one .380 caliber magazine in the center console. Gerardo explained that he had a valid concealed carry permit in his home state of Kentucky; he had simply forgotten the bullets and magazine were in the truck. CBP seized Gerardo’s truck for civil forfeiture on the ground that he had attempted to export “munitions of war.” Gerardo asked CBP for a hearing before a judge, but CBP held his truck for over two years without a hearing.
Our expert panelists disagree on many of the principal issues of the case: Was Mr. Serrano entitled to a hearing promptly after his vehicle was seized? Is the current forfeiture hearing process and timeline consistent with due process and originalism? Will the Court take this case and what should they decide? On the call to discuss these fascinating questions and more is IJ attorney, Rob Johnson, Mr. Serrano’s lead attorney, and two of the leading experts on civil-asset forfeiture in the country today, Stef Cassella and David Smith.
Featuring:
-- Stef Cassella, CEO, Asset Forfeiture Law, LLC
-- Robert Johnson, Senior Attorney, Institute for Justice
-- David Smith, David B. Smith, PLLC
-- Moderator: Adam Griffin, Constitutional Law Fellow, Institute for Justice

Fireside Chat with Bilal Sayyed, former FTC Director, Office of Policy Planning Feb 24, 2021

The Federalist Society's Corporations, Securities & Antitrust Practice Group and Regulatory Transparency Project was pleased to host this fireside discussion between Mr. Bilal Sayyed, most-recently Director of the Federal Trade Commission's Office of Policy Planning, and Svetlana Gans, Vice President and Associate General Counsel at NCTA and former chief of staff at the FTC. They discussed the current state of the FTC, challenges facing the agency, and the path ahead in the new administration.
Featuring:
--Bilal Sayyed, Senior Adjunct Fellow, TechFreedom; formerly Director, Federal Trade Commission Office of Policy Planning
--Moderator: Svetlana Gans, Vice President & Associate General Counsel, NCTA

China's Treatment of Turkic Muslims Feb 24, 2021

The Federalist Society hosts Prof. Beth Van Schaack and Mr. John Bellinger for a discussion about the current treatment of Turkic Muslim civilians by the People's Republic of China ("PRC"), under a policy that the PRC describes as a counter-terrorism campaign but that others have described as a genocide. Prof. Van Schaack is the Acting Director of the International Human Rights Clinic at Stanford Law School, and previously served as the Deputy to the Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice of the U.S. Department of State. Mr. Bellinger is a partner at Arnold & Porter, and previously served as Legal Adviser to the Department of State, as Senior Associate Counsel to the President, and as Legal Adviser to the National Security Council.
Featuring:
-- John B. Bellinger, III, Partner, Arnold & Porter
-- Prof. Beth Van Schaack, Leah Kaplan Visiting Professor in Human Rights, Stanford Law School

The Telecommunications Act at 25 Years: A Panel Discussion Feb 19, 2021

On February 8, 1996, President Bill Clinton signed into law the landmark Telecommunications Act of 1996, the most significant revision of the Communications Act since its enactment in 1934. In the 1996 Act’s preamble, Congress declared the statute’s purpose “to promote competition and reduce regulation.” And the conference report accompanying the law stated it was intended “to provide for a pro-competitive, deregulatory national policy framework.” At the signing ceremony, President Clinton’s rhetoric was soaring: “With the stroke of a pen, our laws will catch up with our future.”
Now, a quarter century after the Telecom Act’s passage, we can celebrate the 25th anniversary and acknowledge the achievement, while – with the benefit of hindsight – also taking a critical look at what the 1996 Act actually accomplished and whether it needs updating. This program will address these fundamental questions: (1) what did the 1996 Act get right; (2) what did it get wrong; and (3) should it now be updated or substantially rewritten, and if so, in what way? The Federalist Society's Telecommunications & Electronic Media Practice Group is pleased to host a distinguished panel to address these questions.
Free State Foundation President Randolph May, a former FCC Associate General Counsel with over four decades of experience in the communications law and policy field, will moderate a discussion among experts: Harold Furthgott-Roth, a former FCC commissioner who served as a principal House Commerce Committee staff member working on the 1996 Act; Michelle Connolly, Professor of the Practice in the Economics Department at Duke University who twice served as Chief Economist at the FCC; and Chris Lewis, President and CEO of Public Knowledge who has served as Deputy Director of the FCC’s Office of Legislative Affairs.
Featuring:
-- Michelle Connolly, Professor of the Practice, Duke University; former Chief Economist, Federal Communications Commission
-- Chris Lewis, President & CEO, Public Knowledge; former Deputy Director, FCC Office of Legislative Affairs
-- Hon. Harold Furchtgott-Roth, Senior Fellow and Director, Center for the Economics of the Internet, Hudson Institute; former FCC Commissioner
-- Moderator: Randolph May, President, Free State Foundation; Executive Committee Member, Federalist Society's Telecommunications & Electronic Media Practice Group

The Injunction Presumption: Revisiting eBay v. MercExchange Feb 08, 2021

The Federalist Society's Intellectual Property Practice Group is pleased to host this panel discussion on the elimination of the injunction presumption by the U.S. Supreme Court's decision in eBay v. MercExchange (2006), and what impact this decision has had on the patent system, especially with respect to the concepts of “efficient infringement,” patent-owner leverage (or lack thereof) and the innovation economy. Our distinguished panelists will offer diverse perspectives on these issues and more.
Featuring:
-- Mr. David Jones, Executive Director, High Tech Inventors Alliance
-- Hon. Paul R. Michel, former Chief Judge, U.S. Court of Appeals, Federal Circuit
-- Prof. Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason University; Senior Scholar, Hudson Institute
-- Moderator: Mr. Robert J. Rando, Partner, Taylor English Duma LLP; Executive Committee Member, Federalist Society Intellectual Property Practice Group

Virtual Currencies and the Rule of Law Feb 08, 2021

During the last weeks of the Trump Administration’s Treasury Department, the Financial Crimes Enforcement Network (FinCen) unveiled a rule that received more comments than any other proposal in FinCen’s history. Over seven thousand commentors weighed in, despite only a 15-day comment-period stretching over the Christmas and New Year’s Day holidays. The proposed rule would impose certain Bank Secrecy Act reporting requirements on unhosted virtual currency wallets. (An unhosted wallet is the digital equivalent of a physical wallet, whereas a hosted wallet is the equivalent of a brokerage account.) Opponents argued that the proposed rule violated privacy rights, was ineffective, inhibited innovation, and violated the Administrative Procedures Act. Proponents asserted the proposed rule and its abbreviated review period were necessary to limit money laundering, and other illicit activity.
This disagreement represented a shift in positioning between the virtual currency industry and the regulators. Previously, many virtual currency adherents had argued its unique characteristics made standard regulations inapplicable. Regulators generally disagreed, imposing traditional financial regulatory frameworks such as the Howey-test, know-your-customer, and money transmitter requirements. Now virtual currency advocates claimed they were being singled out unfairly, and instead should be treated as their equivalents in the traditional financial system. Regulators argued that the unique characteristics of virtual currency justified a more stringent approach. This debate has significant consequences for the scope of government, combatting terrorism and other unlawful activity, personal privacy, and the future of money.
Featuring:
-- Sujit Raman, Partner, Sidley Austin
-- Jaikumar Ramaswamy, Head of Risk, cLabs
-- Shannen Coffin, Chair, Appeals and Advocacy, Steptoe
-- Moderator: Paul Watkins, Managing Director, Patomak Global Partners

Prayer and Jury Service: United States v. Brown Feb 05, 2021

This teleforum will address the upcoming Eleventh Circuit en banc argument in United States v. Brown, which concerns whether a juror may be removed from a deliberating jury because he prayed for and believed he received the Holy Spirit's guidance in considering the evidence. A district court found that a juror who did so could be removed from service and an Eleventh Circuit panel affirmed the decision. Judge William Pryor wrote a 64-page dissent, in which he argued that the decision demonstrated "a failure to reflect on the nature of prayer" and how it features in religious believers' "everyday way of thinking, speaking, and deciding."
The Eleventh Circuit then granted en banc review in September 2020. Oral arguments are scheduled for February 23, 2021. Lea Patterson of First Liberty Institute joins us to discuss the case and its implications.
Featuring:
Lea Patterson, 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.

The Potential for the Passage of the PRO Act in 2021 and Related Issues Feb 05, 2021

This teleforum will discuss in detail the various provisions contained in the Protecting the Right to Organize (PRO) Act The Act, which increases worker rights, passed the House in last Congress and is expected to be reconsidered in the new Congress. This teleforum will discuss the Act and potential strategies to be utilized by the Biden administration to obtain passage of the PRO Act.
Featuring:
-- Maury Baskin, Shareholder and Co-Chair, Workplace Policy Institute, Littler Mendelson P.C.
-- Moderator: Dean Reuter, General Counsel, Vice President & Director of the Practice Groups, Federalist Society for Law and Public Policy

Book Review: The Second Founding: An Introduction to the Fourteenth Amendment Feb 03, 2021

The Fourteenth Amendment is now over 150 years old. The Supreme Court has long rejected interpreting that Amendment with its original meaning. But what would an originalist interpretation of the Amendment look like? Would it be unworkable for modern problems?
In this teleforum, Profs. Steven Calabresi and Ilan Wurman will discuss Wurman's new book The Second Founding: An Introduction to the Fourteenth Amendment, in which he argues not only that we should reclaim the original meaning of the Fourteenth Amendment, but that doing so would lead to many desirable and surprising results. Professor Wurman argues that the privileges or immunities clause is not, like many originalists claim, a fundamental rights provision, but is instead an antidiscrimination provision. The implications for incorporation, economic liberty, school desegregation, and gay rights may surprise you.
Featuring:
Prof. Steven G. Calabresi, Clayton J. and Henry R. Barber Professor of Law, Northwestern University Pritzker School of Law
Prof. Ilan Wurman, Associate Professor, Sandra Day O'Connor College of Law, Arizona State University; Author, The Second Founding: An Introduction to the Fourteenth Amendment
This call is open to the public and press. Dial 888-752-3232 to access the event.

ABA Model Rule 8.4(g) in Pennsylvania Feb 01, 2021

ABA Model Rule of Professional Conduct 8.4(g) holds it misconduct for an attorney to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination” in connection with the practice of law. Scholars have criticized the Rule as chilling speech on matters of public concern and unlawful viewpoint discrimination; several state attorneys general concluded the rule is unconstitutional. Nevertheless, Pennsylvania adopted a modified version of Rule 8.4(g), including “words or conduct” within its ambit. In Greenberg v. Haggerty (E.D. Pa. 2020), an attorney represented by the Hamilton Lincoln Law Institute obtained a preliminary injunction against Pennsylvania’s enforcement of the rule. Pennsylvania officials have appealed to the Third Circuit. HLLI’s Ted Frank will discuss Rule 8.4(g) and its consequences for speech, the Greenberg decision and appeal, and the prospects for future litigation.
Featuring:
Ted Frank, Director of Litigation and Senior Attorney, Hamilton Lincoln Law Institute and the Center for Class Action Fairness.
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 Webinar: FCC v. Prometheus Radio Project Feb 01, 2021

On January 19, 2021, the U.S. Supreme Court heard oral arguments in Federal Communications Commission v. Prometheus Radio Project, an important case involving issues of media ownership. Specifically, the Court will decide whether the U.S. Court of Appeals for the Third Circuit erred in vacating as arbitrary and capricious the Federal Communications Commission orders under review, which relaxed the agency’s cross-ownership restrictions to accommodate changed market conditions.
A distinguished panel joined The Federalist Society on January 25, 2021 to discuss the case, the arguments, and the implications.
Featuring:
Ms. Jane E. Mago, Consultant in Media Policy and Law; former General Counsel, Federal Communications Commission
Hon. Michael O'Rielly, Visiting Fellow, Hudson Institute; former Commissioner, Federal Communications Commission
Mr. Christopher J. Wright, Partner, Harris, Wiltshire & Grannis; former General Counsel, Federal Communications Commission
Moderator: Mr. Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal and Economic Public Policy Studies; Executive Committee Member, Federalist Society's Telecommunications & Electronic Media Practice Group
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As always, the Federalist Society takes no position on matters of legal and public policy. Expressions of opinion are those of the speakers.

The Congressional Review Act: First Branch Gets the Last Word Feb 01, 2021

After living in relative obscurity since its passage in 1996, the Congressional Review Act caught the nation’s attention in 2017 when a Republican-led Congress and newly-elected President Trump used it to overturn 14 “midnight” regulations issued at the end of the Obama administration. Some prominent Democratic lawmakers opposed the CRA’s framework as well as its individual uses in 2017. Will roles be reversed in 2021 regarding Trump administration "midnight" regulations? Can they be completely reversed? The teleforum will review the mechanics and overriding purposes of the CRA. The technical elements include the law’s expedited congressional procedures, the types of actions covered, time frames for disapprovals, number of votes needed to overturn an action, and the consequences of disapproval.
Featuring:
Todd F. Gaziano, Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers, Pacific Legal Foundation
Moderator: Prof. Susan E. Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, The George Washington University
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.

U.S. and the Middle East: Trump to Biden Jan 22, 2021

While China is the paramount strategic priority for the United States, the Middle East remains a region of significance for U.S. national security interests. The Trump administration prioritized pressure on Iran, efforts to reduce the number of U.S. military personnel in Iraq and Syria, and good relations with Israel and Saudi Arabia. The incoming Biden administration is expected to continue some aspects of the Trump approach while changing course in others. Our two experts will assess the Trump record in the region and what they expect from the Biden administration. Please join us for this timely discussion.
Featuring:
-- Matthew R. A. Heiman, General Counsel & Corporate Secretary, Waystar Health; Senior Fellow and Director of Planning, National Security Institute
-- Prof. Jamil N. Jaffer, Adjunct Professor, NSI Founder, and Director, National Security Law & Policy Program, Antonin Scalia Law School, George Mason University

Book Review: Believe in People: Bottom-Up Solutions for a Top-Down World Jan 21, 2021

Following a year of disruptions not seen in generations: a global pandemic, economic crisis, social unrest, and a divisive political season, Americans are looking for a better way. In his new book, Believe in People: Bottom-Up Solutions for a Top-Down World, co-authored with Charles Koch, Stand Together Chairman & CEO Brian Hooks makes the case that this starts in the places and with people you may least expect. Today’s challenges call for nothing short of a paradigm shift – away from a top-down approach that sees people as problems to be managed, toward bottom-up solutions that empower everyone to realize their potential and foster a more inclusive society. Drawing on the experience of thousands of social entrepreneurs in education, business, communities, and public policy, the book shares lessons for those looking to make a greater difference and put our country on a better track.
Featuring:
-- Brian Hooks, Chairman and CEO, Stand Together
-- Greg Lukianoff, President and CEO, Foundation for Individual Rights in Education (FIRE)
-- Moderator: Dean Reuter, General Counsel, Vice President & Director of the Practice Groups, Federalist Society for Law and Public Policy

Courthouse Steps Oral Argument Teleforum: BP P.L.C. v. Mayor and City Council of Baltimore Jan 21, 2021

Nearly two dozen lawsuits against energy manufacturers seeking state tort damages over climate change have been filed in state courts. The defendants removed the cases to federal courts because the subject matter of the litigation involves exclusively federal issues, namely national energy policy over the worldwide uses of fossil fuels. The Supreme Court is considering the scope of appellate review of the remand order in one of the cases, BP P.L.C. v. Mayor and City Council of Baltimore. The implications of this ruling will likely extend to the larger climate litigation campaign. The oral argument is scheduled for January 19, 2021. Phil Goldberg, who authored an amicus brief filed by several trade groups including the National Association of Manufacturers, will provide his thoughts on the hearing and the broader implications for climate litigation.
Featuring:
-- Phil Goldberg, Special Counsel for the Manufacturers’ Accountability Project (MAP), a project of The National Association of Manufacturers (NAM), and Washington D.C. Office Managing Partner, Shook, Hardy & Bacon, LLP

The Federal Vacancies Reform Act and Implications for Presidential Transitions Jan 20, 2021

The Federal Vacancies Reform Act (FVRA) is a federal statute permitting the President to appoint acting officials to fill vacancies that arise within federal departments and agencies when certain conditions are met. Last amended in 1998, the law represents a compromise of sorts between the Legislative and Executive branches, which share power regarding the appointment and confirmation of many federal officers. The FVRA’s use in recent years to fill vacancies within the Departments of Justice and Veterans Affairs and agencies such as the Consumer Financial Protection Bureau, among others, has been controversial. What are the limits of the FVRA? Is the FVRA constitutional as applied to the appointment of acting principal officers? Does it apply when an organic agency statute also provides for a more specific succession plan? Does it apply to vacancies created by firing rather than temporary absence, death or resignation? Who has standing to challenge an FVRA appointment or the actions of an FVRA appointee? How should the incoming Administration think about the use of FVRA?
Featuring:
Thomas Berry, Research Fellow, Robert A. Levy Center for Constitutional Studies, Cato Institute
Stephen Migala, Attorney-Adviser, U.S. Department of State
Anne Joseph O'Connell, Adelbert H. Sweet Professor of Law, Stanford Law School
Moderator: Brian Johnson, Partner, Alston & Bird
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.

The Myths and Facts Regarding the EPA’s Benefit-Cost Analysis and Science Transparency Rules Jan 20, 2021

Over the past month, the Environmental Protection Agency has finalized two new transparency-related rules. The stated purpose of the rule “Increasing Consistency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process” is “to codify procedural best practices for the preparation, development, presentation, and consideration of BCA in regulatory decision-making under the CAA.” The rule “Strengthening Transparency in Pivotal Science Underlying Significant Regulatory Actions and Influential Scientific Information” is intended to help shed light on the science used and disseminated by the agency. Both of these rules have garnered both praise and criticism. There is also a significant amount of confusion over what these rules would actually do. Join us as we discuss these new rules.
Featuring:
-- Rachel Jones, Vice President, Energy and Resources Policy, National Association of Manufacturers (NAM)
-- Clint Woods, Policy Fellow for Regulations, Americans for Prosperity
-- Moderator: Daren Bakst, Senior Research Fellow, The Heritage Foundation.

Legacy of the Unalienable Rights Commission: Discussion with Dr. Peter Berkowitz, Director of the Policy Planning Office, U.S. Department of Jan 20, 2021

In May 2019, Secretary of State Mike Pompeo announced formation of the Commission on Unalienable Rights, tasked with reexamining human rights in U.S. foreign policy. The very concept of “unalienable rights” proved immediately controversial with “traditional” human rights organizations, and four of them sued the State Department in federal court, claiming the Commission was unbalanced in its view on human rights. The Commission completed its work in August with a report outlining how “unalienable rights” – the rights inherent in all persons – inform the Declaration, and the U.N. Declaration of Human Rights, and how unalienable rights should inform U.S. foreign policy.
Human Rights organizations continue to write that they are alarmed by the Commission, arguing that it is the basis of a “pick-and-choose” version of human rights. Mary Ann Glendon, the Commission’s chair, recently stated, in a curated discussion with Secretary Pompeo, that human rights should be independent of sovereign decision making: “[I]f there are no rights that exist independently of the sovereign, then we are in a world where the strong do what they will and the weak and the vulnerable suffer the consequences.”
Are the Commission’s concerns different from the concerns that have been traditionally expressed in international human rights law, and, if so, what does the future hold for the Commission’s report?
Featuring:
-- Dr. Peter Berkowitz, Director of the Policy Planning Office, U.S. Department of State

Litigation Update: BP P.L.C. v. Mayor and City Council of Baltimore Jan 18, 2021

In 2018, the City of Baltimore filed climate change litigation in state court against multiple energy companies seeking damages from the impact of climate change. The energy companies moved the lawsuit to federal court, arguing it was the proper venue; however, the U.S. District Court for the District of Maryland disagreed and ruled the case belonged in state court. The Fourth Circuit Court of Appeals in Richmond, Virginia affirmed the lower court’s decision and the energy companies appealed to the United States Supreme Court. Last October, the justices granted their petition for writ of certiori requesting review of the Fourth Circuit’s ruling remanding the case to state court. Oral arguments are set for Tuesday, January 19th.
Indiana Solicitor General Tom Fisher joins us to preview this pivotal hearing, the implications for similar litigation around the country and his role in leading a 15-state coalition that is taking a stand against climate change litigation.
Featuring:
Thomas M. Fisher, Indiana Solicitor General
Moderator: Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
This call is open to the public - please dial 888-752-3232 to access the call.

Courthouse Steps Oral Argument Teleforum: AMG Capital Management v. FTC Jan 18, 2021

On January 13, 2021, the Supreme Court will hear oral argument in AMG Capital Management v. FTC, a case that could define the scope of the FTC's remedial authority and explore the limits of textualism. The FTC Act authorizes the Commission to seek a "permanent injunction" in federal court to stop “unfair methods of competition” and “unfair or deceptive acts or practices.” For many years, the FTC and most courts have interpreted "permanent injunction" to give the FTC the power to require defendants to return money to victims. The Seventh Circuit recently disagreed and held that the term "permanent injunction" does not encompass equitable monetary relief for past misconduct. To cover the oral arguments, Asheesh Agarwal, Deputy General Counsel at TechFreedom and an alumnus of the FTC, will moderate a distinguished panel featuring Alden Abbott, the FTC's General Counsel, and Corbin Barthold, TechFreedom's Director of Appellate Litigation.
Featuring:
-- Hon. Alden Abbott, General Counsel, Federal Trade Commission
-- Corbin Barthold, Director of Appellate Litigation, TechFreedom
-- Moderator: Asheesh Agarwal, Deputy General Counsel, TechFreedom

Courthouse Steps Oral Argument Teleforum: Uzuegbunam v. Preczewski Jan 14, 2021

On Tuesday, January 12, 2021, the Supreme Court hears oral argument in Uzuegbunam v. Preczewski. The issue the Court will be deciding is whether the government’s post-filing change of an unconstitutional policy moots nominal-damages claims. The case has important implications for litigation involving myriad constitutional rights, and has garnered national attention. Our panel of experts joins us to discuss oral argument and possible outcomes.
Featuring:
Sarah M. Harris, Partner, Williams & Connolly
Justin Sadowsky, Trial Attorney, Council on American-Islamic Relations
Moderator: Casey Mattox, Senior Fellow, Free Speech and Toleration, Charles Koch Institute
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.

Capital Conversations: Craig Leen, Director of Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor Jan 14, 2021

Join us as Director Craig Leen gives an overview of enforcement of civil rights and Equal Employment Opportunity laws at the Office of Federal Contract Compliance Programs (OFCCP) during the Trump Administration.
Featuring:
-- Craig Leen, Director of Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor

Clean Water & the Rule of Law: Recapping 4 Years of Reform and the Path Ahead Jan 08, 2021

Under the current administration, the U.S. Environmental Protection Agency (EPA) has adopted a variety of regulations and policies aimed at reforming the nation’s water quality programs, with a focus on cooperative federalism and rule of law principles. Reflecting on EPA’s accomplishments and remaining agenda items, Assistant Administrator Ross will share his perspective on a range of topics, such as: A new definition of the “Waters of the United States”; Groundwater pollution; Enforcement of federal clean water laws; Reforms to state water quality certification procedures; Improvements to drinking water and wastewater infrastructure; Ocean pollution; and the newly established “Water Subcabinet.”
Featuring:
-- David P. Ross, Assistant Administrator for the Office of Water, U.S. Environmental Protection Agency
-- Moderator: Jeffrey H. Wood, Partner, Baker Botts L.L.P.

International Reference Pricing and Negotiation: Yes or No? Jan 08, 2021

Drug prices are a pressing policy issue. On November 20, 2020, President Donald Trump announced two new rules aimed at reducing drug prices for Medicare beneficiaries. These rules use a system known as reference pricing, which ties the price the federal government pays for patented drugs and treatments to the prices other countries pay. These rules are set to take effect in January 2021. Meanwhile, legislation pending in the U.S. House of Representatives and supported by Speaker Nancy Pelosi would create an International Pricing Index. These policies enjoy bipartisan support, but they also face bipartisan opposition. Some think the Trump rules do not go far enough and others argue that reference pricing is bad policy regardless. Two distinguished experts who have worked and written extensively on this issue, Prof. Adam Mossoff and Dr. Wendell Primus, join us for a moderated discussion of reference pricing, current policy proposals, and future challenges.
Featuring:
-- Prof. Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason University; Senior Scholar, Hudson Institute; Visiting Fellow, Meese Center for Legal and Judicial Studies, The Heritage Foundation
-- Dr. Wendell Primus, Senior Policy Advisor on Budget and Health Issues, Office of Speaker Nancy Pelosi; Former Minority Staff Director, Joint Economic Committee
-- Moderator: Hon. Dean A. Reuter, Vice President, General Counsel, and Director of Practice Groups, The Federalist Society

Litigation Update: Restoring the Lost Privileges or Immunities Clause? Dec 22, 2020

A new petition for certiorari at the U.S. Supreme Court presents an invaluable opportunity for the Court to revisit the Privileges or Immunities Clause. And it is unlike any opportunity in recent memory. First, it presents a question upon which every theory of the Fourteenth Amendment agrees: Does the Amendment protect a citizen against rights violations perpetrated by that citizen’s own state? The text and history of the provision, as well as Supreme Court precedent, unequivocally say “Yes,” but the lower courts have fundamentally misunderstood the Clause and rendered it impotent against one’s own state. Second, unlike most Privileges or Immunities cases, this case does not ask the Court to overrule the Slaughter-House Cases. Instead it asks for judicial protection of a right expressly recognized in Slaughter-House: the right to use the navigable waters of the United States, a right that was critically important to the freedmen at the time of the Fourteenth Amendment’s ratification. Thus, unlike recent cases such as McDonald, Timbs, and Ramos, in which the Court was able to avoid confronting the Privileges or Immunities Clause by ruling on alternative grounds, this case begins and ends with the Clause. It therefore offers an opportunity for the Court to begin—in a principled and incremental way—the process of revitalizing the provision that most recognize as the keystone of the Fourteenth Amendment. How have the courts construed this provision since its post-Civil War enactment? What should the Supreme Court do here? And should the oft-criticized Slaughter-House Cases be affirmed?
Tune in for a fascinating discussion of the original meaning of the Privileges or Immunities Clause and the unique case of Courtney v. Danner. Counsel of record for the plaintiffs in the case, Michael Bindas of the Institute for Justice (IJ), and Fourteenth Amendment scholar Christopher Green, Professor of Law and H.L.A. Hart Scholar in Law and Philosophy at the University of Mississippi School of Law, will join IJ attorney and moderator Adam Griffin for an exciting litigation update.
Featuring:
Michael Bindas, Senior Attorney, Institute for Justice
Prof. Christopher Green, Professor of Law and H.L.A. Hart Scholar in Law and Philosophy, University of Mississippi School of Law
Moderator: Adam Griffin, Constitutional Law Fellow, Institute for Justice
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.

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

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

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

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

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

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

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

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

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

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

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.

The Implications and Importance of CIC Services, LLC v. Internal Revenue Service Dec 14, 2020

On December 1st, the Supreme Court heard oral arguments in the case CIC Services, LLC v. Internal Revenue Service. The case involves whether courts have jurisdiction over challenges to the validity of Internal Revenue Service rules or regulations under the Administrative Procedure Act before the taxpayer pays a tax and seeks a refund. The specific issue presented was whether the prohibition in the Anti-Injunction Act (26 U.S.C., sec. 7421, “AIA”) on lawsuits “for the purpose of restraining the assessment or collection of any tax” bars challenges to regulatory mandates issued by Treasury/IRS in the form of information reporting requirements that could lead to the assessment of tax penalties. In CIC Services, the Government asserted that the AIA barred pre-enforcement litigation challenging reporting requirements that could have significant civil and criminal penalties attached for non-compliance, where the civil penalties are denominated by the Internal Revenue Code as a “tax” but where no violation had yet occurred. The case came to the Supreme Court on a writ of certiorari to the U.S. Court of Appeals for the Sixth Circuit, which had affirmed a district court opinion dismissing the case under the AIA for lack of jurisdiction.
We are joined by a panel of experts to discuss the oral arguments, and the various policy implications of the potential rulings.
Featuring:
Prof. Robert Carney, Senior Counsel, Caplin & Drysdale, and Adjunct Professor, Tax Practice and Procedure (Administrative), Georgetown University Law Center
Prof. Kristin Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School
Prof. Gregory Dolin, Co-director of the Center for Medicine and Law, University of Baltimore School of Law, and Adjunct Scholar at the Cato Institute
Please dial 1-888-752-3232 to participate.

Courthouse Steps Oral Argument Teleforum: Republic of Hungary v. Simon and Federal Republic of Germany v. Philipp Dec 14, 2020

On December 7, the Supreme Court will hear oral arguments in two cases involving the Foreign Sovereign Immunities Act (FSIA).
In Republic of Hungary v. Simon, the issue is whether a district court may abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity, in a matter in which former Hungarian nationals have sued the nation of Hungary to recover the value of property lost in Hungary during World War II but the plaintiffs made no attempt to exhaust local Hungarian remedies.
In Federal Republic of Germany v. Philipp, the issue is whether the “expropriation exception” of the FSIA, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property. Is the doctrine of international comity unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, when the foreign nation has a domestic framework for addressing the claims?
Prof. Alberto Coll and moderator Jim Dunlop join us to discuss both these cases.
Featuring:
Prof. Alberto R. Coll, Vincent de Paul Professor of Law and Director of Global Engagement, DePaul College of Law
James C. Dunlop, Senior Attorney, Sensient Technologies Corporation
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: Mnuchin v. Collins Dec 14, 2020

The case of Mnuchin v. Collins will have oral arguments before the Supreme Court on December 9, 2020. The case involves the Federal Housing Finance Agency's 2008 decision to appoint itself conservator of Fannie Mae and Freddie Mac, and the issues presented are whether the statute's anti-injunction clause precludes a court from setting aside the Third Amendment and whether the succession clause precludes shareholders from challenging the Third Amendment. Elizabeth Slattery joins us to discuss the case and its implications.
Featuring:
Elizabeth Slattery, Senior Legal Fellow, 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.

Capital Conversations: Hester Peirce, Commissioner, U.S. Securities and Exchange Commission Dec 14, 2020

Join us as Hester Peirce, Commissioner on the Securities and Exchange Commission, discusses the intersection of individual liberty and securities regulation.

Courthouse Steps Oral Argument Teleforum: Facebook Inc. v. Duguid Dec 11, 2020

The case of Facebook Inc. v. Duguid will have oral arguments before the Supreme Court on December 8, 2020. At issue in the case is the Telephone Consumer Protection Act's definition of "automatic telephone dialing system," and whether this phrase includes any device that can store and dial phone numbers, even if it “uses a random or sequential number generator.” Megan Brown and Prof. Daniel Lyons join us to discuss the case and its implications.
Featuring:
Megan L. Brown, Partner, Wiley Rein
Prof. Daniel Lyons, Professor of Law, Boston College School of 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.

Courthouse Steps Decision Teleforum: Roman Catholic Diocese of Brooklyn v. Cuomo Dec 11, 2020

On November 25, 2020, the Supreme Court barred New York Governor Andrew Cuomo from enforcing Executive Order 202.68 10- and 25-person occupancy limits on religious services during the COVID-19 pandemic. Application for injunctive relief was granted in the per curiam opinion. Justices Gorsuch and Kavanaugh filed concurring opinions. Chief Justice Roberts filed a dissenting opinion. Justice Breyer filed a dissenting opinion, joined by Justices Sotomayor and Kagan. Justice Sotomayor filed a dissenting opinion, joined by Justice Kagan. Eric Rassbach joins us to discuss the case and its implications.
Featuring:
-- Eric Rassbach, Vice President & Senior Counsel, The Becket Fund for Religious Liberty

Courthouse Steps Oral Argument Teleforum: Edwards v. Vannoy Dec 09, 2020

The case of Edwards v. Vannoy will have oral arguments before the Supreme Court on December 2, 2020. At issue is whether the Supreme Court’s decision in Ramos v. Louisiana applies retroactively to cases on federal collateral review. William McClintock joins us to offer commentary on the case and the oral arguments.
Featuring:
William S. McClintock, Associate, King & Spalding 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.

Courthouse Steps Oral Argument Teleforum: Nestlé USA, Inc. v. Doe I Dec 08, 2020

The case of Nestlé USA, Inc. v. Doe I (consolidated with Cargill, Inc. v. Doe I) will have oral arguments before the Supreme Court on December 1, 2020. At issue is whether an aiding and abetting claim against a domestic corporation brought under the Alien Tort Statute may overcome the extraterritoriality bar where the claim is based on allegations of general corporate activity in the United States and where the plaintiffs cannot trace the alleged harms, which occurred abroad at the hands of unidentified foreign actors, to that activity. Also at issue is whether the judiciary has the authority under the Alien Tort Statute to impose liability on domestic corporations. David Rybicki joins us to discuss the case and the oral arguments at the Supreme Court.
Featuring:
David C. Rybicki, Partner, K&L Gates 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.

Courthouse Steps Oral Argument Teleforum: Van Buren v. United States Dec 02, 2020

The case of Van Buren v. United States will have oral arguments before the Supreme Court on November 30, 2020. At issue is whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose. Prof. Orin Kerr joins us to discuss the case, the oral arguments, and its implications.
Featuring:
Prof. Orin Kerr, Professor of Law, UC Berkeley School of 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.

Courthouse Steps Oral Argument Teleforum: Trump v. New York Dec 02, 2020

On November 30, 2020 the Supreme Court heard oral arguments in Trump v. New York. The case has garnered widespread media attention and arose over the attempt by the Trump administration to exclude noncitizens from the population numbers for the purposes of apportioning seats in the House of Representatives. The Supreme Court will decide whether New York and the twenty states that filed suit against the administration have standing, and whether policy is within the power of the President's discretion under the provisions of law governing congressional apportionment. The case will bear on the short- and long-term future of congressional elections.
Featuring:
-- Prof. John S. Baker, Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University

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

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

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

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

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

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

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

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

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

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

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.

Courthouse Steps Preview: Van Buren v. United States Nov 06, 2020

The Computer Fraud and Abuse Act (CFAA) makes it a crime (and a tort) to access “without authorization” a computer to obtain information from that computer. But is the CFAA limited to cases in which an outsider hacks into a system or database to gain information, or does it also cover cases where a person who has permission to be on the system uses that permission for manifestly improper purposes – for example, where an employee uses access to their employer’s computers to steal information on those computers for themselves or for a competitor? In Van Buren v. United States, the Supreme Court will address this question, which has vexed federal courts for more than a decade. Mr. Joseph DeMarco, who has filed two amicus briefs in that case, will discuss the legal issues involved in Van Buren and the potential ramifications of the Court’s decision in this closely-watched case.
Featuring:
Joseph DeMarco, Partner, DeVore & DeMarco LLP
This call is open to the public and press. Dial 888-752-3232 to access the call.

Iran Snapback Nov 06, 2020

Iran is in significant non-performance of its commitments under the Joint Comprehensive Plan of Action (JCPOA). Yet, the United Nations Security Council and America’s European allies have failed to “snapback” sanctions on Iran as agreed in the JCPOA. Join us for a conversation between Brian Hook, former Special Representative for Iran, and Dr. Jeremy Rabkin, Professor of Law at George Mason University’s Antonin Scalia Law School, for a conversation about the future of U.S.-Iranian policy and how to prevent Iran from achieving its nuclear ambitions.
Featuring:
-- Brian Hook, former U.S. Special Representative for Iran and Senior Policy Advisor to Secretary of State Mike Pompeo
-- Prof. Jeremy A. Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University

Capital Conversations: Hon. Beth A. Williams, Assistant Attorney General, United States Department of Justice Nov 06, 2020

Join us as Beth Williams, the U.S. Assistant Attorney General for the Office of Legal Policy at the United States Department of Justice, discusses the priorities and work of her office during COVID-19 and 2020.
Featuring:
-- Hon. Beth A. Williams, Assistant Attorney General, Office of Legal Policy, United States Department of Justice

Catholic Judges and the Death Penalty Nov 03, 2020

Can Catholic judges, consistently with their faith, participate in death penalty cases? Faithful Catholics who have considered the question in recent decades have reached different conclusions. In 1998, Judge Amy Barrett, then a law clerk on the D.C. Circuit, co-authored an article concluding that it is immoral under Church teaching to directly participate in executions in a modern society with a functional prison system. Accordingly, she concluded that Catholic trial judges cannot in good conscience issue a death sentence and have an obligation to recuse themselves from the sentencing phase of capital trials. Appellate judges, on the other hand, need not recuse themselves in capital cases, because they do not directly issue death sentences. Justice Antonin Scalia took a different view. In a 2002 article, he asserted that if the death penalty were immoral under Church teaching, he could not participate in capital cases and would have an obligation to resign from the Supreme Court. But because he believed Catholic teaching affirmed the legitimacy of capital punishment, he concluded that Catholic judges, both trial and appellate, could fully participate in capital cases at every stage. Further complicating matters, Pope Francis has recently declared that the death penalty is “inadmissible”—a term whose significance is a matter of debate—and called on Catholics worldwide to seek the abolition of the death penalty. Ryan Proctor joins us to discuss the Catholic Church’s teaching on capital punishment and its implications for Catholic judges.
Featuring:
-- Ryan Proctor, Associate, Jones Day

Should the Federal Government Be in the 5G Business? Oct 29, 2020

The Department of Defense (DoD) recently issued a Request for Information about the possibility of constructing a new national 5G network on 450 MHz of mid-band spectrum presently assigned to the Department. Access to this spectrum by commercial wireless services could be granted when it is not needed for national security requirements through a dynamic spectrum-sharing arrangement. Many members of Congress from both sides of the aisle, as well as members of the Federal Communications Commission, have expressed concern about DoD’s intentions. Recent press reports assert that several high-ranking officials in the White House are pushing the idea despite President Trump’s public opposition to such a plan. Should the DoD proceed with constructing its own network? Should the 450 MHz of mid-band spectrum be auctioned to private providers? Should the Department instead rely on the network services of commercial wireless providers? Please join us for a teleforum with industry experts to discuss the policy and economic implications.
Featuring:
-- Jon Adame, General Counsel, Office of Sen. Marsha Blackburn
-- Kelly Cole, Senior Vice President, Government Affairs, CTIA
-- George S. Ford, Chief Economist, Phoenix Center for Advanced Legal & Economic Public Policy Studies
-- Moderator: Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal & Economic Public Policy Studies; member of the Federalist Society’s Telecommunications & Electronic Media Practice Group Executive Committee

United States v. Google Oct 29, 2020

This week, the United States Department of Justice launched its rumored antitrust law suit against Google. The government's complaint brief alleges that Google has a monopoly in search and search advertising, and has unlawfully maintained that monopoly. Among the many complaints, the government points specifically to the billion dollar payments google pays to Apple, in exchange for Apple carrying the search engine on be the de facto search engine on its iOS platform. The Government is alleging that these practices are not in the best interests of consumers or competition. The case is the most high profile antitrust case in decades, and could potentially remake Google, antitrust law, and the internet as we know it.
Today's Teleforum is cosponsored by The Bork Foundation, a non-partisan, nonprofit educational foundation just launched, led by Robert H. Bork, Jr. who chairs a board which includes today's speaker, George L. Priest, the Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship at Yale Law School. The Bork Foundation was launched this month to promote the life and legacy of Robert H. Bork: lawyer, Yale Law School professor, Solicitor General, federal appellate court judge, Supreme Court nominee, author, and public intellectual.
Featuring:
-- George L. Priest, the Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship at Yale Law School

Supreme Court Criminal Law Roundup: A Look Back and a Look Ahead Oct 23, 2020

Join Dean Mazzone and Matt Cavedon for a discussion of major criminal cases at the U.S. Supreme Court from both last year and the current term. Discussion will cover areas of law ranging from the death penalty and searches and seizures to sentencing guidelines and computer crimes.
Featuring:
Dean A. Mazzone, Senior Trial Counsel, Massachusetts Attorney General
Matthew Cavedon, Assistant Public Defender, Northeastern Judicial Circuit
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.

The Executive Branch, the Supreme Court, and More Oct 23, 2020

Join us as John Malcolm and John Yoo discuss recent Supreme Court news, the 25th amendment, what happens if the Electoral College deadlocks (or fails), as well as the latest on the confirmation hearings for Judge Amy Coney Barrett.
Featuring:
John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law
This call is open to the public - please dial 888-752-3232 to access the call.

Born in the USA: A Debate on the Meaning of the Constitution’s Citizenship Clauses Oct 21, 2020

Article II and the 12th Amendment require those seeking the office of President and Vice-President be a natural-born citizen. The 14th Amendment provides that "all persons born...in the United States, and subject to the jurisdiction thereof, are citizens." But what does it mean to be "subject to the jurisdiction thereof?" These two texts have been the subject of controversy throughout the past decade, and present interesting legal questions for constitutional theorists. Is it enough to be born in the U.S.A.?
In conjunction with the Chapman University and UCLA Federalist Society chapters, the Federalism and Separation of Powers Practice Group is poised to host renowned Constitutional scholars John Eastman and Eugene Volokh. Eastman and Volokh will debate the meaning of the Constitution's citizenship clauses live on Zoom. The Honorable Andrew Guilford, Ret., will moderate with Q&A to follow.
Featuring:
-- Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
-- John Eastman, Henry Salvatori Professor of Law and Community Service and Director, Center for Constitutional Jurisprudence, Chapman University Fowler School of Law
-- Moderator: Hon. Andrew J. Guilford, United States District Court, Central District of California

Courthouse Steps Oral Argument Teleforum: Torres v. Madrid Oct 20, 2020

In 2014, Roxanne Torres pleaded guilty to three crimes: aggravated fleeing from a law enforcement officer, assault on a police officer, and unlawfully taking a motor vehicle. All of these crimes occurred while Ms. Torres was under the influence of methamphetamine. Ms. Torres was stopped by two police officers only after one shot and wounded her. In October of 2016, she filed a civil rights complaint in federal court against the two arresting officers in which she claimed the officers used excessive force and conspired to use excessive force. After the court interpreted her complaint under the Fourth Amendment, the court dismissed the case claiming the officers are entitled to qualified immunity. The court reasoned that because there was no seizure at the time of the shooting, there could be no Fourth Amendment violation. The U.S. Court of Appeals for the Tenth Circuit affirmed the lower court's decision.
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 Oral Argument Teleforum: United States v. Collins Oct 20, 2020

Consolidated with United States v. Collins, United States v. Briggs challenges the idea that a rape charge may only be prosecuted if it is discovered within five years of the crime. Michael Briggs was found guilty of rape in 2014; however, Briggs claimed that the statute of limitations had expired, as the crime happened in 2005. Briggs was convicted by the U.S. Air Force Criminal Court and, after a fairly complicated procedural route, will now be heard by the U.S. Supreme Court.
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 Oral Argument Teleforum: Ford Motor Company v. Montana Eighth Judicial District Court Oct 20, 2020

Liability in motor vehicle accidents is frequently an issue necessitating litigation, but not typically at the level of the Supreme Court. In this case, though, two incidents rose all the way to our highest court. In a Minnesota accident, a passenger driving a Ford vehicle suffered severe brain injury when the passenger-side airbags failed to deploy during an accident. Ford found itself in another case, this time in Montana, involving a vehicle's tread/belt separation and resulting in fatality for the driver. Despite their efforts to dismiss these claims by citing a lack of personal jurisdiction, the state courts and state supreme courts in both cases affirmed the ruling of liability and negligence on the part of Ford Motor Company. The Supreme Court will now decide whether the "arise out of or relate to" requirement of the Fourteenth Amendment's due process clause permits a state court to exercise specific personal jurisdiction over a nonresident.
Featuring:
Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
Jaime A. Santos, Partner, Goodwin Procter 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.

The Economics and Ethics of Insider Trading Reform Oct 20, 2020

There was surprising momentum on the issue of insider trading reform at the start of 2020. On December 9, 2019, the U.S. House of Representatives passed the Insider Trading Prohibition Act with wide bi-partisan support. In January 2020, the Securities and Exchange Commission sponsored Bharara Task Force on Insider Trading released a report containing proposed legislation. Both the House bill and the task force's proposal recommend redefining insider trading as the wrongful use of information in securities trading. What do these recommendations for reform mean by "wrongful" use? After evaluating the current state of the law, this panel will discuss the economic and ethical implications of the two reform proposals.
Featuring:
-- Jonathan R. Macey, Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law, Yale University
-- John Anderson, Professor of Law, Mississippi College School of Law, and the author of Insider Trading: Law, Ethics, and Reform
-- Moderator: Kevin R. Douglas, Assistant Professor of Law, Michigan State University College of Law

The Staggers Act Turns Forty: Lessons Learned from Railroad Regulation Oct 20, 2020

October 14, 2020 marks the 40th anniversary of the enactment of the Staggers Rail Act -- the law that largely deregulated economic dealings within the freight rail sector. So far removed, the anniversary may seem irrelevant, but the opposite is true: rail deregulation serves as an important case study on matters related to competition, markets, rate regulation and capitalism writ large.
Please join us for a discussion to analyze the rail regulatory experience and to see if there are any lessons to be learned from efforts to impose "common carrier" utility regulations on other sectors in the American economy. Covered topics will include a summary of rail deregulation, how it continues to be challenged and why core tenets of the Staggers Act are especially relevant for salient discussions related to ratemaking and due process under the Fifth Amendment.
Featuring:
-- George S. Ford, Chief Economist, Phoenix Center for Advanced Legal & Economic Public Policy Studies
-- Timothy Strafford, Associate General Counsel and Corporate Secretary, Association of American Railroads
-- Moderator: Lawrence Spiwak, President, Phoenix Center for Advanced Legal & Economic Public Policy Studies

Courthouse Steps Oral Argument Teleforum: Pereida v. Barr Oct 20, 2020

Clemente Avelino Pereida faced removability charges by the Department of Homeland Security after receiving a conviction of attempted criminal impersonation in Nebraska. As a citizen and native of Mexico, Pereida filed for an application for relief from removal. An immigration judge barred relief from removal, finding moral turpitude in his conviction. The Board of Immigration Appeals found that he was statutorily ineligible for cancellation of removal. 8th Circuit denied Pereida's petition for review.
Featuring:
-- Brian M. Fish, Special Assistant, United States Attorney, Baltimore, Maryland

Capital Conversations: Hon. Paul J. Ray, OIRA Administrator Oct 20, 2020

Join us as Paul Ray, the Administrator of the Office of Information and Regulatory Affairs at the Office of Management and Budget, discusses the priorities and work of his office during 2020.
Featuring:
-- Hon. Paul J. Ray, Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget

Book Review: America in the World: A History of U.S. Diplomacy and Foreign Policy Oct 20, 2020

Ranging from Benjamin Franklin, Alexander Hamilton, and Thomas Jefferson to Henry Kissinger, Ronald Reagan, and James Baker, America in the World tells the vibrant story of American diplomacy. Recounting the actors and events of U.S. foreign policy, Roberty Zoellick identifies five traditions that have emerged from America's encounters with the world: the importance of North America; the special roles trading, transnational, and technological relations play in defining ties with others; changing attitudes toward alliances and ways of ordering connections among states; the need for public support, especially through Congress; and the belief that American policy should serve a larger purpose. These traditions frame a closing review of post-Cold War presidencies, which Zoellick foresees serving as guideposts for the future.
Featuring:
-- Robert B. Zoellick, Author, America in the World: A History of U.S. Diplomacy and Foreign Policy
-- Moderator: Matthew R. A. Heiman, General Counsel & Corporate Secretary, Waystar Health; Senior Fellow and Director of Planning, National Security Institute

Courthouse Steps Oral Argument Teleforum: Google v. Oracle Oct 14, 2020

Google copied over 11,000 lines of computer code, called declaring code, owned by Oracle. Ten years after Oracle filed suit, the Supreme Court will hear the oral argument on October 7, 2020. Google says the code is purely functional, is uncopyrightable because there’s only one way to write it, and in any case their copying was fair use. Oracle, backed by the Solicitor General, says its code is creative expression that falls squarely into what Congress intended to protect and that Google’s copying was non-transformative infringement. Join us for a review of oral arguments in Google v. Oracle on the afternoon of October 7th by an all-star panel.
Featuring:
Jordana Rubel, Assistant General Counsel, U.S. Copyright Office, which co-wrote the government's brief
Prof. Michael Risch, Vice Dean and Professor of Law, Villanova University Charles Widger School of Law; author of amicus brief in support of Google
Moderator: Steven Tepp, President & CEO, Sentinel Worldwide; Professorial Lecturer in Law at The George Washington University Law School; author of amicus brief in support of Oracle
This call is open to the public and press. Dial 888-752-3232 to access the call.

Courthouse Steps Oral Argument Teleforum: Tanzin v. Tanvir Oct 14, 2020

This teleforum addresses the October 6, 2020, Supreme Court oral argument in FNU Tanzin v. Tanvir, which involves the sole question of whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C § 2000bb et seq., permits suits seeking money damages against individual federal employees. The underlying facts of the case involve RFRA claims brought by Muslim immigrants to the United States, now U.S. citizens or lawful permanent residents, who allege they were placed on the No Fly List in retaliation for refusing, on religious grounds, to serve as informants for the FBI. In a 2011 decision, Sossamon v. Texas, the Court held that the Religious Land Use and Institutionalized Persons Act (RLUIPA), a companion statute to RFRA, did not authorize money damages against states. This case represents another look at the remedies available under RFRA and the statutory phrase “appropriate relief.”
This teleforum features Stephanie Taub, Senior Counsel for First Liberty Institute, which filed an amicus brief in support of Respondents.
Featuring:
Stephanie Taub, Senior Counsel, First Liberty Institute
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: Texas v. New Mexico Oct 14, 2020

As an act of original jusrisdiction, the Supreme Court appointed a river master to resolve a dispute between New Mexico and Texas over the Pecos River back in 1949. Over 70 years later, the actions of this river master are now in question. After a tropical storm in 2014, overflow water from the Texas reservoir Red Bluff was impounded at a federally owned reservoir in New Mexico. Texas argues that when New Mexico released the impounded water, they wasted it. Because of this claim, the river master did not originally reduce Texas' rights in the 2014 and 2015 annual reports; however, upon New Mexico's request, the river master changed the 2015 reports and reduced its delivery to Texas because of the 2014-2015 flood water. By December 2018, Texas had filed a motion with the U.S. Supreme Court, with argument now scheduled for October 5. Tony Francois joins us to discuss the oral argument.
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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

COVID-19 Labor and Employment Teleforum Series #2 Aug 03, 2020

Employers are increasingly being faced with difficult issues with respect to COVID-19, including challenging labor and employment issues. Various federal and state statutes present compliance issues for employers, particularly given the recent enactment of the First Families Act and the CARES Act at the federal level. Existing federal statutes such as the National Labor Relations Act and Title VII of the Civil Rights Act also present labor and employment law challenges for employers. This three-part teleforum series will review federal and state labor and employment issues and options for employers to consider. Federalist Society Labor and Employment Executive Committee members, Tammy McCutchen and G. Roger King will be the speakers for this teleforum series. Ms. McCutchen is a Shareholder with the Littler Mendelson law firm and former head of the U.S. Department of Labor Wage and Hour Division. Mr. King is Senior Labor and Employment Counsel for the HR Policy Association and previously a Partner at the Jones Day law firm.
Featuring:
-- G. Roger King, Senior Labor and Employment Counsel, HR Policy Association
-- Tammy D. McCutchen, Principal, Littler Mendelson PC

The U.S. and the World Trade Organization (WTO): Predictions for What Comes Next – A Virtual Conversation with Stephen Vaughn Aug 03, 2020

The World Trade Organization (WTO) was intended to be the principal forum for setting the rules of international trade and for the resolution of international trade disputes. The United States has expressed its concern with the WTO’s dispute settlement system and the Administration has blocked new appointments to the Appellate Body such that there are now insufficient judges necessary to hear new appeals. The situation does not appear likely to be resolved soon. Please join Stephen Vaughn, the former General Counsel to the United States Trade Representative and previous acting U.S. Trade Representative, for a conversations regarding the ongoing conflict, relevant issues, and thoughts regarding the future of the US and the WTO. The discussion will be moderated by Daniel Pickard.
Featuring:
-- Stephen Vaughn, Partner in the International Trade Team of King & Spalding, former General Counsel for the Office of the United States Trade Representative (USTR) and acting U.S. Trade Representative.
-- Moderator: Daniel Pickard, Partner in the International Trade practice and Co-Chair of the National Security practice, Wiley Rein LLP

The True Extent of Executive Power Jul 31, 2020

In this Teleforum, two of the nation’s leading scholars of presidential power — and former office mates — debate whether Trump’s aggressive fight for presidential power goes beyond the Founders’ original designs. In his new book, Defender in Chief (St. Martin’s 2020), John Yoo argues that Trump — despite his populism — has become more often the defender rather than the opponent of the original Constitution. In The Living Presidency (Harvard 2020), Sai Prakash counters that Trump, like many modern Presidents, has violated the Constitution’s grant of executive power.
Featuring:
Prof. Saikrishna B. Prakash, James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law, University of Virginia School of Law
Prof. John C. Yoo, Emanuel S. Heller Professor of Law; Co-Faculty Director, Korea Law Center; and Director, Public Law & Policy Program, UC Berkeley School of 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.

Arizona COVID Litigation: A Challenge to Executive Authority Jul 30, 2020

This month, more than 50 bar owners across Arizona filed a special action challenging Governor Ducey's executive order (calling for a 'pause' in operations of bars and some other businesses) directly in the Arizona Supreme Court. The petitioners claim the Governor's order violates the nondelegation doctrine and the privileges or immunities clause in the Arizona constitution. The state supreme court has discretion whether to accept review and hear this case; we could learn the answer to that question as early as next week. Join the bar owners’ lawyer, ASU law professor Ilan Wurman, and AZ Court of Appeals Judge Jennifer Perkins, to discuss the case and its potential implications.
Featuring:
Prof. Ilan Wurman, Associate Professor, Sandra Day O'Connor College of Law, Arizona State University
Moderator: Hon. Jennifer Perkins, Arizona Court of Appeals, Division One
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.

40 Years Later: NEPA Regulation Update Jul 28, 2020

On July 16, 2020, the White House Council on Environmental Quality published the long-awaited revision to its regulation of the National Environmental Policy Act (NEPA) as a final rule (85 Fed. Reg. 43304). NEPA requires agencies to study the environmental impacts of major actions that could significantly impact the environment. But does the new rule make the environmental review process significantly more synchronized and predictable? Does it address the Trump's administration's "One Federal Decision" policy? It clarifies key terms where the original 1978 regulation, and subsequent federal court decisions, have significantly expanded the burdens and litigation risks of the NEPA process, but will new provisions on exhaustion of objections during comment periods reduce litigation risk for agencies and uncertainties for project applicants and other stakeholders? Together with the Trump administration's other major infrastructure reform initiatives, will the new rule help pave the way for significant expansion and modernization of America's infrastructure? Mario Loyola, formerly associate director of the White House Council on Environmental Quality, was intimately involved in President Trump's infrastructure efforts, and will review some of the most significant changes of the new NEPA regulation.
Featuring:
-- Mario Loyola, Senior Fellow, Competitive Enterprise Institute

Religious Liberty at the Supreme Court: The 2020 Term and Beyond Jul 28, 2020

This summer, the Supreme Court decided several high-profile religious liberty cases. In Espinoza v. Montana Department of Revenue, the Court held that religious schools cannot be excluded from generally-available funding programs on the basis of their religious identity. In Little Sisters of the Poor v. Pennsylvania, the Court upheld the Trump administration's exception to the contraception mandate, and in Our Lady of Guadalupe v. Morrissey-Berru, the Court affirmed that the First Amendment requires that religious schools enjoy significant autonomy in employment decisions, according to their religious missions.
Mark Rienzi of the Becket Fund joins us to discuss these cases, preview the Supreme Court's fall term, and analyze the future of religious liberty at the Supreme Court. Professor William Saunders from The Catholic University of America will moderate the conversation.
Featuring:
Mark Rienzi, President, Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, Catholic University; Visiting Professor, Harvard Law School
William Saunders, Professor, The Catholic University of America; Director, Program in Human Rights, The Institute for Human Ecology
This call is open to the public - please dial 888-752-3232 to access the call.

International Criminal Justice Jul 27, 2020

In May, French authorities arrested Felicien Kabuga after a 26-year manhunt for his alleged role in the Rwandan genocide. Kabuga was indicted before the International Criminal Tribunal for Rwanda on seven counts of genocide, conspiracy, and related crimes for importing and supplying thousands of machetes to the militias that led the killing spree, as well as for broadcasting propaganda urging mass slaughter. A quarter-century later, what will prosecutors be trying to show the court? What difficulties are they likely to encounter introducing evidence that old? What is it like to hunt for a fugitive for decades, and what does Kabuga's capture tell us in retrospect about how he was able to run for so long? Please join the Honorable Hassan Jallow, Eli Rosenbaum, and Arthur Traldi for an engaging conversation about the apprehension of one of the world's most wanted fugitives, and the case against him. The discussion will be moderated by Adam Pearlman.
Featuring:
-- The Honorable Hassan Bubacar Jallow, Chief Justice of The Gambia, former Chief Prosecutor of the International Criminal Tribunal for Rwanda (ICTR)
-- Eli Rosenbaum, Director, Human Rights Enforcement Policy and Strategy, Human Rights and Special Prosecutions Section, U.S. Department of Justice
-- Arthur Traldi, former war crimes prosecutor for the International Criminal Tribunal for the Former Yugoslavia and ICTR
-- Moderator: Adam R. Pearlman, Managing Director, Lexpat Global Services

Federalization of Elections Jul 23, 2020

The United States, a constitutional republic, employs a decentralized election regulation system with decision making authority over policies and procedures spread among local, state and federal authorities. The Constitution provides some authority to Congress over elections but state and local authorities oversee the conduct and details of elections. For example, the U.S. Constitution sets out an “election day”: the first Tuesday after November 1. Because the Constitution proscribes terms for federal offices, i.e. four years for the President, six years for Senators and two years for Representatives, federal elections are required at least every two years.
Our system leaves the details of the election administration to the individual states. Those details include the specifics of election day rules such as the time for opening and closing polling places, absentee ballot procedures (including emergency absentee balloting), early voting, registering to vote, and the regulation and prosecution of election irregularities and election crimes. Accordingly, election procedures can vary widely from state to state and even, in some cases, within a state if local jurisdictions develop their own idiosyncratic policies and procedures.
This panel will discuss the roles played by federal, state and local governments in elections as defined by the U.S. Constitutions, whether and how those roles have evolved in recent decades, and whether and how those roles could change in certain circumstances, including the COVID-19 era.
Featuring:
-- Mr. Erik S. Jaffe, Partner, Schaerr | Jaffe LLP
-- Hon. Matthew S. Petersen, Partner, Holtzman Vogel Josefiak Torchinsky PLLC

Police Unions, Practically Speaking Jul 23, 2020

In the current scholarship surrounding law enforcement issues, there are two diverging sides in which some advocate for major reform and others advocate for a continuation of the status quo across major police departments in the United States. Standing in the middle of this debate is a substantial player: police unions. The push for major reform in police departments sometimes collides with powerful police unions, who argue that Qualified Immunity and other policies that protect police officers should be maintained. Like many other unions in other fields, police unions often will fight to defend its members through advocacy of certain reforms, while opposing or ignoring other reforms. Catherine Fisk and L. Song Richardson argued in a law review article that police unions in several cities “have challenged police chiefs brought in to enact reforms that they consider threatening to officer safety or economic interests, or that they believe weaken public safety.” They claim union-negotiated procedural rights for police officers sometimes make reform more difficult. Many advocate that these rights for police officers must be continued due to the high demand for police officers and their willingness to put their lives on the line. Moving forward in the debate surrounding police reform, a multitude of perspectives will have to be considered in order to bring about any piece of major reform, if needed at all, to ensure that police departments do not face shortages, collective bargaining standoffs, and other labor issues.
Featuring:
-- Larry H. James, Managing Partner, Crabbe, Brown & James LLP
-- Prof. Daniel DiSalvo, Professor and Chair of Political Science, The City College of New York

Courthouse Steps Decision: United States Patent and Trademark Office v. Booking.com B.V. Jul 23, 2020

On June 30, the Supreme Court released its decision in United States Patent and Trademark Office v. Booking.com B.V.. In an 8-1 decision, the Court upheld the ruling of the lower court, which found that “Booking.com” is not a generic term and is thus eligible for trademark protection. Justice Ginsburg wrote the majority opinion of the Court; in that opinion, Justice Ginsburg first noted that a website styled “generic.com” does not qualify for federal trademark protection if the term has meaning to consumers, but because “Booking.com” does not necessarily signify to consumers an online hotel reservation service, it is therefore not a generic term and qualifies for protection. Justice Sotomayor authored a concurring opinion, and Justice Breyer dissented. Our expert will discuss the decision and its implications.
Featuring:
Mr. Zvi Rosen, Visiting Scholar and Professorial Lecturer in Law, George Washington University School of Law
This call is open to the public, please dial 888-752-3232 at 2:00 p.m. ET to access the call.

New Labor Department Rule: Taking on ESG Investment Risk to American Retirement Security Jul 20, 2020

A sustained effort by activist investors to align corporate policy and investing with a progressive policy agenda could be shortchanging the retirement savings of millions of Americans. Data shows that investments tied to perceived environmental, social, and governance principles, or ESG, generally offer lower yields than the S&P 500 benchmark, but activists are pushing to use trillions of dollars in pension and retirement plans to discriminate against various industries. The trend could have profound implications for public and private pensions programs and other retirement savings plans. ESG investing might also pose a challenge to the fiduciary responsibility of asset management professionals to act in the best financials interests of the people they serve, a bedrock concept in financial planning.
The U.S. Department of Labor is preparing to ensure ESG investing does not undermine protections enshrined in the Employee Retirement Income Security Act (ERISA). A proposed rule would codify in law that asset managers must uphold their fiduciary responsibility when considering ESG investment decisions. The rule states: “It is unlawful for a fiduciary to sacrifice return or accept additional risk to promote a public policy, political, or any other nonpecuniary goal.” A comment period ends on July 30.
At this teleforum George Mason University Antonin Scalia Law School Professor JW Verret will discuss the Labor Department’s proposed rules and the implications for retirement security. Verret serves on the Investor Advisory Committee of the Securities and Exchange Commission, where he advises the Chairman of the SEC on legal and policy reform.
Featuring:
Prof. J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University
This call is open to the public - please dial 888-752-3232 to access the call.

Innovation in Diagnostics and Patent Subject Matter Eligibility Jul 20, 2020

This teleforum will focus on patent subject matter eligibility issues highlighted by the COVID-19 pandemic, particularly as they relate to patentability of medical diagnostic tests. The panel will provide a brief review of Section 101 case law, particularly the recent line of subject matter eligibility cases from the Supreme Court stemming from Alice Corp. v. CLS Bank and Mayo Collaborative Services v. Prometheus Laboratories, and will analyze the impact of these Supreme Court cases on innovation and investment in medical diagnostic technology. The panel will comment on the lessons to be learned from the COVID-19 pandemic, and provide recommendations for administrative and legislative actions that would assure the continuation of US leadership in medical diagnostics.
Featuring:
-- Prof. Paul R. Gugliuzza, Professor of Law, Temple University Beasley School of Law
-- Hon. David J. Kappos, Partner, Cravath Swaine & Moore LLP
-- Prof. David O. Taylor, Robert G. Storey Distinguished Faculty Fellow, Associate Professor of Law, Co-Director, Tsai Center for Law, Science and Innovation
-- Moderator: Mr. Andrew F. Halaby, Partner, Snell & Wilmer

COVID-19 Labor and Employment Teleforum Series #1 Jul 20, 2020

Employers are increasingly being faced with difficult issues with respect to COVID-19, including challenging labor and employment issues. Various federal and state statutes present compliance issues for employers, particularly given the recent enactment of the First Families Act and the CARES Act at the federal level. Existing federal statutes such as the National Labor Relations Act and Title VII of the Civil Rights Act also present labor and employment law challenges for employers. This three-part teleforum series will review federal and state labor and employment issues and options for employers to consider. Federalist Society Labor and Employment Executive Committee member, G. Roger King will be the speaker for this first teleforum. Mr. King is Senior Labor and Employment Counsel for the HR Policy Association and previously a Partner at the Jones Day law firm.
Featuring:
-- G. Roger King, Senior Labor and Employment Counsel, HR Policy Association

COVID-19 Business Closures, Firearms Dealers, and the Second Amendment Jul 17, 2020

As the United States faces the spread of COVID-19, officials in many jurisdictions have ordered the closure of "non-essential" or "non-life-sustaining" businesses. These shut-down orders have differed, including in their treatment of gun dealers, with officials in several jurisdictions ordering gun dealers to cease operations. Do these closures unduly burden the public's ability to acquire firearms for self-defense during an emergency, raising serious questions under the Second Amendment? What about heightened background-check requirements that operate in tandem with gun store closures as a categorical bar to firearm purchases? In addition, some officials have made public statements suggesting hostility toward the firearms trade, and some closure orders appear to single out gun-related businesses for disfavored treatment, leaving open, for example, marijuana dispensaries and liquor stores.
As jurisdictions continue to respond to the COVID-19 pandemic, many are poised to issue similar business closure orders and will face the decision whether those closures should apply to gun-related businesses. This teleforum call will address the potential Second Amendment implications of these exercises of emergency executive power.
Featuring:
Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law Houston
Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC
This call is open to the public - please dial 888-752-3232 to access the call.

Courthouse Steps Decision: Department of Homeland Security v. Thuraissigiam Jul 17, 2020

On June 25, Justice Alito, writing for a five justice majority of the Supreme Court, issued the opinion in Department of Homeland Security v. Thuraissigiam, which is the Court's first Suspension Clause case in over a decade. The decision not only has implications for the way Suspension Clause questions will be decided in the future, but also for the immigration context in particular, given that the case involved the ability of an unlawful alien to access habeas proceedings upon his detention. The implications of the decision and its effect going forward will be the focus of this teleforum.
Featuring:
-- O.H. Skinner, Arizona Solicitor General

Prosecuting Dictators: The Indictment of Nicolas Maduro Jul 17, 2020

The U.S. Department of Justice recently announced indictments of Venezuelan strongman Nicolas Maduro and several of his regime allies for drug trafficking and money laundering. This Teleforum will address the unique legal and political challenges involved in prosecuting a foreign dictator and will feature former Assistant Secretary of State for Western Hemisphere Affairs, Roger F. Noriega, and Professor Manuel A. Gomez, Professor of Law and Associate Dean for Graduate Studies and Global Engagement at Florida International University.
Featuring:
-- Professor Manuel A. Gomez, Professor of Law and Associate Dean for Graduate Studies and Global Engagement at Florida International University
-- Hon. Roger F. Noriega, Visiting Fellow, American Enterprise Institute, and former Assistant Secretary of State for Western Hemisphere Affairs
-- Moderator: Harout Jack Samra, Associate, DLA Piper

Courthouse Steps Decision: McGirt v. Oklahoma Jul 15, 2020

On July 9, the Supreme Court released its decision in McGirt v. Oklahoma. By a vote of 5-4, the judgment of the Oklahoma Court of Criminal Appeals was reversed. Justice Gorsuch's majority opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The Chief Justice dissented, joined by Justices Alito and Kavanaugh, and by Justice Thomas except as to footnote 9. Justice Thomas also filed a dissent. Our group of experts joins us to discuss the decisions and implications moving forward.
Featuring:
A.J. Ferate, Of Counsel, Spencer Fane LLP
Andy Lester, Partner, Spencer Fane LLP
Prof. Taiawagi “Tai” Helton, W. DeVier Pierson Professor of Law, University of Oklahoma College of Law
This call is open to the public - please dial 888-752-3232 to access the call.

Capital Conversations: Michael R. Pompeo, U.S. Secretary of State Jul 14, 2020

The Problems of Preservation: How Much Evidence is Too Much? Jul 13, 2020

In today’s digital age, businesses create seemingly infinite quantities of data. And when the mere prospect of litigation looms, current rules require businesses to assume significant costs to store and maintain any data that might be relevant to that litigation. This seemingly boundless duty to preserve, unmoored from our legal traditions, all but abandons the common law of discovery.
At common law, the duty attached only upon the filing of a suit (or when filing was imminent), and generally required only that parties not destroy evidence directly related to litigation. But today’s duty casts aside these originalist common-law pillars—the duty not only attaches earlier, but is broader in scope. What’s more, recent judge-made preservation obligations make obtaining spoliation sanctions far easier by removing the common-law requirement that the spoliator acted in bad faith. Such a broad duty and simple path to sanctions has led, predictably, to over-preservation, placing significant burdens on corporate litigants.
This teleforum dives into this topic, and will discuss whether courts have strayed too far from the historical common law, changing the traditional balance and equity in discovery.
Featuring:
Michael Buschbacher, Counsel, U.S. Department of Justice
Suzanne H. Clark, Discovery Counsel, eDiscovery CoCounsel, pllc
Robert Keeling, Partner, Sidley Austin 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.

Courthouse Steps Decision: Trump v. Mazars USA and Trump v. Vance Jul 13, 2020

May grand juries or congressional oversight committees obtain the personal tax records and other financial information about the President, even from third parties? This is the question presented in Trump v. Mazars USA and Trump v. Vance, two cases decided today by the Supreme Court, and discussed in today’s Courthouse Steps Teleforum call.
Devin Watkins of the Competitive Enterprise Institute will join us to discuss the results in these cases and the implications on separation of powers and the future of the presidency.
Featuring:
Mr. Devin Watkins, Attorney, Competitive Enterprise Institute
This call is open to the public and press. Please dial 888-752-3232 to access this call at 3:30 p.m. ET.

Courthouse Steps Decision: Our Lady of Guadalupe School v. Morrissey-Berru Jul 10, 2020

In today's decision in Our Lady of Guadalupe School v. Morrissey-Berru (together with St. James School v. Biel), the justices decided, by a vote of 7-2, that the judgments of the U.S. Court of Appeals for the Ninth Circuit are reversed and the cases remanded. Justice Alito's majority opinion was joined by the Chief Justice and Justices Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh. Justice Thomas also filed a concurring opinion, joined by Justice Gorsuch. Justice Sotomayor dissented, joined by Justice Ginsburg. Daniel Blomberg joins us to discuss this decision and its implications.
Featuring:
Daniel Blomberg, Senior Counsel, Becket Fund for Religious Liberty
This call is open to the public - please dial 888-752-3232 to access the call.

Courthouse Steps Decision: Little Sisters of the Poor v. Pennsylvania Jul 10, 2020

In Little Sisters of the Poor v. Pennsylvania, the justices upheld in a 7-2 ruling a federal rule exempting employers with religious or moral objections from providing contraceptive coverage to their employees under the Affordable Care Act. Eric Kniffin joins us to discuss the decision and its implications.
Featuring:
-- Eric N. Kniffin, Partner, Lewis Roca Rothgerber Christie LLP

Courthouse Steps Decision: The Limits of Robocalls, Barr v. American Association of Political Consultants, Inc. Jul 09, 2020

In Barr v. American Association of Political Consultants, Inc., the Supreme Court held unconstitutional a portion of the Telephone Consumer Protection Act that protected the public from certain kinds of robocalls to cell phones. In a badly split (3-1-3-2) decision, the Court concluded that the statute unconstitutionally imposed a content-based limitation on speech by generally banning robocalls but creating an exception for calls to collect a debt "owed to or guaranteed by the United States." Thus, the American Association of Political Consultants (AAPC), which wished to make political robocalls, was prohibited from doing so by the statute. The Court held that it was unconstitutional to treat calls differently depending on their content, and it remedied the violation by eliminating the exception for calls to collect a government debt. In the end, the AAPC convinced the Court that the statute was unconstitutional, but was not able to convince the Court that its own speech should be protected. Instead, we now have a ban on robocalls that applies regardless of content to both debt collection and political speech.
Featuring:
Prof. Michael R. Dimino, Professor of Law, Widener University School of Law
This call is open to the public; please dial 888-752-3232 at 12:00 noon to access the call.

Courthouse Steps Decision: CO Dept. of State v. Baca and Chiafalo v. WA Jul 09, 2020

In Chiafalo v. Washington and its companion case Colorado Department of State v. Baca, the Supreme Court affirmed the power of the states to regulate the decisions of presidential electors. States may fine electors who vote for a candidate other than the winner of the statewide popular vote, and states may replace electors who attempt to vote for someone else. We can expect to see more states institute "faithless electors" rules for the 2020 presidential election and beyond.
Featuring:
Prof. Derek T. Muller, Professor of Law, University of Iowa College of Law
This call is open to the public and to the press. Please dial 888-752-3232 to access the call.

Book Review: The Dubious Morality of Modern Administrative Law by Richard Epstein Jul 09, 2020

Richard Epstein’s The Dubious Morality of Modern Administrative Law examines how the growth of the administrative state as a result of FDR’s New Deal has coincided with many different Supreme Court decisions since the 1936-37 term of the Court that legitimized the reach of different administrative agencies by giving them far more control over substantive issues through different forms of judicial deference to agency interpretation, such as Auer and Chevron deference. Throughout his book, Epstein effectively frames how Auer deference, Chevron deference, and the Court’s major decision, Motor Vehicle Manufacturers Association v. State Farm, led to the courts becoming “too deferential on questions of law and too interventionist on matters of fact.” Epstein asserts that the administrative state has grown far too powerful for us to mitigate its power significantly. However, he suggests that we can initiate a minor constitutional revolution in administrative law by turning away from the judicial language that has delegated power and abandoned procedural protection by returning “the law to its original design, meaning, and structure.” One way this can be achieved, according to Epstein, is by simply following the original text of the Administrative Procedures Act and avoiding the judicial language that has complicated its meaning since its implementation in 1946.
Featuring:
-- Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
-- 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

Courthouse Steps Decision Teleforum: Espinoza v. Montana Department of Revenue Jul 07, 2020

On June 30, the Supreme Court released its decision in the case of Espinoza v. Montana Dep't of Revenue. By a vote of 5-4, the judgment of the Supreme Court of Montana was reversed and the case remanded. Chief Justice Roberts' majority opinion was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh. Justice Thomas filed a concurring opinion joined by Justice Gorsuch. Justices Alito and Gorsuch also filed concurring opinions. Justice Ginsburg dissented, joined by Justice Kagan. Justice Breyer dissented, joined by Justice Kagan as to Part I. Justice Sotomayor also filed a dissenting opinion. Michael Bindas joins us to discuss the decisions and its implications.
Featuring:
Michael Bindas, Senior Attorney, Institute for Justice
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: USAID v. Alliance for Open Society International, Inc. Jul 07, 2020

On Monday, the Supreme Court released its decision in United States Agency for International Development v. Alliance for Open Society International. By a vote of 5-3, the judgment of the U.S. Court of Appeals for the Second Circuit is reversed. The justices held that the enforcement of a law requiring foreign affiliates of domestic groups receiving funds to fight HIV/AIDS to have a policy opposing prostitution and sex trafficking does not violate the First Amendment. Justice Kavanaugh's majority opinion was joined by the Chief Justice and Justices Thomas, Alito, and Gorsuch. Justice Thomas also filed a concurring opinion. Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor. Justice Kagan took no part in the consideration or decision of the case. Our speakers will discuss the decision and its implications.
Featuring:
Casey Mattox, Senior Fellow, Free Speech and Toleration, Charles Koch Institute
Krystal B. Swendsboe, Associate, Wiley Rein 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.

Courthouse Steps Decision Teleforum: June Medical Services LLC v. Russo Jul 06, 2020

On June 29, 2020, the Supreme Court issued its first major abortion decision on the merits since Justice Anthony Kennedy's retirement. The consolidated cases, June Medical Services v. Russo and Russo v. June Medical Services, involved the constitutionality of Louisiana's law requiring physicians who perform abortions to have admitting privileges at a local hospital, and whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations, such as Louisiana's admitting privileges law, on behalf of their patients. The plurality opinion held that the abortion providers had standing and Louisiana's law was unconstitutional because it imposed an undue burden. This teleforum will discuss this opinion, as well as Chief Justice Roberts' concurrence, the four dissents, and the decision's implications.
Featuring:
Steven H. Aden, Chief Legal Officer & General Counsel, Americans United for Life
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: Seila Law LLC v. Consumer Financial Protection Bureau (CFPB) Jul 06, 2020

In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Supreme Court decided the constitutionality of the CFPB, an agency long criticized not just by the business community but also constitutional scholars who see major problems a single-director agency seemingly unaccountable to the president or anyone else. The lawsuit was brought by a law firm that assists in resolving personal-debt issues, among other legal work that puts it in the crosshairs of those who want greater regulation of consumer-facing financial services. The CFPB is the most independent of independent agencies, with power to make rules, enforce them, adjudicate violations in its own administrative hearings, and punish wrongdoers. It doesn’t need Congress to approve its budget, because its funding requests are met by another agency insulated from political control: the Federal Reserve. Even CFPB supporters concede that the CFPB structure and authority is unique. John Eastman and Brian Johnson join us to discuss the Supreme Court's decision and the greater implications.
Featuring:
John Eastman, Henry Salvatori Professor of Law and Community Service and Director, Center for Constitutional Jurisprudence, Chapman University Fowler School of Law
Brian Johnson, Partner, Alston & Bird

Executive Power and More Jul 06, 2020

John Malcolm and John Yoo continue their Teleforum series, joining us to discuss recent events including updates on the Michael Flynn case, the Supreme Court decision on DACA, recent unrest and free speech issues, and more.
Featuring:
-- John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
-- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

Courthouse Steps Decision Teleforum: Liu v. SEC Jun 26, 2020

On Monday, the Supreme Court released its decision in Liu v. SEC. By a vote of 8-1, the judgment of the U.S. Court of Appeals for the Ninth Circuit was vacated and the case remanded. Justice Sotomayor's majority opinion was joined by all other members of the Court except Justice Thomas, who dissented. Todd Braunstein will discuss the decision and offer commentary.
Featuring:
Todd F. Braunstein, General Counsel - International, Willis Towers Watson
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: United States Forest Service v. Cowpasture River Preservation Association Jun 26, 2020

On June 15, 2020, the Supreme Court released its decision in the case of United States Forest Service v. Cowpasture River Preservation Association. By a vote of 7-2, the judgment of the U.S. Court of Appeals for the Fourth Circuit was reversed, and the case remanded. Per Justice Thomas's opinion for the Court: "We granted certiorari in these consolidated cases to decide whether the United States Forest Service has authority under the Mineral Leasing Act, 30 U. S. C. §181 et seq., to grant rights-of-way through lands within national forests traversed by the Appalachian Trail. 588 U. S. ___ (2019). We hold that the Mineral Leasing Act does grant the Forest Service that authority and therefore reverse the judgment of the Court of Appeals for the Fourth Circuit." Justice Thomas's majority opinion was joined by the Chief Justice and Justices Breyer, Alito, Gorsuch, and Kavanaugh in full, and by Justice Ginsburg as to all but Part III-B-2. Justice Sotomayor dissented, joined by Justice Kagan.
Featuring:
-- Hon. Paul D. Clement, Partner, Kirkland & Ellis LLP
-- Stephen A. Vaden, General Counsel, U.S. Department of Agriculture

Business Interruption Insurance and Policy Exceptions for the COVID-19 Pandemic Jun 23, 2020

The outbreak of COVID-19 led to the closing of thousands of businesses across the country. Some businesses that were closed by state and local governments are now seeking business interruption coverage as a result. There currently are two common business interruption policy forms: gross earnings and business income. Most insurers are stating that there are policy exemptions for viruses and pandemics that prevent insured businesses from receiving business interruption coverage due to COVID-19. In response, there is legislation being crafted in several states that purports to override these policy exemptions for viruses. Is this type of legislation constitutional under Article I, Section 10, Clause of the United States’ Constitution? Professor Richard Epstein, Professor of Law at New York University, discusses these issues with us in this Federalist Society teleforum.
Featuring:
-- Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law

Courthouse Steps Decision Teleforum: Department of Homeland Security v. Regents of the University of California Jun 22, 2020

On June 18, 2020, the Supreme Court released its decision in the case of Department of Homeland Security v. Regents of the University of California. By a vote of 5-4, the judgment of the U.S. Court of Appeals for the Ninth Circuit (DHS v. Regents) was vacated in part and reversed in part, the judgment of the D.C. Circuit (Trump v. NAACP) was affirmed, and various orders of the Second Circuit (Wolf v. Vidal) were vacated, affirmed in part, or reversed in part. All the cases are remanded. The Chief Justice's opinion for the Court was joined by Justices Ginsburg, Breyer, and Kagan in full, and by Justice Sotomayor as to all but Part IV. Justice Sotomayor concurred in part, concurred in the judgment in part, and dissented in part. Justice Thomas concurred in the judgment in part and dissented in part, joined by Justices Alito and Gorsuch. Justices Alito and Kavanaugh also filed opinions concurring on the judgment in part and dissenting in part. Our expert selection of speakers will discuss the decision and implications for the future.
Featuring:
Dr. John C. Eastman, Henry Salvatori Professor of Law and Community Service and Director, Center for Constitutional Jurisprudence, Chapman University Fowler School of Law
Christopher Hajec, Director of Litigation, Immigration Reform Law Institute
Mario Loyola, Senior Fellow, Competitive Enterprise Institute
William A. Stock, Partner , Klasko Immigration Law Partners, LLP
This call is open to the public - please dial 888-752-3232 to access the call.

Courthouse Steps Decision Teleforum: Title VII Cases Jun 22, 2020

By a vote of 6-3 in yesterday's decision in Bostock v. Clayton County (combined with Altitude Inc. v. Zarda and R.G. & G.R. Harris Funeral Homes Inc.), the Supreme Court affirmed that the judgment of the U.S. Court of Appeals for the Eleventh Circuit was reversed, and the case remanded (and the judgments of the Second Circuit in Altitude Express and the Sixth Circuit in R.G. & G.R. Harris Funeral Homes are affirmed). Justice Gorsuch's majority opinion was joined by the Chief Justice and Justices Ginsburg, Breyer, Sotomayor, and Kagan. Justice Alito dissented, joined by Justices Thomas and Kavanaugh. Curt Levey joins us to discuss the decision and future implications.
Featuring:
Curt Levey, President, Committee for Justice
This call is open to the public - please dial 888-752-3232 to access the call.

Book Review: Free to Move: Foot Voting, Migration, and Political Freedom Jun 18, 2020

Ballot box voting is often considered the essence of political freedom. But it has two major shortcomings: individual voters have little chance of making a difference, and they also face strong incentives to remain ignorant about the issues at stake. "Voting with your feet," however, avoids both of these pitfalls and offers a wider range of choices. In his new book Free to Move: Foot Voting, Migration, and Political Freedom (Oxford University Press), Ilya Somin argues that broadening opportunities for foot voting can greatly enhance political liberty for millions of people around the world.
People can vote with their feet through international migration, by choosing where to live within a federal system, and by making decisions in the private sector. These three types of foot voting are rarely considered together, but Somin explains how they have important common virtues and can be mutually reinforcing. He contends that all forms of foot voting should be expanded and shows how both domestic constitutions and international law can be structured to increase opportunities for foot voting while mitigating possible downsides.
Somin addresses a variety of common objections to expanded migration rights, including claims that the "self-determination" of natives requires giving them the power to exclude migrants, and arguments that migration is likely to have harmful side effects, such as undermining political institutions, overburdening the welfare state, and increasing crime and terrorism. While these objections are usually directed at international migration, Somin explains how, if taken seriously, they would also justify severe restrictions on domestic freedom of movement. By making a systematic case for a more open world, Free to Move challenges conventional wisdom on both the left and the right.
Featuring:
-- Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University, and Author, Free to Move: Foot Voting, Migration, and Political Freedom
-- Moderator: Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University Pritzker School of Law

World Politics After Brexit: A Conversation with Nigel Farage Jun 16, 2020

Nigel Farage has been campaigning for Britain’s withdrawal from the European Union since 1999, when he founded the UK Independence Party, which got more votes in the 2014 European elections than either the Labour or Conservative Parties. Farage then played a leading role as advocate for the “leave” side in the 2016 UK referendum on EU membership. He followed up by organizing a new Brexit Party to keep up pressure for full withdrawal in subsequent UK elections. Farage has been a frequent commentator on FOX NEWS and hosts his own program on British radio station LBC. In this Teleforum, Mr. Farage will address current developments in Britain and the EU but also talk about nationalist and populist trends in the U.S. and other countries.
Featuring:
-- Nigel Farage, Former Member of the European Parliament, South East England Constituency
-- Moderator: Prof. Jeremy A. Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University

COVID-19 and Suing the Chinese Communist Party (CCP) and the Chinese Government? Jun 15, 2020

The first lawsuit against the Chinese government seeking damages for personal and property injuries was filed in the Southern District of Florida by the Berman Law group. The lawsuit was later amended to add the Chinese Communist Party (CCP) as a defendant. Other lawsuits have followed elsewhere in the country. The panelists will discuss whether the CCP enjoys sovereign immunity and whether the acts and omissions of the Chinese government fall within one or more exceptions to sovereign immunity as provided in the Foreign Sovereign Immunities Act.
Featuring:
-- Karen Lugo, Founder, Libertas-West Project
-- Hon. F. Scott Kieff, Fred C. Stevenson Research Professor, George Washington University Law School
-- Matthew T. Moore, Attorney, Berman Law Group
-- Tatiana Sainati, Associate, Wiley Rein LLP

The Antitrust "Failing Firm” Defense in the Wake of the COVID-19 Crisis Jun 12, 2020

Since 1930, the Supreme Court has recognized a failing firm defense to an otherwise unlawful merger under the U.S. antitrust laws. The three-part test to prove a failing firm defense generally is met when the company sought to be acquired is in danger of imminent failure, cannot reorganize successfully in bankruptcy, and has made unsuccessful good faith efforts to find alternative purchasers. In past economic crises, such as the 2008-2009 financial crisis, the U.S. antitrust agencies have not eased merger requirements or the standards governing the failing firm defense. Will this change with the COVID-19 pandemic shuttering countless businesses? Could we see litigated merger challenges brought by the U.S. antitrust agencies that turn on the three-part test to prove a failing firm defense?
Featuring:
-- Greg Eastman, Ph.D., Vice President, Cornerstone Research
-- George L. Paul, Partner, White & Case LLP
-- Moderator: Eric Grannon, Partner, White & Case LLP, and former Counsel to the AAG of the DOJ Antitrust Division

Book Review: Marijuana Federalism: Uncle Sam and Mary Jane Jun 11, 2020

A majority of states have legalized the sale and possession of marijuana for medicinal purposes. Eleven states and the District of Columbia allow recreational use. Yet marijuana production, sale, and possession remain illegal under federal law. Is this federalism in action? Or a perversion of our federal system? Although the Supreme Court upheld the constitutionality of the federal prohibition on the distribution and possession of marijuana in Gonzales v. Raich, most enforcement of the nation's drug laws occurs at the state and local level. Even without routine enforcement, federal law creates distinct pressures on financial institutions, lawyers, among other constituencies. Should the federal government cede the field, and allow states to set marijuana policy? Or should the federal government seek to end these state-level experiments in marijuana policy reform. Discussing this topic will be Jonathan H. Adler, Johan Verheij Memorial Professor of Law at Case Western Reserve University and editor of the new book, Marijuana Federalism: Uncle Sam and Mary Jane, and Paul Larkin, John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Meese Center for Legal and Judicial Studies at the Heritage Foundation.
Featuring:
Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law and Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law
Paul J. Larkin Jr., Senior Legal Research Fellow, Meese Center for Legal and Judicial Studies, Institute for Constitutional Government, The Heritage 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.

Lightning Strikes: A Successful Appeal in the Opioid MDL and Whether We Will See More Interlocutory Appeals in MDLs Jun 11, 2020

Earlier this year, the United States Court of Appeals for the Sixth Circuit did something almost unheard of: it took an appeal from an order entered by an MDL judge and reversed it. The order came from the Opioid MDL in the Northern District of Ohio, and the Sixth Circuit’s action raises the question whether appeals like this should be more common in MDL litigation—a question the federal civil rules committee is taking up right now. Please join us for a discussion of the Sixth Circuit’s decision and whether it bolsters or undermines the need for a rulemaking to facilitate appeals in MDL cases.
Featuring:
-- Robert Keeling, Partner, Sidley Austin LLP
-- Tim Pratt, Formerly General Counsel at Boston Scientific

Capital Conversations: Sonny Perdue, U.S. Secretary of Agriculture Jun 10, 2020

Secretary Perdue will discuss USDA’s response to the coronavirus pandemic including the stability of the food supply chain, President Trump’s invocation of the Defense Production Act regarding meatpacking facilities, and USDA’s deregulatory agenda with regard to biotechnology and beyond.
Featuring:
-- Hon. George Ervin "Sonny" Perdue III , U.S. Secretary of Agriculture

The Insurrection Act, Executive Authority, and More Jun 10, 2020

The Insurrection Act of 1807 empowers the President of the United States to deploy U.S. military and National Guard troops inside the United States in certain circumstances. But what are the limits of this Presidential power; does does the Insurrection Act narrow the powers granted to the President under the Constitution, or is it perfectly compatible with the Constitution? Who decides the precise scope of these powers? Can a governor or state legislature reject the offer for help or assertion of power?
Featuring:
-- John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
-- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

The End of Deference: How States Are Leading a (Sometimes Quiet) Revolution Against Administrative Deference Doctrines Jun 08, 2020

In the last few years there has been a lot of critical attention directed towards Chevron and Seminole Rock/Kisor deference. In Kisor the Supreme Court narrowed and clarified but ultimately retained the deference given to agency interpretations of their own regulations. But amidst this incremental reform at the federal level, there has been a much more dramatic anti-deference revolution at the state level. In the past twelve years, 10 states have rejected deference either judicially or by statute or constitutional amendment. And several other states seem poised to do the same thing. This teleforum analyzes the anti-deference revolution and whether and where it is likely to continue to spread.
Featuring:
-- Daniel Ortner, Attorney , Pacific Legal Foundation

Just Compensation: A Suggestion or a Requirement? Jun 08, 2020

Can states unilaterally decide not to pay takings judgments? Some states think so. Louisiana and Florida have laws that say no takings judgment can be paid unless money is specially appropriated to do so—and then they never get around to appropriating the money to pay. These laws are currently being challenged in the Fifth Circuit and the Florida Supreme Court. Please join us for an interesting discussion of this litigation.
Featuring:
Robert McNamara, Senior Attorney, Institute for Justice
Daniel Woislaw, 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.

The Chinese Government's Record of Human Rights: Marking the June 4th Anniversary of Tiananmen Square Jun 08, 2020

On June 4th, 1989, after several weeks of pro-democracy protests, the Chinese Communist Party (CCP) put down the challenge to its power. Now, with Hong Kong, the CCP has set in motion a process for ending pro-democracy protests and challenges to its power. This time, however, the CCP has arranged for China's legislative body to validate it's forthcoming action by passing a "security law."
Assistant Secretary of State for Democracy, Human Rights, and Labor, Robert Destro (on leave from the Catholic University Law faculty) will moderate a discussion on human rights and the rule of law in China. He will be joined by Professor Jerome Cohen of New York University Law School and Teng Biao, a former law professor, human rights lawyer, and political prisoner in China.
Featuring:
-- Dr. Teng Biao, Grove Human Rights Scholar, Hunter College
-- Prof. Jerome A. Cohen, Faculty Director Emeritus, New York University School of Law
-- Moderator: Robert A. Destro, Assistant Secretary for the Bureau of Democracy, Human Rights, and Labor (DRL), U.S. Department of State

British Turmoil After Brexit Jun 05, 2020

In December, 2019, the British people voted to return an historic Tory majority to Parliament with Boris Johnson as Prime Minister, paving the way for the UK to leave the EU on January 31, 2020, an historic rupture known as “Brexit," reminding politicians of all political persuasions that the British people meant what they had said in 2016, when they voted for Brexit by majority in a referendum. Along the way, a rattling of British constitutional norms tested the UK’s unwritten constitution in ways not seen, many argued, since the English Civil War and Glorious Revolution of the 17th century.
Amidst all of this, Britain’s shutdown in response to Covid-19 has shortened further her one year post-Brexit track to produce a free trade agreement with the EU and a much coveted one with the U.S., while reshaping government policy in ways that will determine whether Boris Johnson’s Disraelian vision of private-led economic growth, with government to fill remaining social gaps, can survive. And, while the Covid crisis has stolen attention, other serious post-Brexit challenges remain. Some threaten the integrity of the UK, with Scotland — whose people are overwhelmingly opposed to Brexit — using events to seek its own independence, and Northern Ireland, as divided as ever.
The combination of the UK’s withdrawal from Europe and a global pandemic have left a constitution sorely tested, a Tory Party sounding like Labor, a Labour Party in tatters, and a United Kingdom at risk of disunion. Join us as we sort it all out with our experts.
Featuring:
-- Prof. Alberto R. Coll, Director, Global Engagement; Vincent de Paul Professor of Law, DePaul University College of Law
--Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University Pritzker School of Law
-- Prof. Maimon Schwarzschild, Professor of Law, University of San Diego School of Law

Federal Liability Limitations for COVID-19 Exposure Claims Jun 05, 2020

What are the constitutional or other limits on Congressional authority to limit lawsuits that seek to hold businesses liable for COVID-19 exposure or other COVID-19-related claims? What identifiable federal interests are at stake? How do these interests interact with state police powers? These and other questions will be discussed on our Teleforum.
Featuring:
-- Mr. Michael A. Carvin, Partner, Jones Day

Capital Conversations: Brent J. McIntosh, Under Secretary, International Affairs, U.S. Department of the Treasury Jun 03, 2020

Join us as Brent J. McIntosh, Under Secretary for International Affairs at the U.S. Department of Treasury, discusses the priorities and work of his office before, during and after COVID-19.
Featuring:
-- Brent J. McIntosh, Under Secretary, International Affairs, U.S. Department of the Treasury

Litigation Update: Associational Privacy at the Supreme Court Jun 03, 2020

In NAACP v. Alabama ex rel. Patterson, the Supreme Court recognized a First Amendment right to privacy of association and belief. Almost 60 years later, while California's Attorney General began requiring charities to provide their office with a federal form listing major donors. That document -- Schedule B to IRS Form 990 -- is provided directly to the IRS, and its privacy is guaranteed by federal law. The California Attorney General asserted that her office would also protect donors' privacy, and that the information was necessary to pursue law enforcement duties. The American for Prosperity Foundation and others assert the evidence at trial indicated that donor information was publicly available, and that California authorities seldom used it for the reasons stated. The Supreme Court has been asked to review the Attorney General's policy, and has called for the views of the Solicitor General in what could prove a seminal case concerning associational privacy.
Featuring:
Mr. Robert Alt, President & CEO, The Buckeye Institute
Mr. Allen Dickerson, Legal Director, Institute for Free Speech
Mr. Paul S. Ryan, Vice President, Policy & Litigation, Common Cause
Mr. Derek Shaffer, Partner, Quinn Emanuel Urquhart & Sullivan, 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.

Courthouse Steps Decision Teleforum: County of Maui, Hawaii v. Hawaii Wildlife Fund Jun 03, 2020

The Supreme Court released the decision in County of Maui v. Hawaii Wildlife Fund on April 23, 2020. By a vote of 6-3, the judgment of the U.S. Court of Appeals for the Ninth Circuit was vacated, and the case remanded. Justice Breyer's majority opinion was joined by the Chief Justice and Justices Ginsburg, Sotomayor, Kagan, and Kavanaugh. Justice Kavanaugh filed a concurring opinion. Justice Thomas dissented, joined by Justices Gorsuch and Alito. Justice Alito also filed a dissent.
Featuring:
Glenn Roper, Attorney, Pacific Legal Foundation
This call is open to the public - please dial 888-752-3232 to access the call.

Diversity and Elimination of Bias CLE Teleforum: An update to the Harvard Case and the Meaning of Diversity in a Multi-Racial Era Jun 03, 2020

Electronic Sign In: Click Here (Sign-in now!)
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Certificate of Attendance: Click Here (Fill in the form with the two unique codes!)
The Federalist Society offers a unique opportunity for attorneys in New York, California, Minnesota, and Illinois to fulfill the one-hour “Diversity and Elimination of Bias” CLE requirement in those states.
On September 30 a federal district judge in Massachusetts issued a ruling rejecting discrimination claims in Students for Fair Admissions v. President and Fellows of Harvard College, 2019 U.S. Dist. LEXIS 170309 (D. Mass.), a case that many expect to go to the U.S. Supreme Court and potentially redefine affirmative action law. In the case, Asian-American students allege that Harvard’s racial preferences for other minority groups discriminate against them in violation of Title VI of the 1964 Civil Rights Act. The students introduced evidence that Asian enrollment at Harvard is less than half what it would be if admission was based solely on academic achievement; that Asian applicants receive the lowest scores on an amorphous “personal rating” assigned by admissions officials who have not met them; and that Harvard’s “holistic” admissions system, touted by the Supreme Court as the model for permissible racial preferences, was originally devised to exclude Jews.
The case raises the question of the meaning of “diversity” in an increasingly multi-racial era, and the continued justification for affirmative action in that era when its burden may now fall largely not on the white majority but on another historically marginalized racial minority group.
Dennis Saffran, a New York appellate attorney and Vice President of the Federalist Society Long Island Lawyers Chapter, submitted an amicus brief in the case on behalf of the National Association of Scholars and has written about the case for the Manhattan Institute’s City Journal. He will review the Supreme Court’s major affirmative action precedents since Bakke in 1978 and the arguments in the Harvard litigation in light of these precedents.
**Additional CLE Instructions:
Please check this event page the morning of the event, where there will be a dropbox link to download all CLE Materials including the links for the online Certificate of Attendance, Evaluation Form, and the PDF Written Materials.
Call into the Teleforum number 1-888-752-3232 before 2:55 p.m. ET on Tuesday, March 31st, 2020
An electronic sign-in link will go live 10 minutes before the call start time. Please make sure to electronically sign in using this link at the beginning of the call, within 10 minutes of the start time of the call.
Listen for the "Unique Program Codes" during the call and enter those codes on your Certificate of Attendance to verify your attendance.
Fill out your Certificate of Attendance and Evaluation Form that will be accessible on the event page up until the conclusion of the event, within 14 days of the conclusion of the program.

An Update on Patents and Antitrust Jun 03, 2020

Join us as our experts give an update on the intersection of patent and antitrust issues including, but not limited to, recent developments in standard essential patents, the pros and cons of patent counting, patent pools and whether current remedies for patent infringement suffice.
Featuring:
-- Hon. Makan Delrahim, Assistant Attorney General, Antitrust, United States Department of Justice
-- Hon. Andrei Iancu, Under Secretary of Commerce, Intellectual Property and Director, United States Patent and Trademark Office

What's Next in the Flynn Case? Jun 03, 2020

Gen. Mike Flynn, at one time the President's National Security Advisor, pleaded guilty to making false statements to an FBI agent who interviewed him shortly after the President took office. The charge was brought by the Office of Special Counsel and Robert Mueller. Recently, the Justice Department moved to dismiss the prosecution on the grounds that the materiality of Flynn's statements was in doubt, and that the case being developed fell short of the standards the Justice Department historically follows in dealing with defendants and potential defendants. US District Judge Emmett Sullivan, who is handling the case, has said he will hold a hearing on whether to grant the motion to dismiss, and -- since both parties support the motion -- has appointed an amicus, former federal judge John Gleeson, to present the case against granting it.
Were the charges against Flynn justified? Was Flynn dealt with fairly and according to law as the case proceeded? Is the Department correct in moving to dismiss notwithstanding Flynn's guilty plea and previous decision not to withdraw the plea? How much discretion does Judge Sullivan have in considering the government's motion to dismiss, and what principles should guide the exercise of that discretion? What is the propriety of appointing an amicus in district court when the parties themselves agree on the proper disposition?
Join our panel of experts who will discuss these questions.
Featuring:
-- John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
-- Prof. William G. Otis, Adjunct Professor of Law, Georgetown University, and former Special White House Counsel for President George H. W. Bush
-- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

A Special Relationship: U.K. and U.S. Trade Deal on the Horizon? Jun 03, 2020

The revolutionary "Brexit" vote heard round the world happened almost four years ago, and it will likely take even longer before the full global ramifications are realized on an international level. One of the key aspects to these ramifications has been the concept of a new trade deal between the United States and the United Kingdom. Just recently, trade negotiations have begun in full between the long-time allies, and many are hoping that a new trade deal could greatly aid the economies of both countries, especially with the economic fallout of COVID-19 still unclear.
Joining us for a discussion on this topic, we welcome former U.S. Senator Phill Gramm.
Featuring,
-- The Hon. William Phillip Gramm, Former United States Senator for the state of Texas
-- Matthew Heiman, Senior Fellow and Associate Director for Global Security, National Security Institute
-- Moderator: Wayne Abernathy, Chair of the Financial Services & E-Commerce Practice Group, and Former Executive Vice-President for the American Bankers Association

COVID-19 & Property Rights: Do Government Actions in Response to the Coronavirus Pandemic Create Compensable Takings? Jun 02, 2020

Numerous businesses around the country have been shuttered by state government shutdown orders adopted to try to contain the spread of the COVID-19 virus. Some have filed lawsuits claiming that such forced closures are takings requiring compensation under the Takings Clause of the Fifth Amendment. On the other side, state governments contend that no compensation is due, because the shutdowns are exercises of state police power to protect public health broadly. This teleforum will consider the extent to which takings claims against coronavirus shutdown orders have any validity.
Featuring:
Prof. F. E. Guerra-Pujol, Instructor of Accounting, University of Central Florida College of Business
Prof. Ilya Somin, Professor of Law, George Mason University Antonin Scalia Law School
Moderator: Robert H. Thomas, Director, Damon Key Leong Kupchak Hastert
This call is open to the public - please dial 888-752-3232 to access the call.

Courthouse Steps Decision: Atlantic Richfield Co. v. Christian Jun 02, 2020

On April 20, 2020, the Supreme Court, by a vote of 7-2, held that owners of polluted land within designated Superfund sites are “potentially responsible parties” under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Dozens of Montana landowners sued Atlantic Richfield for trespass and nuisance over its dumping of tons of heavy metals, arsenic, and lead on their properties—pollution which led EPA to designate a 300 square mile area as a Superfund site. In addition to compensation, the landowners sought remediation damages to pay for a cleanup beyond that previously ordered by EPA. Chief Justice John Roberts, writing for the majority, concluded that the landowners’ case cannot proceed until they first obtain EPA approval for their cleanup plan. That narrow holding sidestepped the thornier issue, whether CERCLA preempts the landowners’ state common law claims. Justices Gorsuch and Thomas dissented, arguing that the majority’s interpretation is inconsistent with the statute’s text, undermines federalism and property rights, and tees up difficult constitutional questions. Jonathan Wood will discuss the decision in Atlantic Richfield Co. v. Christian, its implications, and the questions left unanswered by it.
Featuring:Jonathan Wood, 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.

Courthouse Steps Oral Argument: CO Dept. of State v. Baca and Chiafalo v. WA Jun 02, 2020

On May 13, 2020, the Supreme Court will hear arguments in a pair of cases concerning the Electoral College. In Colorado Department of State v. Baca, Case No. 19-518, the Court will consider the claim of a presidential elector in Colorado who attempted to vote for someone other than Hillary Clinton, despite the fact that Hillary Clinton won Colorado's popular vote, and was replaced by another elector. In Chiafalo v. Washington, the Court will hear the claims of three presidential electors who were each fined $1000 after they voted for a candidate other than Hillary Clinton in 2016, who also won Washington's popular vote. The cases will examine state power to regulate the actions of presidential electors and could affect how electors behave in the 2020 election.
Featuring:
Prof. Derek Muller, Associate Professor of Law, Pepperdine University School of 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.

Courthouse Steps Decision Teleforum: NY State & Rifle Pistol Association Inc. v. City of New York Jun 02, 2020

Please join Amy Swearer of the Heritage Foundation and David Thompson of Cooper & Kirk for a discussion of the Supreme Court’s recent decision in NY State & Rifle Pistol Association Inc. v. City of New York. The presenters will cover the contents of the decision, its import, and the future of Second Amendment litigation at the Supreme Court.
Featuring:
David Thompson, Cooper & Kirk
Amy Swearer, Legal Fellow, Meese Center for Legal and Judicial Studies

Nuclear Arms Agreements and Human Rights Jun 02, 2020

Governments that seek to acquire nuclear weapons, such as Iran and North Korea, are sometimes serious violators of the rights of their citizens. Is it appropriate for the United States and other democratic nations to negotiate agreements with these governments to prevent or roll back their acquisition of weapons of mass destruction without also addressing internment camps, severe persecution of political and religious dissidents, and other conduct?
Our speakers will be Roya Hakakian, who has written extensively about Iran and who co-founded the Iran Human Rights Documentation Center at Yale; Ben Rogers, who serves as East Asia Team Leader at Christian Solidarity Worldwide and who is a founder of the International Coalition to Stop Crimes Against Humanity in North Korea; and Professor David Koplow of Georgetown University, an expert on national security law and policy who has served in senior USG arms control positions, most recently in the Defense Department.
Featuring:
-- Roya Hakakian, Author and Founding Member, Iran Human Rights Documentation Center
-- Prof. David A. Koplow, Professor of Law, Georgetown University Law Center
-- Benedict Rogers, East Asia Team Leader, Christian Solidarity Worldwide
-- Moderator: Sean Nelson, Legal Counsel for Global Religious Freedom, ADF International

Courthouse Steps Oral Argument: Trump v. Mazars USA and Trump v. Vance Jun 02, 2020

Three cases before the Supreme Court consider the ability of grand juries and congressional committees to subpoena the personal tax records of the President. In Trump v. Mazars USA and Trump v. Deutsche Bank, three House committees subpoenaed the President’s tax records. In Trump v. Vance, a local grand jury has subpoenaed these tax documents as well. There are several issues at play in determining if these subpoenas are valid.
Starting with the Congressional subpoenas, the President claims that these subpoenas are for information protected under the Right to Financial Privacy Act, which prohibits disclosure of a customer's financial records to "any Government authority" without certain procedures the committees concede they did not follow; but the committees claim that they are not a “Government authority” under the meaning of the Act. Secondly, the President claims the Internal Revenue Code, which allows disclosure but only with procedural requirements the committees admit that they have not done. But the committees claim this requirement only applies if the bank acquired the tax documents from the IRS. Third, the President claims there is no legitimate legislative purpose to the subpoena which is required for such a legislative subpoena. The committees note that although that requirement exists, the scope of what is within a proper legislative purpose is very broad and met in this case.
The Supreme Court has also asked the parties to brief whether these congressional subpoenas are the kind of dispute between the branches that the court should avoid.
As to the local New York grand jury subpoena, the President claims that he is absolutely immune from all stages of state criminal process while in office, including pre-indictment investigation.
Devin Watkins of the Competitive Enterprise Institute will join us to discuss the results of the Supreme Court oral argument on these cases.
Featuring:
-- Mr. Devin Watkins, Attorney, Competitive Enterprise Institute

Courthouse Steps Oral Argument Teleforum: McGirt v. Oklahoma Jun 02, 2020

Tribal jurisdiction is again before the Supreme Court. Following November 2018 arguments, Chief Justice John Roberts first requested additional briefing and then announced new arguments would occur in Sharp v. Murphy. Instead, the Court granted certiorari in McGirt v. Oklahoma, and Justice Gorsuch, who had recused himself from the earlier case, will participate. Jimcy McGirt sought post-conviction relief of his rape, molestation, and sodomy convictions, citing Murphy, and arguing his crimes occurred in Indian Country and thus were subject to the Indian Major Crimes Act. If that law applies, Mr. McGirt’s crimes should have been prosecuted in federal court, rather than state court. The Oklahoma Court of Criminal Appeals rejected his request for relief. Because tribal jurisdiction related to criminal, civil, and regulatory matters generally flow together under Alaska v. Native Village of Venetie Tribal Government 522 U.S. 520 (1998), some legal analysts view this case as representative of a much larger matter than simply prosecuting criminals in the proper court.
Join us for a Courthouse Steps Teleforum for reaction to the McGirt argument. The panel will feature Andy Lester and A.J. Ferate, with the Oklahoma City office of Spencer Fane, and University of Oklahoma W. DeVier Pierson Professor of Law Taiawagi “Tai” Helton.
Featuring:
-- A.J. Ferate, Of Counsel, Spencer Fane LLP
-- Andy Lester, Partner, Spencer Fane LLP
-- Prof. Taiawagi “Tai” Helton, W. DeVier Pierson Professor of Law, University of Oklahoma College of Law

The Restoring Internet Freedom Order on Remand: Next Steps for the Federal Communications Commission Jun 02, 2020

In Mozilla v. FCC, the D.C. Circuit upheld the Federal Communications Commission’s 2018 Restoring Internet Freedom Order in which the current Commission rejected the Obama Administration’s 'net neutrality' efforts to impose legacy common carrier regulation on the Internet and returned broadband Internet access service to a “light touch” regulatory regime under Title I of the Communications Act. Mozilla was not a complete victory for the Commission, however. Not only did the D.C. Circuit reverse the FCC’s broad efforts to preempt categorically state efforts to regulate the Internet, but the court remanded several issues to the Commission for further explanation, including how reclassification affects access to pole attachments, how reclassification affects the ability to include broadband in the FCC’s Lifeline program, and how reclassification affects public safety. Last March, the Commission issued a public notice to refresh the record in this case, and the comment period is on-going. Please join our panel of experts to discuss the legal issues at bar and how the FCC should respond to the court.
Featuring:
-- Matthew Brill, Partner, Latham & Watkins, LLP
-- Kristine (Fargotstein) Hackman, Vice President, Policy & Advocacy at USTelecom – The Broadband Association
-- Russell Hanser, Partner, Wilkinson Barker Knauer, LLP
-- Moderator: Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal & Economic Public Policy Studies

Courthouse Steps Oral Argument Teleforum: Our Lady of Guadalupe School v. Morrissey-Berru Jun 01, 2020

In Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, the Supreme Court, in 2012, unanimously held that, under the First Amendment’s Religion Clauses, “it is impermissible for the government to contradict a church’s determination of who can act as its ministers.” Accordingly, the Court recognized that there is a “ministerial exception” that precludes application of employment-discrimination laws to claims concerning the relationship between a religious institution and its ministers. But who qualifies as a minister? The Hosanna-Tabor Court refused “to adopt a rigid formula,” but found that the employee at issue in that case was a minister in light of several “considerations”—the formal title given to the employee by the church, the substance reflected in that title, the employee’s own use of that title, and the important religious functions the employee performed.
Eight years later, the question of “who’s a minister?” is back before the Court in Our Lady of Guadalupe v. Morrissey-Berru, and St. James School v. Biel. In each case, teachers at Catholic schools brought discrimination claims, and the Ninth Circuit concluded the ministerial exception did not apply. Now before the Supreme Court, the schools contend that the Ninth Circuit has adopted the “rigid formula” that the Hosanna-Tabor Court eschewed, and they argue that in most cases a “religious functions” test is sufficient.
This is one of the few cases the Court has selected for telephonic argument, which will be held on May 11, 2020. Joining us hours after the argument, for a Courthouse Steps teleforum, will be Jesse Panuccio, who authored an amicus brief in the case on behalf of members of Congress and in support of the schools. Mr. Panuccio is a partner at Boies Schiller Flexner LLP and is the former Acting Associate Attorney General of the United States.
Featuring:
Jesse Panuccio, Partner, Boies Schiller Flexner LLP
This call is open to the public: please dial 888-752-3232 to access the call.

Courthouse Steps Decision Teleforum: Kelly v. United States Jun 01, 2020

Bridget Anne Kelly and William Baroni were convicted of wire fraud, federal program fraud and conspiracy for orchestrating lane closures on the George Washington Bridge in September, 2013, as a political punishment against the mayor of Fort Lee, New Jersey for refusing to endorse the Governor re-election. On appeal, Bridget Anne Kelly v. United States was the latest in a series of political corruption cases to reach the Supreme Court. In an unanimous decision written by Justice Kagan, the Court ruled that Kelly and Baroni’s acts did not amount to defrauding the government, and reversed their convictions.
Steve Klein, a partner at Barr & Klein PLLC and a member of the Free Speech & Election Law Executive Committee, will offer his thoughts on the implications of the ruling.
Featuring:
Mr. Stephen R. Klein, Partner, Barr & Klein PLLC
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: Thryv, Inc. v. Click-To-Call Technologies, LP Jun 01, 2020

In Thryv, Inc. v. Click-To-Call Technologies, LP (Supreme Court, April 20, 2020), the Supreme Court held that the Patent Office decision to hear an inter partes review (“IPR”) challenge is not subject to judicial review on time-bar grounds. The majority found that ruling otherwise would “unwind the agency’s merits decision” and “operate to save bad patent claims.”
While this case deals largely with an issue of IPR appellate procedure, it should be interesting to a wider audience because it illustrates the Justices' disparate views on a key question: are issued patents property?
In a strongly worded dissent, Justice Gorsuch argued that the Constitution does not permit a “politically guided agency” (here the Patent Office) to revoke a property right (like an issued patent) without judicial review. He analogized issued patents to the land patents that the government once granted to “homesteaders who moved west.” He expressed his view that since the Court would not “allow a bureaucracy in Washington to ‘cancel’ a citizen’s right to his farm…” the Court should not allow the Patent Office to cancel an issued patent (especially without judicial review).
Justice Gorsuch’s dissent argued against the core principles established in the Supreme Court’s Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U. S. ___ (2018) decision—where he also dissented. In Oil States, the Supreme Court held that patents are not “property rights” in the traditional sense, but rather are “public franchises” granted (and subject to revocation) by the government. Oil States left, for another day, the question of whether compensation is required, and in what circumstances, when the government acts to revoke a previously granted patent.
In response to Justice Gorsuch’s dissent, the majority asserted that:
The dissent acknowledges that “Congress authorized inter partes review to encourage further scrutiny of already issued patents.” . . . The second look Congress put in place is assigned to the very same bureaucracy that granted the patent in the first place. Why should that bureaucracy be trusted to give an honest count on first view, but a jaundiced one on second look?
The majority reached its conclusion – the Patent Office’s decision to hear an IPR challenge is not reviewable on time-bar grounds – in harmony with the expressed purpose of IPR reviews: making it easier to eliminate “bad patents” and to prevent the “wast[e] of resources spent resolving patentability.” Essentially, majority concluded that if the patent owner was able to challenge the PTO’s decision to cancel a patent on the merits – as opposed to on the procedure – she would do so (and such merits based challenges are subject to judicial review).
Please join our expert, Daniel L. Geyser, in a discussion of the oral argument. Dan represented Click-to-Call Technologies, LP, in the Supreme Court.
Featuring:
Mr. Daniel L. Geyser, Chair, Supreme Court and Appellate Practice, Geyser, P.C.
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: Barr v. American Association of Political Consultants Inc. Jun 01, 2020

The oral argument for this case will be held on May 6, 2020. At issue is whether the government-debt exception to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.
Featuring:
Prof. Michael R. Dimino, Sr., Professor of Law, Widener University Commonwealth Law School

Courthouse Steps Oral Argument: USAID v. Alliance for Open Society International, Inc. Jun 01, 2020

On May 5, 2020, the Supreme Court will hear arguments in an important First Amendment case, USAID v. Alliance for Open Society International, Inc., Case No. 19-177, regarding the scope of the government’s funding power to limit private speech. This is the second time this case has been argued in the Court. Like the prior appeal, this case addresses whether the government has the power to compel speech from grant recipients who received government funds to combat HIV/AIDS worldwide. This teleforum will provide an overview of the Court’s prior opinion, the First Amendment impact of this case, and several key points that the Court will likely address in its opinion.
Featuring:
Casey Mattox, Senior Fellow, Free Speech and Toleration, Charles Koch Institute
Krystal B. Swendsboe, Associate, Wiley Rein 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.

"Junk Science" and Legal Testimony in a COVID World Jun 01, 2020

COVID-19 has disrupted the world like few other events in recent history. The disruptions are sure to lead to disagreements and serious legal disputes. As matters are sorted out in courts across the country, how should and how will science and expert testimony be used? How will the 'battle of experts' be engaged in the courts? Will standards of expertise change in either direction, either in sympathy for people who have suffered, or in anticipation of opportunistic plaintiffs seeking a payout?
Featuring:
-- Mark A. Behrens, Partner and Co-Chair, Public Policy Group, Shook Hardy & Bacon LLP
-- Jeff Stier, Senior Fellow, Taxpayers Protection Alliance

Drive-In Churches and the Constitution: Balancing the Religious Belief in Corporate Worship and Health Concerns Related to COVID-19 Jun 01, 2020

Almost every religious institution closed its doors in mid-March in response to requests and then order from various levels of government in the name of slowing or stopping the spread of COVID-19. Many religious institutions responded to the shutdowns with ingenuity by finding ways to meet and still remain in compliance with the CDC’s recommendations of physical distancing and limits on meeting sizes. One of those solutions – drive-in services – became the target of growing government restrictions in parts of the country. Matt Martens and Hiram Sasser will discuss what is a drive-in religious service and the constitutionality of prohibiting such services during the current pandemic.
Featuring:
-- Matthew T. Martens, Partner, Wilmer Cutler Pickering Hale and Dorr LLP
-- Hiram Sasser, Executive General Counsel, First Liberty Institute

Courthouse Steps Decision Teleforum: United States v. Sineneng-Smith Jun 01, 2020

Today the Supreme Court released the decision in United States v. Sineneng-Smith. By a vote of 9-0, the judgment of the U.S. Court of Appeals for the Ninth Circuit was vacated and the case remanded. Although every member of the Court joined Justice Ginsburg's opinion, Justice Thomas also issued a concurring opinion indicating his doubt about the validity of the overbreadth doctrine. Join us today as Brian Fish discusses the decision in this case.
Featuring:
-- Brian M. Fish, Special Assistant, United States Attorney, Baltimore, Maryland

Courthouse Steps Oral Argument Teleforum: Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania Jun 01, 2020

The oral argument for this case will be held on May 6, 2020. At issue are: (1) Whether a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lacks standing to appeal a decision invalidating the rule if the litigant is also protected by an injunction from a different court; and (2) whether the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage.
Featuring:
-- Mark Rienzi, President, Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, Catholic University; Visiting Professor, Harvard Law School

Legal Implications of the International Criminal Court's Decision to Investigate Americans Jun 01, 2020

In 2017, the prosecutor for the International Criminal Court (ICC) announced her formal request to open an investigation into war crimes and crimes against humanity allegedly committed by U.S. troops in Afghanistan. The ICC Pre-Trial Chamber denied the request, but after the prosecutor appealed, on March 5, 2020, the ICC Appeals Chamber authorized her to proceed with the investigation. This means that, in the near future, the ICC could issue warrants seeking the arrest of current and former U.S. officials, government employees, and military personnel—despite the fact that the U.S. has not ratified the Rome Statute of the ICC, has already investigated the alleged crimes, and rejects the ICC’s claims of jurisdiction over U.S. persons and actions. What are the ICC's authorities under international law; is the ICC on solid ground? Will this development lead the U.S. to take new steps to protect Americans?
Featuring:
-- Brett Schaefer, Jay Kingham Fellow in International Regulatory Affairs, Margaret Thatcher Center for Freedom, The Heritage Foundation
-- Charles "Cully" Stimson, Senior Legal Fellow and Manager, National Security Law Program, The Heritage Foundation

Courthouse Steps Oral Argument Teleforum: United States Patent and Trademark Office v. Booking.com Jun 01, 2020

It has long been a staple of trademark law that one cannot receive a registered trademark for a generic term - for instance a trademark for "socks" would be useless because it indicates the type of goods being sold, not the source of those goods. This doctrine has been generally applied to generic terms with a top level domain appended - so socks.com would be equally generic and not capable of being registered for federal trademark protection. However, this is being challenged by the website booking.com, which offers travel booking services. The U.S. Patent and Trademark Office rejected their trademark application for "booking.com," saying it is generic, but the District Court reversed, finding "booking.com" descriptive, not generic, and the Fourth Circuit affirmed. This question now finds itself before the Supreme Court, to determine whether a domain name that is a generic term plus a top level domain can be validly registered for trademark protection.
Featuring:
-- Mr. Arthur Gollwitzer, III, Partner, Michael, Best & Friedrich LLP
-- Mr. Zvi S. Rosen, Visiting Scholar and Professorial Lecturer in Law, George Washington University School of Law

COVID Liability Issues May 22, 2020

COVID-19 has changed life as we know it in innumerable ways. But what can we expect from the trial bar and in litigation generally? How will liability issues be sorted during and in the wake of the COVID-19 pandemic? Further, who will decide? How can states and enforcement officials, businesses, and the legal community in general prepare for the coming wave of COVID-related litigation?
Featuring:
Christopher M. Carr, Attorney General, State of Georgia
Harold Kim, President, U.S. Chamber of Commerce Institute for Legal Reform
This call is open to the public - please dial 888-752-3232 to access the call.

Federalism, COVID-19, and the Administrative State May 22, 2020

Questions of vertical and horizontal separation of powers have risen sharply during the coronavirus pandemic. Join us as John Malcolm and John Yoo discuss the balance of powers between the President, Congress, and state governors over lockdown and re-opening policy, testing, and medical expertise. They will also discuss the control over legal policy toward China and international organizations, recess appointments, and regulation of new technologies to combat the coronavirus.
Featuring:
John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law
This call is open to the public - please dial 888-752-3232 to access the call.

Capital Conversations: Eric S. Dreiband, Assistant Attorney General, Civil Rights Division, Department of Justice May 22, 2020

Join us as Eric S. Dreiband, Assistant Attorney General of the U.S. Department of Justice Civil Rights Division, discusses the priorities and work of his office before, during and after COVID-19.
Featuring:
-- Eric S. Dreiband, Assistant Attorney General, Civil Rights Division, Department of Justice

Address by OIRA Administrator Hon. Paul J. Ray May 22, 2020

The Paperwork Reduction Act of 1980 created the Office of Information and Regulatory Affair (OIRA) within the Office of Management and Budget (Office of Management and Budget ). Executive Order 12291, issued by President Reagan in 1981, gave OIRA the responsibility to review the subject matter of government agency’ regulatory actions before publication in the Federal Register. The Office’s regulatory review persona was initially highly controversial, and it has been criticized throughout the past decades as being both too active and too passive, in regard to agency rules. Regardless of which side of the political spectrum critics fall on however, many believe OIRA is one of the most important, if relatively unknown, sources of government power in relation to the Executive branch and the Administrative state. Although OIRA has a number of specific statutory responsibilities (e.g., paperwork review and regulatory accounting), as a constituent of OMB it is part of the Executive Office of the President, and helps ensure that covered agencies’ rules reflect the President’s policies and priorities.
As our final event of our Executive Branch Review week, Paul Ray, head of OIRA, joins us to discuss his work and the current relevant issues facing the Office of Information and Regulatory Affairs.
Featuring:
-- Hon. Paul J. Ray, Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget

Executive Orders on Guidance: Implications and Next Steps May 22, 2020

In October of 2019, President Trump issued an executive order that imposed a series of restrictions and requirements on Federal agencies, and even included a requirement that agencies publish their guidance on the Internet. The purpose of the executive order was to promote transparency and democratic fairness in the administrative law process. This has led to a renewed debate over what the relationship should be between the executive branch and the administrative state, and has also led to some disagreement over whether the executive order represented any meaningful change from the status quo.
Featuring:
-- Hon. Steven Bradbury, General Counsel (and performing the functions and duties of Deputy Secretary), U.S. Department of Transportation
-- John Walke, Director, Clean Air Project, Climate & Clean Air Program, Natural Resources Defense Council
-- 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

Unitary Executive and Independent Agencies May 22, 2020

Article II of the United States Constitution provides that “The executive Power shall be vested in a President of the United States of America.” This declarative statement gave rise to a theory of U.S. constitutional law that posits the President should have control over the entire executive branch. This theory has been given increasing attention with the rise of the administrative state. Some argue that the President does not have enough direct power over executive branch agencies, and that this is a violation of the clear statement in Article II Section I of the Constitution. Others argue that allowing the presidency more power would lead to a more dictatorial executive branch, and lead to a weakening of democracy. Proponents of Unitary Executive Theory respond to this concern by arguing that the absence of a unitary executive undermines democracy because without it democratically elected presidents lack the power to enact the policies that the American people elected them to enact, and instead can be stymied by unelected members of the administrative state. Critics of the Unitary Executive Theory assert that the expertise and insulation from political processes necessary to efficiently run government can be found only in the administrative state. The issue has been further complicated by the increased frequency of inter-agency litigation in the form of different executive branch agencies inhabiting both sides of Supreme Court cases. Proponents of the Unitary Executive theory wonder whether an executive branch divided to this extent is what the founders envisioned while writing Article II.
Featuring:
-- Prof. William Buzbee, Professor of Law, Georgetown University Law Center
-- Hon. Daniel Gallagher, Deputy Chair, Securities Department, WilmerHale and former Commissioner of the SEC
-- Hon. Maureen Ohlhausen, Partner, Baker Botts LLP, and former Commissioner of the FTC
-- Prof. David Vladeck, A.B. Chettle Chair in Civil Procedure, Georgetown University Law Center, former Director of the FTC's Bureau of Consumer Protection

Nationwide Injunctions May 22, 2020

What is the true role and authority of courts to nullify Federal law? During the Obama administration, district judges issued twenty nationwide injunctions, and during the Trump administration district judges have issued over forty of these injunctions. This has led to questions from both sides of the aisle as to what the proper extent and purpose of such nationwide injunctions should be. The founding fathers set forth a clear system of checks and balances, creating a balance of power and a series of checks to tyranny that could be used to safeguard liberty. But were district courts meant to have the power to stymie laws passed by the federal government? On the other hand, must litigants bring cases in multiple districts or circuits in order to fully prevail?
Featuring:
-- Hon. Scott Keller, Partner, Baker Botts LLP
-- Hon. Ken Paxton, State Attorney General, Texas
-- Hon. Beth A. Williams, Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice

Section 230 of the Communications Decency Act May 22, 2020

Section 230 of Communications Decency Act protects platforms from liability for the content produced by users. As social media platforms have evolved, concerns about free speech and platform liability have sparked debates among legislators regarding the best way to regulate social media companies. Some have questioned whether Section 230 is the best solution and have proposed Congressional enforcement of ‘platform neutrality.’ Others have argued that Section 230 is the best way to protect free speech. During this program, our experts will debate and discuss Section 230 and how Congress should approach regulation of social media companies.
Featuring:
-- Hon. Ronald A. Cass, Dean Emeritus, Boston University School of Law; President, Cass & Associates, PC
-- Neil Chilson, Senior Research Fellow for Technology and Innovation, Charles Koch Institute
-- Josh Divine, Deputy Counsel, U.S. Senator Josh Hawley

FCPA Enforcement In the Trump Administration and Beyond May 20, 2020

The Foreign Corrupt Practices Act (FCPA) governs conduct of U.S. businesses and individuals conducting business abroad, penalizing them for paying bribes to foreign officials in business dealings. This teleforum will discuss recent developments in FCPA Enforcement (i.e., the new corporate enforcement policy/declinations, etc.), criticism of enforcement over the past few years, and offer predictions about what enforcement will look like during a second Trump term or a Biden presidency. Rod Rosenstein and Jonathan Su will offer commentary.
Featuring:
Rod J. Rosenstein, Partner, King & Spalding LLP
Jonathan C. Su, Partner, Latham & Watkins
Moderator: Brian Lichter, Senior Director, Global Investigations, Cognizant
This call is open to the public - please dial 888-752-3232 to access the call.

View from the Ground Level - Practical Issues re: PPP Implementation: A Conversation with Banking Attorneys Around the Country May 20, 2020

This teleforum will be a collaborative discussion for attorneys who represent financial institutions, in particular those organizations that are participating in paycheck protection program created by the CARES Act.
Featuring:
-- Jennifer R. McCain, Shareholder, Maynard Cooper Gale
-- Christian Otteson, Partner, Shapiro Bieging Barber Otteson
-- Jonathan Hightower, Partner, Fenimore, Kay, Harrison & Ford, LLP
-- C. Wallace Dewitt, Adjunct Scholar, Center for Monetary and Financial Alternatives

COVID-19, State Power, and Civil Liberties: An Historical Perspective May 15, 2020

In 1787, there existed a well-developed body of law on the subject of infectious diseases. Over the next 150 years, the nation dealt with new viral challenges as contagion(s) spread through wartime, imperial ventures in tropical regions, and the oft-referenced Spanish Flu. What was the legal framework in 1787, and which curtailments of civil liberties were palatable to the Founders? To what extent do local, state, and federal police powers overlap, and to what degree are those authorities empowered to restrict freedom of contract, travel, and the practice of religious communion? These and other topics will be discussed.
Featuring:
Prof. John C. Harrison, James Madison Distinguished Professor of Law, University of Virginia School of Law
This call is open to the public - please dial 888-752-3232 to access the call.

Courthouse Steps Decision Teleforum: Ramos v. Louisiana May 15, 2020

In a decision in Ramos v. Louisiana handed down on April 20, 2020, the Supreme Court held that the Sixth Amendment guarantees criminal defendants the right to a unanimous jury verdict in both federal and state courts. In reaching its decision, the Court fractured over the precedential weight it should accord its prior Sixth Amendment decisions, raising significant doctrinal questions about the role of stare decisis in constitutional cases. John C. Richter, former U.S. Attorney and acting head of the Criminal Division, will discuss the decision and its ramifications.
Featuring:
John C. Richter, Partner, Special Matters and Government Investigations, King & Spalding 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.

Broadcast Journalism and the First Amendment: A Conversation with the FCC’s General Counsel May 15, 2020

Broadcasters—not the FCC—are responsible for selecting the material that they air. This is why the Commission recently denied a petition filed by Free Press, a public interest group focused on media issues, requesting that the Commission investigate broadcasters that have aired the President’s statements and press conferences regarding the novel coronavirus (COVID-19) and related commentary by other on-air personalities. The petition asked the Commission, under its public interest authority and its rules regulating the broadcast of dangerous hoaxes, to investigate these broadcasts and adopt emergency enforcement guidance “recommending that broadcasters prominently disclose when information they air is false or scientifically suspect.”
The Commission denied this petition, citing both the First Amendment and Section 326 of the Communications Act:
The Commission does not—and cannot and will not—act as a self-appointed, free-roving arbiter of truth in journalism. Even assuming for the sake of argument that Free Press’s assertions regarding any lack of veracity were true, false speech enjoys some First Amendment protection, and section 326 of the Communications Act, reflecting First Amendment values, prohibits the Commission from interfering with freedom of the press or censoring broadcast communications.
Thomas Johnson, General Counsel of the FCC and the co-author of the Commission’s letter denying this petition, as well as Randolph May, Founder and President of the Free State Foundation, will discuss the Commission’s response to this petition, as well as broader First Amendment and policy issues raised by the Commission’s role in regulating broadcast journalism. Does the Commission have a duty, as Free Press asserts, “to rein in broadcasters that seed confusion with lies and disinformation”? What is the Commission’s role in regulating broadcast journalism, and how does it square this role with the First Amendment? To what extent does the First Amendment protect false or misleading speech?
Featuring:
Thomas Johnson, General Counsel, FCC
Randolph May, Founder and President, Free State Foundation
This call is open to the public - please dial 888-752-3232 to access the call.

Surviving COVID-19: The Small Business Perspective May 15, 2020

As small businesses across the country grapple with the current and potential impacts associated with COVID-19, the National Federation of Independent Business continues to track the latest developments from healthcare officials, congress and the administration. Please join us to hear about how the organization is supporting small businesses during this time, and which government policies are positively and negatively affecting business operations today and down the road.
Featuring:
-- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center

The Singapore Convention on Mediation: What it Means for International Litigation and Arbitration May 15, 2020

The Singapore Convention on Mediation was opened for signature on August 7, 2019, with the United States, China, and India among its first signatories. The Convention is “expected to bring certainty and stability to the international framework on mediation” by streamlining the process by which foreign jurisdictions will enforce settlement agreements resulting from mediation. This program will discuss the Convention’s potential impact on international commerce as well as its implementation in the United States.
Featuring:
-- Prof. Roger Alford, Professor of Law, University of Notre Dame Law School
-- Gary Birnberg, JAMS Mediator and Arbitrator
-- Mushegh Manukyan, Mediation Specialist, Office of the Ombudsman for UN Funds and Programmes, United Nations
-- Harout J. Samra, Associate, DLA Piper

The Pros and Cons of New York’s Bail Reform May 15, 2020

Almost exactly a year ago—on April 1, 2019—New York State enacted groundbreaking bail reform that eliminated cash bail for almost 90% of arrests and resulted in a 30% drop in the statewide jail population. The measure took effect on January 1, 2020, and the backlash from law enforcement, local newspapers, elected officials in opposition, the bail bond industry, and even the general public was strong, swift, and immediate. A few weeks ago, Governor Andrew Cuomo and the Legislature approved roll backs to the law, despite it having been in effect for only three months. Join Insha Rahman and Craig Trainor for a discussion—from different perspectives—about New York's bail reform law, its impact, proposals to reform the reform, and why roll backs were passed in the midst of a global pandemic.
Featuring:
-- Insha Rahman, Director of Strategy and New Initiatives,Vera Institute of Justice
-- Craig Trainor, Founder, Trainor Law, P.C.

Capital Conversations: Noah Phillips, Commissioner, Federal Trade Commission May 15, 2020

Commissioner Phillips will join us to discuss data privacy and the COVID pandemic. Other topics may include the impact of new technologies in addressing the crisis, how the FTC and other privacy enforcers around the world are responding, the ways in which the FTC works with industry, and what today tells us about the future. Commissioner Phillips will also discuss the potential for a future federal privacy bill.
Featuring:
-- Noah Phillips, Commissioner, Federal Trade Commission

Working From Home: Cyber Hygiene in the COVID Crisis May 15, 2020

As corporations and even entire municipalities are increasingly advising or requiring their employees to work from home in light of COVID-19, it is important to remember that doing so it not without its risks. For any organization that has information to protect -- whether customer or employee personal information, financial information, or confidential and proprietary trade secrets -- permitting company data to travel home with or be remotely accessed by employees raises the chances of a cyber incident involving that data. When a “cyber-mishap” occurs, the company may have a duty to report the incident to consumers, regulators and business counterparties. Put simply, cyber criminals are not expected to take a “corona-holiday.” In fact, some might even prey on vulnerabilities created by the situation. Fortunately, there still is time to address the potential privacy and data security risks — and to develop clear guidance for employees to follow. These policies should be tailored to each company’s specific risk profile and communicated clearly to all employees.
While every organization’s information security defenses are unique, some of the most common risks to be addressed concerning remote work include the following: unsecure personal and public WiFi networks; working on unsecure personal devices; transferring corporate data using personal e-mail accounts; synching with personal cloud storage accounts; physical document management and destruction; unsecure connections to employer systems; unsecure conference call lines; and phishing schemes and other frauds. Because many employees are justifiably concerned for the health and safety of themselves and their families, it is understandable if data security is not their first priority. However, with some careful planning, well-defined policies, and transparent communication between employees and management, companies should be able to maintain the security of their data while keeping their employees safe.
Featuring:
-- Nicholas Degani, Senior Counsel, Federal Communications Commission
-- Paul Eisler, Director, Cybersecurity, USTelecom
-- Joseph V. DeMarco, Partner, DeVore & DeMarco LLP

China-Taiwan Relations and International Law in a Post-COVID World May 15, 2020

This teleforum provides a wide-ranging discussion on the recent developments in the China-Taiwan relationship. It explores the role that the United States may have in light of Taiwan Relations Act obligations and regional stability to provide both assurance and support to our ally, Taiwan, while - at the same time - examining concerns over the range of Chinese reactions.
Featuring:
-- Dr. June Teufel Dreyer, Professor of Political Science, University of Miami, Coral Gables
-- Prof. Julian Ku, Senior Associate Dean for Academic Affairs, Faculty Director of International Programs, and Maurice A. Deane Distinguished Professor of Constitutional Law, Maurice A. Deane School of Law at Hofstra University
-- Moderator: Saul Newsome, Attorney, Newsome International Law, LLC

Watching the Terror Watchlist May 15, 2020

Watchlisting people with known or suspected ties to terrorism has long been a key tool among U.S. counterterrorism and transportation security programs. For just as long, a wide range of people – from U.S. citizens to foreign nationals with no legal status in the United States – have litigated their suspected presence on watchlists or no-fly lists, claiming that those lists, or aspects of their administration, violate various tenets of due process and other rights. Last year, courts were particularly rough on the federal agencies charged with curating and using watchlists. For the first time, a district court held the government’s procedures with respect to the FBI’s centralized Terrorist Screening Database (TSDB), violates procedural due process of a group of twenty-three U.S. citizen plaintiffs. On the heels of that decision, the Supreme Court declined to review an en banc opinion by the Ninth Circuit suggesting that the government acted in bad faith with respect to the nearly 15-year long litigation concerning Malaysian national Rahinah Ibrahim’s one-time inclusion on the TSA’s no-fly list.
Join former DHS General Counsel Joe Whitley and Professor Tung Yin for a fascinating conversation on these cases and the current legal and policy landscapes concerning watchlists. The discussion will be moderated by the former Senior Advisor for Legal Policy at the State Department’s Bureau of Counterterrorism, Adam Pearlman.
Featuring:
-- Hon. Joe D. Whitley, Chair, Government Enforcement & Investigations Group, Baker Donelson Bearman Caldwell & Berkowitz, PC
-- Prof. Tung Yin, Professor of Law, Lewis & Clark Law School
-- Moderator: Adam R. Pearlman, Managing Director, Lexpat Global Services

COVID-19: Actions Taken by the Federal Reserve May 15, 2020

Paul Atkins, Patomak Global Partners CEO, and banking consultant Bert Ely discuss the numerous programs Congress, in response to the COVID-19 pandemic, has directed the Federal Reserve to implement to provide financial support to America's financial institutions, state and local governments, and the broader economy. Much of this support will consist of the Fed purchasing bonds and other debt instruments, which could balloon the Fed's balance to a record size. Some of these support programs were undertaken after the 2008 financial crisis; others have never been tried before. Paul and Bert also offer their views as to how these programs might play out, and their potential longer term impacts on the U.S. financial system and the broader economy – all of which is taking place in an election year.
Featuring:
-- Paul Atkins, CEO, Patomak Global Partners
-- Bert Ely, Principal, Ely & Company Inc.

The National Labor Relations Board’s New Election Rules: Do they Protect or Undermine Employee Free Choice? May 15, 2020

The National Labor Relations Board (NLRB) has used rulemaking only a few times through the decades. But the Board recently issued final rules that make major changes to secret ballot election petitions, particularly decertification petitions. The final rules, issued April 1, 2020, make three major changes:
(1) Ending the controversial “blocking charge” policy that allowed unions to unilaterally halt secret ballot elections by filing unfair labor practice charges alleging employer violations of the National Labor Relations Act (NLRA).
(2) Reinstating the rule of Dana Corp., 351 NLRB 434 (2007), which allows employees to call for a secret ballot election after an employer voluntarily recognizes a union pursuant to a “card-check." The Dana rule had been in effect until it was overruled by the Board in Lamons Gasket Co., 357 NLRB 739 (2011).
(3) A construction industry employer and union may no longer bar an employee’s election petition if they converted their Section 8(f) bargaining relationship into a Section 9(a) “exclusive representation” relationship without proof of majority employee support for the union.
All of these new rules recognize that secret ballot elections are the “gold standard” under the NLRA and are preferred to “card checks” and other informal processes by which unions become bargaining representatives of all employees in a bargaining unit.
Aaron Solem, a Staff Attorney at the National Right to Work Legal Defense Foundation, will discuss the arguments for and against the final rules, and what these changes portend for NLRB elections and employee free choice.
Featuring:
-- Aaron Solem, Staff Attorney, National Right to Work Legal Defense Foundation

Is There a "Police Power" Exception to the Fifth Amendment's Just Compensation Clause? May 12, 2020

Police in Greenwood Village, CO, chased a shoplifting suspect into a home belonging to Leo Lech and his family. When the suspect took a shot at the police, they responded by using an armored vehicle to tear gaping holes in the side of the house and launching "gas munitions" into the interior, effectively destroying the home. The Lech family sought compensation, but the Tenth Circuit rejected their claim on the grounds that the Fifth Amendment's just compensation requirement contains a categorical exception for law enforcement. Was that decision correct, and either way, should the Supreme Court grant cert and reconsider whether owners are entitled to compensation when their property is damaged or destroyed in police operations?
Featuring:
Clark Neily, Vice President for Criminal Justice, Cato Institute
Moderator: Jeffrey Redfern, Attorney, Institute for Justice
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.

Next Steps in Justice Reform After the First Step Act Amid COVID-19 Crisis May 12, 2020

The COVID-19 crisis has exacerbated strains on all parts of our justice system from police officers on the frontlines to federal prisons. With the passage of the First Step Act signed by President Donald Trump in December 2018, the federal government moved in the direction of dozens of states that have sought to reduce the size, scope, and cost of their systems while still protecting public safety. Amid the current crisis, calls have grown to take additional steps at the federal, state, and local levels, as many advocates worry about the impact of COVID-19. For example, U.S. Attorney General William Barr has ordered the release of hundreds of elderly and infirm individuals based on geriatric release provisions in the First Step Act and the most recent $2 trillion economic relief bill. As further actions are considered at all levels of government, join this call as we assess the impact of the First Step Act and what next steps are possible based on public safety and public health considerations.
Featuring:
-- Marc Levin, Chief of Policy & Innovation, Right on Crime, Texas Public Policy Foundation
-- Rafael A. Mangual, Fellow and Deputy Director of Legal Policy Contributing Editor, City Journal, The Manhattan Institute
-- Arthur Rizer, Director, Criminal Justice & Civil Liberties; Resident Senior Fellow, R Street Institute

Capital Conversations: Uttam Dhillon, Acting Administrator of the Drug Enforcement Administration May 12, 2020

Join us as Uttam Dhillon, the Acting Administrator of the Drug Enforcement Administration, discusses the response to COVID-19, as well as the pressing issues of the opioid epidemic in America, the dangerous threat from fentanyl, and the proliferation of methamphetamine. He will also review the threat from Mexican Transnational Criminal Organizations (TCOs), the reduction of violent crime associated with drugs, and drug abuse prevention.
Featuring:
-- Uttam Dhillon, Acting Administrator of the Drug Enforcement Administration

Religious Freedom in a Pandemic May 12, 2020

Shut-down orders issued by state governors amid the COVID-19 pandemic and federal responses to the pandemic such as the CARES Act raise a range of issues related to religious freedom. Join us for this teleforum that will discuss the constitutional and statutory issues raised by these measures, including religious exemptions and participation by religious institutions in federally funded relief programs.
Featuring:
-- Kim Colby, Director of the Center of Law and Religious Freedom, Christian Legal Society
-- Prof. Michael P. Moreland, University Professor of Law and Religion and Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy, Villanova University Charles Widger School of Law

The Importance of Economic Freedom During and After the Coronavirus Pandemic May 12, 2020

The Heritage Foundation’s newly released 2020 Index of Economic Freedom confirms yet again the economic and social benefits of policies that preserve and promote economic freedom. Economic freedom has grown over the last year in most of the world (although there was a slight decline in the United States), but will no doubt be hurt by emergency health measures that include social distancing, job suspensions, and mobility restrictions. These measures may be unavoidable in the current crisis. Is there a way to prevent governments, in the name of crisis response, from adding to the problem by undertaking spending or regulatory measures that might do lasting harm to our economic prospects in the future? Please join us as we discuss this question and key findings from the 2020 Index of Economic Freedom.
Featuring
--Ambassador Terry Miller, Director, Center for International Trade and Economics and Mark A. Kolokotrones Fellow in Economic Freedom, The Heritage Foundation
-- Nicolas Loris, Deputy Director of the Thomas A. Roe Institute for Economic Policy Studies and Herbert and Joyce Morgan Fellow, The Heritage Foundation
-- Moderator: Bryan Riley, Director, Free Trade Initiative, National Taxpayers Union

COVID-19 in the Workplace: Mandated Paid Sick Leave Apr 15, 2020

On March 18, the Senate passed and the President signed into law the “Families First Coronavirus Response Act.” Among other things, this new law, set to take effect no later than April 2, 2020, creates a new paid sick leave mandate for all employers with fewer than 500 employees and expands the application of the Family Medical Leave Act to cover all employers in certain circumstances related to the coronavirus. Karen Harned and James Paretti will walk participants through key provisions of this new law.
Featuring:
-- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
-- James A. Paretti, Shareholder, Littler Mendelson P.C.

Courthouse Steps Decision Teleforum: Allen v. Cooper Apr 13, 2020

Of Federalism, Copyright, and Blackbeard’s Revenge: The recent Supreme Court ruling in Allen v. Cooper is the latest development in a decades-long series of Congressional enactments and Supreme Court rulings over whether and how Congress can abrogate the sovereign immunity of States from intellectual property infringement suits. This all-star panel will discuss the Court’s most recent decision in the context of the evolution of the Court’s sovereign immunity jurisprudence, the policy concerns of Congress and intellectual property owners, and where we might go from here.
Featuring:
Prof. Steven Tepp, Professorial Lecturer in Law, George Washington Law, and President and Founder of Sentinal Worldwide
Prof. John T. Cross, Grosscurth Professor of Intellectual Property Law and Technology Transfer, University of Louisville Brandeis School of Law
Prof. Ralph Oman, Pravel, Hewitt, Kimball and Kreiger Professorial Lecturer in Intellectual Property and Patent Law
Prof. Ernest A. Young, Alston & Bird Professor, Duke Law School

The Changing Environment for APA Challenges to Tax Regulations Apr 13, 2020

Until recently, the Internal Revenue Service and Treasury Department typically issued regulations involving the tax law with scant compliance with the familiar procedural requirements of administrative law for primarily three reasons. First, because tax law was considered “exceptional;” second, the agencies believed that their rules and regulations were exempt from the requirements of the APA and related statutes; and third, the “Anti-Injunction Act,” 26 U.S.C. § 7421(a), was thought to drastically limit judicial jurisdiction over taxpayer challenges to the validity of tax regulatory actions. Over the past decade, tax agency practices have been under attack and taxpayers have been pursuing their challenges to the procedural validity of tax regulations in the courts, notwithstanding the consistent opposition of the Government. Our speakers have been at the center of those challenges and will discuss several very recent cases highlighting the changing environment for APA challenges to tax regulations.
Featuring:
-- Kristin Hickman is a Distinguished McKnight University Professor and the Harlan Albert Rogers Professor in Law at the University of Minnesota Law School, who has published several of the seminal law review articles on this topic.
-- Stuart Bassin is a veteran litigator of tax cases and serves as the taxpayers’ counsel in one of the most prominent pending cases in this area. He was previously a trial attorney with the Tax Division of the U.S. Department of Justice.
-- Moderator: Robert Carney is a Senior Counsel at Caplin & Drysdale, Chartered, in Washington, D.C., specializing in tax controversy and tax litigation. He also was previously a trial attorney with the Tax Division of the U.S. Department of Justice.

Will COVID-19 Affect International Trade and Globalization? Apr 13, 2020

Viral Menace and Civil Liberties Apr 10, 2020

First appearing in a 1949 dissent authored by Justice Robert H. Jackson, the phrase “the Constitution is not a suicide pact” is being cited today by critics of perceived government overreach. Local, state, and federal authorities have directed citizens to self-isolate to prevent the spread of COVID-19, causing the biggest economic shutdown in modern history. Part of the effort to “flatten the curve”, these initially voluntary quarantines are quickly becoming legal mandates in certain states (and nations across the world). In California and New York, people violating stay-home orders for non-essential activities have been ticketed and cited with misdemeanors. Is there a point at which these restrictions on travel and assembly violate the rights inherent in America’s constitutional order? Many legal scholars agree the chief executive has quasi-wartime powers during national pandemics, but is there a limiting principle or expiration date? Join Professors Richard Epstein and Anthony Kreis as they discuss the viral menace and civil liberties in this Teleforum.
Featuring:
Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
Prof. Anthony Kreis, Visiting Assistant Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology
This call is open to the public - please dial 888-752-3232 to access the call.

Litigation Update: COVID-19 and the Supreme Court’s Religious Liberty Cases Apr 10, 2020

Courthouse Steps Decision Teleforum: Kansas v. Glover Apr 09, 2020

On April 6, 2020, the Supreme Court, by a vote of 8-1, held that reasonable suspicion for a vehicle stop exists where the officer is informed that the registered owner of the suspect vehicle has a suspended driver's license. In an opinion written by Justice Thomas, the Court reaffirmed its decision in United States v. Cortez (1981) when it wrote that for an officer to initiate a brief investigative traffic stop requires "a particularized and objective basis for suspecting the particular person stopped of criminal activity."
Brian Fish will discuss today's opinion in Kansas v. Glover, its implications, and the dissent written by Justice Sotomayor.
Featuring:
Brian M. Fish, Special Assistant, United States Attorney, Baltimore, Maryland
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.

Capital Conversations: Eric Hargan, Deputy Secretary of the Department of Health and Human Services (HHS) Apr 09, 2020

Capital Conversations: Ajit Pai, Chairman, Federal Communications Commission Apr 09, 2020

The Right to Bear Arms Apr 08, 2020

Does the Second Amendment “right of the people” to “bear arms” protect an individual right to carry handguns outside of the home for lawful purposes, or may government officials decide who has a “good reason” to do so? After Heller held that the Second Amendment’s right to keep and bear arms guarantees a right to keep handguns in the home and McDonald incorporated that fundamental constitutional right against the states, the circuit courts have split over whether discretionary “may issue” carry licensing regimes are permissible. How might the Supreme Court resolve the current New York City case regarding transport of handguns outside of the home, and what are the potential implications for the hotly-debated question whether the right to carry applies generally to the law-abiding public? And in the wake of the Coronavirus shutdowns, should gun shops be considered “necessary businesses,” so that citizens who so choose may acquire a gun to protect their families?
Featuring:
-- Stephen Halbrook, author of The Founders’ Second Amendment and Senior Fellow, Independent Institute
-- Moderator: Mark Smith, Presidential Scholar and Senior Fellow in Law and Public Policy, The King’s College in New York City

Ex-Prosecutors And The Federal Judiciary Apr 03, 2020

Amongst the many studies of the makeup of the Federal Judiciary, one particularly noticeable characteristic is the overrepresentation of Ex-prosecutors in relation to other potential professional backgrounds on the federal bench. One recent study published by the Cato Institute fully delved into this controversial issue and brought further attention to this aspect of the Federal Judiciary. Is the overrepresentation necessarily a negative aspect of the Federal Judiciary? Are there sound reasons for preferring judges who have a prosecutorial background? How has this aspect of the Judiciary shaped our constitutional and statutory law in recent decades?
Join us as we discuss these controversial issues with our distinguished guests:
Clark Neily, Vice-President for Criminal Justice, The Cato Institute
Jesse Panuccio, Partner, Boies Schiller Flexner LLP
Moderator: Jodi Balsam, Associate Professor of Clinical Law|Director, Externship Program Brooklyn Law School

In this teleforum, co-authors Randolph May and Seth Cooper will highlight key themes from their new book, Modernizing Copyright Law for the Digital Age: Constitutional Foundations for Reform (Carolina Academic Press, 2020). They will be joined by other experts to discuss current issues in copyright law and policy.
Web-based streaming and online platform services featuring user-uploaded content present new market opportunities as well as new infringement dangers. Government and analyst reports have highlighted both the economic importance of copyright-intensive industries as well as the steep financial losses that result from mass online infringement as well as from piracy operations using illicit streaming devices and illegal IPTV streams. In 116th Congress, the House passed and the Senate is considering legislation to provide a voluntary venue for addressing small copyright infringement claims. The U.S. Senate's Intellectual Property Subcommittee has commenced a series of hearings to review of the Digital Millennium Copyright Act of 1998. And earlier this year, Congress passed the USMCA Free Trade Agreement, which contains important provisions to strengthen copyright protections. In their book, Mr. May and Mr. Cooper suggest specific reform measures on these topics and more. Join us for this timely discussion about proposals for reforming copyright law to fit the Digital Age.

Capital Conversations: Jeffrey Clark, Assistant Attorney General, Environment and Natural Resources Division (ENRD), Department of Justice Apr 03, 2020

Legal and Policy Issues of the Administration's 5G Agenda Apr 03, 2020

The rapid deployment of 5G technologies has become a stated objective of the Trump Administration that reaches across a wide range of economic and security equities. These include economic competitiveness and productivity interests traditionally represented by the National Economic Council and the Department of Commerce, as well as network security and trusted-vendor supply chain interests represented by defense, trade and national security agencies. Underlying all of this, the FCC is grappling with how to replace Chinese and other foreign adversary equipment in rural networks, as well as diverse competition and spectrum issues that are critical to incentivizing industry deployments.
Given this range of overlapping government interests, has policy making on 5G become too diffuse? Join Federalist Society members Tricia Paoletta, Lawrence Spiwak, and John Kneuer as they discuss the legal and policy issues driving the Administration’s and FCC’s 5G agenda.
Featuring:
-- Hon. John Kneuer, President and Founder, JKC Consulting LLC
-- Patricia J. Paoletta, Partner, Harris, Wiltshire & Grannis LLP
-- Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal and Economic Public Policy Studies

Leaving Them Speechless: Does the SEC Silence Criticism? Mar 24, 2020

Few Americans know that when they settle a case with the SEC (or the CFTC which has a similar “rule”) that they will be forced to agree to a lifetime gag, a subject of much concern to Americans across the political and economic spectrum. Whether in small businesses or large, Americans charged by these powerful government agencies settle 98% of the cases brought against them, meaning that those defendants cannot question the strength or the merits of the government’s case against them—for life.
For nearly 50 years the SEC has settled cases in this manner even though the “rule” that purports to authorize the practice was never lawfully enacted in 1972. Join us for a litigation update forum with Peggy Little, Senior Litigation Counsel of New Civil Liberties Alliance (NCLA), to discuss whether this practice violates First Amendment doctrines forbidding prior restraint, content-based restrictions on speech, unconstitutional conditions, or suppresses rights of petition, rights of the public to hear truthful speech and due process. Does this silencing of truthful speech immunize the agencies from examination and criticism by the very people best situated to level such criticism? Congress itself could not lawfully enact such a rule, and the teleforum will explore why an administrative agency is exercising powers that Congress does not have.
Litigation and Regulatory Background and Disclosure: NCLA petitioned to amend the SEC’s gag rule in October of 2018, which led to a lively hearing before the Senate Banking Committee. NCLA similarly moved to amend the CFTC gag rule in July 2019. NCLA also represents Barry D. Romeril, former CFO of Xerox, who moved to set his gag aside in the Southern District.

Updating the National Environmental Policy Act (NEPA) Mar 24, 2020

On January 10, the White House Council on Environmental Quality (CEQ) proposed revisions to its regulations for implementing the National Environmental Policy Act (NEPA), signed into law in 1970. CEQ has not comprehensively updated these regulations for forty years.
Since its enactment, the NEPA environmental review and permitting process has become increasingly complex and time-consuming. Importantly, NEPA is a procedural statute that requires Federal agencies to assess the environmental impacts of proposed major Federal actions. The chosen means is a “procedural” statute that requires Federal agencies to prepare a detailed statement on environmental impacts from a proposed Federal action, alternatives to the proposed action, unavoidable adverse effects, and any irreversible and irretrievable commitments of resources that would be involved.
The average length of an environmental impact statement is over 600 pages and the average time to complete a NEPA review of major projects is four and a half years. NEPA analyses are frequently challenged in the courts, which delays and increases the costs for transportation, water, pipelines and other infrastructure that benefit States, Tribes, and local communities. CEQ’s proposal, if adopted, would modernize and clarify the regulations to facilitate timely NEPA reviews by Federal agencies in connection with proposals for agency action.
This 90-minute teleforum discussion is co-hosted by the Federalist Society and ConservAmerica and will offer background on CEQ’s proposal and contrasting views on the White House’s proposed NEPA reform and modernization.
Featuring:
Prof. Richard Esptein, The Laurence A. Tisch Professor of Law, New York University; Senior Fellow, Hoover Institute
Prof. Robert Glicksman, The J. B. and Maurice C. Shapiro Professor of Environmental Law, George Washington University Law School.
Mr. Mario Loyola, Senior Fellow, Competitive Enterprise Institute; Former Associate Director for Regulatory Reform, White House Council on Environmental Quality
Dr. Tim Male, Executive Director, Environmental Policy Innovation Center; Former Associate Director for Conservation, White House Council on Environmental Quality.
Moderator: Mr. Brent Fewell, General Counsel, ConservAmerica
This call is open to the public - please dial 888-752-3232 to access the call.

Courthouse Steps Decision: Kahler v. Kansas Mar 23, 2020

On March 23, 2020, the Supreme Court, by a vote of 6-3, held that the Due Process Clause does not require states to adopt a specific insanity defense to criminal liability. In an opinion written by Justice Kagan, the Court reaffirmed its 1968 plurality opinion in Powell v. Texas, 392 U. S. 514, declaring that criminal responsibility "is animated by complex and ever-changing ideas that are best left to the States to evaluate and reevaluate over time." The Court explained that the relationship between mental illness and criminal liability, in particular, is an ongoing dialogue between the law and psychology, and the Due Process Clause does not require that dialogue be frozen in "a rigid constitutional mold." GianCarlo Canaparo will discuss the opinion, its implications, and the dissent written by Justice Breyer.
Featuring:
GianCarlo Canaparo, Legal Fellow, The Meese Center for Legal and Judicial Studies, The Heritage 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.

Executive Power v. Coronavirus Mar 20, 2020

Coronavirus & The Law Mar 13, 2020

In the Name of Diversity Mar 13, 2020

The University of California and other institutions in California now require academic job applicants to complete a "contribution to diversity" statement. In some programs, an applicant without a high scoring diversity statement will be rejected without any consideration of the rest of his or her application. Are these statements a benign effort to ensure that professors are competent to teach diverse students, or a modern manifestation of the odious anti-communist loyalty oaths of the 1950s and a tool for racial and sex discrimination? And is the use of these statements compatible with the First Amendment, the Equal Protection Clause, and California's Proposition 209?
Featuring:
-- Daniel Ortner, Attorney, Pacific Legal Foundation

Consequences of Municipal Litigation Mar 13, 2020

Cities and counties recently have been playing a more prominent role in initiating large-scale litigation against corporate defendants, claiming damages to themselves and their residents based on a variety of alleged harms. The massive litigation stemming from the opioid epidemic—in which over 2,000 cities and counties across the country have brought suit against pharmaceutical companies—is only the most prominent example. Municipalities have also lately brought suits asserting a range of alleged environmental harms, including from climate change, as well as alleged harms arising from data-privacy breaches. As illustrated by these areas, these cases often concern widespread harms that are the subject of heavy media attention.
This teleforum will explore the impact of this surge in municipal litigation, which is raising concerns in a number of quarters, including among state leaders. Among other concerns, statewide officials have begun to question the efficacy of piecemeal litigation of matters of statewide concern. These lawsuits also evidence the expansion of other harmful litigation trends, such as the use of contingency-fee agreements that incentivize plaintiffs’ counsel but reduce recoveries for victims. The teleforum will address these concerns, as well as the reforms that states might enact to reduce the incidence and impact of municipal litigation.
Featuring:
-- Dave Yost, Attorney General of Ohio
-- Jonathan Skrmetti, Chief Deputy Attorney General of Tennessee
-- Elbert Lin, Partner and Co-chair, Issues and Appeals, Hunton Andrews Kurth

Foreign Intelligence Surveillance Act (FISA) Renewal: Is Reform Needed? Mar 13, 2020

Congress faces a March 15 deadline to renew the statutory authority for several key provisions of the Foreign Intelligence Surveillance Act (FISA). This decision point comes at a time of heightened scrutiny, given the recent Department of Justice Inspector General report addressing the FBI's use of FISA while investigating the 2016 presidential election and a Foreign Intelligence Surveillance Court of Review order expressing "serious concerns about the accuracy and completeness" of the FBI's FISA applications in that case. The panel will discuss the mechanics of FISA, the recent controversy, and issues for Congress to consider as it determines whether and how to renew these key FISA provisions.
Featuring:
-- Gregory T. Nojeim, Senior Counsel & Director of Freedom, Security and Technology Project, Center for Democracy & Technology
-- Kenneth L. Wainstein, Partner, Davis Polk & Wardwell LLP
-- Moderator: Daniel G. West, Associate, SCF Partners

Courthouse Steps Oral Argument: U.S. v. Sineneng-Smith Mar 12, 2020

On February 25, the Supreme Court heard oral arguments in the case of United States v. Sineneng-Smith. At issue is "whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional." Brian Fish joins us to discuss oral arguments and their implications.
Featuring:
Brian M. Fish, Special Assistant, United States Attorney, Baltimore, Maryland
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.

Judicial Engagement and Rational Basis Review Mar 12, 2020

Is rational basis review the appropriate approach consistent with constitutional text, history, and good public policy, or is it an abdication of judicial responsibility?
Advocates for greater judicial engagement argue that courts have a constitutional obligation to apply meaningful judicial review to infringement of unenumerated “nonfundamental” rights. Judicial abdication of that responsibility, they argue, permits special interests to interfere with competition, innovation, and economic liberty.
Defenders of rational basis review maintain that judges are ill-equipped to second-guess the policy judgments of elected lawmakers, and that absent a clear violation of a constitutional protection, such determinations are better left to that branch of government subject to democratic accountability.
Ted Frank of Hamilton Lincoln Law Institute and Clark Neily of The Cato Institute will debate the merits of judicial engagement and rational basis review.
Featuring:
Ted Frank, Director, Center for Class Action Fairness, Hamiliton Lincoln Law Institute
Clark Neily, Vice President for Criminal Justice, Cato Institute
Moderator: Hon. Paul B. Matey, Judge, United States Court of Appeals, Third Circuit
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: Hernandez v. Mesa Mar 11, 2020

In the case of Hernandez v. Mesa, by a vote of 5-4, the judgment of the U.S. Court of Appeals for the Fifth Circuit was affirmed. Per Justice Alito's opinion for the Court: "We are asked in this case to extend Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), and create a damages remedy for a cross-border shooting. As we have made clear in many prior cases, however, the Constitution’s separation of powers requires us to exercise caution before extending Bivens to a new 'context,' and a claim based on a cross-border shooting arises in a context that is markedly new. Unlike any previously recognized Bivens claim, a cross-border shooting claim has foreign relations and national security implications. In addition, Congress has been notably hesitant to create claims based on allegedly tortious conduct abroad. Because of the distinctive characteristics of cross-border shooting claims, we refuse to extend Bivens into this new field.... In sum, this case features multiple factors that counsel hesitation about extending Bivens, but they can all be condensed to one concern––respect for the separation of powers." Justice Alito's majority opinion was joined by the Chief Justice and Justices Thomas, Gorsuch, and Kavanaugh. Justice Thomas filed a concurring opinion, joined by Justice Gorsuch. Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan. Peter Thomson joins us to discuss this decision and its implications.
Featuring:
Peter M. Thomson, Member, Stone Pigman Walther Wittmann L.L.C.
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: June Medical Services v. Russo Mar 11, 2020

This teleforum addresses the March 4, 2020, Supreme Court oral argument in consolidated cases June Medical Services v. Russo and Russo v. June Medical Services (formerly June Medical Services v. Gee and Gee v. June Medical Services), which involve the constitutionality of Louisiana's law requiring physicians who perform abortions to have admitting privileges at a local hospital and whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations, such as Louisiana's admitting privileges law, on behalf of their patients.
This teleforum features Steven Aden, Chief Legal Officer & General Counsel at Americans United for Life, which filed an amicus brief on behalf of 207 members of Congress in support of the respondent in June Medical Services v. Russo. Mr. Aden was formerly co-counsel to the Louisiana Department of Health in June Medical v. Russo.
Featuring:
Steven Aden, Chief Legal Officer & General Counsel, Americans United for Life
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.

Latin America: Restive Trends and Great Power Encroachment - Developments that Matter for U.S. Policy Mar 11, 2020

Recent elections in Latin America have brought about abrupt shifts in government in Argentina, Brazil, Chile, Colombia, and Mexico, while unexpected upheavals in Bolivia and Ecuador have reversed their respective political status quo and challenged the rule of law. Reaction everywhere is mixed; there has been violent social upheaval in Chile, muted protest amidst populist upheaval in Brazil, grave economic worry in Argentina, stymied reform in Colombia, government by prosecution and shutdown in Peru, creeping authoritarianism in Mexico, and increasing influence by militaries on regimes across the region. These developments occur amidst increasing great power interest in the region. China is using its “sharp power” to dominate foreign direct investment and infrastructure in order to supplant U.S. influence in the region. Russia, meanwhile, throws economic lifelines to Venezuela, securing its illicit revenue streams and gaining a disruptive military and economic presence in the Western Hemisphere. What is at the roots of these developments, and what do, or should, they mean for U.S. policy in the region?
Featuring:
-- Ryan Berg, Ph.D., Research Fellow in Foreign & Defense Policy, The American Enterprise Institute; Adjunct Professor is International Relations, The Catholic University of America
-- Brian Winter, Editor In Chief, Americas Quarterly, and Vice-President for Policy, The Américas Society/Council of the Americas
-- Moderator: James Dunlop, Of Counsel, Jones Day

Courthouse Steps Oral Argument: Liu v. Securities and Exchange Commission (SEC) Mar 10, 2020

On March 3, 2020, the Supreme Court will hear oral arguments for the case of Liu v. Securities and Exchange Commission (SEC). At issue is "whether the Securities and Exchange Commission may seek and obtain disgorgement from a court as “equitable relief” for a securities law violation even though the Supreme Court has determined that such disgorgement is a penalty." Todd Braunstein joins us to give perspectives on the oral arguments and offer possibilities for outcomes.
Featuring:
Todd F. Braunstein, General Counsel - International, Willis Towers Watson
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: June Medical Services v. Russo Mar 10, 2020

This teleforum previews the upcoming March 4, 2020, Supreme Court oral argument in consolidated cases June Medical Services v. Russo and Russo v. June Medical Services (formerly June Medical Services v. Gee and Gee v. June Medical Services). These cases involve the constitutionality of Louisiana's law requiring physicians who perform abortions to have admitting privileges at a local hospital and whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations, such as Louisiana's admitting privileges law, on behalf of their patients.
Featuring:
Denise Harle, Senior Counsel, Alliance Defending Freedom
Prof. Stephen l. Vladeck, Professor of Law, The University of Texas at Austin School of 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.

Courthouse Steps Oral Argument: Seila Law LLC v. Consumer Financial Protection Bureau (CFPB) Mar 10, 2020

In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Supreme Court will decide the constitutionality of the CFPB, an agency long criticized not just by the business community but also constitutional scholars who see major problems a single-director agency seemingly unaccountable to the president or anyone else. The lawsuit was brought by a law firm that assists in resolving personal-debt issues, among other legal work that puts it in the crosshairs of those who want greater regulation of consumer-facing financial services. The CFPB is the most independent of independent agencies, with power to make rules, enforce them, adjudicate violations in its own administrative hearings, and punish wrongdoers. It doesn’t need Congress to approve its budget, because its funding requests are met by another agency insulated from political control: the Federal Reserve. Even CFPB supporters concede that the CFPB structure and authority is unique. Please join Ilya Shapiro for a review of the oral arguments in this important case.
Featuring:
-- Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute

Litigation Update: Arizona v. California Mar 05, 2020

The Supreme Court recently denied Arizona’s motion for leave in Arizona v. California, which sought to challenge California’s extraterritorial taxation and seizures of out-of-state funds as unconstitutional. Specifically, California imposed a “doing business” tax on Arizona entities that conduct no actual business in California and have no connection to the state except for purely passive investments in California companies. Justices Thomas and Alito dissented, and explained that the Court’s policy of treating its jurisdiction over suits between states as discretionary was “not only textually suspect, but also inequitable.”
The Court’s action raises important questions about the nature of the Supreme Court’s original jurisdiction and the Court’s failure to provide any detailed rationale of how its jurisdiction—which is “original and exclusive”—is also discretionary. Listen to Arizona Attorney General Mark Brnovich talk about how this decision could impact future original actions, including pending actions by Montana and Wyoming against Washington and Texas against California.
Featuring:
-- Hon. Mark Brnovich, Arizona Attorney General

Courthouse Steps Decision Teleforum: Shular v. United States Mar 05, 2020

In a 9-0 decision, the Supreme Court decided Shular v. United States, rejecting the defense argument that Florida’s unique drug laws cannot be used to enhance a federal sentence. At issue was a federal statute known as the Armed Career Criminal Act (“ACCA”). ACCA imposes a mandatory 15 year sentence on defendants convicted of federal firearms-related felonies if they have 3 or more prior convictions for “serious drug offenses” or “violent felonies.” In 2017, local law enforcement officers executed a search warrant at the Florida home of Eddie Shular who was the target of a drug trafficking investigation being conducted by the Drug Enforcement Administration (“DEA”). During the search, the officers seized a firearm from a bedroom closet. Because Shular was a convicted felon, he was charged under federal law with the crime of being a felon in possession of firearm (18 USC section 922(g)(1)). He pled guilty to that offense and, because he had more than three prior convictions for serious drug offenses, he was sentenced to the mandatory minimum of 15 years in prison under the applicable federal statute. He appealed his sentence arguing that because, under Florida law, none of his state convictions would qualify as a “serious drug offense” because the relevant state laws did not require that the government prove that Shular had “knowledge of the illicit nature of the substance,” and the Florida crimes were, therefore, broader than the generic drug offense analogues under federal law. The Eleventh Circuit upheld his conviction and sentence, rejecting the application of the “categorical approach” to defining “serious drug offenses, and holding that the ACCA definition “requires only that the predicate offense involve certain activities related to controlled substances.” The Supreme Court affirmed, holding that “serious drug offense” requires only that the state offense involve the conduct specified in the statute, and does not require that the state offense in question match certain generic drug offenses under federal law.
Featuring:
-- Gregory A. Brower, Shareholder, Brownstein Hyatt Farber Schreck

Litigation Update on New York’s “Rent Stabilization” Law Mar 05, 2020

Does New York’s “rent stabilization” law violate the federal Constitution? The law, which regulates approximately 1 million apartments in New York City, was enacted more than fifty years ago and remains in effect based on an every-three-year declaration of a housing “emergency.” The law does not merely regulate rent levels, it also limits a property owner’s right to determine who uses an apartment, to convert the property to new uses, and to occupy the property for use by the owner and his or her family.
A lawsuit filed last year asserts that the New York law—including 2019 amendments that significantly increased the restrictions on property owners—violates due process and effects both physical and regulatory takings of the property that it regulates. New York City, New York State, and tenant advocacy groups have moved to dismiss the action.
Rent control is not just a New York phenomenon. Other cities across the country have enacted, or are considering, rent regulation legislation. Andrew Pincus, lead counsel for the plaintiffs, and Prof. Richard Epstein, of New York University School of Law, will discuss the constitutional challenge in the context of the Supreme Court’s evolving property rights jurisprudence.
Featuring:
-- Andrew Pincus, Partner, Mayer Brown LLP
-- Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law

Litigation Update: McMahon v. Fenves Mar 04, 2020

In a matter of first impression, the Fifth Circuit Court of Appeals recently issued an opinion in the consolidated case of McMahon v. Fenves, concerning the removal of historic Civil War and World War I monuments to American veterans from the University of Texas at Austin and Travis Park in San Antonio. The Court cited lack of standing that precluded its jurisdiction over the controversy under Lujan v. Defenders of Wildlife. The issue of standing is itself of interest, because the question in this context concerns who has authority to control societal memory. Plaintiff-Appellants initially cited to state law cases from Hawaii, New Mexico, and Maine that provide a public-interest exception to general standing requirements. This exception provides for standing to any member of the affected public in a matter of general public interest. Plaintiffs in the instant case argued that the public interest to protect core political speech should provide standing. Plaintiffs contended that political speech is a general good that should be given an exception to the general standing requirements, as political speech enjoys protections in all other areas of law that should, here, be recognized in the protection of historic monuments that communicate political speech. While federal and state constitutions protect core political speech, the question arises as to what protections, including constitutional, should exist to protect historic political speech meant to be expressed in perpetuity. The Fifth Circuit, as an intermediate appellate court, has reasonably applied a temporally narrow interpretation of standing of historic political speech that does not include successor associations to intended beneficiaries, nor successors to testamentary beneficiaries. However, in an era unprecedented in American history in which historical memory is continually challenged, the preservation of societal memory may well deserve an exception to the general standing requirements under Lujan.
Featuring:
-- David D. Vandenberg, Staff Attorney, Eighth Texas Court of Appeals

Courthouse Steps Decision Teleforum: McKinney v. Arizona - And the Future of Capital Sentencing Feb 27, 2020

On Tuesday, in a 5-4 decision in McKinney v. Arizona, the Supreme Court of the United States issued a landmark death penalty and criminal procedure opinion about the division between direct and collateral review and the jury requirements that the Court had previously explicated in the Apprendi line of cases, including Ring v. Arizona and Hurst v. Florida. At issue was an Arizona Supreme Court opinion that conducted an appellate reweighing of aggravation and mitigation after a remand from the En Banc Ninth Circuit for a supposed error in treatment of certain mitigation on direct appeal. Writing for the majority, Justice Kavanaugh clarified or confirmed several important criminal and death penalty procedure issues. First, the majority affirmed the ongoing validity of Clemons v. Mississippi and the availability of appellate reweighing of aggravation and mitigation. Second, the Court confirmed that a jury need only find the existence of an aggravating factor, and need not conduct the weighing of aggravation and mitigation or impose the particular sentence in a death penalty case. Third, the Court affirmed that a state court conclusion as to the collateral nature of a state appellate proceeding was not subject to dispute by the Court.
Featuring:
-- Oramel H. (O.H.) Skinner, Solicitor General for Arizona

Update on Foreign Intelligence Surveillance Act (FISA) Renewal Feb 26, 2020

On March 15, 2020, certain authorities under the Foreign Intelligence Surveillance Act (FISA) will expire absent renewal by Congress. The authorities set to expire fall into three categories: 1) the business records provision (often referred to as Section 215) that allows for collection of call detail records, among other things; 2) roving wiretaps; and 3) the lone wolf provision. Former Congressman Bob Goodlatte (R, VA-6) who served as the Chair of the House Judiciary Committee will share his views of how he expects Congress will address the renewal of these authorities and his recommendations for reforms to FISA. Please join us for this timely discussion.
Featuring:
Hon. Bob Goodlatte, Former Congressman, United States House of Representatives
Moderator: Matthew R. A. Heiman, Senior Fellow and Associate Director for Global Security, National Security Institute
Please dial 888-752-3232 to access the call.

Update on Public Nuisance Lawsuits Feb 26, 2020

In AEP v. Connecticut (2011), the Supreme Court unanimously rejected federal common law nuisance claims brought by states and cities against companies alleged to have contributed to global warming by emitting greenhouse gases. The Court held that Congress, by enacting the Clean Air Act, had displaced the federal common law of nuisance and gave jurisdiction over these issues to the EPA. The Court declined to open up a “parallel track” to enforcing carbon emissions standards in the federal system via the federal courts. Since that time, states and municipalities in California and elsewhere have brought similar suits under state nuisance law, but judges have indicated this problem needs a national solution that “must be fixed by our [other] political branches.” At present, the First, Second, Fourth, Ninth, and Tenth Circuits are hearing arguments about whether these issues belong in the federal courts, state courts, or elsewhere.
Featuring:
-- Theodore J. Boutrous Jr., Partner, Gibson, Dunn & Crutcher LLP

Modernizing the National Environmental Policy Act (NEPA) Feb 25, 2020

On January 10, the White House Council on Environmental Quality (CEQ) proposed revisions to its regulations for implementing the National Environmental Policy Act (NEPA), signed into law in 1970. CEQ has not comprehensively updated these regulations for forty years.
Since its enactment, the NEPA environmental review and permitting process has become increasingly complex and time-consuming and extends far beyond what Congress originally intended. Importantly, NEPA is a procedural statute that requires Federal agencies to assess the environmental impacts of proposed major Federal actions. The purpose of NEPA is essential to sound governments. The chosen means is a “procedural” statute that requires Federal agencies to prepare a detailed statement on environmental impacts from a proposed Federal action, alternatives to the proposed action, unavoidable adverse effects, and any irreversible and irretrievable commitments of resources that would be involved.
The average length of an environmental impact statement is over 600 pages and the average time to complete a NEPA review of major projects is four and a half years. NEPA analyses are frequently challenged in the courts, which delays and increases the costs for transportation, water, pipelines and other infrastructure that benefit States, Tribes, and local communities. CEQ’s proposal would modernize and clarify the regulations to facilitate timely NEPA reviews by Federal agencies in connection with proposals for agency action.
This teleforum is co-hosted by the Federalist Society and ConservAmerica and will offer background on CEQ’s proposal and discuss caselaw that has resulted in calls for NEPA reform and modernization. Comments on CEQ’s proposal are due March 10.
Please click here for a Summary of Key Issues and Select Cases.
Featuring:
Prof. Richard Esptein, The Laurence A. Tisch Professor of Law, New York University, and Senior Fellow at Hoover Institute
Mario Loyola, Senior Fellow, Competitive Enterprise Institute and former Associate Director for Regulatory Reform, White House Council on Environmental Quality
Moderator: Brent Fewell, General Counsel, ConservAmerica
Please dial 888-752-3232 to access the call.

Courthouse Steps Preview: United States Forest Service v. Cowpasture River Preservation Association Feb 22, 2020

On February 24, 2020 the Supreme Court will hear argument in two consolidated cases, U.S. Forest Service v. Cow Pasture River Assn. and Atlantic Coast Pipeline Assn. v. Cow Pasture River Assn., in which the Fourth Circuit invalidated the permit for construction of a multi-billion-dollar natural gas pipeline that crosses the Appalachian Trail on Forest Service land in Virginia. The issue is which, if any, federal agency can authorize construction that impacts the Trail, which crosses private, state and federal land from Georgia to Maine and operates under a host of statutes, regulations and private agreements. The case is a textbook study in legislative interpretation, congressional intent and private-public cooperative agreements.
Our presenters are two of the lawyers who filed amicus briefs for parties directly impacted by the case. Keith Bradley, counsel for the Appalachian Trail Conservancy, is a partner with the Squire Patton Boggs firm in Denver and former counsel with the Department of Energy, where he was lead lawyer on implementation of the Iran nuclear deal. Tom Jensen is a partner with Perkins, Coie in Washington, D.C. He formerly served as the majority counsel to the U.S. Senate Committee on Energy and Natural Resources and was the associate director for natural resources on the White House Council on Environmental Quality. Roger Marzulla, partner at Marzulla Law in Washington, D.C. and former head of the U.S. Justice Department’s Environment and Natural Resources Division, will moderate.
Featuring:
-- Keith Bradley, Partner, Squire Patton Boggs (Denver)
-- Thomas C. Jensen, Partner, Perkins Coie LLP
-- Moderator: Roger J. Marzulla, Partner, Marzulla Law, LLC

Courthouse Steps Preview: Seila Law LLC v. Consumer Financial Protection Bureau (CFPB) Feb 18, 2020

In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Supreme Court will decide the constitutionality of the CFPB, an agency long criticized not just by the business community but also constitutional scholars who see major problems a single-director agency seemingly unaccountable to the president or anyone else. The lawsuit was brought by a law firm that assists in resolving personal-debt issues, among other legal work that puts it in the crosshairs of those who want greater regulation of consumer-facing financial services. The CFPB is the most independent of independent agencies, with power to make rules, enforce them, adjudicate violations in its own administrative hearings, and punish wrongdoers. It doesn’t need Congress to approve its budget, because its funding requests are met by another agency insulated from political control: the Federal Reserve. Even CFPB supporters concede that the CFPB structure and authority is unique. Please join John Eastman for a preview of oral arguments in this important case.
Featuring:
-- Prof. John Eastman, Henry Salvatori Professor of Law and Community Service and Director, Center for Constitutional Jurisprudence, Chapman University Fowler School of Law

The New Definition of “WOTUS”: Analysis of the Trump Administration’s “Navigable Waters Protection Rule” Feb 18, 2020

The Trump Administration recently released its final rule defining “waters of the United States” under the Clean Water Act. This rule, called the “Navigable Waters Protection Rule” is the replacement for the repealed 2015 Clean Water Rule. For decades, the Environmental Protection Agency and the U.S. Army Corps of Engineers have struggled to define “waters of the United States” in a way that passes legal muster. Criticism has long-focused on the alleged overreach by the agencies, the vagueness of the definition, and a disrespect for the state role in addressing clean water as envisioned by Congress. However, many critics of the new EPA and Corps’ rule argue that it is too narrow and not properly based on science. Please join us as our experts discuss the history of the “waters of the United States” definition, explain the new rule and what waters would be regulated, and provide their insight and perspective on the impact of this major new rule.
Featuring:
-- Daren Bakst, Senior Research Fellow in Agricultural Policy, The Heritage Foundation
-- Tony Francois, Senior Attorney, Pacific Legal Foundation
-- John Paul Woodley, Principal, Advantus Strategies, LLC

Litigation Update: FTC v. Qualcomm Feb 17, 2020

In January 2017, the Federal Trade Commission (FTC) filed an antitrust complaint against Qualcomm in the Northern District of California. The FTC alleged that Qualcomm had unlawfully monopolized the market for certain semiconductors important in smartphone technology. Among other things, the FTC claimed that Qualcomm had maintained its market position by requiring chip customers to license their chips separately (known as the “no license, no chips” policy) and had refused to license its standard-essential patents (SEPs) to competitors.
Judge Lucy Koh held a bench trial in January 2019 and issued a decision in favor of the FTC in May 2019. In a lengthy opinion, the court determined that Qualcomm’s “no license, no chips” policy violated antitrust law and that Qualcomm had a separate antitrust duty to deal with its competitors. Judge Koh then issued an injunction that, among other things, prohibited Qualcomm from conditioning the supply of chips on a customer’s patent-license status and required Qualcomm to negotiate and make available licenses on FRAND terms.
Qualcomm appealed to the Ninth Circuit. In August 2019, the Ninth Circuit issued an order partially staying Judge Koh’s injunction. According to the Ninth Circuit, “Qualcomm has shown, at a minimum, the presence of serious questions on the merits” of the district court’s opinion. Additionally, the Ninth Circuit needs to decide whether the district court’s “order and injunction represent a trailblazing application of the antitrust laws, or instead an improper excursion beyond the outer limits of the Sherman Act.”
While these issues alone would be interesting, this case is even more intriguing because the Department of Justice (DOJ) has intervened in the case – in favor of Qualcomm. The DOJ filed an amicus brief in favor of the stay of injunction, as well as an amicus brief on the merits. The Ninth Circuit has also granted DOJ’s request for five minutes of oral argument time. Oral argument in the Ninth Circuit is set for February 13, 2020.
This Litigation Update teleforum will recap the district court’s decision, discuss the arguments likely to be made on appeal, and explore the bigger issues this case brings up for antitrust policy.
Featuring:
-- Hon. F. Scott Kieff, Fred C. Stevenson Research Professor of Law and Director, Planning and Publications, Center for Law, Economics, & Finance, George Washington University Law School
-- Prof. Kristen Osenga, Austin E. Owen Research Scholar & Professor of Law, The University of Richmond School of Law

The Whys and Hows of Commenting on Rules Feb 13, 2020

Public notice and comment on rulemaking is a core requirement of the Administrative Procedure Act, and creates the administrative record on which any subsequent judicial review will be based. Yet many people (even people who take the trouble to vote) seem to think that commenting on rules is difficult or futile, and therefore don’t participate – even when they care about the outcome. This Teleforum will discuss the practical mechanics of tracking the development of rules and filing timely comments; in fact, timely filing is about the only legal requirement for getting comments onto the record. It will describe the sorts of comments that tend to be effective in persuading an agency, including comments made directly by affected small entities without professional representation. It will also explain the concept of a “Public Interest Comment” which argues, not on behalf of any particular party or cause (however worthy), but in favor of a balanced resolution of the conflicting considerations that an agency must take into account.
Featuring:
-- Prof. Susan Dudley, Director, GW Regulatory Studies Center and Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University
-- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
-- Prof. Brian F. Mannix, Research Professor, Regulatory Studies Center, George Washington University

Fitzpatrick v. Frank: Should Conservatives Embrace Class Actions? Feb 08, 2020

Professor Brian Fitzpatrick of Vanderbilt Law School and Ted Frank of the Center for Class Action Fairness debate Professor Fitzpatrick’s provocative new book, The Conservative Case for Class Actions (University of Chicago Press).

Litigation Update: The Government, Apple, and the Encryption Debate Feb 08, 2020

In 2016 the United States Department of Justice and Apple twice went to federal court over whether Apple could be required to assist the government in unlocking cell phones used by persons under investigation for criminal conduct. One case involved access to an iPhone used by one of the persons responsible for the mass shootings in San Bernardino, California. Another case involved an iPhone seized from a narcotics trafficking suspect in Brooklyn, New York. In both cases, however, the litigations were terminated as moot without final resolution when the government was able to access the iPhones in question without Apple’s assistance. Once again, however, the government and Apple are at odds — this time over access to iPhones used by a Saudi military trainee who in 2019 killed three sailors at a Navy base in Pensacola, Florida. What is the basis for compelling a third party to assist the government in its criminal investigations in accessing encrypted communications using its platforms? What are the key legal and policy issues at stake in this controversy? Joseph V. DeMarco of DeVore & DeMarco LLP, who filed amicus briefs in the 2016 litigations on behalf of various law enforcement organizations in support of the government, and who previously prosecuted cybercrime as an Assistant United States Attorney in the Southern District of New York, will explore these issues and offer perspectives on the implications of this crucial debate for national security as well as for criminal and civil litigations in state and federal court.
Featuring:
-- Joseph V. DeMarco, Partner, DeVore & DeMarco LLP

Litigation Update: City of Boise v. Martin Feb 07, 2020

Last month, the Supreme Court denied certiorari in City of Boise v. Martin, a case out of the U.S. Court of Appeals for the Ninth Circuit. The case involved a challenge to Boise’s enforcement of its criminal law prohibiting public camping against the homeless. The Ninth Circuit held that the Eighth Amendment’s prohibition on cruel and unusual punishment prohibits the enforcement of the law against the homeless when there are insufficient beds available in shelters. Although the Court denied review, the Ninth Circuit’s decision raises many important questions about many issues, including the effect on the homeless and surrounding communities, ways that law enforcement might react to their inability to enforce this law, and the potential constraints placed on the approximately 1600 municipalities in the Ninth Circuit—in particular San Francisco and Los Angeles, which have significant homeless populations—in their efforts to combat homelessness and the ills associated with it. Learn about this case's history, facts, unresolved questions, and legal implications moving forward.
Featuring:
-- Prof. Andrew Hessick, Judge John J. Parker Distinguished Professor of Law and Associate Dean for Strategy, The University of North Carolina at Chapel Hill School of Law
-- Prof. Carissa Hessick, Anne Shea Ransdell and William Garland "Buck" Ransdell, Jr. Distinguished Professor of Law, Associate Dean for Faculty Development, The University of North Carolina at Chapel Hill School of Law
-- Moderator: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC

Removal or Acquittal? President Trump's Trial in the Senate Feb 05, 2020

In December 2019, the United States House of Representatives voted to impeach President Donald Trump. This is the third impeachment of a sitting U.S. President after Johnson and Clinton. John Malcolm and John Yoo discuss the ongoing Senate trial, the debate over witnesses, comparisons to previous Senate trials, and more.
Featuring:
-- John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
-- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

Litigation Update: Rodgers v. Bryant Jan 29, 2020

In Rodgers v. Bryant, the 8th Circuit Court of Appeals upheld a statewide injunction of an anti-loitering statute. A notable dissent traced equitable jurisdiction from common-law England through to the current day, concluding that broad universal injunctions are only available in representative lawsuits like class actions and when relief for the plaintiff necessarily requires providing relief to others (as with public nuisances). Professor Samuel Bray, a leading scholar on remedies, described it as “the most detailed and learned decision yet on the history of equity and the scope of injunctions (on either side of this debate that has been running since 2016). The dissenting opinion should be required reading for anyone interested in national or universal injunctions." Anthony Sanders, Director of the Institute for Justice’s Center for Judicial Engagement, joins us to discuss the case, the decision, and its implications.
Featuring,
-- Anthony Sanders, Director, Center for Judicial Engagement, Institute for Justice

Amazon’s Case Against President Trump: Did DoD Unfairly give Microsoft the Right to be the JEDI Master? Jan 24, 2020

Amazon Web Services, Inc. (Amazon) has claimed in a lawsuit in the United States Court of Federal Claims that unlawful intervention by President Donald Trump deprived it of a $10 billion decade-long contract with the Department of Defense (DoD) for a cloud computing system known as the Joint Enterprise Defense Infrastucture (JEDI). Long considered the favorite, Amazon nevertheless lost the award to Microsoft Corp. in a competitive bidding process that Amazon claims was arbitrary and capricious and tainted by President Trump’s open feud with Amazon company founder Jeffrey Bezos.
Dan Kelly, Alexander Major and Franklin Turner, nationally recognized commentators and practitioners in the federal bid protest arena, will unpack what we know about Amazon’s case, and discuss the possible grounds, laws and regulations governing mandates for competitive contracting by federal agencies.
Featuring:
-- Alexander Major, Partner and Co-Leader of Government Contracts & Export Controls Practice Group, McCarter & English LLP
-- Franklin Turner, Partner and Co-Leader of Government Contracts & Export Controls Practice Group, McCarter & English LLP
-- Moderator: Daniel Kelly, Partner, Government Contracts & Export Controls Practice Group, McCarter & English LLP

Courthouse Steps Oral Argument Teleforum: Espinoza v. Montana Department of Revenue Jan 24, 2020

This teleforum addresses the January 22 Supreme Court argument in Espinoza v. Montana Department of Revenue. The question in this case is whether it violates the Free Exercise Clause for a state supreme court to invalidate a school choice program, merely because that program includes religious options, pursuant to that state’s Blaine Amendment. The Institute for Justice represents the Plaintiffs in the case.
Featuring:
-- Erica Smith, Senior Attorney, Institute for Justice

Courthouse Steps Oral Argument: Wire and Federal Program Fraud: A ‘Bridgegate’ Too Far? Jan 15, 2020

Bridget Anne Kelly and William Baroni were convicted of wire fraud, federal program fraud and conspiracy for orchestrating lane closures on the George Washington Bridge in September, 2013, as an elaborate punishment to the mayor of Fort Lee, New Jersey for refusing to endorse Governor Chris Christie for re-election. In Bridget Anne Kelly v. United States, the latest in a series of political corruption cases to reach the Supreme Court, the justices will consider whether these acts can amount to defrauding the government.
Steve Klein, a partner at Barr & Klein PLLC and a member of the Free Speech & Election Law Executive Committee, will discuss the implications of the case and give his thoughts on oral argument.
Featuring:
Mr. Steve Klein, Partner, Barr & Klein PLLC
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.

Is Another Brand of Judicial Deference on the Chopping Block? Jan 11, 2020

This teleforum will focus on the sundry problems with so-called "Brand X deference," whose name derives from the 2005 Supreme Court decision in National Cable & Telecom. Assoc. v. Brand X Internet Services. The judicial deference holding in the case was that federal agencies may issue new regulations that supersede previous interpretations of the relevant statute made by federal courts of appeals (unless that prior federal-court interpretation purported to be the only permissible interpretation of the statute). Hence, even if a federal circuit court of appeals has previously interpreted a statute, if an agency with jurisdiction subsequently issues a new regulation interpreting that statute differently, the federal court in a future case must defer (i.e., give Chevron deference) to the agency’s new interpretation of the statute.
This month the U.S. Supreme Court will consider whether or not to take up a case that could do for Brand X deference what Kisor v. Wilkie did for Auer deference. That is, the Court could radically reduce the scope of Brand X’s application and/or clarify that Brand X deference only applies when a prior federal court did not use traditional tools of statutory analysis in interpreting the statutory provision at issue. Or, the Court could go even further and do away with Brand X deference altogether, as then-Judge Gorsuch called for when he was serving on the Tenth Circuit.
Join us for this timely discussion of Baldwin v. U.S. (cert pending).
Featuring:
Mark Chenoweth, Executive Director & General Counsel, New Civil Liberties Alliance
Moderator: Robert T. Carney, Senior Counsel, Caplin & Drysdale
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.

Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation? Jan 11, 2020

Multidistrict litigation has been the subject of much controversy in recent years. Defendants lament the pressure to settle claims that they believe frequently lack merit and the inefficiencies of modern multidistrict litigation. In her recent book, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation, Professor Elizabeth Chamblee Burch marshals a wide array of empirical data to suggest that a systematic lack of checks and balances may disadvantage plaintiffs in multidistrict litigation as well. Rather than faithfully representing them, she asserts that plaintiffs’ lawyers may sell them out in backroom settlements that compensate lawyers handsomely, pay plaintiffs little, and deny them the justice they seek. Please join Professor Elizabeth Chamblee Burch and Douglas Smith for a discussion of this important book.
Featuring:
-- Prof. Elizabeth Chamblee Burch, Fuller E. Callaway Chair of Law, University of Georgia School of Law and author of Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation (Cambridge University Press 2019)
-- Douglas Smith, Partner, Kirkland & Ellis LLP

The Race to 5G and the World Radio Conference Jan 10, 2020

Heard about the “Race to 5G”? Wonder who are the U.S.’ leading rivals, and when and where the “race” is happening? This teleforum will provide answers and cover how outcomes from the World Radiocommunication Conference (WRC) affect the United States’ spectrum goals and priorities, including Wi-Fi, innovative satellite services, science research, and weather forecasting. Join us for this timely and important discussion with Ambassador Grace Koh, who led the U.S. Delegation to the recently concluded World Radiocommunication Conference, to examine how WRC outcomes position the U.S. in the Race to 5G. Tom Sullivan and Doug Kinkoph will also participate in this discussion, moderated by Patricia Paoletta (Harris, Wiltshire & Grannis LLP).
Featuring:
-- Doug Kinkoph, Associate Administrator, Office of Telecommunications and Information Applications, performing the non-exclusive functions and duties of the Assistant Secretary of Commerce for Communications and Information, National Telecommunications and Information Administration, Department of Commerce
-- Amb. Grace Koh, U.S. Representative and Head of Delegation to the International Telecommunication Union (ITU) World Radiocommunication Conference 2019
-- Thomas Sullivan, Chief, International Bureau, Federal Communications Commission
-- Moderator: Patricia Paoletta, Partner, Harris, Wiltshire & Grannis LLP

Courthouse Steps Oral Argument: Holguin-Hernandez v. U.S. Jan 03, 2020

At issue in the case of Holguin-Hernandez v. United States is whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence. Daniel Guarnera joined us to discuss the case as presented at oral argument before the Supreme Court on December 10, 2019.
Featuring:
Daniel Guarnera, Associate, Kellogg, Hansen, Todd, Figel & Frederick

Courthouse Steps Oral Argument Teleforum: Hernandez v. Mesa Jan 03, 2020

The case of Hernandez v. Mesa arises from a 2010 confrontation on the U.S.-Mexican border in which U.S. Border Patrol agent Jesus Mesa shot and killed Sergio Hernandez, a teenage Mexican national. Although the FBI apparently cleared Mesa of wrongdoing, and Hernandez was not standing on American soil at the time he was shot, the Hernandez family filed suit against Mesa and the federal government based on the Supreme Court's decision in Bivens v. Six Unknown Named Agents, which held that a federal agent can be found liable in damages under the Fourth Amendment for committing an unconstitutional search and seizure.
The central issue now before the Supreme Court is whether the Hernandez family can recover damages in a Bivens action for the killing of their son in violation of the Fourth and Fifth Amendments when there is no other available remedy under federal law. Peter Thomson joined us to discuss the oral argument and offered predictions on the outcome of the case as well as its greater implications.
Featuring:
Peter M. Thomson, Special Counsel, Stone Pigman Walther Wittmann LLC

The President's Impeachment Dec 20, 2019

In December 2019, the United States House of Representatives voted to impeach President Donald Trump. This is the third impeachment of a sitting U.S. President after Johnson and Clinton. As a part of their continuing conversation series, we are excited to host John Malcolm and John Yoo to discuss the vote, Trump’s letter, possible Senate trial rules, comparisons to the historic meaning of impeachment, and more.
Featuring:
-- John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
-- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

Trade Secrets Litigation: Do Damages Awarded in Texas Case Have Broader Ramifications? Dec 18, 2019

Courthouse Steps Decision Teleforum: Peter v. NantKwest Inc. Dec 18, 2019

On December 11, 2019, the Supreme Court issued its decision in Peter v. NantKwest Inc. upholding the American Rule’s presumption against shifting attorney’s fees. Under Section 145 of the Patent Act, applicants “dissatisfied with the decision of the Patent Trial and Appeal Board” are afforded the opportunity to file a civil action in the United States District Court for the Eastern District of Virginia. The statute specifies that “[a]ll the expenses of the proceedings shall be paid by the applicant.” The question presented in the case is whether such “expenses” includes the salaries of attorney and paralegal employees of the United States Patent and Trademark Office (“USPTO”). The Supreme Court, in a unanimous opinion, affirmed the en banc majority opinion of the United States Court of Appeals for the Federal Circuit and held that it does not include the attorney’s and paralegal fees. The discussion of this decision will focus on the Court’s analysis and its implications.
Featuring:
-- Robert J. Rando, Founder and Lead Counsel, The Rando Law Firm P.C.

What Is The Office of Federal Contract Compliance Programs? Dec 17, 2019

In the scheme of the Administrative State’s employment anti-discrimination functions, the Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) is often overlooked. Yet, the role of the OFCCP is significant and important because that agency administers and enforces multiple equal employment opportunity laws among businesses that employ approximately 25% of Americans. With a $100 million budget and 500 employees, the OFCCP accomplishes its mission by examining the employment practices of federal contractors and subcontractors to determine whether they comply with equal employment opportunity and affirmative action obligations under such legal authorities. This teleforum will survey the role and functions of the OFCCP, the context of its unique statutory authorities, and its public introduction of limiting principles to its enforcement practices.
Featuring:
-- Craig E. Leen, Director, Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor
-- Robert J. Gaglione, Deputy Director, Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor
-- Moderator: Aram A. Gavoor, Professorial Lecturer of Law, The George Washington University Law School

Courthouse Steps Oral Argument Teleforum: Thryv, Inc. v. Click-To-Call Technologies, LP Dec 16, 2019

In Thryv, Inc. v. Click-To-Call Technologies, LP (originally Dex Media Inc. v. Click-To-Call Technologies, LP), the Supreme Court will determine whether the decision to institute an inter partes review (“IPR”), which is argued to be time barred under 35 U.S.C. § 315(b) as filed beyond the one-year date the complaint for infringement was served on the petitioner, may be subject to judicial review after a final written decision of the PTAB to determine whether the petition for IPR was time-barred, despite the language of 35 U.S.C. § 314(d) that prohibits appeal of the USPTO Director’s determination whether to institute an IPR.
The case presents issues of statutory interpretation, judicial review and the Administrative Procedure Act (“APA”), and agency action in light of “statutory jurisdiction, authority, or limitations, or short of statutory right.” APA Section 706(2)(C).
The question presented is: Whether 35 U.S.C. § 314(d) permits appeal of the Patent Trial and Appeal Board’s decision to institute an inter partes review upon finding that 35 U.S.C. § 315(b)’s time bar did not apply.
Please join our expert, Rob Rando, in a discussion of the oral argument. Mr. Rando is co-Counsel on an amicus brief filed on behalf of the New York Intellectual Property Law Association (“NYIPLA”) in this case.
Featuring:
Mr. Robert J. Rando, Founder and Lead Counsel, the Rando Law Firm P.C.
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.

Litigation Update: People of the State of New York v. ExxonMobil Corp. Dec 16, 2019

In late October, the People of the State of New York v. ExxonMobil Corp. trial began in the Supreme Court of the State of New York before Justice Barry Ostrager. The lawsuit was brought under New York’s Martin Act, an anti-fraud statute, and alleged that ExxonMobil misled its investors about how the company accounted for climate-change risks. The trial was the culmination of a nearly three year investigation that was initially launched by former New York Attorney General Eric Schneiderman with his successor eventually filing a lawsuit against ExxonMobil in the fall of 2018. Justice Ostrager handed down his decision on December 10, 2019, ruling for Exxon. Andrew M. Grossman, partner at BakerHostetler, joined us to discuss the ruling, next steps in the case and its implications for other ongoing litigation brought by states and municipalities against energy companies.
Featuring:
-- Andrew M. Grossman, Partner, Baker & Hostetler LLP

Will the Supreme Court Revisit Employment Division v. Smith? Dec 13, 2019

In 1990, the Supreme Court startled the nation with a decision in Employment Division v. Smith that upended the long-established understanding of the First Amendment’s religious liberty protections. Rather than subjecting all government burdens on religion to strict scrutiny, as had been done in the past, the Court announced that burdens resulting from neutral and generally applicable laws are not barred by the Free Exercise Clause. Religious exercise would be protected only against laws specifically targeting religion. The decision immediately sparked condemnation from civil rights groups across the political spectrum, was rejected by Congress and 32 states, and has been criticized by prominent scholars and at least ten Supreme Court Justices. Recently, Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh suggested that Smith should be “revisited,” noting that it “drastically cut back on the protection provided by the Free Exercise Clause.” George Ricks has spent forty years as a construction worker in Idaho, and in 2014, sought to register as a general contractor so he could run his own business. Ricks, however, has religious objections to using his Social Security number to obtain work, and the State of Idaho—even though it can access his number in other ways—refuses to let him register without providing it himself. After Ricks sued, the Idaho courts applied Smith to deny him relief. Eric Baxter, counsel for Ricks, will discuss the merits and procedural posture of Ricks v. Idaho Contractors Board.
Featuring:
Eric Baxter, Vice President and Senior Counsel, Becket Fund for Religious 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.

Litigation Update: Religious Foster Care Agencies and the First Amendment Dec 10, 2019

What happens when governments try to exclude religious foster care agencies? Philadelphia put out an urgent call for 300 more foster families, then refused to send children to any foster families who work with Catholic Social Services, accusing the agency of “discrimination under the guise of religious freedom.” Michigan told agencies statewide that they would have to close their doors if they did not place children with same-sex couples. What will happen in the legal challenges to these actions, and will the Supreme Court step in? Becket Senior Counsel Lori Windham will discuss Fulton v. City of Philadelphia and Buck v. Gordon, two cases challenging government exclusion of religious agencies. The Supreme Court is poised to decide soon whether it will hear Fulton this term, and the Sixth Circuit is set to consider Michigan’s actions in Buck.
Featuring:
Lori Windham, Senior Counsel, Becket Fund for Religious 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.

Diversity and Elimination of Bias CLE Teleforum: The Harvard Case and the Meaning of Diversity in a Multi-Racial Era Dec 09, 2019

*** Please note: CLE is no longer available for this teleforum/podcast.***
Electronic Sign In: Click Here
Written Materials: Click Here
Certificate of Attendance: Click Here
The Federalist Society offers a unique opportunity for attorneys in New York, California, Minnesota, and Illinois to fulfill the one-hour “Diversity and Elimination of Bias” CLE requirement in those states.
On September 30 a federal district judge in Massachusetts issued a ruling rejecting discrimination claims in Students for Fair Admissions v. President and Fellows of Harvard College, 2019 U.S. Dist. LEXIS 170309 (D. Mass.), a case that many expect to go to the U.S. Supreme Court and potentially redefine affirmative action law. In the case, Asian-American students allege that Harvard’s racial preferences for other minority groups discriminate against them in violation of Title VI of the 1964 Civil Rights Act. The students introduced evidence that Asian enrollment at Harvard is less than half what it would be if admission was based solely on academic achievement; that Asian applicants receive the lowest scores on an amorphous “personal rating” assigned by admissions officials who have not met them; and that Harvard’s “holistic” admissions system, touted by the Supreme Court as the model for permissible racial preferences, was originally devised to exclude Jews.
The case raises the question of the meaning of “diversity” in an increasingly multi-racial era, and the continued justification for affirmative action in that era when its burden may now fall largely not on the white majority but on another historically marginalized racial minority group.
Dennis Saffran, a New York appellate attorney and Vice President of the Federalist Society Long Island Lawyers Chapter, submitted an amicus brief in the case on behalf of the National Association of Scholars and has written about the case for the Manhattan Institute’s City Journal. He will review the Supreme Court’s major affirmative action precedents since Bakke in 1978 and the arguments in the Harvard litigation in light of these precedents.
**Additional CLE Instructions:
Please check this event page the morning of the event, where there will be a dropbox link to download all CLE Materials including the links for the online Certificate of Attendance, Evaluation Form, and the PDF Written Materials.
Call into the Teleforum number 1-888-752-3232 before 1:55 p.m. ET on Wednesday, December 4th, 2019.
An electronic sign-in link will go live 10 minutes before the call start time. Please make sure to electronically sign in using this link at the beginning of the call, within 10 minutes of the start time of the call.
Listen for the "Unique Program Codes" during the call and enter those codes on your Certificate of Attendance to verify your attendance.
Fill out your Certificate of Attendance and Evaluation Form that will be accessible on the event page up until the conclusion of the event, within 14 days of the conclusion of the program.

Courthouse Steps Oral Argument Teleforum: Atlantic Richfield Co. v. Christian Dec 05, 2019

In Atlantic Richfield Co. v. Christian, the Supreme Court will determine whether the Comprehensive Environmental Response, Compensation, and Liability Act preempts state common law claims for restoration damages for pollution also addressed by an EPA-directed cleanup plan. In this case, a Montana copper smelter polluted its neighbors’ properties for decades, but has also spent $450 million to remediate this pollution under a plan negotiated with EPA. Believing Montana state law entitles them to more extensive restoration than the EPA plan provides, neighboring property owners sued Atlantic Richfield for trespass and nuisance, seeking restoration damages and other relief. Jonathan Wood and Corbin Barthold join us to discuss the oral argument in this case and its implications for CERCLA and property rights.
Featuring:
Jonathan Wood, Senior Attorney, Pacific Legal Foundation
Corbin K. Barthold, Senior Litigation Counsel, Washington 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.

The Trump Impeachment Effort Dec 05, 2019

Defenders of the Constitution designed impeachment to be a rare event, especially by making the requirement for removal a two-thirds vote of the Senate for treason, bribery, or other high crimes or misdemeanors, rather than “maladministration,” in their words. John Malcolm and John Yoo discuss the public hearings from the impeachment proceedings that began last month in the House of Representatives. How have the facts changed? What have been the procedures for the House investigation? Could the allegations plausibly meet the standards for high crimes and misdemeanors? How effective is the White House’s strategy of non-cooperation?
Featuring:
-- John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
-- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

Courthouse Steps Oral Argument Teleforum: Georgia v. Public Resource.org Inc. Dec 04, 2019

In its very first case on copyright, the Supreme Court under Chief Justice John Marshall was faced with the question of whether its own reports are protected by copyright, and decided in the negative. This term, the Supreme Court is called upon to clarify the scope of that decision, which it has not further clarified since two cases heard in 1888. The question presented in Georgia v. Public.Resource.Org Inc. is whether the annotations to the Official Code of Georgia are "government edicts" and thus not within the scope of copyright, even though they lack the force of law. This case also raises implicit questions as to other quasi-governmental publications of which the copyright status is often surprisingly amorphous.
Featuring:
Mr. Sy Damle, Partner, Latham & Watkins LLP
Mr. Zvi Rosen, Visiting Scholar and Professorial Lecturer in Law, George Washington University School of 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.

Courthouse Steps Preview: New York State Rifle & Pistol Association Inc. v. City of New York, New York Dec 03, 2019

Please join us to discuss the upcoming oral argument in New York State Rifle & Pistol Association Inc. v. City of New York, New York. Our experts will give a history of the case, discuss the salient facts, and offer predictions on how the Court will come out.

The Congressional Review Act in an Election Year Nov 21, 2019

In 2017, Congress and the President used the Congressional Review Act to disapprove 14 agency rules issued at the end of the Obama administration. As we enter another presidential election year, the CRA may soon experience another resurgence. Our speakers will address recent CRA developments, including ongoing litigation and an OMB memo asserting CRA authority over agency guidance documents, as well as how the upcoming deadline for submitted rules for review by this Congress and President (rather than their successors) affects agency decision-making.
Featuring:
-- Amit Narang, Regulatory Policy Advocate, Public Citizen Inc.
-- Jonathan Wood, Senior Attorney, Pacific Legal Foundation
-- Moderator: Paul J. Larkin Jr., Senior Legal Research Fellow, Meese Center for Legal and Judicial Studies, Institute for Constitutional Government, The Heritage Foundation

Courthouse Steps Oral Argument Teleforum: County of Maui, Hawaii v. Hawaii Wildlife Fund Nov 12, 2019

Join us for a Courthouse Steps teleforum on the oral argument for County of Maui, Hawaii v. Hawaii Wildlife Fund. Glenn Roper will examine how the arguments played out, give an indication of where the Court may be going, and discuss how the Supreme Court decision in this case will affect regulated parties in the future.
Featuring:
Glenn E. Roper, 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.

Litigation Update: Non-citizen Voting Nov 12, 2019

Courthouse Steps Oral Argument: Allen v. Cooper Nov 11, 2019

The discovery of the dread pirate Blackbeard’s flagship, Queen Anne’s Revenge, off the North Carolina coast, began an unlikely chain of events which leads to the Supreme Court reconsidering whether and under what circumstances Congress may abrogate state sovereign immunity from suits for infringement of federal intellectual property laws, in this case copyright infringement. In this teleforum we will explore the background of Allen v. Cooper, on which the Supreme Court heard oral argument on November 5, including the interplay of the 11th Amendment and the Copyright Remedy Clarification Act, the evolution and impact of the Supreme Court's rulings in the 1990s in Seminole Tribe and Florida Prepaid, and how the briefs present the issues before the Court.
Featuring:
Zvi Rosen, Visiting Scholar and Professorial Lecturer in Law, George Washington University School of Law
Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law Houston
Moderator: Kevin R. Amer, Deputy General Counsel, U.S. Copyright Office
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.
The Regulatory Transparency Project has created an entertaining and informative video on this case consider clicking above and checking it out!

How Texas Killed EEOC “Guidance”—in the Fifth Circuit, with a Gavel Nov 11, 2019

This past August the U.S. Court of Appeals for the Fifth Circuit issued a significant administrative law opinion that has thus far drawn too little attention. The case involved guidance the Equal Employment Opportunity Commission issued in 2012 telling private and public employers—such as the State of Texas—that they could not run criminal background checks on potential employees without incurring potential disparate impact liability for disproportionately screening out statutorily protected groups. Most news articles discussing the case have focused on the immediate outcome, which is that the Fifth Circuit enjoined EEOC’s guidance, effectively preventing the agency from bringing any enforcement actions based on its theory of liability. But that’s not the big story here. Rather, it is how the Fifth Circuit’s decision did it that could reverberate far beyond the confines of this case. The court may have sounded the death knell for *all* EEOC guidance. When Congress created EEOC, it deliberately denied the agency the ability to issue rules. For the past half century, EEOC did not let this statutory constraint slow it down much. Denied the ability to pass rules, EEOC passed mere “guidance” instead. But because that guidance was backed up with (1) the threat of enforcement; and (2) employers’ knowledge that federal courts readily defer to EEOC’s interpretations of its governing statute, the guidance was as good as law. However, by enjoining the criminal background check guidance on the ground that EEOC has no substantive rulemaking power, the Fifth Circuit exposed the fact that EEOC has long been acting outside its congressional grant of authority. In other words, the reason the Fifth Circuit gave for prohibiting this particular EEOC guidance would apply to most—if not all—substantive guidance that the agency issues. This teleforum examines the Fifth Circuit’s decision in State of Texas v. EEOC and discusses what role (if any) EEOC guidance will play going forward.
Featuring:
-- Mark Chenoweth, Executive Director & General Counsel, New Civil Liberties Alliance
-- Moderator: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC

Courthouse Steps Oral Argument: Kansas v. Glover Nov 05, 2019

In Kansas v. Glover, a state police officer pulled a Charles Glover Jr. over after running a registration check on the vehicle and finding that Charles Glover Jr had a revoked drivers license. The police officer assumed that Charles Glover was the person driving the vehicle, and proceeded to pull Glover over and then upon confirmation of Glover's identity, issued a citation. Glover is arguing that the fact that the registered owner of a vehicle has a revoked drivers license does not amount to a reasonable suspicion, and that therefore all evidence from the stop should be suppressed. Brian Fish joins us to discuss the oral argument and its implications.
Featuring:
Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland
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.

Litigation Update: Religious Schools Head to the Supreme Court Nov 05, 2019

The Ninth Circuit recently split from seven other Circuits in deciding a First Amendment question of cardinal importance: should the church choose who will teach religion to children in church schools, or should the state? Our Lady of Guadalupe School is a small California Catholic parish school sued by a former teacher for age discrimination. The fifth-grade teacher taught religion, led prayer, planned liturgy, and performed other important religious functions. Following the Supreme Court’s unanimous 2012 decision in Hosanna-Tabor v. EEOC (which concerned a fourth-grade teacher at a Lutheran school who also performed religious duties), the district court found that the teacher’s religious functions were enough to allow dismissal, since allowing the case to proceed would entangle the state in internal religious affairs and violate the school’s right to select its teachers of religion. But, breaking with seven other circuits, seven state supreme courts, and over the dissent of nine of its judges, the Ninth Circuit reversed. Eric Rassbach, counsel for Our Lady, will explain why the Supreme Court should take the case.
Featuring:
-- Eric Rassbach, Vice President and Senior Counsel, Becket Fund for Religious Liberty

Is It Transparency or Is It Censorship? Washington Post v. McManus Nov 01, 2019

In Washington Post v. McManus, various newspapers brought suit to strike down a new Maryland law as unconstitutional under the First Amendment. The statute, aimed at Russian online election interference, requires media outlets to collect and make available for public inspection information about persons who purchase online political ads and their donors. Early this year, the District of Maryland issued a preliminary order under both strict and exacting scrutiny. The state appealed to the Fourth Circuit, which will hear oral arguments on Wednesday, October 30.
Erin Chlopak of the Campaign Legal Center and Tyler Martinez of the Institute for Free Speech, who authored amicus briefs for the appellants and appellees, respectively, will offer first impressions of the argument.
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 Teleforum: County of Maui, Hawaii v. Hawaii Wildlife Fund Nov 01, 2019

The oral argument for County of Maui, Hawaii v. Hawaii Wildlife Fund will be heard before the Supreme Court on November 6, 2019. The issue at hand is: "Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater." This teleforum will preview the major issues of the case before the oral argument in November.
Featuring:
Brianne Gorod, Chief Counsel, Constitutional Accountability Center
Glenn E. Roper, Attorney, Pacific Legal Foundation
Moderator: Prof. Donald Kochan, Parker S. Kennedy Professor in Law, Chapman University
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 Teleforum: County of Maui, Hawaii v. Hawaii Wildlife Fund Nov 01, 2019

The oral argument for County of Maui, Hawaii v. Hawaii Wildlife Fund will be heard before the Supreme Court on November 6, 2019. The issue at hand is: "Whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater." This teleforum will preview the major issues of the case before the oral argument in November.
Featuring:
Brianne Gorod, Chief Counsel, Constitutional Accountability Center
Glenn E. Roper, Attorney, Pacific Legal Foundation
Moderator: Prof. Donald Kochan, Parker S. Kennedy Professor in Law, Chapman University
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.

The Future of Administrative Records after Department of Commerce v. New York Oct 31, 2019

Until recently, the domain of administrative records under the Administrative Procedure Act of 1946 was viewed by most as a peripheral issue to litigation challenging executive branch actions. The landscape shifted in June 2019 when the Supreme Court decided Department of Commerce v. New York, which considered whether the U.S. Census Bureau lawfully added a question to the impending 2020 census that asked respondents whether they are U.S. citizens. The Court addressed the composition of the administrative record in APA litigation for the first time in decades. The majority concluded that the trial court had prematurely ordered supplementation of the record, but held that the order was justified in hindsight. This teleforum examines the domain of APA administrative records following Department of Commerce and its effects on administrative law.
Featuring:
-- Prof. Aram A. Gavoor, Professorial Lecturer of Law, The George Washington University Law School
-- Brett A. Shumate, Partner, Jones Day
-- Moderator: Prof. Adam J. White, Assistant Professor and Executive Director of The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School, George Mason University

Impeachment and Presidential Powers Oct 29, 2019

John Malcolm and John Yoo joined us to discuss developments on impeachment: the latest on the Ukraine investigation; the procedures for the House investigation; whether the allegations meet the standards for high crimes and misdemeanors; the White House’s strategy of non-cooperation; and more.
Featuring:
-- John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
-- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

Legal Challenges to Legislative Prayer Oct 28, 2019

Legal challenges to legislative prayer continue to play out in the courts. Most recently, in Barker v. Conroy, Williamson v. Brevard County, and Speaker v. Fields, atheists have brought a series of Establishment Clause actions against prayer practices that prohibit them from offering secular (as opposed to religious) invocations. Thomas Hungar joins us to discuss those cases and their important implications.
Featuring:
-- Thomas Hungar, Partner, Gibson, Dunn & Crutcher LLP

ISIS Today: Prisoners, Escapees, Returnees, and Resurgent Fighters Oct 25, 2019

What is the current status of ISIS worldwide? Some European countries have cancelled ISIS-travelers’ citizenship and refuse to repatriate fighters for prosecution. Terror trials in Western judicial systems face formidable procedural and evidentiary hurdles. With prison camps in Syria at risk there are concerns over the security of detainees. While organized ISIS receded as an imminent threat there are signs of resurgence. Evaluating the present status of ISIS and its affiliates before ISIS restructures is imperative, for both European countries, and the United States.
Featuring:
-- Seamus Hughes, Deputy Director, Program on Extremism, George Washington University
-- Dr. Seth G. Jones, Harold Brown Chair; Director, Transnational Threats Project; and Senior Adviser, International Security Program, Center for Strategic and International Studies (CSIS)
-- Robin Simcox, Margaret Thatcher Fellow, Margaret Thatcher Center for Freedom, The Heritage Foundation
-- Moderator: Christopher K. Harnisch, Deputy Coordinator for Countering Violent Extremism, United States Department of State

Supply Chain Issues: Huawei and ZTE Oct 23, 2019

Courthouse Steps Preview: Comcast Corp. v. National Association of African American-Owned Media Oct 22, 2019

Compelled Speech or Public Accommodation? Oct 21, 2019

On September 16, 2019, the Arizona Supreme Court issued a 4-3 decision in Brush & Nib Studio v. City of Phoenix. The case pitted a city anti-discrimination ordinance against a business offering hand-drawn invitations and paintings for various circumstances. The business owners declined to provide custom invitations for same-sex weddings.
The majority opinion rules for the business owners on all three issues presented, holding that (1) the plaintiffs had standing to bring pre-enforcement claims; and (2) the city's anti-discrimination ordinance, as applied to the plaintiffs' calligraphy services in connection with gay weddings, both (a) violates the free speech clause in the Arizona constitution and (b) fails to satisfy the test established by Arizona's Free Exercise of Religion Amendment ("FERA," i.e., the Arizona equivalent of the federal Religious Freedom Restoration Act or "RFRA").
There were five separate opinions. Justice Bolick authored a separate concurrence focused on the interplay between the federal and state constitutional rights at issue. Chief Justice Bales’s opinion was joined by Justice Timmer and Judge Staring (who sat by designation); this primary dissent essentially saying that the Court struck the wrong balance between liberty (for the calligraphers) and equality (for wedding celebrants). Justice Timmer's opinion says, in short, that the burden on the calligrapher plaintiffs appears to be non-substantial and therefore the Court's FERA/RFRA analysis is incorrect. Judge Staring's opinion appears to accept the majority's position on the "substantial burden" issues, without accepting the balance of its FERA/RFRA analysis.
Brush & Nib could be a watershed decision for similarly situated plaintiffs nationally. The majority decision is the first of its kind, as plaintiffs in other states (NM, NY, WA) had previously failed to win majority support for their theories. The majority in this decision seems conscious of that fact. Their analysis is extensive, they make alternative legal findings to support their conclusions (i.e., although they could have decided on speech grounds alone, they additionally ruled for the plaintiffs on FERA/RFRA grounds), and addressed the decisions of other state courts.
Jon Scruggs from the Alliance Defending Freedom argued before the Arizona Supreme Court on behalf of the business owners. Eric Fraser argued on behalf of the City of Phoenix. They will join us to break down the opinions and comment on the implications moving forward.
Featuring:
Jonathan Scruggs, Senior Counsel and Director of the Center for Conscience Initiatives, Alliance Defending Freedom
Eric M. Fraser, Partner, Osborn Maledon
Moderator: Hon. Jennifer M. Perkins, Arizona Court of Appeals
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: Mathena v. Malvo (D.C. Sniper Case) Oct 21, 2019

Courthouse Steps Oral Argument Teleforum: Peter v. NantKwest Inc. Oct 16, 2019

Courthouse Steps Oral Argument: Title VII Cases Oct 11, 2019

On October 8, 2019, the U.S. Supreme Court will hear a trio of Title VII cases asking whether discrimination because of “sex” could include differential treatment based on sexual orientation (Zarda and Bostock) or transgender status (Harris Funeral Homes). On October 10, John Bursch, who will be arguing the Harris case, will give his take on the arguments and what the Supreme Court’s definition of “sex” portends for the future of employment law, equal opportunities in athletics, and bodily privacy.
Featuring:
John J. Bursch, Owner, Bursch Law PLLC
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.

Book Review: The Capitalism Paradox: How Cooperation Enables Free Market Competition Oct 11, 2019

Spectrum Wars Oct 11, 2019

Vertical Integration in Broadcasting: A Cause for Concern? Oct 10, 2019

Litigation Update: Gundy v. U.S. Oct 10, 2019

Last term in Gundy v. U.S., without Justice Kavanaugh the Court was split between a restoration of a substantial limitation on the administrative state and the status quo. In this case, as Justice Gorsuch described it, Congress gave “the nation’s chief prosecutor… the power to write his own criminal code governing the lives of a half-million citizens.” This case has enormous implications for how much power federal bureaucrats can be given by Congress. The panelists will discuss this case and a potential future without such extensive power for federal agencies.
Featuring:
Devin Watkins, Attorney, Competitive Enterprise Institute
Moderator: Prof. Christopher J. Walker, Professor of Law, The Ohio State University Moritz College of 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.

Rethinking Probation & Parole: How Much Supervision is Too Much? Oct 10, 2019

Update on Climate Change Litigation Oct 09, 2019

October Term 2019-2020 "Long Conference" Oct 08, 2019

The Supreme Court held its “Long Conference” on Tuesday, October 1. That’s where it considers all the petitions for review that had been filed while it was on summer recess. Typically, a good portion of the Court’s docket for the upcoming term is decided at that Long Conference, and an assessment of the cases that the Court decides to take, those that it declined, and those that remain on its conference list for further consideration, will give us a very good sense of the hot-button issues that the Court will consider as the 2020 Presidential election heads into full swing.
Featuring:
Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service and former Dean, Chapman University's Fowler School of Law; Senior Fellow, Claremont Institute
Prof. David F. Forte, Garwood Visiting Professor and Visiting Fellow, James Madison Professor, Cleveland-Marshall College of Law
Mr. Mark Miller, Senior Attorney, Pacific Legal Foundation

Courthouse Steps Oral Argument Teleforum: Kahler v. Kansas and Ramos v. Louisiana Oct 08, 2019

The Supreme Court will be hearing oral arguments for Kahler v. Kansas and Ramos v. Louisiana on Monday, October 7, 2019. The issue in Kahler v. Kansas, is whether a state can abolish the insanity defense, without infringing on an individual’s Eighth and Fourteenth Amendment rights. The plaintiffs are arguing that removing this fundamental principle from the criminal justice system violates the 14th Amendment’s due process clause, which was created to protect these such principles. They also posit that Kansas’ rule violates the Eighth Amendment’s statute regarding cruel and unusual punishment because, “by convicting and punishing people who are not blameworthy, cannot be deterred, and require incapacitation and rehabilitation that the criminal justice system cannot provide,” it doesn’t advance any of the justifications for punishment.
Contrastingly, the state of Kansas asserts that any differences between its relatively unique approach and a more typical insanity defense based on knowing the difference between right and wrong are practically irrelevant in Kahler’s case because under any of these tests, he would not have been able to prove that he was insane.
In Ramos v. Louisiana, the plaintiff Ramos was arrested, tried, and convicted of second-degree murder in Louisiana with a non-unanimous jury (10-2 conviction). Consequently, he received life imprisonment without the possibility of parole. Because Louisiana state law only requires ten jurors to enter a guilty verdict, his conviction stood. The plaintiff repealed the case and the appellate court affirmed the previous decision. The Louisiana Supreme Court denied his next appeal. The question the Supreme Court will be addressing is whether the Fourteenth Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict at the state level.
Featuring:
Giancarlo Canaparo, Legal Fellow, The Heritage Foundation

FTC’s 21st Century Hearings: Paving the Way for Principles and Guidance Oct 08, 2019

Next Steps in the Net Neutrality Saga – Mozilla v. FCC Oct 07, 2019

Litigation Update: Klein v. Oregon Bureau of Labor and Industries Oct 04, 2019

Melissa and Aaron Klein, of the Sweet Cakes by Melissa bakery in Oregon, were ordered to pay $135,000 in emotional damages for declining to create a custom wedding cake for a same sex wedding because of their religious convictions. This June, the U.S. Supreme Court vacated an Oregon Court of Appeals decision that had upheld the award and remanded the case for reconsideration in light of last year’s Masterpiece Cakeshop v. Colorado Civil Rights Commission decision. That decision held that state administrative proceedings must be free from anti-religious hostility under the Free Exercise Clause, concluding that the Colorado commission displayed both overt and subtle signs of bias against the baker’s religious beliefs. This teleforum will discuss recent updates in the case of Klein v. Oregon Bureau of Labor and Industries.
Featuring:
Adam Gustafson, Partner, Boyden Gray & Associates
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.

The Stakes: Reinstating Afghanistan Withdrawal? Oct 03, 2019

Ethics CLE Teleforum: Model Rule 8.4(g) Update, What Attorneys Should Be Aware Of In 2019/2020 Oct 01, 2019

Professional Responsibility & Legal Education Practice Group Teleforum
CLE not offered if Teleforum listened to after the event is concluded.
Written Materials are accessible through the link included on your ticket, and also Here: Link
Certificate of Attendance: Link
Course Time 2:55-3:55 presentation, 3:55-4:00, Live Audience Q&A
The Federalist Society offers a unique opportunity to acquire one hour’s worth of ethics CLE credit.
Our visiting expert in legal and judicial ethics will discuss a recent regulatory development in the field, with the purpose of translating this development into practical wisdom about the likely impact on the practice of law in 2019 and beyond.
In August 2016, the American Bar Association approved Model Rule of Professional Conduct 8.4(g). The new provision provides that it is misconduct for an attorney to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Comment [4] explains that “conduct related to the practice of law . . . includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.”
The Model Rules are just that — models, that do not apply in any jurisdiction. Now the project goes to the states, as state courts consider whether to adopt Rule 8.4(g).
To date, many states have rejected the rule, including Arizona, Illinois, Minnesota, Montana, Nevada, South Carolina, and Tennessee. The Attorneys General of four states have concluded that adopting the rule would violate the First Amendment: Louisiana, South Carolina, Tennessee, and Texas. Only Vermont has adopted the model rule in its entirety.
In this teleforum, Professor Josh Blackman of the South Texas College of Law Houston will discuss the potential implications of Model Rule 8.4(g) on an attorney's ethical responsibiliities, as well as potential constitutional problems with Model Rule 8.4(g) that could lead the rule not being adopted as widely as some of the others. The debate over Model Rule 8.4(g) will shine light on Ethical Responsibilities for all attorneys, even attorneys whose states have only partially adopted the rule.
Featuring:
Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law, Houston
Call begins at 2:55 p.m. Eastern Time.
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.
Because we are offering CLE for this Teleforum, it is open to non-members as well. The Teleforum call-in number will be available with the CLE materials upon registration.
One hour of ethics CLE available in some jurisdictions pending approval*
$25 for CLE (Federalist Society members)$50 for CLE (non-Federalist Society members)
Charges apply ONLY to those seeking CLE credit.
Registration for CLE credit is required.Attendance must be verified during the presentation.**No registration or fee is required if you are not seeking CLE credit.
CLE Credit is Not Gaurenteed From All States, but All States That Attorneys Request, Will Be Applied To.
*Please note CLE applications will be made in accordance with any states that are requested during registration up until the day of the Teleforum. CLE credit is not guaranteed, as the decision to accredit the course is made by each individual state bar, but all states that attorneys request will be applied to.
**Additional CLE Instructions:
Please check your confirmation email for the link to the ticket, where there will be a drop box link to download all CLE Materials including the links for the online Certificate of Attendance, Evaluation Form, and the PDF Written Materials.
Call into the Teleforum number 1-888-752-3232 before 2:55 p.m. ET.
Listen for the "Unique Program Codes" during the call and enter those codes on your Certificate of Attendance to verify your attendance.
Fill out your Certificate of Attendance and Evaluation Form that will be provided with your confirmation email, within 14 days of the conclusion of the program.

Litigation Update: FTC v. Qualcomm Oct 01, 2019

Book Review: Prisoners of Politics: Breaking the Cycle of Mass Incarceration Oct 01, 2019

Recent Strains on Cooperative Federalism in the Energy Sector Sep 24, 2019

Multi-district Litigation Proceedings (MDLs) Sep 23, 2019

Independent Contractor Or Employee: Sometimes, Things Are Not As Easy As A-B-C Sep 17, 2019

Book Review: The Jungle Grows Back: America and Our Imperiled World Sep 17, 2019

Agency Staff Regulatory Guidance Sep 16, 2019

Agency staff regulatory guidance, speeches, and settled enforcement actions can be helpful to the regulated community when seeking to comply with the law; but when agencies use those statements as if they are the law, thereby bypassing the Administrative Procedures Act, such actions can take the regulated by surprise and run afoul of due process. A recent example exists in the mutual fund industry with the SEC’s Share Class Selection Disclosure (SCSD) Initiative, which essentially holds investment advisors liable for not complying in 2013-2017 with a standard first articulated in 2018, but the use of regulatory guidance is being challenged across various agencies and jurisdictions. In the face of congressional push-back, bank regulators and the SEC last year clarified that agency staff “guidance” is not a rule and claimed that they “do not take enforcement actions based on supervisory guidance.” In connection with CFPB guidance regarding auto lending, the Government Accountability Office found that the guidance was a “rule” for purposes of the Congressional Review Act and thus subject to congressional disapproval. The Supreme Court also is considering cases such as Kisor v. Wilkie regarding judicial deference to administrative agencies. This panel will discuss the evolution of regulatory guidance, the limits on its appropriate role, and its current usage by administrative agencies.
Panelists:
Moderator: Paul Atkins, CEO, Patomak Global Partners
Barry Barbash, Senior Counsel, Willkie Farr & Gallagher LLP
Buddy Donohue, Mutual Fund Independent Director
Brian Rubin, Partner, Eversheds Sutherland

Free Speech and Criminal Intent Sep 16, 2019

Red Flag Laws Sep 13, 2019

James Comey, Andrew McCabe, and the Office of the Inspector General Sep 11, 2019

Tragedy in El Paso: Is This Domestic Terrorism, And Do We Need New Laws? Sep 11, 2019

The Equal Employment Opportunity Commission EEO-1 Component 2 Pay Data Reporting Rule Sep 11, 2019

Criminal Justice Reform Aug 28, 2019

Southern Poverty Law Center Controversy Aug 27, 2019

The Southern Poverty Law Center (501(c)(3)) and SPLC Action Fund (reportedly processing 501(c)(4) application) potentially comprise America’s most powerful and well-resourced public interest and advocacy operation. SPLC describes its mission as “fighting hate and bigotry and seeking justice for the most vulnerable members of our society.” SPLC distributes materials for public school educators that emphasize “anti-bias and social justice.” But a current op-ed in USA Today claims, to the contrary, that the SPLC operates to selectively target groups based upon agendized hate-naming and public shaming. SPLC has singled out 1020 “hate” groups and this labeling has been relied upon by government bodies, social media platforms, and non-governmental groups to act based upon ostensibly constitutionally protected expressive rights, rights of conscience, and association practices. Robert Muise, a presenter for this teleforum, is suing the Michigan Attorney General and Department of Civil Rights for utilizing SPLC characterizations to oversee activities of identified groups, including the one he co-founded, American Freedom Law Center.
Featuring:
Mat Staver, Liberty Counsel, sued Guidestar for branding LC an anti-LGBTQ hate group based upon SPLC designation; lost appeal in 4th Circuit based on Lanham Act analysis.
Robert Muise, American Freedom Law Center, currently suing State of Michigan attorney general office for establishing hate unit to target SPLC-named groups, including AFLC
Muhammud Rahim, Quilliam, settled with SPLC for 3.4M after threatened defamation suit for falsely naming Maajid Nawaz (reformist Muslim) a hater.
Justin Danhof, National Center for Public Policy Research, responding to SPLC in the corporate context
Moderator: Jeremy Tedesco, Alliance Defending Freedom, attorney on the Masterpiece Cakeshop litigation team -- and many other freedom of conscience matters.

2019 U.S. Supreme Court Criminal Law Roundup Aug 21, 2019

The 2018-2019 Supreme Court term saw the continued evolution of Criminal Law Jurisprudence. Over a dozen cases were decided that will serve to shape and guide criminal law jurisprudence moving forward, on both the State and Federal level. Several prominent legal experts join us to recap the influential Criminal Law related Supreme Court decisions of 2019. Among the cases discussed will be, Timbs v. Indiana, Madison v. Alabama, Bucklew v. Precythe, United States v. Haymond, Mitchell v. Wisconsin, and many more.
Featuring:
Greg Brower, Shareholder, Brownstein, Hyatt, Farber, Shreck
Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation
Dean Mazzone, Deputy Chief of the Criminal Bureau of the Massachusetts Attorney General’s Office, Massachusetts Attorney General

Endangered Species Act Regulations: New and Improved? Aug 21, 2019

Mass Tort Bankruptcy Cases Aug 16, 2019

Companies are increasingly resorting to the bankruptcy system to resolve mass tort litigation. Recent examples include bankruptcies filed by defendants facing significant talc and opioid-related litigation. In addition, the Department of Justice and others have brought renewed attention to the use of the bankruptcy system to resolve asbestos-related liability, concerned that the system frequently results in the payment of claims that lack merit. These developments have spurred debate regarding the use of bankruptcy in general to resolve mass tort liability, whether the system can be improved, and whether it is superior to traditional tort litigation. Please join Professor Ralph Brubaker, Professor S. Todd Brown and Dan Prieto for a discussion of this important topic.
Featuring:
Prof. Ralph Brubaker, Carl L. Vacketta Professor of Law, University of Illinois College of Law
Prof. S. Todd Brown, Professor of Law and the Vice Dean for Academic Affairs, University at Buffalo School of Law
Dan Prieto, Partner, DLA Piper Global Law Firm
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.

The Authorization for Use of Military Force (AUMF) Aug 16, 2019

Nearly 18 years after its overwhelming enactment by Congress, the 2001 Authorization to Use Military Force (AUMF) continues to generate controversy. Presidents Bush and Obama have invoked the AUMF as legal authority for significant military interventions in Afghanistan, Iraq, and Syria, as well as smaller attacks against terrorists outside the Middle East. President Trump has continued this practice. Congressional critics unsuccessfully have sought to repeal or amend the AUMF because of worries that it provides the executive branch with a blank check to start new wars.
John Bellinger and John Yoo, who both worked on the AUMF’s original passage, will discuss the current controversies over the AUMF.
Featuring:
John B. Bellinger, Partner, Arnold & Porter Kaye Scholer LLP
Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of 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.

Citizens’ Secret Recording and the First Amendment Aug 16, 2019

For over half a century, federal law and most states have regulated secretly recording speech over phone lines and in person by the government and private citizens. Recently, some of the most restrictive of these laws have been struck down on First Amendment grounds, and even some longstanding, widespread provisions are now subject to litigation. Steve Klein, partner at Statecraft PLLC and counsel to James O’Keefe, Project Veritas and Project Veritas Action Fund in several of these lawsuits, will discuss the constitutional and policy considerations of secret recording by citizens.
Featuring:
Steve Klein, Partner, Statecraft PLLC

The Authorization for Use of Military Force (AUMF) Aug 16, 2019

Nearly 18 years after its overwhelming enactment by Congress, the 2001 Authorization to Use Military Force (AUMF) continues to generate controversy. Presidents Bush and Obama have invoked the AUMF as legal authority for significant military interventions in Afghanistan, Iraq, and Syria, as well as smaller attacks against terrorists outside the Middle East. President Trump has continued this practice. Congressional critics unsuccessfully have sought to repeal or amend the AUMF because of worries that it provides the executive branch with a blank check to start new wars.
John Bellinger and John Yoo, who both worked on the AUMF original passage, will discuss the current controversies over the AUMF.
Featuring:
- John B. Bellinger, Partner, Arnold; Porter Kaye Scholer LLP
- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of 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.

Litigation Update: Archdiocese of Washington v. Washington Metropolitan Area Transit Authority (WMATA) Aug 08, 2019

The Washington Metropolitan Area Transit Authority (WMATA) prohibits religious advertisements on Metro buses, including the Archdiocese’s “Find the Perfect Gift” Christmas advertising campaign. Does this no-religious-speech policy violate the First Amendment’s speech and religion clauses, as well as also violating the Religious Freedom Restoration Act? The Archdiocese has filed a petition for certiorari asking the Supreme Court to invalidate WMATA’s no-religious-speech policy.
Featuring:
Megan M. Wold, Partner, Kirkland & Ellis
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.

Compulsory Evictions and Crime-Free Housing: Crime Prevention or Collective Punishment? Aug 08, 2019

Fifteen years ago, the Supreme Court upheld "one-strike" policies that allowed public-housing authorities to evict entire families if one member of the household committed a crime. Since then, municipalities across the country have increasingly adopted similar policies in their regulation of private landlords: encouraging or even requiring landlords to evict tenants if any member of their family--or even an overnight guest--commits a crime anywhere at all. The Institute for Justice has challenged one such law in Granite City, Illinois, where city authorities are trying to compel a local landlord to evict Jessica and Kenny Wylie (and their children) based on a crime committed by a since-departed friend of their teenage son. Jessica and Kenny want to stay, and their landlord wants them to stay, but city officials say they have to go. IJ Senior Attorney Robert McNamara will discuss the case and more broadly the constitutional, property-rights, and criminal-justice issues surrounding so-called "crime-free housing" laws.
Featuring:
Robert McNamara, Senior Attorney, Institute for Justice
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.

The Affordable Clean Energy (ACE) Rule Aug 07, 2019

The EPA released the final Affordable Clean Energy (ACE) Rule in June 2019. The ACE Rule replaces the 2015 Clean Power Plan and establishes emissions guidelines for states to utilize when crafting plans to limit carbon dioxide at existing coal-fired power plants. Our panelists will discuss how the ACE Rule differs from the Clean Power Plan in terms of statutory construction, delegation of authority and flexibility to the states. Discussion will include anticipated legal challenges as well as judicial review timelines.
Featuring:
Michael J. Nasi, Partner, Jackson Walker (Austin)
Thomas A. Lorenzen, Partner, Crowell & Moring (Washington, D.C.)
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.

Compelled Decryption Aug 07, 2019

Encryption, once the domain of intelligence operatives, is now ubiquitous. Nearly every personal electronic device can now be encrypted with ciphers unbreakable by the most technologically advanced governments. This trend poses particular challenges to criminal investigations, such as when evidence is located on a suspect’s encrypted smartphone. So what about compelling the suspect to decrypt? The Fifth Amendment states that no person "shall be compelled in any criminal case to be a witness against himself[.]" The Supreme Court's act of production doctrine says that certain compelled productions are a testimonial, and therefore cannot be used to incriminate the producer. However, the foregone conclusion doctrine allows compelled production when the information to be produced is already known to the government. Precisely how these doctrines apply to compelled decryption has yet to be settled. Federal appeals courts have expressed their opinions, and state supreme courts are considering the issue as well. This teleforum features two law professors who have debated the issue in academic publications and as amici.
Featuring:
Prof. Orin Kerr, University of California, Berkeley School of Law
Prof. Laurent Sacharoff, Associate Professor of Law, University of Arkansas, Fayetteville

Litigation Update: Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano Jul 31, 2019

The issue at hand in the case of Roman Catholic Archdiocese of San Juan Puerto Rico v. Feliciano is whether courts in Puerto Rico can confiscate assets of Catholic entities to fulfill pension obligations to current and former Catholic school employees. The petition for certiorari lists the question as: “Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability.” Erin Murphy joins us to discuss the important implications of this case.
Featuring:
Erin E. Murphy, Partner, Kirkland & Ellis
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.

Book Review: A Covert Action: Reagan, the CIA, and the Cold War Struggle in Poland Jul 30, 2019

In his book, A Covert Action: Reagan, the CIA, and the Cold War Struggle in Poland, Dr. Seth Jones examines the Reagan administration’s efforts during the Cold War to aid Poland’s Solidarity movement. Reagan used the CIA to support underground operations in Poland like printing leaflets, producing radio and television broadcasts, and coordinating public demonstrations. After extensive research, including review of recently declassified documents, Jones details the success of CIA’s covert activities including the emphasis on leaving no identifiable indicators of U.S. involvement.
Dr. Michael Ledeen served in the Reagan administration and is an analyst and commentator on the Iranian peoples’ efforts to achieve a democratic system of government. Ledeen will interview Dr. Jones about the findings of his book and will inquire as to what comparisons may exist between the Polish Solidarity movement and the Iranian peoples’ struggle for freedom.
Featuring:
Dr. Seth G. Jones, Harold Brown Chair; Director, Transnational Threats Project; and Senior Adviser, International Security Program, Center for Strategic and International Studies (CSIS) and author, A Covert Action: Reagan, the CIA, and the Cold War Struggle in Poland
Dr. Michael Ledeen, Freedom Scholar, Foundation for Defense of Democracies
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.

Americans with Disabilities Act Litigation Enters a New Frontier – Websites Jul 24, 2019

Title III of the Americans with Disabilities Act requires public accommodations be accessible to the disabled community. Since its enactment in 1991, it has been understood that any store, restaurant, theater, hotel facility, school, or other building private entities own or lease and make available to the public meet certain requirements for disability access.
Plaintiffs attorneys have been aggressive in enforcing the ADA against all types of physical businesses for years. And now we are seeing a new frontier of litigation - websites. Banks, hotels, service providers, and retailers of all types are beginning to see lawsuits alleging their websites are not accessible to the disabled.
Karen Harned will provide the background on this new trend in ADA litigation, the current state of the law, and highlight a case the Supreme Court is being asked to take this next term on the issue.
Featuring:
Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
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.

Military Interrogation Suppression Jul 24, 2019

Should statements gathered through enhanced interrogation techniques be suppressed in military commission trials of accused terrorists? Are statements made later to federal investigators cured of any taint by being made in a different place and context? Should the identity of government participants in enhanced interrogations be made available to the defense? In the years since the creation of the Military Commissions at Guantanamo Bay, military and federal judges have grappled with these critical issues of evidentiary admissibility and discovery. Join us as two law professor scholars of national security law discuss the wide-ranging implications of these issues.
Featuring:
James Baehr, General Counsel, Pelican Institute for Public Policy
Prof. Jeffrey Addicott, Professor of Law; Director, Center for Terrorism Law, St. Mary's University School of Law
Prof. Stephen l. Vladeck, Professor of Law, The University of Texas at Austin School of Law
Please note: During this call one of our speakers had a notably poor phone connection. We apologize for any inconvenience this may cause when listening to the podcast.

The “Risk Corridors” Litigation: How Risky Should it Be To Do Business With the U.S. Government? Jul 19, 2019

Three consolidated cases now pending before the U.S. Supreme Court have the potential to re-set the relationship between the federal government and its private partners. In the “risk corridors” litigation, health insurers that participated in marketplaces established by the Affordable Care Act (“ACA”) did so based on statutory assurances that they would be reimbursed for certain losses due to the riskier subscriber populations newly mandated by law. This was the “risk corridors” program, which lasted from 2014-16. After the insurers began issuing policies on the marketplaces, however, Congress passed appropriations riders that were aimed at blocking the Department of Health & Human Services from making the required risk reimbursement payments. As a result, insurers collectively lost $12 billion during the three-year risk corridors period that was supposed to be, but never was, reimbursed. Multiple lawsuits in the U.S. Court of Federal Claims resulted in mixed decisions, and the U.S. Court of Appeals for the Federal Circuit ruled that the Government was not bound to abide by the ACA’s “risk corridors” framework, but instead was free to de-fund it despite the insurers’ reliance. The Supreme Court has granted certiorari, and is poised to decide the extent to which the Government has latitude – as one cert. petition put it – to “promise boldly and renege obscurely.” The legal, monetary, and public policy implications of the litigation are substantial, and potentially transformative for government contractors.
Featuring:Jason A. Levine, Partner, Commercial and Business Litigation, Vinson & Elkins LLP
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Venezuela: The Road Forward Jul 17, 2019

Although the de facto government of Venezuela headed by Nicolas Maduro regime is no longer recognized as legitimate by the Organization of American States (OAS) or by most democratic nations around the world, it clings to power with the support of the military leadership and of its allies Cuba, Russia, and China. Many of the the Venezuelan people increasingly blame the Maduro regime not only for election fraud and serious human rights violations but also for hyperinflation, endemic extreme poverty, and violent crime. The crisis in Venezuela is also causing regional instability from the unprecedented outflow of refugees, the presence of heavily armed militias in border areas, and the regime’s involvement with transnational criminal organizations. Suggested solutions range from “strategic patience” to outside military intervention. Our panelists are a Venezuelan human rights activist, a dissident military officer now living in exile, and a former senior U.S. diplomat who specializes in Western Hemisphere affairs.
Featuring:
Ambassador Roger Noriega, former US Ambassador to the OAS and Assistant Secretary of State for Western Hemisphere Affairs
Rodrigo Diamanti, president of "Un Mundo Sin Mordaza” (A World Without Censorship)
Col. José Gustavo Arocha, exiled military officer and political analyst
Moderator: Grover Joseph Rees, writer, advocate, and former United States Ambassador to East Timor
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: Iancu v Brunetti Jul 15, 2019

Remember “The Slants,” the Asian-American rock band who were denied a trademark because the U.S. Patent and Trademark Office (PTO) thought the band’s name was “disparaging”? In Matal v. Tam (2017), the Supreme Court unanimously struck down the Lanham Act’s anti-disparagement provision. (That also resolved the battle over the Washington Redskins’ trademarks.) Well, here we go again, this time with a related provision that prevents registration of “immoral” or “scandalous” marks. It doesn’t take much imagination to figure out what the clothing brand “Fuct” is going for, and the PTO decided it did not pass muster. The Federal Circuit struck down the relevant provision—as it had in Tam—and the Supreme Court again took the case.
On June 24, the Supreme Court affirmed 6-3, holding that the Lanham Act prohibition on the registration of “immoral” or “scandalous” trademarks infringes the First Amendment. Thomas Berry, who contributed to an interesting and entertaining amicus brief submitted by the CATO Institute, will share his thoughts on the decision and its implications on free speech and intellectual property.
Featuring:
Thomas Berry, 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.

Courthouse Steps Decision Teleforum: Tennessee Wine and Spirits Retailers Association v. Thomas Jul 11, 2019

On June 26, 2019, the Supreme Court, by a vote of 7-2, declared that two-year durational residency requirements for obtaining a retail liquor license are unconstitutional. In a decision written by Justice Alito, the Court held that it is a violation of the dormant Commerce Clause to discriminate in favor of in-state residents, even if this discrimination involves alcohol. After all, as Justice Alito wrote, there is no evidence that the Twenty-First Amendment "was understood to give States the power to enact protectionist laws." If there is no "demonstrable connection" to health and safety interests, Section 2 of the Twenty-First Amendment cannot save them.
Michael Bindas, the lead counsel for one of the respondents, will discuss the opinion and the dissent, written by Justice Gorsuch.
Featuring:
Michael Bindas, Senior Attorney, Institute for Justice
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: The Gerrymandering Cases, Rucho et al. v. Common Cause et al. Jul 10, 2019

On June 27, the Supreme Court decided several redistricting cases in Rucho et al. v. Common Cause et al. The decision was 5-4, with the majority opinion by Chief Justice Roberts. In it, he writes that "excessive partisanship in districting leads to results that reasonably seem unjust." However, this does not mean "the solution lies with the federal judiciary. We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts." Justice Kagan wrote the dissenting opinion, opening by saying "For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities."
Featuring:
Prof. Michael R. Dimino, Professor of Law, Widener University School of Law
Hans A. von Spakovsky, Senior Legal Fellow, The Heritage 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 Decision Teleforum: The Dutra Group v. Batterton Jul 10, 2019

On June 24, 2019, the Supreme Court, in an opinion written by Justice Alito, decided The Dutra Group v. Batterton, which answered the question, can a Jones Act seaman recover punitive damages on his or her unseaworthiness claim? The plaintiff, a Jones Act seaman employed by Dutra Group, was injured on the defendant’s dredge vessel on the West Coast. A hatch blew open and crushed his hand. The district court denied the defendant’s motion to strike the punitive damages claim; the Ninth Circuit affirmed. This decision set up a split in the circuits, because a couple of years earlier the en banc Fifth Circuit held that punitive damages were not available under the rationale of an earlier Supreme Court case, Miles v. Apex Marine.
The Supreme Court, by a vote of 6-3, reversed the Ninth Circuit and held that punitive damages are not available in an unseaworthiness cause of action. Don Haycraft will analyze the opinion and the dissent, written by Justice Ginsberg.
Featuring:
Don Haycraft, Of Counsel, Liskow & Lewis
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: The Census Citizenship Question, Department of Commerce v. New York Jul 10, 2019

On June 27, the Supreme Court decided Department of Commerce v. New York, the legal challenge arising from Commerce Secretary Wilbur Ross’s decision to ask about the citizenship of census respondents. The case presents three questions: First, whether the 2020 Decennial Census can ask regarding each person counted at each residential address in the nation whether that person is a U.S. citizen. Second, whether district courts in an Administrative Procedure Act (APA) can order discovery beyond the administrative record to examine a Cabinet officers’ decision-making. And third, whether adding a question on citizenship violates the Constitution’s Enumeration Clause.
Chief Justice Roberts delivered the majority opinion (5-4) which claimed Secretary Ross did not violate the Enumeration Clause or the Census Act by reintroducing a citizenship question on the 2020 census, however because of the discrepancy between the Department of Commerce's evidence and the Secretary's explanation for his decision, the case is sent in part back to the District Court.
Please join us as our expert shares his reaction to and analysis on the decision.
Featuring:
Dr. John S. Baker, Jr., Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University
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Judicial Deference Determined: Kisor v. Wilkie Jul 03, 2019

This morning the Supreme Court decided the much-anticipated Kisor v. Wilkie case. The Court had granted certiorari in Kisor to decide whether to overrule Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997). Seminole Rock and Auer are often cited for the proposition that when an administrative agency promulgates a regulation and the regulation is ambiguous, a reviewing court must give “controlling weight” to the agency’s interpretation of the regulation unless the interpretation is plainly erroneous or is inconsistent with the regulation. A number of the Court’s members had cast doubt on the soundness of the Seminole Rock/Auer deference doctrine in recent years, and many observers have predicted that the doctrine’s days are numbered.
Karen Harned and Stephen Vaden will join us today to discuss that morning’s highly-fractured decision in Kisor and its potential implications -- including for the Chevron deference doctrine that applies to agency interpretations of statutory provisions (set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)).
Featuring:
Karen Harned, Executive Director, NFIB Small Business Legal Center
Stephen Vaden, General Counsel, United States Department of Agriculture
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.

One Year Later: Impact of Encino Motorcars on FLSA Litigation Jun 27, 2019

Just over a year ago, in a case involving an obscure car dealership exemption from the Fair Labor Standards Act’s overtime requirement, the Supreme Court established a new standard for interpretation of FLSA exemptions. Citing Justice Scalia’s final book, Reading the Law, the Court rejected the made-up cannon that courts must narrowly construe FLSA exemptions; rather, the Court held, FLSA exemptions must be given a fair interpretation. One year later, how has this change from “narrow” to “fair” interpretations impacted FLSA litigation and DOL investigations?
Featuring:
Tammy D. McCutchen, Principal, Littler Mendelson P.C.
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Litigation Update: Yim v. City of Seattle Jun 26, 2019

On June 11, 2019, the Washington State Supreme Court heard back-to-back arguments in a pair of cases entitled, Yim v. City of Seattle (Yim I and Yim II). At issue are two Seattle ordinances that significantly alter the way residential landlords are allowed to select their tenants. Yim I concerns the City’s “first in time” rule, which requires landlords to offer tenancy to the first qualified applicant. If the applicant does not exercise the right, then it passes to the next in time applicant until accepted. The ordinance declares it unlawful for a landlord to deviate from this process, depriving landlords of discretion in the selection process (including the common practice of waiving minimum requirements for otherwise worthy applicants). A King County trial court held that the ordinance violated the takings, due process, and free speech clauses of Washington’s constitution. Seattle appealed the decision directly to Washington’s Supreme Court, asking the Court to overrule decades of regulatory takings and due process case law.
Yim II involves a substantive due process challenge to Seattle’s “fair chance housing ordinance,” which declares it unlawful for a landlord to inquire into an applicant’s criminal history or deny an application based on the applicant’s criminal history. At issue there is Washington’s due process test, which asks, in part, whether a law is unduly oppressive on individual rights. On summary judgment, the City argued that the unduly oppressive test is an anachronism that had been impliedly overruled by Amunrud v. Bd. of Appeals, 158 Wn.2d 208 (2006). The Washington Supreme Court took review of this issue as part of a certified question regarding the proper standard of review in a due process claim involving a deprivation of a property right.
Featuring:
Ethan W. Blevins, Attorney, Pacific Legal Foundation
Brian T. Hodges, Senior Attorney, Pacific Legal Foundation
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Courthouse Steps Decision Teleforum: The American Legion v. American Humanist Association Jun 26, 2019

For decades, the law surrounding the constitutionality of monuments and memorials has been in disarray, primarily as a result of the application, or, as it turns out, misapplication of the Supreme Court’s 1971 decision in Lemon v. Kurtzman. On June 20, 2019, the United States Supreme Court held in The American Legion v. American Humanist Association, a 7-2 decision that included a variety of concurring and dissenting opinions, that the 94-year-old Bladensburg World War I Veterans Memorial, or Peace Cross, is constitutional. Even apart from the ruling on the Peace Cross itself, one of the most long-lasting impacts of the decision may lie in Part II-A which, though it did not garner a majority of votes, essentially announced the end of the application of Lemon in Establishment Clause challenges to monuments and memorials. Christopher DiPompeo, of Jones Day, who represented The American Legion, joins us to discuss why that is so and other implications of the case.
Featuring:
Christopher DiPompeo, Partner, Jones Day
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.

Gundy v. United States: Revisiting the Nondelegation Doctrine, or Not? Jun 26, 2019

The U.S. Supreme Court’s decision in Gundy v. United States disappointed some observers who were hoping that the Court would use the case to reinvigorate the nondelegation doctrine. Instead, the Court upheld the federal government’s authority under the Sex Offender Registration and Notification Act (SORNA), a 2006 law requiring sex offenders to register with authorities in the state where they reside. A plurality of the Court held that the statute contains enough of an “intelligible principle” to guide the Attorney General’s decision-making regarding the statute’s application to past offenders to pass muster under the nondelegation doctrine. It also decided that the statute was explicit enough in specifying its retroactive application to pre-SORNA offenders. Justice Alito joined the Court’s four liberals, concurring in the judgment only. He reasoned that “it would be freakish to single out the provision at issue here for special treatment” different from the Court’s approach since 1935. And he could not “say that the statute lacks a discernable standard that is adequate under” that prevailing approach. However, he also stated that he would be willing to join a Court majority in reconsidering that approach in a future case. No such majority existed here, perhaps in part because Justice Kavanaugh did not participate in the case.
This teleforum will examine the Court’s decision in Gundy, dissect the various viewpoints that the justices presented, and explore questions such as:
Will the 4-1-3 decision here leave the status quo intact or embolden lower courts to identify more nondelegation problems?
Why didn’t the Court order new oral argument in the case with Justice Kavanaugh participating this time?
Will Congress view this outcome as an invitation to delegate more decisions about the scope of the criminal law to the Attorney General?
Do Justice Alito’s concurrence and the strong dissent from Justice Gorsuch (joined by The Chief Justice and Justice Thomas) signal that the nondelegation doctrine will soon be revived?
Featuring:
Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties Alliance
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: Knick v. Township of Scott, Pennsylvania Jun 25, 2019

Since the 1985 Williamson County v. Hamilton Bank decision, property owners have been able to file claims against local government for takings only in state court. And once there, any decision is res judicata to any subsequent federal action. This made property rights claims the only constitutional right that cannot be vindicated in federal court.
Mrs. Rose Mary Knick owns roughly 40 acres in rural Scott Township in Pennsylvania. At the behest of some local activists the township passed an ordinance that allows members of the public to trespass across her property to visit some large stones that the activists claim are colonial-era gravestones. Mrs. Knick had no legal way to stop this invasion of her property – short of suing for a taking. When she tried to sue in state court she was rebuffed because she hadn’t yet been fined for not allowing the trespass. When she next tried to sue in federal court for a taking, she was again rebuffed, that time because of Williamson County.
The Supreme Court decided by a vote of 5-4 in Knick v. Township of Scott, Pennsylvania to vacate the judgment of the Third Circuit and remand the case. Chief Justice Roberts' majority opinion states, "We now conclude that the state-litigation requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth Amendment takings claim when the government takes his property without paying for it. That does not mean that the government must provide compensation in advance of a taking or risk having its action invalidated: So long as the property owner has some way to obtain compensation after the fact, governments need not fear that courts will enjoin their activities. But it does mean that the property owner has suffered a violation of his Fifth Amendment rights when the government takes his property without just compensation, and therefore may bring his claim in federal court under §1983 at that time."
Please join us as our featured speakers review this decision and its implications.
Featuring:
James S. Burling, Vice President for Litigation, Pacific Legal Foundation
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
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.

Is “Possess Now, Pay Later” Constitutional in Private Pipeline Takings? Jun 25, 2019

The U.S. Supreme Court will soon consider the third of several petitions for certiorari asking it to review a question which has split the lower federal courts: whether district courts have the power under the Federal Rules of Civil Procedure to issue preliminary injunctions in takings under the Natural Gas Act which allow private pipeline condemnors to obtain immediate possession of property, even though Congress has withheld the federal “quick take” power in the NGA. The Third, Fourth, Ninth, and Eleventh Circuits have concluded that simply because Congress did not delegate to private pipeline condemnors the quick take authority—the power to obtain immediate title and possession of condemned property upon a deposit of estimated compensation—neither did it withhold from federal courts their usual equitable powers to issue injunctions. The Seventh Circuit concluded otherwise: that because private pipeline condemnors were not delegated the quick take power in the NGA, possession must wait until the court adjudicates the final compensation owed, and the pipeline condemnor exercises its option and makes that payment. This Term, the Court declined to review two of the three petitions, but the issue is one that is not going away.
Featuring:
Chris Johns, Partner, Johns & Counsel PLLC
Jeffrey A. Simmons, Partner, Foley & Lardner LLP
Moderator: Robert H. Thomas, Director, Damon Key Leong Kupchak Hastert

Courthouse Steps Decision Teleforum: Gamble v. United States Jun 24, 2019

In Gamble v. United States, Terance Gamble received two sentences and two convictions for the same crime - once under Alabama law and once under federal law due to the doctrine of dual sovereignty. While convicting someone twice for the same crime usually violates the double jeopardy clause of the constitution, the Supreme Court decision in Abbate v. United States declared that because states and the federal government are separate sovereigns, an individual can be prosecuted for the same crime twice, once by the Federal government, and once by a state government. In Gamble v. United States, the Supreme Court upheld this dual sovereignty doctrine. Clark Neily joins us to discuss the decision and its implications.
Featuring:
Clark Neily, Vice President for Criminal Justice, Cato Institute
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.

Litigation Update: Juliana v. United States Jun 24, 2019

On June 4, 2019, a Ninth Circuit panel heard oral argument in a high-profile interlocutory appeal in Juliana v. United States, regarding whether the U.S. Constitution gives rise to cognizable constitutional and federal common law claims against the Executive Branch for actions alleged to cause or contribute to climate change.
The Juliana plaintiffs – most of whom were minor children when the suit was filed in 2015 – argue, inter alia, that the federal government has violated their fundamental right to a stable climate grounded in the Due Process and Equal Protection Clauses of the Fifth Amendment to the Constitution. The plaintiffs also argue that the government has breached its duty to hold the atmosphere in trust under federal common law principles. In 2016, the district court denied the federal government’s motion to dismiss the complaint. After many twists and turns (including unusual mandamus proceedings in the Ninth Circuit and the Supreme Court), the district court certified the case for interlocutory appeal to the Ninth Circuit in late 2018. The federal government argues that the plaintiffs lack standing; that the case is not justiciable in any federal court under Article III of the U.S. Constitution; that the plaintiffs’ claims were not properly brought pursuant to the Administrative Procedure Act; and that the plaintiffs have failed to state a claim on the merits upon which relief can be granted.
Featuring:
Prof. James R. May, Distinguished Professor of Law, Widener University Delaware Law School
Damien M. Schiff, Senior Attorney, Pacific Legal Foundation
Moderator: Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law; Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of 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.

Cyber Strategy Update with Robert L. Strayer Jun 19, 2019

Join us for a teleforum with Robert L. Strayer, Deputy Assistant Secretary of State for Cyber and International Communications and Information Policy, who will talk about the State Department’s efforts under the National Cyber Strategy and Cybersecurity Executive Order 13800 as well as international diplomatic engagement to facilitate the adoption of secure and reliable telecommunication technology.
Featuring:
Robert L. Strayer, Deputy Assistant Secretary of State for Cyber and International Communications and Information Policy, U.S. Department of State
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.

Book Review: Lessons of Tragedy: Statecraft and World Order Jun 17, 2019

As Thucydides recorded Pericles’ famous funeral oration, the mayor of Athens exhorted citizens: “[J]udging happiness to be the fruit of freedom and freedom of valor, never decline the dangers of war.” Likely gleaning from the themes in this oration, President Lincoln's Gettysburg Address sounded the same calls to honor battle sacrifices in the name of a higher cause. What are the other analogs between the Athenian Greeks and today's Americans that would compare the challenges and alert the defenders of civilization?
The ancient Greeks, as exemplified by the Athenians, projected legendary power in the preservation of their freedom and autonomy. The premise of the book Lessons of Tragedy: Statecraft and World Order holds that much of the resolve to confront war -- and thus also to deter war – came from “keeping comfort with their worst fears.” What does the Greek embrace of tragedy while maintaining a general sense of optimism teach us today?
The authors of Lessons of Tragedy conclude that America is in a state of amnesia just when authoritarianism is advancing and the global balance of power is gradually shifting. They write that there is no night watchman and no supreme authority to enforce order. Does this state of affairs create a vacuum that becomes an actual invitation to chaos?
Featuring:
Dr. Charles Edel, Senior Fellow, United States Studies Centre, and co-author, The Lessons of Tragedy: Statecraft and World Order

Litigation Update: Title VII Cases Jun 14, 2019

RG & GR Harris Funeral Homes has been serving the Detroit area for more than 100 years. To ensure that the family members and friends of a deceased love one are focused on processing their grief, the funeral home has professional conduct and dress codes. In 2007, the funeral home hired Stephens, a biological male, who agreed to abide by these codes, including the company’s sex-specific dress policy, in his work as a funeral home director. Six years later, Stephens approached the funeral home’s owner, said that he was actually a woman trapped in a man’s body, and expressed his intent to come to work wearing a dress. The owner was very concerned about Stephens and also about other employees and clients; he ultimately determined that it was best for everyone to part ways. The EEOC sued and claimed that this was “sex” discrimination under Title VII. The 6th Circuit agreed, but the Supreme Court has now agreed to hear the case. Although the federal government now concedes that it was wrong in the interpretation of Title VII that it persuaded the 6th Circuit to adopt, Stephens, represented by the ACLU, defends the 6th Circuit’s ruling. This teleforum will examine: (1) whether the public meaning of “sex” discrimination when Title VII was enacted in 1964 included gender identity and transgender status, and (2) whether Stephens has stated a claim for sex stereotyping under Title VII.
Featuring:
John Bursch, Founder, Bursch Law PLLC and Vice President of Appellate Advocacy and Senior Counsel, Alliance Defending Freedom
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.

Chinese Misappropriation of U.S. Technology: Assessing the U.S. Response Jun 14, 2019

Litigation Update: Cedar Point Nursery v. Shiroma Jun 14, 2019

On May 8, 2019, the Ninth Circuit issued a 2-1 decision in Cedar Point Nursery v. Shiroma. In Cedar Point, California agricultural growers asked the court to invalidate an Agricultural Labor Relations Board regulation that allowed union organizers to come on to the growers’ property to solicit workers to join the union for 3 hours per day and 120 days per year. The growers contend that the regulation amounts to a physical taking under the Fifth Amendment. The Ninth Circuit majority rejected that argument, and held that the physical takings doctrine did not apply because the union organizers were not allowed around-the-clock access to the growers’ property. The dissent would have held for the growers, and reasoned that the Supreme Court has never endorsed a law that allowed non-employee labor organizers to enter a grower’s private property for substantial periods of time, when none of the employees live on the employer’s premises.
Join the teleforum to hear reactions from Wen Fa and Bethany Berger. Wen Fa is an attorney with the Pacific Legal Foundation, a nonprofit dedicated to vindicating property rights and individual liberty. Mr. Fa was the primary drafter of the Growers’ Ninth Circuit brief and argued the case before the Ninth Circuit panel. Bethany Berger is a law professor at the University of Connecticut and an expert on property law.
Featuring:
Wen Fa, Attorney, Pacific Legal Foundation
Prof. Bethany Berger, Wallace Stevens Professor of Law, University of Connecticut School of 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.

Courthouse Steps Decision Teleforum: Return Mail v. US Postal Service Jun 13, 2019

In Return Mail v. US Postal Service, the Supreme Court held that the United States Government does not qualify as a “person” in the organic statutory provisions that created the Patent Trial & Appeal Board (PTAB) in the American Invents Act of 2011. The patent statutes provide that a “person” may file petitions in the various administrative review programs at the PTAB, i.e., inter partes review, post-grant view, and covered business methods. Thus, governmental agencies may not file petitions to cancel patents at the PTAB. The PTAB has been a flashpoint of controversy in the patent system. It was created to provide efficient and quick cancelation of mistakenly issued patents that hampered the innovation economy. Since it began operations in 2012, the PTAB has been accused by judges, lawyers, and commentators of engaging in procedural and substantive “shenanigans.” With very high cancelation rates, one federal judge has called it a “death squad[] killing property rights.” This Courthouse Steps teleforum will review Return Mail v. US Postal Service and discuss its legal and policy implications for the patent system, the PTAB, the innovation economy, and limitations on federal executive power.
Featuring:
Prof. Adam MacLeod, Professor of Law, Faulkner University
Matthew J. Dowd, Founder and Partner, Dowd Scheffel PLLC
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.

CISA and Cyber Threats: How Government and Private Sector Secure Our Networks and Infrastructure Jun 13, 2019

Following passage of the Cybersecurity and Infrastructure Security Agency Act in November 2018, the Cybersecurity and Infrastructure Security Agency (CISA) was established under the Department of Homeland Security. CISA is responsible for protecting the Nation’s critical infrastructure from physical and cyber threats. CISA Chief Counsel Daniel Sutherland and Raj Shah, technology entrepreneur and former head of the Pentagon's Defense Innovation Unit Experimental (DIUx), will discuss the various ways that the federal government and the private sector work to counter emerging threats to our virtual and physical networks and infrastructure.
Featuring:
Daniel Sutherland, Chief Counsel at CISA (Cybersecurity and Infrastructure Security Agency)
Raj Shah, Technology Entrepreneur and former Managing Director, Defense Innovation Unit Experimental (DIUx)
Moderator: Daniel West, Associate, SCF Partners
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.

LIBOR – Will a $200 Trillion Global Benchmark Disappear – or Not? Jun 12, 2019

LIBOR is a hugely important interest rate benchmark, used globally and embedded in over $200 trillion of financial contracts. It has its notable shortcomings, including having been subject to scandalous attempts at manipulation. Financial regulators, notably the New York Fed, want it to disappear and be replaced by another index. But can the regulators succeed in their effort? Will LIBOR disappear and be replaced? By SOFR or something else? Or will it survive, perhaps as one of multiple competing benchmarks?
Dr. Oonagh McDonald thoroughly explores LIBOR's evolution, scandals, and the issues of its future in her new book, "Holding Bankers to Account." Oonagh will present the lessons of history and the state of current debates. Gary Kalbaugh of ING Financial and Columbia Law School and Alex Pollock of the R Street Institute will be discussants.
Featuring:
Prof. Gary Kalbaugh, Special Professor of Law at the Maurice A. Deane School of Law
Alex J. Pollock, Distinguished Senior Fellow, R Street Institute
Dr. Oonagh McDonald, CBE, Philosophy Lecturer at the University of Bristol, Member of the British Parliament 1976-1987, Member of the Front Bench Treasury Team, Author of Several Books, Including her Newest One "Holding Bankers to Account"

Courthouse Steps Decision: Home Depot U.S.A., Inc. v. Jackson May 30, 2019

The Class Action Fairness Act permits "any defendant" to remove a class action to federal court. May a third-party defendant brought into a suit through a counterclaim by the original defendant remove a class action to federal court? In Home Depot v. Jackson, the Court, in a 5-4 decision by Justice Thomas, held that "any defendant" does not include third-party defendants in either the Class Action Fairness Act or in other removals under 28 U.S.C. § 1446. Justice Alito's dissent questioned that statutory interpretation. Ted Frank will join us to discuss this decision and its implications.
Featuring:Ted Frank, Director of Litigation and Senior Attorney, Hamilton Lincoln Law Institute

Litigation Update: Love Terminal Partners v. United States May 30, 2019

A 2018 federal circuit court ruling rejected compensation to the plaintiff in a case in which the government took through eminent domain a privately owned airline terminal and physically demolished it. The plaintiffs, now seeking cert before the U.S. Supreme Court, spent $17 million building that terminal at Dallas Love Field Airport. The U.S. Court of Claims ruled that the taking of the terminal was worth more than $133 million, but the Federal Circuit Court of Appeals reversed, declaring the terminal's value to be zero, as the investment property had yet to earn a positive cash flow. Dana Berliner and Nancie Marzulla will join us to discuss this case and its broader implications.
Featuring:
Dana Berliner, Senior Vice President and Litigation Director, Institute for Justice
Nancie Marzulla, Founding Partner, Marzulla Law, LLC
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: Herrera v. Wyoming May 29, 2019

On May 20, 2019, the U.S. Supreme Court issued a 5-4 ruling in the case of Herrera v. Wyoming. In Herrera, the Court encountered the question of whether a portion of an 1868 treaty between the Crow, a Native American tribe which today resides on Montana reservation land, and the United States, is enforceable. In the treaty, the Crow were promised, in exchange for the tribe’s territory in Montana and Wyoming, “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon…and peace subsists…on the borders of the hunting districts.” The State of Wyoming, in prosecution of Crow tribal member Clayvin Herrera, argued that the Tenth Circuit decision in Repsis precluded the argument of Mr. Herrera that the treaty’s hunting rights provision remains valid. In defense, Mr. Herrera argued that the Supreme Court decision in Minnesota v. Mille Lacs repudiated Repsis and the 1896 Supreme Court decision in Ward v. Race Horse.
Justice Sotomayor, writing for Justices Ginsburg, Breyer, Kagan, and Gorsuch issued an opinion in favor of Mr. Herrera, and remanded for further proceedings.
Join this teleforum to hear a reaction to the Herrera decision from A.J. Ferate with the Oklahoma City office of Spencer Fane. Mr. Ferate, a tribal law and appellate practitioner, represented Oklahoma oil and gas producers as amicus in the Carpenter v. Murphy case currently before the U.S. Supreme Court. He also serves as a member of the Executive Board of the Federalist Society's Environmental Law and Property Rights Practice Group.
Featuring:
A.J. Ferate, Of Counsel, Spencer Fane 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.

OSHA in 2019: A Review of What has Occurred and a Look Ahead May 29, 2019

The Occupational Safety and Health Administration (OSHA) continues to make headlines in both the regulatory and enforcement arenas - and this is expected to continue over the next several months. This teleforum will review the major recent developments at OSHA and discuss what to expect from OSHA in 2019 and beyond.
Featuring:
Bradford T. Hammock, Shareholder and Co-Chair, Workplace Safety & Health (OSHA/MSHA) Practice Group, Littler Mendelson P.C.
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.

Payday Lending Loans May 29, 2019

One of the final acts of former Bureau of Consumer Financial Protection (CFPB) Director Richard Cordray before he left to run for Governor of Ohio in 2017 was the issuance of a comprehensive rule governing payday loans, auto title loans, and other small dollar loans. The centerpiece of the rule would have imposed a new "Ability to Repay" (ATR) underwriting standard on providers of these small dollar products for extensions of credit to repeat borrowers. The Rule was scheduled to go into effect in August 2019. In January of this year, however, new CFPB Director Kathy Kraninger announced a Notice of Proposed Rulemaking that would rescind the ATR requirement. This teleforum discusses the logic of the 2017 Rule and the reasons for the CFPB's reconsideration this year.
Featuring:
Prof. Todd Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School at George Mason University
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.

Litigation Update: Biestek v. Berryhill May 29, 2019

In Biestek v. Berryhill, the Supreme Court held that agencies can rely on an expert witness’s opinion even when that witness refuses to provide the underlying data for her opinion. On one hand, the Court’s holding that an agency’s decision can be supported by “substantial evidence” without the underlying data’s disclosure in some, but not all, cases seems to recognize the inherent difficulty in stating categorical rules for a broad standard of review that applies to varied agency adjudications. On the other hand, the Supreme Court outlawed the same practice in judicial proceedings in Daubert v. Merrell Dow Pharmaceuticals, a decision widely credited with ending the use of "junk science" in judicial proceedings. Does the Court’s opinion in Biestek legitimate, and even to invite, the use of “junk science” in agency proceedings? The panel will discuss the Court’s decision in Biestek and its implications for agency adjudication and judicial review.
Featuring:
Prof. Kent Barnett, J. Alton Hosch Associate Professor of Law, University of Georgia School of Law
Prof. Richard J. Pierce, Jr., Lyle T. Alverson Professor of Law, The George Washington University 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: Supreme Court Overrules Nevada v. Hall Establishing Sister State Sovereign Immunity May 28, 2019

In Franchise Tax Board of California v. Hyatt, the Supreme Court has overturned a 40-year-old precedent in a case that changes the relationship between the states in our federalist structure of government. Indiana Solicitor General Fisher was counsel of record for an amicus brief of 44 states asking the Court to overturn Nevada v. Hall. In the Franchise Tax Board case, California believed that Gilbert Hyatt had evaded California taxes by falsely claiming to have moved to Nevada before he did. The California officials entered Nevada and Hyatt alleges that they committed fraud and other torts against him while in Nevada. He sued those California officials in Nevada’s courts and won almost a half billion dollar award (although that was later reduced to about a hundred thousand dollars). But is it proper for one state to sit in judgment on the official actions of officers of other states? Nevada v. Hall allowed this, but the Supreme Court has now decided that states are constitutionally required to give other states’ official acts sovereign immunity even when it occurs within the "host" state’s borders. Solicitor General Fisher will explain why and implications for this case to the future of the law.
Featuring:
Hon. Thomas Fisher, Solicitor general, Indiana
Mr. Devin Watkins, Competitive Enterprise Institute
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.

Executive Branch Civil Rights Update With The Honorable Kenneth L. Marcus May 24, 2019

Kenneth L. Marcus, the Assistant Secretary of Education for Civil Rights at the Department of Education, joins us to discuss the progress that has been made in the administration's first two years, as well as offer a look forward at some of the pressing matters that face the department inn the next few years.

Loan Shark Prevention Act May 23, 2019

Recently, members of the United States Senate and United States House of Representatives have introduced the "Loan Shark Prevention Act," which imposes a nationwide 15% interest rate ceiling on all consumer credit products, from credit cards to payday loans. They also propose to empower the United States Post Office to engage in the practice of consumer retail banking. This Teleforum examines the economics of interest-rate ceilings on consumer credit and the historical experience with such proposals as well as discussing the proposal to create a Post Office bank.
Featuring:
Wayne Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association
Todd Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School

Courthouse Steps Preview: NYSRPA v. City of NY May 22, 2019

New York City issues permits allowing authorized persons to register guns to keep at home for self-protection, but the city’s law makes it a crime to remove registered firearms from that home for any reason except to transport them to one of seven city-approved firing ranges. New York City’s law does not allow taking a gun outside the home in any condition, even if it is unloaded in a car truck, and even if the owner merely wants to take the gun to another home. The Supreme Court held in two landmark decisions, in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), that the Second Amendment is a fundamental right held by individual American citizens. But both of those cases involved citizens who wanted a single handgun in their house for home protection, leaving myriad questions for future cases. The U.S. Court of Appeals for the Second Circuit upheld New York City’s law, claiming that the court was applying intermediate scrutiny. In this case, the Supreme Court will now decide whether the Second Amendment extends outside the home, and whether the Big Apple’s law must be struck down as unconstitutional. The law is also being challenged as violations of the Dormant Commerce Clause and the right to interstate travel.
The case is New York State Rifle & Pistol Association v. City of New York, No. 18-280 in the Supreme Court of the United States.
Featuring:
Kenneth Klukowski, General Counsel, American Civil Rights Union and Senior Counsel, First Liberty Institute

Litigation Update: Department of Interior Considers Rulemaking on the Right to Use Eagle Feathers in Religious Exercise May 21, 2019

It is currently a federal crime, under the Bald and Golden Eagle Protection Act, for many Native Americans to possess eagle feathers for religious use. Congress authorized the Department of the Interior (the Department) to permit an exception for eagle feather use for “the religious purposes of Indian tribes” in 1962, yet more than 50 years later the Department’s regulations exclude millions of sincere Native American religious believers. And even Native Americans who are protected (because they are enrolled members of federally recognized tribes) are forced to rely on the “Morton Policy”—an informal memorandum that could be rescinded at any time. Although Native Americans have relied on the Morton Policy for more than 40 years, the Department has never promulgated it as a rule.
In 2014, the Fifth Circuit held that the Department had failed to justify its ban on religious feather possession as required by the Religious Freedom Restoration Act (RFRA). The Department is now considering a Petition for Rulemaking, which proposes to 1) broaden the Morton Policy to include all sincere religious believers who use protected feathers in their religious exercise—as both the Constitution and RFRA require; 2) officially promulgate this policy as a formal rule rather than rely on informal guidance, ending decades of legal limbo for those who worship with feathers; and, 3) empower Native American tribes to help combat the illegal commercialization of federally protected feathers. Join Joe Davis as he addresses the proposed rulemaking and its relationship to evolving First Amendment jurisprudence.
Featuring:
Joe Davis, Counsel, Becket Fund for Religious 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.

Does Legalizing Uber and Lyft "Take" The Property Of Taxi Companies? May 17, 2019

Over the last few years, taxi companies in several cities have brought lawsuits claiming that legalizing ride-share services such as Uber and Lyft violates the Takings Clause of the Fifth Amendment, because it expropriates their supposed property right to a monopoly of the taxi business. Courts have so far rejected these arguments. But they raise broader issues about the nature of property rights, and what kinds of government actions qualify as a taking. Confusion about these matters goes well beyond this specific set of cases. Could treating government-created monopoly privileges as property rights imperil valuable innovations and reforms in many parts of the economy?
Featuring:
Prof. Ilya Somin, Professor of Law, George Mason University
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: Cochise Consultancy Inc. v. United States, ex rel. Hunt May 17, 2019

This teleforum will discuss the Supreme Court argument in United States ex rel. Hunt v. Cochise Consultancy, Inc., a case about the False Claims Act statute of limitations. In this case, the Court examined whether a relator can rely on the tolling provision of the statute of limitations, which allows a claim to be filed up to three years after the responsible government official learns of facts material to action, even if the government never intervenes. While the case presented two narrow issues—how long can a relator wait to file suit and who is the “responsible government official” whose knowledge of the facts can trigger the limitations period—the Court’s resolution of the case could have potentially touched on several hot-button issues and create ripples that materially change FCA jurisprudence. This Teleforum will discuss the decision and wheather the implications of the decisions are as far reaching as they could have been.
Featuring:
Brandon J. Moss, Associate, Wiley Rein LLP
Mark B. Sweet, Partner, Wiley Rein LLP

Roundup Weedkiller Litigation May 17, 2019

In a series of recent decisions, both federal and state courts have allowed the admission of scientific evidence alleging that Monsanto’s Roundup weedkiller is associated with lymphoma. These courts have allowed these cases to proceed, despite the fact that the EPA and other authorities have concluded that there is no established link between such products and cancer. Juries have imposed multi-million dollar verdicts and the company faces large-scale litigation involving thousands of claims. Please join David Bernstein, the George Mason University Foundation Professor at George Mason University’s Antonin Scalia Law School for a discussion of these decisions.
Featuring:
Prof. David Bernstein, George Mason University Foundation Professor, Antonin Scalia 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: What Does the Supreme Court’s Decision in Apple v. Pepper Mean for Antitrust Law and the U.S. Economy? May 16, 2019

On May 13, 2019, the U.S. Supreme Court ruled 5-4 that Apple may face antitrust liability in a consumer suit over purchases made from the Apple App Store. That may sound like an unremarkable proposition (and Apple in fact may still prevail). But the basis for the decision in Apple v. Pepper is one that will reverberate for years in the courts and the U.S. economy – that consumers who buy products from a platform like the App Store may be considered a direct purchaser and thus allowed to bring lawsuits against the platform concerning alleged anticompetitive conduct. Other technology companies may face antitrust liability they did not expect, companies may seek to restructure their business dealings to avoid liability, and there may be continued challenges to the viability of the federal (but not state) antitrust doctrine that limits liability only to direct (not indirect) purchasers. And – in an interesting fact not unnoticed by Supreme Court observers – the majority opinion written by newly-seated Justice Kavanaugh drew a dissenting opinion by his fellow Trump appointee Justice Gorsuch and joined by all of the other Republican-appointed justices.
Come hear immediate reactions to the Apple v. Pepper decision from two experienced antitrust practitioners who participated in the case – Andrew Finch, Principal Deputy Assistant Attorney General in the U.S. Department of Justice Antitrust Division, and Lauren Weinstein of MoloLamken’s Washington, DC, office, who represented a group of 18 antitrust professors that filed an amicus brief in the case. Adam Biegel of Alston & Bird’s Washington, DC, office and a member of the Executive Board of the Federalist Society’s Corporations, Securities, and Antitrust Practice Group, will moderate the teleconference.
Featuring:
Andrew Finch, Principal Deputy Attorney General, Antitrust Division, Department of Justice
Lauren M. Weinstein, Attorney, MoloLamken LLP
Moderator: Adam Biegel, Partner, Alston & Bird

Executive Privilege and Congressional Oversight May 15, 2019

What is the proper balance between Congressional oversight and Executive privilege? As it becomes clear that Congress is not satisfied with the Mueller Report on its face, and it will seek to conduct follow-up inquiries on its own, it has requested an unredacted copy of the Mueller Report, and its supporting documentation, and several witnesses who were interviewed during the investigation, including the former White House Counsel. Historically, Congress and the Executive have resolved their differences on disclosure requirements and moved forward, without significant resort to the Judiciary. What will and should be the role of the courts in any upcoming litigation? Could a final court ruling enhance rather than limit the power of the Executive? These and other questions will be discussed by our experts.
Featuring:
Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law
John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage 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 Decision Teleforum: Lamps Plus, Inc. v. Varela May 14, 2019

On Wednesday, April 24, the Supreme Court handed down the decision in Lamps Plus, Inc. v. Varela. By a vote of 5-4, the judgment of the U.S. Court of Appeals for the Ninth Circuit was reversed and the case remanded. Prof. Henry Allen Blair will join us to discuss this decision and what it means for class arbitration issues moving forward.
Featuring:
Prof. Henry Allen Blair, Robins Kaplan Distinguished Professor and John H. Faricy Professor of Empirical Research; Senior Fellow, Dispute Resolution Institute, Mitchell Hamline School of 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.

Trump's Emergency Tariffs: Court Says Legal, But Are They Constitutional? May 01, 2019

In late March, the Court of International Trade (a U.S. Article III court) upheld the legality of Trump administration tariffs under Sec. 232 of the 1962 Trade Expansion Act (American Institute for Int'l Steel, Inc. v. United States). But one of the judges expressed doubts that the ruling could be reconciled with reviving concerns about the non-delegation doctrine. The case may well reach the U.S. Supreme Court and help clarify constitutional issues that go well beyond the trade context. This teleforum will examine these topics and possible consequences.
Featuring:
Prof. Timothy Meyer, Professor of Law; FedEx Research Professor; Director, International Legal Studies Program, Vanderbilt Law School
Prof. Jide Nzelibe, Professor of Law; Affiliated Faculty, Ford Motor Company Center for Global Citizenship, Northwestern University Pritzker School of Law
Moderator: Prof. Jeremy A. Rabkin, Professor of Law, George Mason University, Antonin Scalia 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.

California Statute Requiring Female Board Directors Apr 30, 2019

In 2018, Governor Jerry Brown of California signed a bill that made California the first state to require corporations and companies based inside the state, even if incorporated elsewhere, to hire a minimum number of women. The bill provides that, by the end of 2019, the corporations that are headquartered in California and are listed on the U.S. Stock Exchange have at least one female director. By 2021, corporate boards of 6 or more must have at least three female members.
The penalties for violating this law are a $100,000 fine for a first offense and a $300,000 fine for every offense afterwards. The bill has brought discussion of gender equality in corporate America to the forefront of the civil rights landscape and could have important implications for the future.
Featuring:
Anastasia P. Boden, Staff Attorney, Pacific Legal Foundation

Update on the Mueller Report Apr 30, 2019

Special Counsel Robert Mueller’s Report on The Investigation Into Russian Interference In the 2016 Presidential Election was released to the public on April 18th, 2019, capping off a nearly two year-long investigation into the allegations of collusion between the Donald Trump campaign and Russian government officials during the 2016 election. The conclusions of the report are divided into two volumes. Volume I details the extent to which Russia attempted to influence the outcome of the election. Volume II addresses the claims of obstruction of Justice. What do the conclusions mean for the Trump Administration and the country going forward?
Featuring:
Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law
John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage 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 Oral Argument: Department of Commerce v. New York: Citizenship and the Census Apr 24, 2019

On April 23, the Supreme Court will hear oral arguments in Department of Commerce v. New York, the legal challenge arising from Commerce Secretary Wilbur Ross’s decision to ask about the citizenship of census respondents. The case presents three questions: First, whether the 2020 Decennial Census can ask regarding each person counted at each residential address in the nation whether that person is a U.S. citizen. Second, whether district courts in an Administrative Procedure Act (APA) can order discovery beyond the administrative record to examine a Cabinet officers’ decision-making. And third, whether adding a question on citizenship violates the Constitution’s Enumeration Clause.
Citizenship is not a novel question for during decennial census activities. It was first asked in 1820, and was most recently asked in 1950. However, the district court in this case issued a 270-plus page decision holding that the question on the 2020 census was illegal. An appeal of that decision was pending before the U.S. Court of Appeals for the Second Circuit when the justices granted certiorari before judgment, the first time doing so in many years. This was likely motivated in part by the federal government’s assertion that census forms must be finalized before July 2019 to properly carry out the 2020 census.
The implications of this case are far-reaching. The federal government maintains a database with the residences of all legal aliens in this country, so cross-referencing those with census forms including citizenship could in theory reveal the whereabouts of most illegal aliens in the United States, assuming potential legal impediments to sharing that information could be resolved. This also could be a significant case on discovery involving high-level government officials, and also of APA litigation.
Featuring:
Dr. John S. Baker, Jr., Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University
Mr. Kenneth A. Klukowski, Senior Fellow, American Civil Rights Union
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.

The ALI Copyright Project: Restatement or Revisionist? Apr 23, 2019

The American Law Institute (ALI) is a familiar and trusted institution for jurists across the country who rely on its “restatements” of disperse common law jurisprudence. More recently, the ALI embarked on a different type of project; to “restate” not common law, but the federal statutory law of the U.S. Copyright Act. The origins of the project do not attempt to conceal its intent to be normative and to take the place of unsuccessful statutory reform efforts. As a result, the project has raised objections, including from the head of the U.S. Copyright Office, that it is inappropriate to “restate” a field undergirded by statutory law and that it is an invitation to activist judicial decisions to depart from the statute in favor of whatever policies the ALI adopts. Predictably for a norm-setting process, it has been further complicated by concerns about bias and lack of transparency. This panel discussion will consider whether the ALI project is appropriate and fair.
Featuring:
Prof. June Besek, Lecturer in Law; Executive Directo, Kernochan Center for Law, Media and the Arts
Mr. Sy Damle, Partner, Latham & Watkins, LLP
Moderator: Mr. Steven Tepp, President & CEO, Sentinel Worldwide
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.

William J. Colwell, Jr. Memorial Teleforum: Security Clearances - Executive Discretion or Executive Overreach? Apr 22, 2019

We are honoring William “Bill” Colwell with a teleforum on a topic we know he would love – the President’s power to approve – and revoke – security clearances. We will discuss recent media accounts of the President reportedly ordering the revocation of clearances of former government officials and insisting on other clearances being granted over the objections of senior government personnel. We will also – in true Federalist fashion – examine the historical wellsprings of each branch of government’s power to act within this realm. It is time to take a closer look at whether there are any practical limits on the Executive’s discretion, and whether Congress can and should play a stronger role.
Bill Colwell was a great patriot and friend to many of us in the Federalist Society, and a pillar within the Washington D.C. legal community, but his appeal was by no means limited to one side of the aisle or to people with whom he agreed. As one recent description phrased it, Bill was “a beautiful mind of insatiable curiosity and creativity, a comedian who made us laugh until tears rolled down our faces, chef and mixologist par excellence.” Bill, a devoted and loving husband and father, was a man of great faith. Bill was Assistant General Counsel and Corporate Director of the Northrop Grumman Corporation. Prior to that, he was employed at The Boeing Company and Wiley, Rein & Fielding LLP. He served in the United States Navy as a nuclear submarine officer on the USS Hampton, where he received numerous awards. A nationally recognized expert in government contracts, Bill frequently spoke and published on procurement issues. He served on the Board of the Federal Circuit Bar Association, chaired the Legal Committee of the National Defense Industrial Association, and recently received the 2018 NDIA Howard H. Cork Memorial Award for exceptional service to NDIA and the defense industry. But beyond all professional interests, Bill loved his family and is mourned by his wife, Robin, their twin daughters and their extended families.
Featuring:
Opening Remarks: Paul Khoury, Partner, Wiley Rein LLP
Prof. Dakota S. Rudesill, Assistant Professor, Moritz College of Law, The Ohio State University.
Prof. Robert F. Turner, Professor, General Faculty, and Distinguished Fellow and Associate Director, Center for National Security Law, University of Virginia
Moderator: 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.

Race In Admissions: Texas Tech Medical School Apr 17, 2019

The Texas Tech Medical School recently approved an agreement with the United States Department of Education's Office for Civil Rights, to end the use of racial preferences in their admissions process. The agreement was reached after over a decade of negotiation, initiated by a complaint filed by the Center for Equal Opportunity against Texas Tech in 2004. The agreement is a promising sign for opponents of racial preferencing in school admissions process, and could have significant implications for the future.
Roger Clegg joins us to discuss the recent agreement, and its implications.

Courthouse Steps Oral Argument: Iancu v Brunetti Apr 15, 2019

Remember “The Slants,” the Asian-American rock band who were denied a trademark because the U.S. Patent and Trademark Office (PTO) thought the band’s name was “disparaging”? In Matal v. Tam (2017), the Supreme Court unanimously struck down the Lanham Act’s anti-disparagement provision. (That also resolved the battle over the Washington Redskins’ trademarks.) Well, here we go again, this time with a related provision that prevents registration of “immoral” or “scandalous” marks. It doesn’t take much imagination to figure out what the clothing brand “Fuct” is going for, and the PTO decided it did not pass muster. The Federal Circuit struck down the relevant provision—as it had in Tam—and the Supreme Court again took the case. The government argues that it isn’t stopping Fuct from using its name, only declining to register it as a trademark. Under the First Amendment, should federal officials be making calls about what’s “scandalous” or “disparaging.” Ilya Shapiro, lead counsel of an amicus brief for the Cato Institute, P.J. O’Rourke, and other individuals and groups, is attending the April 15 argument and will share his thoughts afterwards.
Featuring:
Mr. Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute
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.

Book Review: Dawn of the Code War Apr 15, 2019

In Dawn of the Code War, authors John P. Carlin and Garrett M. Graff describe how the Internet has been weaponized by hackers to facilitate election tampering, theft of intelligence files, and many other online forms of attack. The digitization of our economy gives our enemies more avenues to attack us. Carlin and Graff explain the unusual difficulties America has faced in cyber warfare, partially due to our adversaries not abiding by the same rules of engagement online. The United States government does not have a developed framework of how to respond to these various attacks, and many of these technological developments are still unfamiliar. Our understanding of the threats we are facing is essential to combatting them, and this book makes it clear how necessary winning the code war is.
Featuring:
John P. Carlin, Partner, Morrison & Foerster LLP, and former Assistant Attorney General for the U.S. Department of Justice's (DOJ) National Security Division (NSD)
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.

Analyzing the New Proposed Rule Defining “Waters of the United States" Apr 12, 2019

On February 14, 2019, the Environmental Protection Agency and the U.S. Army Corps of Engineers published a proposed rule defining “waters of the United States” under the Clean Water Act (CWA). This is a critical definition because it clarifies the waters that are regulated under the CWA.
For decades, the EPA and Corps have struggledto come up with a proper definition that is both consistent with the plain language of the statute, respects the state role in addressing water pollution, and is consistent with the rule of law. Does the new proposed rule address these concerns? What are some of the concerns with the proposed rule? How should the EPA and the Corps define key terms such as “tributaries” and “adjacent wetlands?” Should a final rule include intermittent waters? Please join us as we discuss these questions and many others in this timely Teleforum.
Featuring:
Deidre Duncan, Partner, Hunton Andrews Kurth LLP
Tony Francois, Senior Attorney, Pacific Legal Foundation
Moderator: Daren Bakst, Senior Research Fellow in Agricultural Policy, Roe Institute for Economic Policy Studies, The Heritage 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 Decision Teleforum: Bucklew v. Precythe Apr 10, 2019

Monday, April 1st, the Supreme Court ruled on the 8th amendment case Bucklew v. Precythe. Plaintiff Russell Bucklew was sentenced to death on counts of kidnapping, rape, and murder, and the execution was to take place on May 21, 2014. However, Bucklew then filed an appeal that the lethal injection protocol to be followed would represent cruel and unusual punishment in his case because of his unique medical condition. Plaintiffs argued for an alternative execution method.
The Supreme Court, in a 5-4 decision written by Justice Neil Gorsuch, affirmed the trial court and appellate court rulings and found in favor of the respondent. The Court reasoned that the plaintiff had failed to meet his burdens of proof, based on prior Supreme Court precedent. Justice Stephen Breyer wrote a dissenting opinion, which was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elana Kagan.
The holding has caused significant controversy, and may indicate the future of the Supreme Court on death penalty cases, as well as interpretation of the 8th amendment.
Featuring:
Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation

Percolating in Washington State: Export-Terminal Permit-Denial Suit Implicates Federalism and Foreign Commerce Apr 03, 2019

When state regulators block approval of construction projects, disappointed businesses routinely challenge the decision in court. A lawsuit currently pending in the Western District of Washington, Lighthouse Resources v. Inslee, however, is not your average permit dispute. The plaintiff, Lighthouse Resources, wants to build an export terminal on the Columbia River that can accept and ship coal to Asian customers mined at Lighthouse-owned sites in Montana and Wyoming. The terminal will generate billions in taxable revenue and create thousands of jobs. The defendants, whose opposition to coal as an energy source is well documented, have denied a federally required water-quality certification. Lighthouse’s constitutional claims (also asserted by intervenor BNSF Railway) include federal preemption and violation of the Commerce Clause. Early motions have attracted state amici supporting each side as well as briefs from business associations and environmental groups. The suit has reached a critical stage, with the plaintiffs moving for summary judgment on the Foreign Commerce Clause claim, arguing that the defendants’ actions “implicate” foreign policy issues in a way that prevents the federal government from speaking with “one voice” about international trade.
Featuring:
Glenn G. Lammi, Chief Counsel, Legal Studies Division and Director, Communications, Washington Legal Foundation
Prof. Donald J. Kochan, Parker S. Kennedy Professor in Law and Associate Dean for Research & Faculty Development, Chapman University, Dale E. Fowler School of 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.

Courthouse Steps Decision Teleforum: Air & Liquid Systems Corp., et al. v. DeVries Apr 02, 2019

On March 19, 2019, the Supreme Court decided Air & Liquid Systems Corp., et al. v. DeVries, which concerned whether federal maritime law requires a manufacturer of non-asbestos containing parts -- like pumps, turbines and blowers for Navy ships -- to warn Navy sailors when it is likely asbestos will be used with those parts later (in this case as insulation or connected parts). The plaintiffs were two Navy veterans (and their families) who had been exposed to asbestos, developed cancer and died. They sued the manufacturers of the non-asbestos containing products for failing to warn. The district court granted summary judgment in favor of the manufacturer but the Third Circuit vacated and remanded arguing for application of a foreseeability test.
The plaintiffs argued that the manufacturers had a duty to warn because they knew that asbestos would be required to be incorporated with their parts to function properly. The defendants argued that they had no duty to warn because they were not incorporating the asbestos with their product, the Navy was.
The Supreme Court, by a vote of 6-3, in an opinion by Justice Kavanaugh held that “a product manufacturer has a duty to warn when (i) its product requires incorporation of a part, (ii) the manufacturer knows or has reason to know that the integrated product is likely to be dangerous for its intended uses, and (iii) the manufacturer has no reason to believe that the product’s users will realize the danger.” The Court noted that they did not agree with the entirety of the Third Circuit’s reasoning but affirmed its judgment directing the district court to reconsider its grant of summary judgment.
Karen Harned will discuss the Supreme Court’s decision and what it could mean for product liability law outside of the maritime context.
Featuring:
Karen R. Harned, Executive Director, NFIB Small Business Legal Center
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.

Re-Considering Co-Benefits in Environmental Regulation Mar 29, 2019

How an agency counts costs and benefits can often determine whether it will regulate at all. EPA’s reconsideration of its co-benefit accounting methodology in the context of its mercury standard could have significant implications for environmental regulation.
Since the Reagan Administration, federal agencies have been required by Executive Order to quantify the costs and benefits of significant regulatory actions, and to avoid regulations that do more harm than good. Some statutes also explicitly or implicitly require an agency to consider the costs of regulation. The Clean Air Act’s “hazardous air pollutants” provision is such a statute. In Michigan v. EPA, the Supreme Court held that the statutory limitation to “appropriate and necessary” regulation required EPA to consider cost. Justice Scalia’s opinion for the Court explained, “One would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return for a few dollars in health or environmental benefits.”
But what counts as a benefit when EPA is regulating air pollution? Just the health effects of reducing the targeted pollutant? Or all the ancillary benefits (known as “co-benefits”) of other pollutants that are reduced along with it? What if those secondary pollutants are already regulated under different provisions of the same act?
The Obama Administration’s Mercury and Air Toxics Standard was estimated to impose $9.6 billion in compliance costs on the energy sector in exchange for $4 to $6 million in mercury-related benefits. But the rule was also estimated to generate $37 to $90 billion in co-benefits from incidental reductions of particulate matter, a pollutant that is regulated under EPA’s National Ambient Air Quality Standards. In a “Revised Supplemental Cost Finding” EPA has recently proposed to re-do its cost-benefit assessment for the mercury standard, excluding the particulate matter co-benefits and rescinding the Obama Administration’s finding that the mercury standard was “appropriate and necessary.”
Professor Dan Farber and Adam Gustafson will discuss different possible approaches to valuing co-benefits in the context of hazardous air pollution and environmental regulation more broadly.
Featuring:
Prof. Dan Farber, Sho Sato Professor of Law and Faculty Director of the Center for Law, Energy, and the Environment, University of California, Berkeley
Adam Gustafson, Partner, Boyden Gray & Associates PLLC
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 Teleforum: Nielsen v. Preap Mar 29, 2019

In the Nielsen v. Preap decision, released on Wednesday, March 20, Justices Thomas, Gorsuch, Kavanaugh, and Roberts joined Justice Alito in finding that a mandatory detention statute regarding potentially removable immigrants applied to a wider class of persons than previously found in Demore v. Kim (2003). The Constitutional issue surrounds 8 U.S.C. § 1226(c)(1), known as the “mandatory detention provision” of the Immigration and Nationality Act, states that “The Attorney General shall take into custody any alien who—when the alien is released, without regard to whether the alien is released on parole, supervised release, or probation, and without regard to whether the alien may be arrested or imprisoned again for the same offense.” Immigrants who commit certain crimes, specified in the statute, are not entitled to a bond hearing and once detained can be held in federal custody until their removal proceedings are resolved.
In two Ninth Circuit decisions, Preap v. Johnson and Khoury v. Asher, it was ruled that criminals released but not immediately detained were entitled to a bond hearing. The ruling in Nielsen reverses these holdings, insofar as Justice Alito concluded that so long as the immigrants meet the criteria set forth in 8 U.S.C. § 1226, the period of time between release and detention is irrelevant. (DHS did not take Preap “into custody” until about seven years after Preap was released from criminal custody.) Justice Alito, writing for the majority, stated that it was “better late...than never” with regard to detention, supporting this conclusion with a grammatical analysis. Specifically, because “an adverb cannot modify a noun, the “when released” clause cannot modify ‘alien’”. In other words, nothing in the plain meaning of the text supports the Circuit Court’s decisions to differently apply the statute to those aliens who were not detained immediately on release from prison.
Featuring:
Greg Brower, Shareholder, Brownstein, Hyatt, Farber, Shreck
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on the 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: Kisor v. Wilkie Mar 28, 2019

On the morning of March 27, the Supreme Court will hear oral argument in Kisor v. Wilkie. The Supreme Court granted certiorari in Kisor to decide whether to overrule Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997). Seminole Rock and Auer are often cited for the proposition that when an administrative agency promulgates a regulation and the regulation is ambiguous, a reviewing court must give “controlling weight” to the agency’s interpretation of the regulation unless the interpretation is plainly erroneous or is inconsistent with the regulation. A number of the Court’s members have cast doubt on the soundness of the Seminole Rock/Auer deference doctrine in recent years. Many observers believe that the doctrine’s days are numbered.
Importantly, the United States filed a merits brief in Kisor that forcefully criticized Auer/Seminole Rock deference, yet argued that the Court should not overrule Auer and Seminole Rock “in their entirety.” The brief foreshadows what will likely be a memorable oral argument, featuring Paul Hughes of Mayer Brown LLP and Solicitor General Noel Francisco. Hughes represents James Kisor, the Vietnam War veteran who is the petitioner in the case. Kisor is challenging a decision of the Department of Veterans Affairs (VA) that denied Kisor’s request for retroactive disability benefits connected to his wartime service. Francisco will be defending the VA’s decision.
Karen Harned, Andrew Varcoe, and moderator Stephen Vaden will join us on the afternoon of March 27 to discuss that morning’s oral argument in Kisor and its potential implications -- including the implications, if any, for the Chevron deference doctrine that applies to agency interpretations of statutory provisions (set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)). Harned and Varcoe will have attended the oral argument that morning and will be sharing their observations about it.
Featuring:
Karen Harned, Executive Director, NFIB Small Business Legal Center
Andrew Varcoe, Partner, Boyden Gray & Associates
Moderator: Stephen Vaden, General Counsel, United States Department of Agriculture
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: Sturgeon v. Frost Mar 27, 2019

In today's decision on Sturgeon v. Frost, the Supreme Court has held in favor of an Alaskan moose hunter’s right to traverse a river by hovercraft as it passes through a National Park unit, in a remote and largely roadless area of the state. The National Park Service regulations forbid the use of hovercraft within park units, but Mr. Sturgeon successfully argued that the surface of the river is not subject to Park Service regulation under the Alaska National Interest Lands Conservation Act. Tony Francois, Senior Attorney with the Pacific Legal Foundation, will join us to discuss this decision.
Featuring:
Tony 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.

Courthouse Steps Decision Teleforum: Frank v. Gaos Mar 26, 2019

On March 20, 2019, the Supreme Court heard Frank v. Gaos, stemming from a class action suit brought against Google for allegedly leaking, in violation of privacy laws, information about their search terms to third parties by including search terms in the referrer header. Essentially, the plaintiffs allege that Google disseminated private information of users in violation of the Stored Communications Act. The district court approved a cy pres, or “near as possible award”, that directs the application of the property (or a portion of the property) to a charitable purpose that reasonably approximates the designated purpose rather than a few cents or dollars to class members.
The petitioners in the case before the Supreme Court, led by Theodore Frank, included all those who believe the district court’s decision to award a cy pres settlement creates an unlawful conflict of interest between attorneys, who were compensated monetarily, and class members, who were not. Secondly, they allege that it is inappropriate that the settlement fund was given to institutions that regularly council in the matter at hand (i.e. privacy cases). The respondents include members from both parties (plaintiffs and defendants) who support the cy pres award.
The Supreme Court decided to vacate and remand to the 9th Circuit with direction to investigate the issue of standing. Justice Thomas was the lone dissenter, claiming that the settlement should be reversed, because “the class members here received no settlement fund, no meaningful injunctive relief, and no other benefit whatsoever in exchange for the settlement of their claims.”
Ted Frank will discuss the Supreme Court’s decision, next steps, and other like cases including another pending cy pres cert petition, Perryman v Romero.
Featuring:
Theodore "Ted" Frank, Director of Litigation and Senior Attorney, Hamilton Lincoln Law Institute
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.

Pipeline Energy Infrastructure Legal Challenges Mar 25, 2019

The advent of fracking and other technological innovations has unleashed a new era of American energy independence, and increased energy production has required increased construction for pipeline and other related energy infrastructure projects. With this construction has come a wave of litigation, as environmental organizations raise objections under the Clean Water Act, the National Environmental Policy Act, the Natural Gas Act, and a variety of other environmental statutes and property owners in the path of proposed pipelines try to avoid the exercise of eminent domain over their land. Please join us for a teleforum that explores the challenges facing energy suppliers and property owners in today’s legal environment along with a look ahead to possible future developments.
Featuring:
Robert McNamara, Senior Attorney, Institute for Justice
Peter Tolsdorf, Vice President of Litigation and Deputy General Counsel, National Association of Manufacturers
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.

Is There a Constitutional Issue in the USMCA? Mar 22, 2019

Some argue that the United States Mexico Canada Agreement (USMCA) presents interesting questions about how to resolve trade and investment disputes. The USMCA, which is the new incarnation of the North American Free Trade Agreement (NAFTA), presents crucial constitutional issues concerning the Appointments Clause, the jurisdiction of the federal courts, due process and jury trial rights. For example, do the USMCA’s binational dispute settlement panels bind the United States as a matter of domestic law? Is it permissible that the administrative agency-type panels’ decisions are generally not reviewable by an Article III court? As important as the USMCA might be for trade and investment flow, few are arguing that the interests of American sovereignty be sacrificed. Our speakers will address these issues.
Featuring:
Prof. John S. Baker, Professor Emeritus, Paul M. Hebert Law Center, Louisiana State University
Dr. R. Sohan Dasgupta, University of California, Berkeley
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.

In Memoriam: Ronald Rotunda and Legal Ethics Mar 22, 2019

Ronald D. Rotunda was a highly-respected, widely-published professor of both Legal Ethics and Constitutional Law. He served on the Executive Committee of the Federalist Society Professional Responsibility and Legal Education Practice Group from its creation until his death in March 2018. In his memory, the Practice Group has arranged to arrange a Teleforum at least annually on issues in legal ethics. The first Teleforum, titled "Ron Rotunda at the Intersection of Legal Ethics and Constitutional Law," will be presented by his long-time casebook co-author, Thomas D. Morgan, on Wednesday, March 20, 2019, at 2 pm EDT.
This Teleforum will focus on lawyer advertising, which Professor Rotunda addressed early in his career, and lawyer rhetoric, whose attempted regulation Professor Rotunda condemned at the end of his career. Professor Morgan will also address Professor Rotunda's interest in technology and his vision of a legal profession whose regulatory burdens may be reduced to allow clients the freedom to pursue their legal rights using services they can better afford.
Featuring:
Prof. Thomas D. Morgan, Oppenheim Professor Emeritus of Antitrust and Trade Regulation L, George Washington University Law School

Litigation Update: California Voting Rights Act Lawsuit Mar 20, 2019

The California Voting Rights Act (CVRA) imposes liability on cities that elect their representatives through an at-large system and have racially polarized voting. In 2017, the City of Poway was forced to abandon its at-large voting system in favor of a single-member-district system after it was threatened with a lawsuit under the CVRA. In Higginson v. City of Poway, Don Higginson, a Poway voter, sued the City of Poway, claiming that the CVRA is unconstitutional under the Fourteenth Amendment. This case carries significant implications for voting rights in California and elsewhere and is now on appeal at the U.S. Court of Appeals for the Ninth Circuit.
J. Michael Connolly joins us to discuss the case and the potential implications.
Featuring:
J. Michael Connolly, Partner, Consovoy McCarthy Park PLLC

The False Claims Act: Who Is The Responsible Government Official? Mar 19, 2019

This teleforum will discuss the Supreme Court argument in United States ex rel. Hunt v. Cochise Consultancy, Inc., a case about the False Claims Act statute of limitations. In this case, the Court is examining whether a relator can rely on the tolling provision of the statute of limitations, which allows a claim to be filed up to three years after the responsible government official learns of facts material to action, even if the government never intervenes. While the case presents two narrow issues—how long can a relator wait to file suit and who is the “responsible government official” whose knowledge of the facts can trigger the limitations period—the Court’s resolution of the case could touch on several hot-button issues and create ripples that materially change FCA jurisprudence.
Featuring:
Mark B. Sweet, Partner, Wiley Rein LLP
Brandon J. Moss, Associate, Wiley Rein LLP
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on the 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.

Communications Workers v. Beck Revitalized Mar 14, 2019

In Communications Workers v. Beck (1988), the Supreme Court held that the National Labor Relations Act “authorizes the exaction [from nonmember employees] of only those [union] fees and dues necessary to ‘performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues.’” But Beck did not flesh out precisely which union expenses were mandatory (“chargeable”) for nonmembers and which were not (“nonchargeable”), and the National Labor Relations Board and the courts have been slow to precisely denominate which union activities may be supported with nonmembers’ compelled fees.
On March 1, 2019, in United Nurses and Allied Professional (Kent Hospital), the NLRB announced that unions may never charge nonmembers for union legislative or political lobbying, even if the subject of the lobbying “may in general relate to terms of employment or may incidentally affect collective bargaining.” According to the NLRB, “lobbying activity is not a representational function simply because the proposed legislation involves a matter that may also be the subject of collective bargaining.” Kent Hospital is an important decision delineating limits for nonmember employees in the private sector who wish to disassociate from the union’s political and social activities.
Do these developments herald a new era of Beck enforcement and employee free choice in the private-sector workplace? Please join us for a discussion of these issues and trends with Glenn Taubman, a long-time attorney with the National Right to Work Legal Defense Foundation, who represents Jeanette Geary, the Charging Party in the Kent Hospital case.
Featuring:
Glenn Taubman, Staff Attorney, 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 the 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: PDR Network, LLC v. Carlton & Harris Chiropractic Mar 14, 2019

Once upon a time, businesses would offer their products or services by sending you a fax advertising them. Unfortunately, if you were on the receiving end of these faxes, they tied up your phone lines and used up your paper and ink. Addressing this and other complaints, Congress passed the Telephone Consumer Protection Act (TCPA), creating a private right of action for a variety of problematic behaviors.
After PDR Network, LLC, faxed Carlton & Harris Chiropractic, Inc. an offer of a free Physicians Desk Reference, the Clinic sued under TCPA. PDR countered that its offer of a free book did not constitute a solicitation subject to the TCPA’s civil liability provision. But in 2006, the Federal Communications Commission had determined that even faxes that promote goods or services for free subject the sender to civil liability.
The Fourth Circuit held that PDR’s fax had violated the TCPA, as the FCC interprets it, and that the Hobbs Act prevented PDR from challenging the FCC’s interpretation in court. So can a federal district court review the FCC's interpretation of the TCPA? Or, because of the Hobbs Act, must a federal district court simply accept the FCC's reading the statute? These important questions are now before the Supreme Court and our experts will provide their insights heading into oral argument.
Featuring:
Bernard Bell, Professor of Law and Herbert Hannoch Scholar, Rutgers Law School
James Conde, Associate, Boyden Gray & Associates, PLLC
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. 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.

Understanding Brexit – Facts, Law, Policy, and Principle Mar 13, 2019

Supply-chain Security in a 5G World: What to do about Huawei and ZTE? Mar 12, 2019

On March 6th, Huawei announced it was suing the United States government over policies banning federal agencies from purchasing the company’s equipment. Huawei’s lawsuit is the latest escalation in its continuing standoff with the White House, which has embarked on a global campaign to prevent Chinese equipment manufacturers from taking part in the building of 5G network infrastructure. Last February, Vice President Pence cautioned Western allies against having any dealings with Huawei, and stated: “We cannot ensure the defense of the West if our allies grow dependent on the East.” Australia and New Zealand have implemented measures to restrict the use of Huawei equipment, while the UK, Germany and Canada are considering restrictions. Is the United States justified in advocating for robust measures to counter Chinese involvement in Western 5G networks? Or are Chinese telecommunications manufacturers the casualties of a larger trade war between Washington and Beijing? Join us for a discussion of these and other important issues related to supply chain security in the 5G era.
Featuring:
Michael H Ryan, Principal, MHRyan Law
Dileep Srihari, Senior Policy Counsel, Telecommunications Industry Association
Moderator: Paul Beaudry, Director of Broadband Policy and Regulatory Affairs, TELUS Communications Inc.
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.

Litigation Update: AT&T and Time Warner Cable Mar 11, 2019

The AT&T/Time Warner merger marks the first time in 40 years that a court has decided a fully-litigated challenge to a vertical merger. On February 26, 2019 the D.C. Circuit affirmed unanimously Judge Leon's district court decision holding the Department of Justice Antitrust Division had failed to show that the proposed merger would violate Section 7 of the Clayton Act because it was not likely to substantially lessen competition. Did the court reach the right result and why? What does the decision mean for vertical merger enforcement and analysis moving forward? Are the antitrust agencies likely to issue new vertical merger guidelines? Join us for a discussion about these and other important lessons from the AT&T/Time Warner decision.
Featuring:
Joshua D. Wright, University Professor and Executive Director, Global Antitrust Institute, Antonin Scalia Law School at George Mason University
Jan M. Rybnicek, Senior Associate, Freshfields Bruckhaus Deringer

A Texas Trade Secrets Case May Have Broader Implications for U.S. Companies Mar 08, 2019

Last year, a jury in Texas awarded California-based startup HouseCanary a $706 million verdict, one of the largest ever in a trade secrets case. HouseCanary alleged that Amrock (formerly TitleSource) misappropriated trade secrets of HouseCanary after the two companies had entered into contract for use of HouseCanary’s real estate valuation technology. The size of the judgment compelled several former HouseCanary employees to come forward alleging fraud by HouseCanary. Amrock alleges that much of HouseCanary’s technology was widely in use and is appealing. This case should be watched closely: the prospect of enormous jury verdicts for expansive trade secrets claims could spur more filings across the United States. Please join us for a discussion with attorney for Amrock, Randy Mastro, a partner at the law firm of Gibson, Dunn and Crutcher and co-chair of the firm’s Litigation Practice group.
Featuring:
Randy Mastro, Partner, Gibson, Dunn & Crutcher 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.

Courthouse Steps Oral Argument: The World War I Cross Cases Mar 06, 2019

What is the nature of government involvement in religious matters, and what is the future of crosses used in war memorials? On February 27, the Supreme Court will hear consolidated oral arguments for two cases concerning World War I crosses: American Legion v. American Humanist Association and Maryland-National Capital Park and Planning Commission v. American Humanist Association. These cases raise important questions: does the Establishment Clause require the removal of these memorials because they are shaped as religious symbols? Is offense over passive religious display substantive enough to establish standing?
Featuring:
Mark Rienzi, President, The Becket Fund
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.

Federal Reserve Independence Mar 06, 2019

In years, the issue of Federal Reserve independcy have arison to the top of public discussion. Questions have arrisen surounding the Federal Reserve that have plagued policy and lawmakers for decades. Should the Federal Reserve be “independent”? Is that a political, or a technical question? Has the Federal Reserve been independent historically? Has a US President ever fired a Fed Chairman? Who should determine the definition of money? How much faith should we have in the judgments of the Fed? This Teleforum will delve into these and other issues of central bank independence.
Featuring:
Alex Pollock, Distinguished Senior Fellow, R Street Institute
Norbert Michel, Senior Research Fellow, Financial Regulations and Monetary Policy, The Heritage Foundation
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. 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.

Campus Free Speech: Litigation Update Mar 05, 2019

Free speech and open inquiry on campus have long been a fundamental part of higher education. However, in recent years public universities have started to enact speech codes and other guidelines. These measures have resulted in several lawsuits filed against the public universities across the country with interesting results. Please join us for a discussion with representatives from the Alliance Defending Freedom, the Foundation for Individual Rights in Education, and SpeechFirst, who all have active litigation related to campus free speech moving through the federal judiciary.
Featuring:
Mr. Michael Connolly, Partner, Consovoy McCarthy Park PLLC.
Mr. Will Creeley, Senior Vice President of Legal and Public Advocacy, Foundation for Individual Rights in Education (FIRE)
Mr. Tyson Langhofer, Sr. Counsel, Director of Center for Academic Freedom, Alliance Defending Freedom
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: The Maryland Peace Cross (American Legion v. American Humanist Association) Feb 28, 2019

Do crosses on public land violate the Establishment Clause? More importantly, how should the Supreme Court interpret the Establishment Clause? On February 27, the Supreme Court will consider these questions at oral argument in American Legion v. American Humanist Association. At issue is a nearly century-old war memorial cross erected by citizens of Prince George’s County, Maryland, to commemorate the county’s fallen World War I heroes. The American Humanist Association sued the county in 2012, arguing that displaying the cross on public property violates the First Amendment’s Establishment Clause. The Fourth Circuit, applying the “Lemon test,” agreed. The Supreme Court has long struggled to find a consistent approach to religious symbol cases. This teleforum will preview the possible approaches the Court could take—as well as how this case might shape Establishment Clause jurisprudence for many years to come.
Featuring:
Luke Goodrich, VP & Senior Counsel, Becket Fund for Religious 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.

Litigation Update: BLinC v. U Iowa and the Future of CLS v. Martinez Feb 27, 2019

Last week a federal judge issued a ruling for Business Leaders in Christ (“BLinC”), a religious student organization, in their case against the University of Iowa. In November 2017, BLinC was kicked off campus for requiring its leaders to sign a statement of faith. The students had been told that their beliefs concerning marriage and sexuality were “discriminatory on their face” and violated the University’s human rights policy. To be reinstated, BLinC would have had to delete any mention of these beliefs from its constitution and establish procedures for selecting leaders without regard to religion. Eric Baxter, from the Becket Fund for Religious Liberty, will talk about the lawsuit, how University officials explained their actions, and what impact the recent ruling in BLinC’s favor will have on CLS v. Martinez.
Featuring:
Eric Baxter, VP & Senior Counsel, The Becket Fund for Religious 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 Decision Teleforum: Timbs v. Indiana Feb 27, 2019

In Timbs v. Indiana today, the Supreme Court held that the Eighth Amendment prohibition against excessive fines is incorporated against the states under the Due Process Clause -- not the Privilege and Immunities Clause -- of the 14th Amendment. In doing so, the Court explicitly rejected Indiana’s argument that a civil forfeiture is not a “fine” and thus its “excessiveness” may not be reviewed. The Court’s ruling has significant implications for the practice of civil forfeiture in the United States, for broader criminal justice policy, and for constitutional interpretation.
Vikrant Reddy joins us to discuss the decision and its implications
Featuring:
Vikrant Reddy, senior research fellow, Charles Koch Institute
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. 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.

Federal Trade Commission v. Qualcomm Incorporated: Post-Mortem Feb 15, 2019

This teleforum will investigate the potential impact of the pending decision in the FTC's controversial Section 5 lawsuit against Qualcomm, brought days before the change in administration two years ago, with the incoming acting chair writing an unusual and biting dissent. Among other things, the FTC is seeking to permanently enjoin Qualcomm from engaging in certain industry-wide patent licensing practices, which the FTC alleges impair competition in violation of the antitrust laws. However, it has been argued that the FTC’s novel theory fails to meet the burden of proof by showing actual evidence of harm, as clarified recently by the US Supreme Court in Ohio v. American Express Co. The consequences of FTC's legal theory, if upheld by the court, could reach well-beyond patent licensing arrangements. Indeed, some experts fear that changes to Qualcomm's business model will undermine U.S. national security interests and cede American leadership in the 5G race to a foreign adversary—the same concerns echoed last year by the Committee on Foreign Investment in the United States (CFIUS) when it recommended that the President permanently prohibit Broadcom from acquiring Qualcomm.
Featuring:
Olivier Blanchard, Senior Analyst, Futurum Research
Geoffrey A. Manne, President and Founder, International Center for Law & Economics
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.

Poland: Renegade or Exemplar? Feb 11, 2019

Poland holds a position of economic, strategic, and political importance in Europe. While some former Eastern bloc countries look to Poland as a model of autonomy, the Western European establishment is sending clear messages that Poland may not enjoy the benefits of European Union membership while thwarting EU governance. At the same time, Eurosceptics in Western Europe and Great Britain also look to Poland’s independence as an inspiration when Brexit has proven difficult to attain.
Poland’s expressions of political will through Law and Justice Party court restructuring have triggered an unprecedented invocation of Article 7 by the European Commission and the European Court of Justice mandated that Poland reverse the court reforms.
Warsaw will be the site of an imminent summit to address wide-ranging security issues. Originally considered a platform for considering the threats emanating from Iran, the United States has recently characterized the summit as a discussion of cybersecurity, terrorism, extremism, and anti-missile security.
Germany and France just concluded a “friendship treaty” that is understood to implicitly warn countries like Poland and Hungary that too much “nationalism” is a threat to the common goals of European member states.
Is Poland becoming too autocratic and did court restructuring fundamentally threaten European notions of rule of law? How does the United States maintain a close relationship with this valued ally while balancing NATO and European allegiances?
Featuring:
Prof. Jakub Grygiel, Associate Professor, Catholic University of America
Moderator: Dr. James Jay Carafano, Vice President, Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, and the E. W. Richardson Fellow, The Heritage Foundation
(Prof. Andrzej Bryk, Professor, Jagiellonian University, Poland, was unable to join in this teleforum.)
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.

Are “Regulatory Budgets” Paying Off? A Year Two Look-Back at Executive Order 13771 Feb 08, 2019

On January 30, 2017, President Trump signed Executive Order 13771 titled, “Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs.” In this order, President Trump supplemented the longstanding framework for White House regulatory oversight. In addition to the Office of Information and Regulatory Affairs’ framework for cost-benefit analysis, E.O. 13771 set general requirements for agencies to rescind two new rules for every new one, and it directed agencies not to increase the overall costs that they impose on society — an approach known more generally as “regulatory budgets.”
After two years, how has this new framework fared? To discuss it, the Federalist Society’s Administrative Law Practice Group is pleased to host a teleforum with Jeffrey Harris, who served as OIRA’s Associate Administrator during the implementation of E.O. 13771 and Adam White, Director of the Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State.
Featuring:
Jeffrey Harris, Partner, Consovoy McCarthy Park
Adam White, Assistant Professor and Director of the Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State, and Research Fellow at the Hoover Institution
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. 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.

Understanding and Combating the Authoritarian Abuse of Interpol Feb 06, 2019

The International Criminal Police Organization – officially ICPO-INTERPOL, and commonly known simply as Interpol – plays an important role in international law enforcement, and its publications are often used in U.S. immigration and asylum cases. But neither Interpol nor its publications, including its famous Red Notice, are well understood. This can lead attorneys to fail to challenge Department of Homeland Security (DHS) assertions about Interpol that damage the interests of their clients, and cause judges to defer uncritically to Interpol publications in their decisions. Moreover, some argue that Interpol is increasingly being abused – being used for political purposes – by authoritarian regimes, and these abusive Red Notices have long-lasting effects outside the courtroom, as well as in it. The more the U.S. legal profession knows about Interpol, the more it will be able to prevent and combat this abusive politicization of law enforcement, and prevent it from affecting the U.S. legal system.
Featuring:
Theodore R. Bromund, Ph.D., Senior Research Fellow in Anglo-American Relations, Margaret Thatcher Center for Freedom, The Heritage Foundation
Thomas Firestone, Partner, Baker & McKenzie LLP
Moderator: Adam R. Pearlman, Former Associate Deputy General Counsel, Department of Defense
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.

Going Dark Phenomenon Feb 05, 2019

What is the effect of encryption on government/law enforcement access to digital evidence? Default device encryption inhibits government’s ability to obtain access to electronic data even in circumstances that satisfy Fourth Amendment warrant requirements. Lawmakers and policymakers have struggled over whether this lack of access a bad thing. How do we balance our collective security interests in allowing law enforcement to access the contents of electronic devices and our individual privacy rights in securing our data against illegal and/or unreasonable access?
Featuring:
Jamil Jaffer, Founder and Director, National Security Law & Policy Program
Greg Brower, Shareholder, Brownstein Hyatt Farber Shrek
Kenn Kern, Assistant District Attorney, New York county District Attorney's Office
Moderator: Hon. Michele Christiansen Forster, Associate Presiding Judge, Utah Court of Appeals
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on the 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.

Presidential Use of Emergency Power Feb 04, 2019

There has been much in the news lately concerning the President's use of emergency power to shift budgeted funds from one purpose to another, namely, construction of a barrier along the southern border of the U.S. Does the President have inherent constitutional authority to declare an emergency and move the funds? Has Congress otherwise given the President statutory authority to do so, and, if so, has that authority been granted constitutionally? These and other questions will be debated on our Teleforum conference call.
Featuring:
Professor John C. Yoo, Emanuel Heller Professor of Law and Director of the Korea Law Center, the California Constitution Center, and Public Law and Policy Program, University of California at Berkeley School of Law
David A. French, Senior Fellow, National Review Institute, and Senior Writer, National Review
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.

Antitrust Enforcement and Telecom Consolidation: What Does the Future Hold? Jan 31, 2019

The recent elimination of network neutrality rules by the FCC and re-emphasis on a lighter touch free market approach to the telecom sector came with a promise that antitrust enforcement by the DOJ and FCC would serve as a backstop to mitigate the risk of potentially harmful discriminatory conduct and to promote continued efficiency gains in the sector. Does a recent wave of telecom mergers and acquisitions raise questions about the nature and extent of antitrust enforcement needed to assure dynamism without undercutting innovation in the sector? Our panelists will discuss lessons learned from this recent enforcement activity and the future of competition enforcement, with particular commentary on Tribune/Sinclair, Disney/Fox, and AT&T/Time Warner.
Featuring:
George Ford, Ph.D., Chief Economist, The Phoenix Center For Advanced Legal &. Economic Public Policy Studies
Alex Okuliar, Partner, Orrick Herrington & Sutcliffe LLP
Chip Pickering, CEO, INCOMPAS

Supreme Court Denies Review of Constitutional Challenge to CFPB Jan 29, 2019

On Jan. 14 the Supreme Court denied the cert petition in State National Bank of Big Spring v. Mnuchin, No. 18-307, which challenged the structure of the Consumer Financial Protection Bureau. At issue was the validity of two key CFPB features—a single director whom the President could remove only for cause, and funding that was independent of congressional appropriations. The bank had been joined in its challenge by the Competitive Enterprise Institute, which coordinated the lawsuit, and the 60 Plus Association. When the case was first filed in 2012, eleven states joined it in a broad challenge to Dodd Frank. After the plaintiffs were dismissed by the district court for lack of standing, the bank’s case was reinstated in a D.C. Circuit decision written by then-circuit judge Kavanaugh—a fact which likely led to his recusal from consideration of the cert petition.
Featuring:
Sam Kazman, General Counsel, Competitive Enterprise Institute
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on the 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.

DOJ Filing Emergency Petition on Census Citizenship Question Jan 29, 2019

The inclusion of the citizenship question on the 2020 census remains both uncertain and controversial. On January 15, Judge Jesse M. Furman of the United States District Court in Manhattan issued an opinion blocking the Commerce Department from including a citizenship question. The opinion states that Secretary Ross violated the Administrative Procedure Act (APA) in various ways, including making an “arbitrary” and “capricious” decision to include the citizenship question. The opinion also posits that Secretary Ross violated the APA by failing to justify departures from past policies and practices, and failing to notify Congress of census subjects three years in advance. Judge Furman further believed that Secretary Ross' reasoning for including the citizenship question was "pretextual." However, he did not find that the plaintiffs carried their burden of proof showing that Ross' decision was pretext for impermissible discrimination.
Solicitor General Noel Francisco said on January 22 that the Department of Justice plans to file a petition for writ of certiorari before judgment with a proposal for expedited briefing to allow for oral argument and decision by the end of June, so the census questions can be printed on time. Francisco believes the issue is of such "imperative public importance" that it justifies altering the normal procedure of the Supreme Court to wait until the federal appeals court has had a chance to opine on the case. John Baker joins us to discuss the Solicitor General’s petition, and the likely future of the citizenship question.
Featuring:
Dr. John S. Baker, Jr., Visiting Professor, Georgetown Law
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on the 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: Knick v. Township of Scott, Pennsylvania Jan 22, 2019

The Supreme Court will hear reargument in Knick v. Township of Scott, Pennsylvania on January 16, 2019, to decide whether a property owner can bring a regulatory takings claim in federal court. Since the 1985 Williamson County v. Hamilton Bank decision, property owners have been able to file claims against local government for takings only in state court. And once there, any decision is res judicata to any subsequent federal action. This makes property rights claims the only constitutional right that cannot be vindicated in federal court.
Mrs. Rose Mary Knick owns roughly 40 acres in rural Scott Township in Pennsylvania. At the behest of some local activists the township passed an ordinance that allows members of the public to trespass across her property to visit some large stones that the activists claim are colonial-era gravestones. Mrs. Knick has no legal way to stop this invasion of her property – short of suing for a taking. When she tried to sue in state court she was rebuffed because she hadn’t yet been fined for not allowing the trespass. When she next tried to sue in federal court for a taking, she was again rebuffed, this time because of Williamson County.
The Supreme Court first heard oral argument on October 3, 2018, before an eight-Justice Court. The primary question is whether Williamson County should be overturned. The October argument focused mainly on the nature of a claim for a taking without just compensation. Now, with a full complement of nine Justices, the Court has asked for rehearing. This time the Court requested that the argument be directed to whether a local government becomes liable for a taking when the government actually invades or otherwise destroys the use and value of the property or whether there is no constitutional violation until after a state court denies compensation.
Featuring:
James S. Burling, Vice President for Litigation, 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.

Criminal and Civil Enforcement of Environmental Laws Jan 22, 2019

This Teleforum will provide an overview of criminal and civil enforcement provisions of environmental laws pertaining to water, air, soil, and hazardous materials. It will include a discussion of the factors that the government considers in deciding whether to pursue a criminal or civil case, and the prospects for enforcement and alternative resolutions under the current Administration.
The Teleforum will be hosted by John Irving, a Partner at Holland & Knight LLP, whose practice and prior work as a prosecutor focuses on internal investigations, white collar defense, and environmental enforcement.
Featuring:
John S. Irving IV, Partner, Holland & Knight LLP
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. 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: Franchise Tax Board of California v. Hyatt: Reviving Sister-State Sovereign Immunity Jan 18, 2019

After Gilbert Hyatt, the petitioner, moved to Nevada he was investigated by the Franchise Tax Board of California for failing to pay California personal income taxes. Due to California’s actions in doing so, Hyatt sued California in Nevada’s courts for negligent misrepresentation, intentional infliction of emotional distress, fraud, invasion of privacy, abuse of process, and breach of a confidential relationship for which the jury found for Hyatt on all claims. California appealed the decision seeking to get the judgment vacated on sovereign immunity grounds.
This teleform will discuss the Supreme Court oral arguments in Franchise Tax Board of California v. Hyatt. This case considers if a citizen can sue a state in the court of a different state. This raises a variety of substantial questions concerning federalism and state sovereign immunity. In Nevada v. Hall (1979), the Supreme Court rejected that sister-state immunity was implicit in the Constitution. Today in Hyatt, 44 states, among others, are asking the Court to overturn that decision and protect states from suit in other state’s courts. Professor Stephen Sachs will discuss how the Court approached this case at oral arguments and its implications on the future of state sovereign immunity.
Featuring:
Prof. Stephen E. Sachs, Professor of Law, Duke Law
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. 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.

Dispatches from the Patent Wars: The High-Stakes Battle Between Qualcomm and Apple Jan 18, 2019

American patent law has witnessed a number of high-profile patent wars throughout history and today is no exception. One of the latest chapters is the ongoing battle between Apple and its chip supplier Qualcomm. Among the highlights in this saga, Apple has sued Qualcomm in multiple countries, including in a U.S. suit seeking over a billion dollars in damages, while Qualcomm last month obtained a judgment from a Chinese court ordering Apple to stop selling iPhone 6, 7, and 8 series phones in China. These developments are taking place against a backdrop of disappointing Apple revenues attributed to weak Chinese sales, as well as a shifting international trade environment. This Teleforum will bring together experts to discuss the issues at stake and the likely outcomes of the battle between these technology giants, as well as the larger implications for innovation and intellectual property law and policy.
Featuring:
Prof. Jonathan Barnett, Director, Media, Entertainment and Technology Law Program, University of Southern California, Gould School of Law, Los Angeles
Prof. Thomas F. Cotter, Briggs and Morgan Professor of Law, University of Minnesota Law School
Moderator: Prof. Kristen J. Osenga, Professor of Law, University of Richmond School of Law
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. 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.

Sanctuary City & State Litigation Update: What Happens When Federal and Local Enforcement Priorities Conflict? Jan 18, 2019

The litigation over California's "sanctuary state" law raises important federalism questions that go far beyond the specific issue of immigration policy. The outcome will have a significant impact on potential future state efforts to restrict cooperation with federal law enforcement policies, and federal efforts to compel such cooperation. The litigation involves a federal government challenge to three California laws: Senate Bill 54, which restricts state and local officials from sharing information about immigrants within the state, with federal agencies; Assembly Bill 103, which requires the state attorney general to inspect any facility in the state where immigrants are detained by federal agents while awaiting immigration court dates or deportation; and Assembly Bill 450, which bars private employers from cooperating with federal Immigration and Customs Enforcement raids and audits unless such cooperation is mandated by a court order or a specific federal law. Last summer, a federal district court ruled in favor of California on the first two issues, but supported the federal government on the third. In this teleforum, Ilya Shapiro and Ilya Somin will debate that and related cases and consider their broader implications for federalism.
Featuring:
Mr. Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. 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: Tennessee Wine and Spirits Retailers Association v. Byrd Jan 11, 2019

For the first time in over a decade, the Supreme Court has taken a case that could fundamentally alter the way that alcohol is regulated. In Tennessee Wine and Spirits Retailers Association v. Byrd, which will be argued January 16, the Court will determine whether Tennessee’s durational residency requirements for retail liquor licenses are unconstitutional because they effectively impose a nine-year waiting period on out-of-state individuals and corporations. While the residency requirements for in-state brick-and-mortar retail stores are at the heart of the case, the Court’s decision could have far-reaching effects on shipping by out-of-state retailers. Back in 2005, the Court ruled in Granholm v. Heald that the Commerce Clause prevented states from allowing in-state wineries to ship wine directly to consumers while prohibiting out-of-state wineries from doing the same. Although the Court acknowledged that out-of-state producers were protected against discriminatory and protectionist state laws, it did not reach the question of whether out-of-stateretailers were entitled to the same protections. Joining us to discuss the case is Ilya Shapiro of the Cato Institute and Todd Zywicki of George Mason University’s Antonin Scalia Law School.
Featuring:
Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, Cato Institute
Prof. Todd J. Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia 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 Oral Argument: Merck Sharp & Dohme Corp. v. Albrecht Jan 11, 2019

In Merck Sharp & Dohme Corp. v. Albrecht, the Supreme Court has been asked to clarify the nature of the evidence defendants must produce to demonstrate that state law tort claims are preempted by federal law and whether such questions may be submitted to a jury. The Third Circuit rejected defendants’ contention that preemption was a purely legal issue for the court to decide and suggested that defendants must demonstrate that there is a “high probability” that the FDA would have rejected stronger labeling for a pharmaceutical product in order to invoke preemption. Doug Smith will attend the oral argument and then join us to discuss his thoughts on the proceedings.
Featuring:
Douglas G. Smith, P.C., Partner, Kirkland & Ellis 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.

Book Review: Diversity Delusion Jan 11, 2019

Heather MacDonald discusses her new book: The Diversity Delusion:
"America is in crisis, from the university to the workplace. Toxic ideas first spread by higher education have undermined humanistic values, fueled intolerance, and widened divisions in our larger culture. Chaucer, Shakespeare and Milton? Oppressive. American history? Tyranny. Professors correcting grammar and spelling, or employers hiring by merit? Racist and sexist. Students emerge into the working world believing that human beings are defined by their skin color, gender, and sexual preference, and that oppression based on these characteristics is the American experience. Speech that challenges these campus orthodoxies is silenced with brute force.
The Diversity Delusion argues that the root of this problem is the belief in America’s endemic racism and sexism, a belief that has engendered a metastasizing diversity bureaucracy in society and academia. Diversity commissars denounce meritocratic standards as discriminatory, enforce hiring quotas, and teach students and adults alike to think of themselves as perpetual victims. From #MeToo mania that blurs flirtations with criminal acts, to implicit bias and diversity compliance training that sees racism in every interaction, Heather Mac Donald argues that we are creating a nation of narrowed minds, primed for grievance, and that we are putting our competitive edge at risk.
But there is hope in the works of authors, composers, and artists who have long inspired the best in us. Compiling the author’s decades of research and writing on the subject, The Diversity Delusion calls for a return to the classical liberal pursuits of open-minded inquiry and expression, by which everyone can discover a common humanity."
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Courthouse Steps Decision: Weyerhaeuser v. United States Fish & Wildlife Service Nov 30, 2018

Edward Poitevent’s family has owned timber-rich land in Louisiana since Reconstruction. In the 1990s, Weyerhaeuser Company acquired a lease of the Poitevent property for its timber operations, and Weyerhaeuser also purchased a small piece of the land.
But, in 2012, under cover of the Endangered Species Act, the U.S. Fish and Wildlife Service designated more than 1,500 acres of this property owned by the Poitevent family and Weyerhaeuser a “critical habitat” for the endangered dusky gopher frog. That designation jeopardized development plans for the property that had been in place for years. In the landowners’ view, the designation amounted to a de facto uncompensated taking of the property for the frog
Moreover, no one in the state of Louisiana had spotted the frog in 50 years, and the frog would not survive on the property if it was moved to Louisiana. The only place the frog is found today is nearly 70 miles away from the property—in Mississippi. By locking down land on behalf of a frog that doesn’t - and cannot - live there because of the conditions of the property, the federal government - by its own admission - took an estimated $34 million in economic activity away from the Poitevents and Weyerhaeuser.
On November 27, 2018, the Supreme Court of the United States unanimously ruled that the Fish & Wildlife Service must show that “critical habitat” for an endangered species must in fact be habitat for a species before it can be designated as such. Moreover, in an important administrative law decision, the Court also held that the agency’s decision not to exclude the Poitevent and Weyerhaeuser property from the designation - despite the severe economic impact of the designation to the land owners - was judicially reviewable under the APA. The case is now remanded to the Fifth Circuit for it to consider anew in light of the High Court’s unanimous decision.
Featuring:
Mark Miller, Senior Attorney, Pacific Legal Foundation
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Courthouse Steps Oral Argument: Timbs v. Indiana Nov 30, 2018

In Timbs v. Indiana, after Tyson Timbs pled guilty to drug charges, the State of Indiana civilly forfeited his vehicle on the theory that he used the vehicle to transport drugs. A state trial court ruled that forfeiture of the $42,000 vehicle for the crime of selling less than $400 worth of drugs was “grossly disproportionate” to his wrongdoing and would violate the Eighth Amendment’s ban on excessive fines. The Indiana Supreme Court reversed, holding that the Eighth Amendment’s Excessive Fines Clause did not even apply to the states.
On November 28, 2018, the Supreme Court will hear argument on whether the Eighth Amendment’s prohibition against excessive fines applies to states, just as it has applied to the federal government since 1791.
Darpana Sheth, Senior Attorney with the Institute for Justice, which represents Tyson Timbs, and Director of IJ’s National Initiative to End Forfeiture Abuse, will discuss the oral arguments in this teleforum.
Featuring:
Darpana Sheth, Senior Attorney, Institute for Justice
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. 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: Apple, Inc. v. Pepper Nov 28, 2018

On Monday, November 26, 2018, the U.S. Supreme Court heard oral arguments for Apple, Inc. v. Pepper. At issue is whether Apple device (e.g., iPhone, iPad, etc.) users who buy apps from Apple’s App Store may sue Apple for alleged antitrust violations, or whether only app developers may bring such claims. The 9th Circuit below held that the class-action app purchasers have the standing to seek antitrust damages because of Apple “functions” as a “distributor” when it delivers apps to purchasers. Resolution of the case hinges on properly applying Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), which held that only the direct purchaser of a good or service may sue an allegedly abusive monopolist for damages.
Please join us as Mr. Cory L. Andrews, who filed an amicus curiae brief in the case on behalf of the Washington Legal Foundation, attended oral argument and will discuss the case’s likely outcome and impact.
Teleforum calls are open to all dues-paying members of the Federalist Society. To become a member, sign up here. 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.

New NAFTA or Else ... What? Nov 28, 2018

Last month, the Trump administration announced completion of a U.S.-Canada-Mexico-Agreement, intended to supersede the 1993 North American Free Trade Agreement. Can the new agreement be approved before the new Congress takes office in January? Would a Democrat controlled House of Representatives endorse the new agreement? If the new agreement is not approved by Congress, what can the president do on his own to force changes in NAFTA? How will Washington trade disputes affect relations with Mexico and Canada?
Featuring:
Amb. Antonio Garza, Counsel, White & Case, and former U.S. ambassador to Mexico
Andy Keiser, Principal, Navigators Global, and former chief of staff to House Intelligence Committee
Prof. Timothy Meyer, Professor of Law, Vanderbilt Law School, and expert on foreign relations law and trade law
Moderator: Prof. Jeremy Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. 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.

Book Review: The Once and Future Worker Nov 28, 2018

In his new book, The Once and Future Worker, Manhattan Institute scholar Oren Cass challenges our basic assumptions about what prosperity means and where it comes from. The nation’s economic consensus has long regarded the economy as a “pie” to be grown and divided amongst consumers, but rather than produce a rising tide that lifts all ships, this “economic piety” has led to decades of stagnant wages, a labor-force exodus, too many unstable families, and crumbling communities. The fault doesn’t all lie with the Left or the Right, but with a centrist economic model that abandoned the interests of workers, who provide the foundation for a prosperous society. Cass explains where we went wrong and how reorienting public policy around the interests of workers rather than consumers flips the national debate on its head―or, rather, returns it to its feet—with implications for the environment and organized labor, trade and immigration, education and the safety net, and proposals like “free college” or a “universal basic income."
Featuring:
Oren Cass, Senior Fellow, Manhattan Institute
Adam J. White, Research Fellow, Hoover Institution
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. 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.

The Legal Battle to Enforce Janus v. AFSCME Nov 28, 2018

In June 2018, the Supreme Court in Janus v. AFSCME held it unconstitutional under the First Amendment for the government to compel public employees to pay union dues or fees without their prior consent. This triggered a wave of litigation to enforce the seminal decision and eliminate state and union resistance to it. Among other things, there are cases pending that seek to recover union fees unlawfully seized from employees in the past, as well as cases that seek to strike down restrictions on when employees can exercise their Janus rights in the future. These and other cases, and the issues at stake in post-Janus litigation, will be surveyed by the attorney who briefed and argued Janus in the Supreme Court.
Featuring:
William L. Messenger, Staff Attorney, National Right to Work Legal Defense Foundation
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. 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.

The Clean Water Act and Groundwater Pollution: A Natural Fit or an Interpretive Stretch? Nov 09, 2018

The scope of the Clean Water Act is a notoriously difficult question. Attention has largely focused on the extent to which the Act reaches wetlands, arroyos, ponds, and other surface features that have only slight connections to traditional navigable waters. Three recent decisions from the federal courts of appeals, however, augur an expansion of the controversy. The Fourth and Ninth Circuit Courts of Appeals have ruled that the Act applies to at least some forms of groundwater pollution, whereas the Sixth Circuit has ruled that it doesn’t.
This Federalist Society Teleforum will address the arguments pro and con for construing the Clean Water Act to directly regulate groundwater pollution, as well as the larger policy concerns raised by increased federal involvement in an area of traditional state and local competence.
Featuring:
Damien M. Schiff, Senior Attorney, Pacific Legal Foundation
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. 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: Jam v. International Finance Corp. Nov 08, 2018

The issue at hand in Jam v. International Finance Corp. is whether the International Organizations Immunities Act (IOIA), which gives international organizations the “same immunity” as sovereigns have from suits, confers the same type of immunity as those foreign governments have under the Foreign Sovereign Immunities Act (FISA). The lawsuit began when farmers and fishermen in India were affected economically by the development of a coal-plant in India, by the International Finance Corporation (IFC), which is housed in D.C. and seeks to give aid and support to struggling communities in developing countries around the world. When the petitioners failed at the district and appellate court levels, they appealed up to the Supreme Court, who agreed to take the case while Justice Kennedy was still on the Court. Associate Justice Kavanaugh will sit out on the oral arguments and decision, as he was on the D.C. Circuit when this case was originally heard before that court.
Edwin D. Williamson will address the concerns at stake here, including the involvement of U.S. courts in international human rights issues (including environmental).
Featuring:
Edwin D. Williamson, Retired Partner, Sullivan & Cromwell
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. 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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