Federalist Society Publications http://www.fed-soc.org/rss/publications.asp en-us (c) 2011 Mon, 20 May 2013 01:01:44 EST http://feedvalidator.org/docs/rss2.html www.eResources.com (Generator) info@fed-soc.org (Federalist Society) support@eresources.com (eResources) 60 <![CDATA[Improving the Use of Science for Policy - Podcast]]> Improving the Use of Science for Policy - PodcastScientific information is essential for making sound public policy decisions, particularly those related to health, safety and the environment. Yet the acrimony surrounding many decisions, with accusations of “politicized science” and “junk science,” hinders informed discussion and achievement of policy goals. Recent reports from the Bipartisan Policy Center, the National Academy of Sciences, and the Keystone Group have offered recommendations for improving the use of science for public policy, and the Administrative Conference of the United States is currently developing recommendations for steps agencies could take to improve their procedures for incorporating science inputs in regulatory decisions. On this previously recorded conference call, our experts explore the most significant challenges facing how science is used to inform public policy and what can be done to overcome them.

Featuring:

  • Prof. E. Donald Elliott, Professor (Adjunct) of Law, Yale Law School
  • Mr. David Goldston, Director, Government Affairs Program, Natural Resources Defense Council
  • Prof. Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law; Professorial Lecturer in Law, The George Washington University Law School
  • Moderator: Prof. Susan E. Dudley, Director of the Regulatory Studies Center and Research Professor of Public Policy and Public Administration, The Trachtenberg School of Public Policy and Public Administration, The George Washington University
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

]]> Fri, 17 May 2013 11:47:00 EST E. Donald Elliott
David Goldston
Alan B. Morrison
Susan E. Dudley
Dean A. Reuter <![CDATA[Marijuana: Examining the Tensions Between State and Federal Laws - Podcast]]> Marijuana: Examining the Tensions Between State and Federal Laws - PodcastAlthough possession and distribution of marijuana is still a violation of international treaties and the federal Controlled Substances Act, 18 states plus the District of Columbia have legalized the use of medical marijuana. On November 6th, Washington and Colorado went a step further when voters in those states passed referenda legalizing the possession and use of marijuana by adults for recreational purposes with state regulation of sales, although a similar referendum was narrowly defeated in Oregon. Washington will allow those at least 21 years old to buy as much as one ounce (28 grams) of marijuana from a licensed retailer. Colorado's measure allows possession of an ounce, and permits growing as many as six plants in private, secure areas. The Department of Justice has not publicly declared how it will respond to these developments, only stating that it is still studying the issue. From the standpoint of federalism, is this a good or a bad development? How should the federal government respond to these state initiatives? Should the federal government prosecute those who buy and sell marijuana when such activity is legal under state law? Would it be fair (and consistent with equal protection) for the federal government to prosecute those who possess and sell marijuana in states that have not passed marijuana-legalization laws, but not to do so in states that have? On this previously recorded conference, Georgetown Law Prof. Randy Barnett (who argued before the Supreme Court in Gonzales v. Raich case that Congress lacked the authority to criminalize the production of home-grown marijuana for personal medical use) and McGregor “Greg” Scott (former United States Attorney for the Eastern District of California and District Attorney of Shasta County California) engage in a lively debate on these issues and answer questions from callers.

Featuring:

  • Prof. Randy Barnett, Georgetown University Law Center
  • Mr. McGregor Scott, Orrick, Herrington & Sutcliffe LLP
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

]]> Fri, 17 May 2013 10:49:00 EST Randy E. Barnett
McGregor Scott
Dean A. Reuter <![CDATA[DNA and Patents: Association for Molecular Pathology v. Myriad Genetics, Inc. - Podcast]]> DNA and Patents: Association for Molecular Pathology v. Myriad Genetics, Inc. - PodcastOn Monday, April 15, the Supreme Court heard oral argument in a patents case, Association for Molecular Pathology v. Myriad Genetics, Inc, concerning whether human genes can be patented.  Myriad Genetics, which identified two sections of the genetic code that might indicate higher risk for certain types of cancer, obtained patents on the "isolated" or removed versions of these two genes on the basis that Myriad invented a new chemical in the process of identifying and removing these genes from the body.  The challengers claim that Myriad Genetics has created nothing new, but rather the process is an examination of a substance found in nature whose attributes remain unchanged.  What will the Court’s decision hold for a field where thousands of gene patents have already been secured?  Do such patents inhibit or promote further such discoveries, or is the evidence clear?  On this previously recorded conference call, our expert, who attended the oral argument, discusses and provides his thoughts on the case and answers questions from callers.

Featuring:

  • Prof. Gregory Dolin, Associate Professor and Co-Director, Center for Medicine and Law, University of Baltimore School of Law
  • Moderator: Mr. Christian Corrigan, Director of Publications, The Federalist Society

[Listen now!]

]]> Tue, 14 May 2013 17:57:00 EST Gregory Dolin
Christian Corrigan <![CDATA[Litigation Alert: Amgen: A Pyrrhic Victory For Plaintiffs in Securities Class Actions? - Podcast]]> Litigation Alert: Amgen: A Pyrrhic Victory For Plaintiffs in Securities Class Actions? - PodcastOn this previously recorded conference call, Prof. J.W. Verret discusses three interrelated dimensions of the Supreme Court case Amgen v. Connecticut, which held that shareholder class actions under the 10(b)-5 anti-fraud rule do not need to establish that alleged misstatements are material to use the fraud on the market presumption (which allows them to meet the reliance requirement in those actions) in obtaining class certification.  
 
On one level this case appeared to be a victory for the plaintiff's bar.  Since nearly all securities class actions either settle or are dismissed, a heightened pleading standard to obtain class certification could have significantly limited the settlement value of these suits.  
 
On a second dimension, some of the Justices joining the opinion signaled their willingness to abandon the fraud on the market presumption, and its underlying assumption of market efficiency, altogether.  The fraud on the market presumption assumes that all publicly available information is incorporated into stock price, and therefore essentially obviates the need for thousands of class action plaintiffs to demonstrate their reliance on particular fraudulent information and instead allows them to merely demonstrate their reliance on the stock's price.  In that sense, this opinion may portend a future and major victory for the defense bar.  
 
Yet on a third dimension, if the Court begins to relax the efficient markets assumption which underlies judicial doctrine in 10(b)-5 and the securities laws themselves, this may have unintended consequences for cost-benefit analysis in disclosure rule making by the Commission and for adjudication of other elements of 10(b)-5.

Featuring:

  • Prof. J.W. Verret, George Mason University School of Law
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

]]> Tue, 14 May 2013 17:39:00 EST J.W. Verret
Dean A. Reuter <![CDATA[Is the Patent System Working or Broken? A Discussion with Four Distinguished Federal Judges - Event Audio/Video]]> Is the Patent System Working or Broken? A Discussion with Four Distinguished Federal JudgesToday, people read almost daily reports about the "broken patent system" in newspaper articles, blogs and at social media websites. Is this true? On the one hand, the high-tech and biotech industries seem awash in patent litigation, and Congress, the FTC, and the Supreme Court are considering adopting a variety of reform measures. On the other hand, the availability of patents and the property rights they secure are driving  technological innovations once imagined only as science fiction - tablet computers, smart phones, genetically modified seeds, genetic testing for cancer, personalized medical treatments for debilitating diseases, and many others - and these technological marvels are now a commonplace feature of our lives.

A panel of distinguished jurists will discuss these two conflicting perspectives on whether the patent system today promotes or hampers innovation: Arthur Gajarsa, former Judge on the Court of Appeals for the Federal Circuit, Paul Michel, former Chief Judge of the Court of Appeals for the Federal Circuit, and Richard Posner, Judge of the Court of Appeals for the Seventh Circuit. The panel will be moderated by Douglas Ginsburg, former Chief Judge of the Court of Appeals for the D.C. Circuit and a Professor of Law at George Mason University School of Law.

The panelists have combined many years of experience in adjudicating patent cases, writing and speaking on patent or IP policy, and engaging with legal and policy issues closely connected with the patent system, such as antitrust and law and economics. With wide-ranging views on the current health of the patent system and the relevant solutions, the panel discussion will be insightful and illuminating. The event is co-sponsored by the Center for the Protection of Intellectual Property at George Mason University School of Law and the Federalist Society's Intellectual Property Practice Group.

Featuring:

  • Hon. Arthur J. Gajarsa, former Judge, U.S. Court of Appeals, Federal Circuit
  • Hon. Paul R. Michel, former Chief Judge, U.S. Court of Appeals, Federal Circuit
  • Hon. Richard A. Posner, Judge, U.S. Court of Appeals, Seventh Circuit
  • Hon. Douglas H. Ginsburg, Senior Circuit Judge, U.S. Court of Appeals, D.C. Circuit and Professor of Law, George Mason University School of Law - Moderator
  • Introduction by: Prof. Adam Mossoff, George Mason University School of Law 

National Press Club
Washington, DC

[Watch or listen now!]

]]> Tue, 14 May 2013 16:29:00 EST Arthur J. Gajarsa
Paul R. Michel
Richard Posner
Douglas H. Ginsburg
Adam Mossoff <![CDATA[Amgen Inc. v. Connecticut Retirement Plans and Trust Funds - Post-Decision SCOTUScast]]> Charles R. KorsmoOn February 27, 2013 the Supreme Court announced its decision in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds. The question in this case is twofold: (a) whether, in misrepresentation actions under SEC Rule 10-b(5), plaintiffs asserting a fraud-on-the-market theory must prove materiality before they can proceed with a class action, and (b) whether the defendants are permitted to present evidence rebutting a fraud-on-the-market theory at the class certification stage.

In an opinion delivered by Justice Ginsburg, the Court held by a vote of 6-3 that proof of materiality is not necessary for certification of a class-action  that seeks damages for violations of the SEC rule; nor did the lower court err in declining to consider rebuttal evidence at the class-certification stage.  Chief Justice Roberts and Justices Breyer, Alito, Sotomayor and Kagan joined the opinion.  Justice Alito filed a concurring opinion.  Justice Scalia filed a dissenting opinion.  Justice Thomas filed a separate dissenting opinion, which was joined by Justice Kennedy and Justice Scalia in all except Part 1-B.

To discuss the case, we have Charles Korsmo, who is an Assistant Professor at Case Western Reserve University School of Law.

[Listen now!]

]]> Tue, 14 May 2013 13:48:00 EST Charles Korsmo <![CDATA[What is Left of the Alien Tort Statute after Kiobel v. Royal Dutch Petroleum? - Podcast]]> What is Left of the Alien Tort Statute after Kiobel v. Royal Dutch Petroleum? - PodcastOn April 17, 2013, the Supreme Court decided Kiobel v. Royal Dutch Petroleum Co., holding that the Alien Tort Statute does not have extraterritorial reach.  This halts the recent trend of parties being hauled into United States courts for alleged torts that occurred in another country with no connection to the United States.  This teleforum discusses the implications of this landmark decision.

Featuring:

  • Prof. Chimène Keitner, University of California Hastings College of the Law
  • Prof. Julian G. Ku, Professor of Law and Faculty Director of International Programs, Hofstra University Maurice A. Deane School of Law
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

]]> Mon, 13 May 2013 17:31:00 EST Chimène Keitner
Julian Ku
Dean A. Reuter <![CDATA[For the Sake of National Security: Plugging in the Leaks - Podcast]]> For the Sake of National Security: Plugging in the Leaks - PodcastLeaks seem to be ubiquitous these days.  Within the past several years, government employees have revealed details about a number of classified military and intelligence matters, including the following: a Pakistani doctor who is said to have helped the CIA track down Osama bin Laden in Pakistan; the government’s purported process for selecting targets for drone strikes, including President Obama’s personal participation in the decisions; and the alleged role of the United States and Israel in developing malware designed to disable the Iranian regime’s nuclear weapons program.

What are the government’s options for preventing or sanctioning these sorts of leaks?  And what are the constitutional constraints on these efforts to safeguard classified information?  May the government prosecute alleged leakers under the Espionage Act, a World War I era statute designed to protect against spies working for foreign governments?  May it prosecute newspapers, bloggers, and others who publish leaked documents?  Even if the Espionage Act applies to leaks on its face, do the First Amendment and other constitutional guarantees nevertheless prohibit the government from punishing employees who leak documents and media outlets who publish them?  Should Congress amend the Espionage Act to better address leaks?  Or should it scrap the statute and craft entirely new legislation that is specifically geared to the problem?

Featuring:

  • Prof. Nathan A. Sales, George Mason University School of Law
  • Mr. Ben Wizner, Director, Speech, Privacy & Technology Project, American Civil Liberties Union
  • Moderator: Mr. Christian Corrigan, Director of Publications, The Federalist Society

[Listen now!]

]]> Mon, 13 May 2013 16:49:00 EST Nathan A. Sales
Ben Wizner
Christian Corrigan <![CDATA[Adoptive Couple v. Baby Girl - Post-Argument SCOTUScast]]> Thomas F. GedeOn April 16, 2013, the Supreme Court heard oral argument in Adoptive Couple v. Baby Girl.  The case involves the Indian Child Welfare Act (IWCA) of 1978, and considers the following: 1) whether a biological father who initially renounced custodial rights over his daughter can invoke the ICWA to block her adoption by a non-Indian couple; and 2) whether the ICWA’s definition of “parent” includes an unwed biological father who has not followed state rules for obtaining legal status as a parent. 

To discuss the case we have Tom Gede, a commissioner on the Indian Law and Order Commission and Of Counsel with Bingham McCutchen LLP.

[Listen now!]

]]> Mon, 13 May 2013 13:58:00 EST Thomas F. Gede <![CDATA[Controlling Legal Practice: Public Ownership of Stock in Law Firms - Podcast]]> Controlling Legal Practice: Public Ownership of Stock in Law Firms - PodcastAll U.S. jurisdictions (except DC) prohibit anyone not a lawyer from owning an equity interest in a law firm. Proponents of the prohibition have argued that it is an element of legal professionalism and serves the interests of lawyers' clients. Great Britain and Australia have recently abandoned this prohibition, arguing that clients may be better served by well-financed practice organizations that can acquire technology and other resources for efficient practice.  Both countries have substituted regulation of practice entities' behavior for limitations on who their owners may be.

This Teleforum explores whether any changes now should be made in the U.S. approach. Our panelists have been prominent in the current debate about this issue.

Featuring:

  • Mr. Francis J. Menton, Jr., Partner, Willkie Farr & Gallagher LLP
  • Prof. Thomas D. Morgan, Oppenheim Professor of Antitrust and Trade Regulation Law, George Washington University Law School
  • Mr. John E. Thies, President, Illinois State Bar Association, and Shareholder, Webber & Thies, P.C.
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

]]> Thu, 09 May 2013 15:54:00 EST Francis J. Menton
Thomas D. Morgan
John E. Thies
Dean A. Reuter <![CDATA[Too Big to Prosecute? - Podcast]]> Too Big to Prosecute? - PodcastAre some large firms, financial or otherwise, getting a free pass from prosecution because of their size and scope of operations? How about their responsible officers?  Recent congressional hearings have raised concerns that this may indeed be the case.  Is it ever appropriate for agencies and prosecutors to consider the size of a business when contemplating enforcement actions?  Some would say that the prosecution of the accounting firm Arthur Andersen in 2002 (subsequently overturned by the Supreme Court) put the firm out of business, putting thousands of employees on the unemployment lines and further concentrating the accounting industry.  Others contend that the problem with prosecuting large firms alone justifies limiting the size of firms.  Is it enough for justice and deterrence sake to be able to take enforcement actions against culpable individuals without prosecuting the whole company?

On this previously held conference call, these and other questions are discussed by two people with direct experience with these issues.  As a member of the Securities and Exchange Commission from July 2002 through August 2008, Paul Atkins had to face these questions from the enforcement side.  Former Deputy White House Counsel Timothy Flanigan served as Senior Vice President and Deputy General Counsel for Tyco International after the leadership of the firm was subject to prosecution for alleged significant misdeeds.  Flanigan is credited with a leading role in the efforts to restore the credibility of the firm, allowing it to continue as an ongoing enterprise.

Featuring:

  • Hon. Paul S. Atkins, Chief Executive, Patomak Global Partners, and former Commissioner, U.S. Securities & Exchange Commission
  • Hon. Timothy E. Flanigan, Partner, McGuireWoods LLP, and former Deputy White House Counsel
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

]]> Thu, 09 May 2013 15:06:00 EST Paul S. Atkins
Timothy E. Flanigan
Dean A. Reuter <![CDATA[Boyer v. Louisiana - Post-Decision SCOTUScast]]> Amy MooreOn April 29, 2013, the Supreme Court issued an opinion in Boyer v. Louisiana. The question in this case was whether, when a criminal death penalty trial is delayed due to the state’s failure to fund defense counsel, that delay should count against against the state in a subsequent “speedy trial” analysis.

The case was dismissed as improvidently granted.  Justice Alito filed a concurring opinion, which was joined by Justices Scalia and Thomas, arguing that the factual record demonstrated  most of the delay at issue was not actually caused by the state breakdown in funding.  Justice Sotomayor filed a dissent, joined by Justices Ginsburg, Breyer, and Kagan, that would have reached the merits, held the state responsible for the delay, and remanded the case for further proceedings.

To discuss the case, we have Amy Moore, who is an Associate Professor of Law at Belmont University College of Law.

[Listen now!]

]]> Tue, 07 May 2013 16:08:00 EST Amy Moore <![CDATA[The Boston Terrorist Attack and Strategic Intelligence - Podcast]]> The Boston Terrorist Attack and Strategic Intelligence - PodcastBecause the surviving Boston bomber, Dzhokhar Tsarnaev, is a U.S. citizen, trial before a military commission is not available under the Military Commissions Act. Indefinite detention as an enemy combatant was an option, but that appears to have been taken off the table by the Obama Administration. So the question is the extent and value of Miranda-free interrogation. Was Mr. Tsarnaev read his Miranda rights prematurely? And what should or could the FBI and the rest of the intelligence community have done in advance of the attack, if anything, to monitor or surveil the deceased suspect, Tamerlan Tsarnaev, in view of the request from Russia and the the elder Tsarnaev brother’s 2012 return trip?

Featuring:

  • Mr. Andrew C. McCarthy, Executive Director, Philadelphia Freedom Center and Contributing Editor, National Review
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

]]> Tue, 07 May 2013 15:34:00 EST Andrew C. McCarthy
Dean A. Reuter <![CDATA[NLRB Posting Regulations - Podcast]]> NLRB employee rightsOn August 30, 2011, with the then-one Republican member dissenting, the National Labor Relations Board promulgated a rule that would require for the first time that all private employers in the country post a notice advising employees in detail of their statutory rights to unionize and engage in union activities.  Employers who fail to post the notice would be guilty of a new, Board-created unfair labor practice, could lose the protection of the National Labor Relations Act’s six-month statute of limitations, and could have that failure be considered as evidence against them in cases involving other unfair labor practices.  The posting requirement is not yet effective, due to litigation brought against the Board challenging its authority to promulgate this rule. In a case brought by the National Association of Manufacturers, the National Right to Work Legal Defense Foundation, and others, the United States District Court for the District of Columbia held that the Board has the authority to require all employers to post the notice.  It struck down the penalty provisions insofar as they would be blanket rules, but permitted the Board to apply them on a case-by-case basis.  However, soon thereafter, in a case brought by the U.S. Chamber of Commerce, the United States District Court for the District of South Carolina held that the Board lacked statutory authority to promulgate the notice-posting rule.  Both district court decisions have been appealed.  The D.C. Circuit enjoined enforcement of the rule pending its decision, and heard argument on September 11, 2012.  The Fourth Circuit heard oral argument on March 19, 2013 in the Board's appeal from the South Carolina district court’s decision.  Maury Baskin of Venable LLP, who argued for the D.C. plaintiffs, and SEIU Associate General Counsel Walter Kamiat discuss the issues and give their assessment of the arguments in the two courts of appeals.

Featuring:

  • Mr. Maurice Baskin, Partner, Venable LLP
  • Mr. Walter Kamiat, Associate General Counsel, Service Employees International Union
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

]]> Tue, 07 May 2013 15:12:00 EST Maurice Baskin
Walter Kamiat
Dean A. Reuter <![CDATA[U.S. Airways, Inc. V. McCutchen - Post-Decision SCOTUScast]]> Jason MendroOn April 17, 2013, the Supreme Court announced its decision in U.S. Airways, Inc. v. McCutchen. The case considered whether under Employee Retirement Income Security Act (ERISA) an injured employee who has medical expenses paid through his employer’s benefit plan--and who then sues and recovers damages from the third party who was responsible for the injury--is required to reimburse the benefit plan in full, even when some of the damages went to cover attorney’s fees.

In an opinion delivered by Justice Kagan, the Court held by a vote of 5-4 that in an ERISA section 502(a)(3) action based on equitable lien by agreement (like that in the present case), the ERISA plan's terms govern. Neither general unjust enrichment principles nor specific doctrines reflecting those principles can override the applicable contract.  Because the plan here is silent with respect to allocating costs of recovery, however, the common-fund doctrine still applies.  As a result, the lower court opinion must be vacated and the case remanded for further proceedings.

Justices Kennedy, Ginsburg, Breyer and Sotomayor joined the majority opinion.  Justice Scalia filed a dissenting opinion, which was joined by Chief Justice Roberts and Justices Alito and Thomas.

To discuss the case, we have Jason Mendro, who is a Partner in the Washington, DC office of Gibson, Dunn and Crutcher.

[Listen now!]

]]> Tue, 07 May 2013 11:49:00 EST Jason Mendro <![CDATA[Cost and Benefits of FY 2012 Regulations - Podcast]]> Cost and Benefits of FY 2012 Regulations - PodcastOn Friday, April 19, the Office of Management and Budget quietly released its draft 2013 Report to Congress on the Benefits and Costs of Regulations, covering all regulatory activity through the end of fiscal year 2012. By the administration’s own estimates, the rules it issued in FY2012 imposed more costs on the economy than all the rules issued during the entire first terms of Presidents Bush and Clinton, combined. On this previously held conference call, the speakers critically examine the report and the manner in which it was produced and answer questions from callers.

Featuring:

  • Mr. Randall E. Davis, Stuntz, Davis & Staffier, P.C.
  • Prof. Susan E. Dudley, Director of the Regulatory Studies Center and Research Professor of Public Policy and Public Administration, The Trachtenberg School of Public Policy and Public Administration, The George Washington University
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

]]> Tue, 07 May 2013 11:27:00 EST Randall E. Davis
Susan E. Dudley
Dean A. Reuter <![CDATA[Al-Qaeda in the United States: A Complete Analysis of Terrorism Offences - Podcast]]> Al-Qaeda in the United States: A Complete Analysis of Terrorism Offences - Podcast“Al-Qaeda in the United States,” a unique and previously unreleased work of The Henry Jackson Society, constitutes the most in-depth analysis of al-Qaeda (AQ) terrorism in the United States to date. At over 700 pages, the publication provides a comprehensive analysis of all those convicted of AQ and AQ-inspired terrorism in U.S. courts since 1997, or who committed suicide attacks on U.S. soil.

As well as profiles of all those who committed such offences, the report contains a statistical breakdown and analysis of key trends, including nationality, age, occupation, percentage of religious converts, education levels, type of charge, the role of each individual offender, connections to terrorist networks, whether terrorist training was undertaken, place of residence, whether the individual had combat experience, and more.

In the report’s foreword, former CIA Director General Michael Hayden writes “A study of this scale, of this ambition and of this meticulousness has never before been attempted in the United States and its findings will allow those responsible for our security and our liberty to make judgments based on fact rather than on hyperbole, fear or prejudice.”

The report’s co-authors, Robin Simcox and Emily Dyer, both of the Henry Jackson Society, and National Review Contributing Editor Andrew C. McCarthy discuss the report and answer questions from the audience.

Featuring:

  • Ms. Emily Dyer, Research Fellow, Henry Jackson Society
  • Mr. Robin Simcox, Research Fellow, Henry Jackson Society
  • Commentary by: Mr. Andrew C. McCarthy, Executive Director, Philadelphia Freedom Center
  • Moderator: Mr. David C.F. Ray, Associate Director of Practice Groups, The Federalist Society

[Listen now!]

]]> Mon, 06 May 2013 16:00:00 EST Emily Dyer
Robin Simcox
Andrew C. McCarthy
David C.F. Ray <![CDATA[What to Expect When No One is Expecting - Podcast]]> What to Expect When No One is Expecting bookConventional wisdom for the past 50 or so years argues that American and world population growth spell doom for the human race, the world economy, the availability of food stocks and other critical natural resources, the environment and even the Earth itself. In “What to Expect When No One is Expecting”, author Jonathan Last asserts that these underlying assumptions are incorrect. He assesses the consequences of the notable and persistent decreases in population growth, or even a failure of population maintenance, and suggests that they are even more alarming. On this previously recorded live conference call, author Jonathan Last is interviewed by National Review’s Ramesh Ponnuru about his book, and answer questions from the audience.

Speakers:

  • Mr. Jonathan Last, Senior Writer, The Weekly Standard
  • Mr. Ramesh Ponnuru, Senior Editor, National Review
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

]]> Mon, 06 May 2013 10:49:00 EST Jonathan V. Last
Ramesh Ponnuru
Dean A. Reuter <![CDATA[University of Texas Southwestern Medical Center v. Nassar - Post-Argument SCOTUScast]]> Charles ShanorOn April 24, 2013, the Supreme Court heard oral argument in University of Texas Southwestern Medical Center v. Nassar.  The question in the case is whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action). 

To discuss the case, we have Charles Shanor, who is a Professor of Law at Emory University School of Law.

[Listen now!]

]]> Fri, 03 May 2013 15:16:00 EST Charles Shanor <![CDATA[The Pentagon, the National Security Agency, and Domestic Cybersecurity - Podcast]]> The Pentagon, the National Security Agency, and Domestic Cybersecurity - PodcastProtecting against cyberattacks requires a unique public-private partnership.  Many of the government's best resources are in the U.S. Military and the National Security Agency, both of which are constrained in their operations within the United States.  Should these organizations play a role in protecting the domestic critical infrastructure from cyberattacks?

Our experts weigh in on this installment of our Cybersecurity Teleforum Series.

Featuring:

  • Mr. Steven G. Bradbury, Partner, Dechert LLP, and former head of the Office of Legal Counsel, U.S. Department of Justice
  • Mr. Joel F. Brenner, Principal, Joel Brenner LLC, former National Counterintelligence Executive, and former Inspector General and Senior Counsel, National Security Agency
  • Ms. Michelle Richardson, Legislative Counsel, American Civil Liberties Union
  • Commentary and Questions by: Ms. Ellen Nakashima, National Security Reporter, The Washington Post
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

]]> Fri, 03 May 2013 11:18:00 EST Steven G. Bradbury
Joel F. Brenner
Michelle Richardson
Ellen Nakashima
Dean A. Reuter <![CDATA[Shareholder Value Theory: Myth or Motivator? - Event Video]]> Shareholder Value Theory: Myth or Motivator?Conventional wisdom holds that corporations should maximize shareholder value. In her new book “The Shareholder Value Myth: How Putting Shareholders First Harms Investors, Corporations, and the Public” (Berrett-Koehler, 2012), Lynn Stout argues that this is a harmful myth. According to Stout, shareholder value thinking leads managers to focus exclusively on short-term earnings to the detriment of investors, corporations, and the public. 

According to Jon Macey, however, while shareholder value maximization may be a myth, it helpfully constrains corporate managers. Leaving corporate managers with unconstrained choices — the real result of Stout's argument — would be far more dangerous.    

Join Macey and Stout as they debate shareholder value thinking and its implications for the corporate community, public policy arena, and public.

Panelists:

  • Lynn Stout, Cornell Law School
  • Jon Macey, Yale Law School
  • Moderator: Alex Pollock, AEI
  • Introduction: Hon. Lee Liberman Otis, Senior Vice President & Faculty Division Director, The Federalist Society

 

American Enterprise Institute
Washington, DC

[Watch now!]

]]> Fri, 03 May 2013 10:35:00 EST Lynn A. Stout
Jonathan R. Macey
Alex J. Pollock
Lee Liberman Otis <![CDATA[Using the Schools After Hours? Not a Prayer - Podcast]]> Using the Schools After Hours? Not a PrayerSince 1995, a small evangelical church, Bronx Household of Faith, has been in court challenging the policy of the New York City public schools that prohibits religious groups from conducting worship services in the vacant buildings during nonschool hours, while allowing other community groups to meet for any purpose "pertaining to the welfare of the community."  The case pits the First Amendment rights of religious groups against New York City's concerns that use of a school building for a worship service would violate the Establishment Clause. During the 2010-11 school year, community groups and individuals used New York City's 1,200 school buildings schools for approximately 120,000 events.  No other major school district in the nation has a similar policy banning worship services.

Bronx Household of Faith won an injunction in federal district court in 2001, which ruled that the NYC policy violated the Freedom of Speech Clause. In 2011, the Second Circuit overturned the injunction on a 2-1 vote, ruling that NYC's concerns about possible Establishment Clause violations justified the policy.  The Supreme Court denied cert on December 5, 2011.

Bronx Household returned to court, and asked for a new injunction based on the Free Exercise Clause and the Establishment Clause. J udge Loretta Preska issued a new injunction in February 2012.  New York City appealed to the Second Circuit, which heard oral arguments on November 19, 2012.  This case presents a classic clash between religious groups seeking to use public buildings on the same terms and conditions as other community groups, and New York City's view of the Establishment Clause, which it asserts requires it to exclude religious groups in order to show that the schools are neutral towards religion.  Debating this case are Jordan Lorence, Senior Counsel for Alliance Defending Freedom, who has represented Bronx Household of Faith in this case since the beginning of the lawsuit, and Professor Alan E. Brownstein of UC-Davis Law School, a noted scholar on church-state legal issues.

Featuring:

  • Prof. Alan E. Brownstein, University of California Davis School of Law
  • Mr. Jordan Lorence, Senior Counsel & Senior Vice President, Office of Strategic Initiatives, Alliance Defence Foundation
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

]]> Thu, 02 May 2013 17:23:00 EST Alan E. Brownstein
Jordan Lorence
Dean A. Reuter <![CDATA[The NLRB and Class Action Waivers: D.R. Horton v. NLRB - Podcast]]> The NLRB and Class Action Waivers: D.R. Horton v. NLRBThis case involves an epic clash between two federal statutes enacted many decades ago.  On one side is the Federal Arbitration Act, which requires that arbitration agreements be enforced according to their terms.  On the other side is the National Labor Relations Act, which protects the right of employees to engage in protected concerted activity.  The clash is over mandatory arbitration agreements that waive the right of employees to file class or collective actions under federal or state employment laws.  The U.S. Supreme Court has repeatedly upheld these waivers in arbitration agreements under the Federal Arbitration Act.  However, the National Labor Relations Board held in D.R. Horton that requiring such a waiver in a mandatory arbitration agreement is an unfair labor practice because it restricts the right of employees to engage in concerted activity affecting their working conditions.  In so holding, the NLRB rejected the contrary opinion of its former General Counsel.  The employer in that case appealed to the Fifth Circuit, which held oral argument on February 5, 2013.  Meanwhile, numerous other federal and state courts around the country have rejected the D.R. Horton reasoning in litigation involving the enforceability of class waivers in arbitration agreements.

Our experts offered their perspectives on the oral arguments and on the merits of the case, and answered questions.

Featuring:

  • Mr. Ron Chapman, Jr., Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
  • Hon. Ronald Meisburg, Partner, Proskauer Rose LLP; former Member and General Counsel, National Labor Relations Board
  • Moderator: Mr. William J. Emanuel, Shareholder, Littler Mendelson
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

]]> Thu, 02 May 2013 17:06:00 EST Ron Chapman
Ronald E. Meisburg
William J. Emanuel
Dean A. Reuter <![CDATA[Arbitration and Class Actions in the Supreme Court: American Express v. Italian Colors Restaurant - Podcast]]> Arbitration and Class Actions in the Supreme Court: American Express v. Italian Colors RestaurantIn American Express Co. v. Italian Colors Restaurant, the Supreme Court considered an important question regarding the enforceability of arbitration agreements that contain class action waivers.  In 2011, the Court held in AT&T Mobility LLC v. Concepcion that state law purporting to invalidate class action waivers in arbitration agreements is preempted by the Federal Arbitration Act.  In Italian Colors, however, which involves a Sherman Act class action brought by retailers against American Express for alleged tying violations relating to its credit card agreements, the Second Circuit held that the “federal substantive law of arbitrability” invalidated the class action waiver provision in American Express’s arbitration agreements with merchants that accept its credit cards.  The court of appeals reasoned that the class action waiver provision was invalid under federal law because it would “effectively preclude any action seeking to vindicate the statutory rights asserted by” the plaintiff class, given the prohibitive expense of trying to prove an antitrust claim on an individual basis.  The Second Circuit concluded that Concepcion was inapposite, because there had been no showing there that “the practical effect of the enforcement would be to preclude [the plaintiff class’s] ability to vindicate their statutory rights.”  The Supreme Court will now decide whether its Concepcion decision really did vindicate the ability of business defendants to enforce class action waivers in arbitration agreements, or instead whether plaintiffs can escape such provisions whenever they can show that individual litigation of federal claims would be prohibitively expensive.

Our expert, Thomas G. Hungar of Gibson, Dunn & Crutcher, attended the oral argument and then provided his analysis of the merits of the case and the possible outcomes in light of the oral arguments.

Featuring:

  • Mr. Thomas G. Hungar, Partner, Gibson Dunn & Crutcher LLP
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

]]> Wed, 01 May 2013 16:10:00 EST Thomas G. Hungar
Dean A. Reuter <![CDATA[Association for Molecular Pathology v. Myriad Genetics - Post-Argument SCOTUScast]]> Gregory DolinOn April 15, 2013, the Supreme Court heard oral argument in Association for Molecular Pathology v. Myriad Genetics, Inc.  The issue in this case is whether human genes are patentable. 

To discuss the case, we have Gregory Dolin, who is Associate Professor and Co-Director of the Center for Medicine and Law at the University of Baltimore School of Law.

[Listen now!]

]]> Tue, 30 Apr 2013 14:55:00 EST Gregory Dolin <![CDATA[Moncrieffe v. Holder - Post-Decision SCOTUScast]]> D. Scott BroylesOn April 23, 2013, the Supreme Court announced its decision in Moncrieffe v. Holder. The question in this case was whether a conviction under state law that encompasses--but is not limited to--distributing marijuana without remuneration constitutes an “aggravated felony” for purposes of deportation under the Immigration and Nationality Act (INA).

In an opinion delivered by Justice Sotomayor, the Court held by a vote of 7-2 that if a non-citizen’s conviction for a marijuana distribution offense fails to establish that the offense involved either remuneration or more than a small amount of marijuana, the conviction does constitute an “aggravated felony” for purposes of the INA.  Chief Justice Roberts and Justices Scalia, Kennedy, Ginsburg, Breyer and Kagan joined the majority opinion.  Justices Thomas and Alito filed dissenting opinions.

To discuss the case, we have Scott Broyles, who is an Assistant Professor at Charlotte School of Law.

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]]> Tue, 30 Apr 2013 14:33:00 EST D. Scott Broyles <![CDATA[McBurney v. Young - Post-Decision SCOTUScast]]> Christopher GreenOn April 29, 2013 the Supreme Court announced its decision in McBurney v.Young.  The question in the case was whether Virginia's Freedom of Information Act (FOIA) violates the Privileges and Immunities Clause of Article IV and the dormant Commerce Clause of the United States Constitution by declining to grant citizens of other states the right of access to public records that Virginia affords its own citizens.

In an unanimous opinion delivered by Justice Alito, the Court held that Virginia’s FOIA does not violate the Privileges and Immunities Clause or the dormant Commerce Clause.  Justice Thomas filed a concurring opinion. 

To discuss the case, we have Christopher Green, who is a professor at the University of Mississippi School of Law  and currently visiting at the University of San Diego School of Law.

[Listen now!]

]]> Mon, 29 Apr 2013 18:31:00 EST Christopher R. Green <![CDATA[The Seeds of Patent Law: Bowman v. Monsanto - Podcast]]> The Seeds of Patent Law: Bowman v. Monsanto - PodcastOn Tuesday, February 19, the U.S. Supreme Court heard oral argument in Bowman v. Monsanto, an extremely important case about the scope of patent licensing rights and their important role in the biotech industry. Nominally, the case is about whether Monsanto can impose a single-use restriction on purchases of its patented genetically modified soybean seed. Bowman, who reused Monsanto's patented seed in violation of express license terms prohibiting him from doing this, says “no” because the seed, unlike patented technologies in the mechanical or high-tech fields, is necessarily “self-replicating.” Monsanto maintains that without the ability to impose the types of use restrictions that patent-owners have legally done since the early 19th century, it cannot recoup its substantial R&D investments in these valuable and life-enhancing products of the biotech revolution. The implications of this case go far beyond genetically modified seeds and the green revolution, as patented isolated DNA, microorganisms, and cell lines used in medical treatments are all “self-replicating.” This case raises fundamental questions about the scope of patent protection over forms of life and how the patent system functions in securing the new innovation that has made the green and biotech revolutions—and the wonders of modern life—possible.


Featuring:

  • Prof. Adam Mossoff, Professor of Law, George Mason University School of Law
  • Mr. Douglas T. Nelson, Executive Vice President, General Counsel and Secretary, CropLife America
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

]]> Mon, 29 Apr 2013 15:35:00 EST Adam Mossoff
Douglas T. Nelson
Dean A. Reuter <![CDATA[HHS "Contraceptive" Mandate - Litigation Update - Podcast]]> HHS The controversy over the HHS contraceptive mandate has generated over 50 lawsuits, on behalf of more than 160 different plaintiffs.  Most of the litigation on behalf of non-profit entities (universities, hospitals, etc.) has been on hold, awaiting the administration's planned issuance of a new final rule with an "accommodation" for non-profits with religious objections.  Litigation on behalf of for-profit businesses and their owners, however, is moving through the courts of appeals, with several courts hearing arguments in May and June.  To date, the for-profit businesses have won 17 preliminary injunctions, and been denied relief in 6 cases.

Mark Rienzi, who is Senior Counsel at the Becket Fund for Religious Liberty and an associate professor at the Catholic University of America's Columbus School of Law, discussed the current status of the cases during this teleforum.  Our Religious Liberties Practice Group Chairman, William L. Saunders, introduced Prof. Rienzi and provided his commentary to Professor Rienzi’s remarks.

Featuring:

  • Prof. Mark L. Rienzi, The Catholic University of America Columbus School of Law and Senior Counsel, Becket Fund for Religious Liberty
  • Introduction and Commentary: Mr. William L. “Bill” Saunders, Senior Vice President and Senior Counsel, Americans United for Life and Chairman, Religious Liberties Practice Group
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]

]]> Mon, 29 Apr 2013 15:15:00 EST Mark L. Rienzi
William L. Saunders
Dean A. Reuter <![CDATA[Agency for International Development v. Alliance for Open Society International - Post-Argument SCOTUScast]]> Erik JaffeOn April 22, 2013, the Supreme Court heard oral argument in Agency for International Development v. Alliance for Open Society International, Inc.  The question in the case is whether  United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. § 7631(f), which requires an organization to have a policy explicitly opposing prostitution and sex trafficking in order to receive federal funding to provide HIV and AIDS programs overseas, violates the First Amendment.

To discuss the case we have Erik Jaffe, a Washington, D.C. attorney who specializes in appellate litigation.

[Listen now!] 

]]> Fri, 26 Apr 2013 11:18:00 EST Erik S. Jaffe