Federalist Society Practice Groups Podcasts

Striking Power

info@fed-soc.org (The Federalist Society) — 25 Sep 2017 16:30:09 GMT

International & National Security Law Practice Group Podcast

Threats to international peace and security include the proliferation of weapons of mass destruction, rogue nations, and international terrorism. In Striking Power, Professor Jeremy Rabkin and Professor John Yoo argue that the United States must respond to these challenges to its national security and to world stability by embracing new military technologies such as drones, autonomous robots, and cyber weapons. These weapons can provide more precise, less destructive means to coerce opponents to stop WMD proliferation, clamp down on terrorism, or end humanitarian disasters. Efforts to constrain new military technologies are not only doomed, Rabkin and Yoo argue, but dangerous. Most weapons in themselves are not good or evil; their morality turns on the motives and purposes for the war itself. These new weapons can send a strong message without death or severe personal injury, and as a result can make war less, rather than more, destructive.

Vince Vitkowsky moderated�a discussion with the authors of�Striking Power�about these issues and others.

Featuring:

Prof. Jeremy Rabkin,�Professor of Law, Antonin Scalia Law School, George Mason University�
Prof. John Yoo,�Emanuel S. Heller Professor of Law, Co-Faculty Director, Korea Law Center
Moderator: Vincent J. Vitkowsky,�Partner, Seiger Gfeller Laurie LLP�

Litigation Update: Sanctuary Cities in the District Court

info@fed-soc.org (The Federalist Society) — 22 Sep 2017 16:28:34 GMT

Federalism & Separation of Powers Practice Group Podcast

On Friday, September 15 Judge Harry Leinenweber of the Northern District of Illinois granted a preliminary injunction against the federal government�s enforcement of a new Justice Department requirement tied to federal funding. The new Byrne Justice Assistant�Grants require sanctuary cities that want federal funding to cooperate with federal immigration officials and notify them before illegal immigrants are going to be released from jail. Dr. John Eastman of Chapman University will join us to discuss the significance of the ruling and the future of the litigation.

Featuring:

Dr. John C. Eastman,�Henry Salvatori Professor of Law & Community Service, Chapman University School of Law

The European Commission�s Google Decision: Searching for Answers

info@fed-soc.org (The Federalist Society) — 27 Sep 2017 16:26:49 GMT

Corporations, Securities & Antitrust and Telecommunications & Electronic Media Practice Group Podcast

On June 27, the European Commission issued the long awaited opinion in its competition case against Google. The Commission held that Google had abused its dominant position as an Internet search engine by promoting its own comparison shopping service in search results and demoting those of competitors. In addition to imposing a fine of €2.42 billion ($2.7 billion) � the largest fine the E.U. has ever levied in an abuse of dominance case � the Commission ordered Google to correct the unlawful conduct within 90 days or face penalty payments up to 5% of the company�s average daily worldwide turnover. This conduct component of the remedy potentially places the company under Commission oversight for years to come. In addition, Google is likely to face related civil actions in individual Member States brought by competitors � aided by the new E.U. Directive on Antitrust Damages Actions � alleging that their business has been hurt by Google�s search practices.

The Commission�s view of the case is in stark contrast to that of U.S. antitrust enforcers who, after thoroughly investigating much the same conduct, elected to take no action. What does the decision mean for the future of antitrust enforcement on both sides of the Atlantic? Does it suggest a move toward more aggressive enforcement in area of single firm conduct, particular in the tech sector? Is the Commission�s approach a new one or does it reflect the re-emergence of “essential facilities� theories? Are U.S. and European antitrust enforcers now headed in different directions generally or is this case an outlier? Will the E.U.'s actions embolden other countries around the world?

Featuring:

James C. Cooper,�Associate Professor of Law and Director, Program on Economics & Privacy, Antonin Scalia Law School, George Mason University�
J�rgen Schindler,�Partner,�Allen & Overy (Belgium) LLP
Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal and Economic Public Policy Studies
Moderator: John Delacourt,�Vice President, Legal Affairs and Global Operations, Plasma Protein Therapeutics Association

Janus in the Court

info@fed-soc.org (The Federalist Society) — 19 Sep 2017 16:25:21 GMT

Labor & Employment Law Practice Group Podcast

In 1977 in�Abood v. Detroit Board of Education, the Supreme Court ruled that public employees, including school teachers, could legally be required to pay a fee if they refuse to join a public-sector union. According to the Detroit Board of Education, the fee was necessary to off-set the costs the union incurred while bargaining on behalf of union and non-union members alike.

A similar case came to the Supreme Court in 2014, but the Supreme Court did not answer the primary question of�Abood, instead ruling that the public employees in question were not actually public employees. Last year, the Supreme Court was left in deadlock in a similar case on the same issue after Justice Scalia�s passing.

Janus v. AFSCME, brought by an employee of the Illinois Department of Healthcare and Family Services who does not believe he should be legally obliged to join a union, is pending cert in the Supreme Court. William Messenger, Staff Attorney at the National Right to Work Foundation, joined us to discuss the probability of�Janus�being heard at the Court and what that could mean for the future of public-sector employees and unions.

Featuring:

William L. Messenger,�Staff Attorney,�National Right to Work Legal Defense and Education Foundation, Inc.�

Politics and Federal Antitrust Enforcement: Strangers or Bedfellows?

info@fed-soc.org (The Federalist Society) — 15 Sep 2017 16:23:22 GMT

Corporations, Securities, & Antitrust Practice Group Podcast

Some antitrust lawyers often say the federal government�s decisions about which mergers to challenge, which monopolists to rein in, and which price-fixers to send to jail are relatively consistent regardless of who occupies the White House.�But has federal antitrust enforcement really been entirely apolitical, based on economics, and divorced from other issues such as trade, job creation, and national security? Should it be?�A panel of distinguished practitioners and former top government officials from both parties discussed�these issues in our Teleforum, which was�especially timely given calls by Senate Democrats for increased antitrust enforcement as part of “A Better Deal� and the increasing use of competition law by foreign governments against U.S. companies.

Featuring:�

Jon Leibowitz, Partner,�Davis Polk & Wardwell LLP, and Former Chair, Federal Trade Commission� ��
William�E.�Kovacic,�Global Competition Professor of Law and Policy & Director, Competition Law Center, The George Washington University Law School, and Former Chair, Federal Trade Commission
Seth Bloom,�President & Founder,�Bloom Strategic Counsel PLLC, and Former General Counsel, U.S. Senate Judiciary Committee Antitrust Subcommittee
Tad Lipsky, Former Senior Federal Trade Commission, U.S. Justice Department Antitrust Division Official, and Retired Partner, Latham & Watkins
Moderator:�Richard M. Steuer,�Senior Counsel,�Mayer Brown LLP, and Former Chair, American Bar Association Antitrust Section

Law Firm Preferences

info@fed-soc.org (The Federalist Society) — 15 Sep 2017 16:21:50 GMT

Civil Rights Practice Group Podcast

Major American corporations are pressuring their outside law firms to meet diversity goals�both firm-wide and in the legal teams assigned to the company�s work. For example, Facebook announced this year that the law firm teams working on its matters must consist of at least 33 percent women and minorities. This pressure has resulted in the widespread use of race and gender preferences in hiring, promotion, and work assignment decisions by America�s premier law firms. Are these preferences legal under Title VII of the 1964 Civil Rights Act and 42 U.S.C. § 1981? Are they good policy? Curt Levey, a constitutional law attorney who has worked on several affirmative action cases � including the University of Michigan cases (Grutter�and�Gratz) � joined us to analyze the arguments on both sides of these questions.

Featuring:�

Curt Levey, President, The Committee for Justice and Legal Affairs Fellow, FreedomWorks

Antitrust Implications of Pharmaceutical Pricing: from Martin Shkreli to EpiPen

info@fed-soc.org (The Federalist Society) — 14 Sep 2017 16:20:22 GMT

Corporations, Securities & Antitrust Practice Group Podcast

From Martin Shkreli to the Epipen, decisions about pharmaceutical pricing and distribution have been very much in the news of late.� Much of the discussion centers on whether or not it is immoral to charge high prices.� The question remains, however, about whether those business practices raise antitrust concerns.� Can a high price in and of itself violate antitrust laws?� What about policies that limit the channels through which a particular product is distributed?� Professor Michael Carrier of Rutgers Law School analyzed these questions, noting the arguments both for and against a finding of antitrust liability, as well as discussing the particular circumstances that have raised a red flag from an antitrust perspective in some of these recent cases.

Featuring:�

Prof. Michael A. Carrier, Distinguished Professor of Law,�Rutgers Law School

Patent Law and Antitrust

info@fed-soc.org (The Federalist Society) — 8 Sep 2017 17:16:36 GMT

Intellectual Property Law Practice Group Podcast

Recent developments in US patent law, particularly the Americans Invents Act (AIA) and the Supreme Court�s jurisprudence on patent-eligible subject matter, have raised questions of whether, and to what extent, the Constitutional directive to promote technological innovation has been undermined or frustrated. The panel discussed whether the U.S. is shifting from a view of patents as private property, to one of public rights, and, if so, whether concepts from antitrust law will begin to color, if not dominate, patent enforcement jurisprudence. The practical implications of a public rights view of patents�and the imposition of antitrust issues on the enforcement of patent rights were discussed as well.

Featuring:

Mr. Philip Johnson,�Senior Vice President,�Intellectual Property Strategy & Policy, Johnson & Johnson (ret).
Prof. Kristen Osenga,�Professor of Law, University of Richmond School of Law
Mr. Robert G. Sterne,�Director, Sterne�Kessler�Goldstein Fox
Moderator: Mr. Howard J. Klein,�Attorney, Klein O'Neill & Singh LLP

Courthouse Steps: DOL Overtime Rule

info@fed-soc.org (The Federalist Society) — 7 Sep 2017 17:14:54 GMT

Labor & Employment Law Practice Group Podcast

On Thursday, August 31, Judge Mazzant of the Eastern District of Texas invalidated the Department of Labor�s Overtime Rule, which would have increased the minimum salary level for overtime-exempt employees from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). Maury Baskin and Tammy McCutchen of Littler Mendelson joined us to discuss the decision and its significance.

Featuring:�

Maury Baskin,�Shareholder, Littler Mendelson, PC
Tammy D. McCutchen,�Shareholder, Littler Mendelson, PC

Fiduciary Rule Update

info@fed-soc.org (The Federalist Society) — 4 Aug 2017 17:12:50 GMT

Labor & Employment Law Practice Group Podcast

On April 8, 2016, the Department of Labor (DOL) published the Fiduciary Rule, which greatly expanded the universe of entities and persons that DOL deems to be fiduciaries with respect to retirement plans under the Employment Retirement Income Security Act of 1974 and with respect to Individual Retirement Accounts under the Internal Revenue Code.�The Rule was originally scheduled to become applicable on April 10, 2017.�However, in February of 2017, President Trump issued a memorandum directing DOL to reexamine the Rule to consider whether it would reduce access to investment services or increase litigation. Two months later, shortly before the April deadline, DOL extended the applicability date of some of the Rule�s requirements until June 7, 2017 and others until�January 1, 2018. Then, in July of this year, DOL invited public comments on possible changes to the Rule and on whether the�January 1�deadlines should be extended further.�In the meantime, litigation has been waged over the Fiduciary Rule�s legality.

Jason Mendro, Partner at Gibson Dunn, discussed the past, present, and future status of the Fiduciary Rule

Featuring:

Jason Mendro, Partner, Gibson, Dunn & Crutcher�

Warning to Corporate Counsel: If State AGs Can Do This to ExxonMobil, How Safe Is Your Company?

info@fed-soc.org (The Federalist Society) — 31 Aug 2017 17:11:23 GMT

Corporations, Securities, & Antitrust Practice Group Podcast

Nation-states have long fought wars for control of oil. In a novel development, American states are now fighting a war over control of oil�not with one state attempting to take oil from another, but with some states attempting to deny its use to other states. In 2015, New York�s Attorney General, Eric Schneiderman, began an investigation of ExxonMobil. Then, at a news conference held in New York City on March 29, 2016, Schneiderman said that he and a group of other attorneys general were looking at “creative legal theories� to bring about “the beginning of the end of our addiction to fossil fuel.��The group is comprised of seventeen attorneys general, representing fifteen states, the District of Columbia, and one territory.�Opposing these attorneys general from mostly “blue states� are attorneys general from twenty-seven mostly “red states.��Professor Baker�joined us to discuss his article:�"Warning to Corporate Counsel: If State AGs Can Do This to ExxonMobil, How Safe Is Your Company?"

Featuring:�

Prof. John S. Baker, Jr.,�Ph.D., Visiting Professor, Georgetown University Law Center & Professor Emeritus, Louisiana State University Law Center

The Persecution and Genocide of Christians in the Middle East: Prevention, Prohibition, & Prosecution

info@fed-soc.org (The Federalist Society) — 24 Aug 2017 17:09:35 GMT

International & National Security Law & Religious Liberties Practice Group Podcast

Since the summer of 2014, ISIS has been waging a blitz through Iraq's Nineveh province, murdering and displacing Iraqi Christians and others. The European Union, Britain, and the U.S. have labeled the campaign to eradicate Christianity from Iraq as genocide. However many in the West, even Christians, remain unaware of the scale of this persecution, and even fewer know what can be done about it.�The Persecution and Genocide of Christians in the Middle East�focuses on persecuted Christians, but its analysis applies equally to the other victims. In the United States, military and diplomatic responses are contemplated and sometimes undertaken. But what about the legal system? Are there things we can or should be trying? That question animates this book as it explores various facets of religious persecution.

Featuring:

Prof. Ronald J. Rychlak,�Co-Editor & Contributor,�The Persecution and Genocide of Christians in the Middle East: Prevention, Prohibition, & Prosecution,�Professor of Law, Jamie L. Whitten Chair of Law and Government, and Faculty Athletics Representative, University of Mississippi School of Law
Nina Shea,�Director, Center for Religious Freedom, Hudson Institute, Former Commissioner on the U.S. Commission on International Religious Freedom

The Third Party Doctrine and Carpenter v. United States

info@fed-soc.org (The Federalist Society) — 18 Aug 2017 14:42:52 GMT

Criminal Law & Procedure Practice Group Podcast

According to the Fourth Amendment, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]� But how does that provision apply to the vast troves of information that Americans and businesses increasingly collect, send, receive, and store?

On June 5, 2017, the Supreme Court granted certiorari in�Carpenter v. United States�to resolve the question of whether the Fourth Amendment prohibits warrantless gathering of historical cellular phone records that include location information, also known as historical cell-site location information (CSLI). Judge Raymond M. Kethledge wrote for a panel of the Sixth Circuit that “although the content of personal communications is private, the information necessary to get those communications from point A to point B is not.� Historical CSLI, Judge Kethledge wrote, “fall[s] on the unprotected side of [the] line� because it is routing information used to “facilitate personal communications, rather than part of the content of those communications themselves.� Thus, the government does not need a warrant to obtain the information.

The doctrine applied by the Sixth Circuit is called the third-party doctrine. Although an older form of the third-party doctrine was articulated in�Ex Parte Jackson�(1878), which distinguished between the addressing information for postal mail and its contents, the contemporary third-party doctrine traces its roots to the “reasonable expectation of privacy� test articulated in�Katz v. United States(1967). Its modern form is most closely associated with two of Katz�s progeny,�United States v. Miller�(1976) and�Smith v. Maryland�(1979). In those cases, the Supreme Court applied Katz and concluded that the information at issue (bank records and information collected by a pen register device) was not entitled to Fourth Amendment protection.

Featuring:

Jim Harper,�Vice President, Competitive Enterprise Institute
Orin S. Kerr,�Fred C. Stevenson Research Professor of Law, The George Washington University Law School

Patents and Antitrust, Worldwide

info@fed-soc.org (The Federalist Society) — 17 Aug 2017 14:41:29 GMT

Intellectual Property Law Practice Group Podcast

The smartphone patent wars have caused a great deal of litigation and consternation. As global patent litigation has accelerated, an international arms race characterized by competing alliances and massive portfolio acquisitions ensued. One recurring claim was "hold-up": certain patent owners, having given assurances that they would license their essential technologies on reasonable and nondiscriminatory (RAND) terms, sought to enjoin smartphone makers from practicing industry standards. Charged with protecting consumers, antitrust enforcers experienced pressure to do something.

The FTC and other competition agencies responded aggressively, clamping down on perceived efforts by owners of RAND-encumbered SEPs to hold-up standard implementers. They happened upon the rule that such patentees violate antitrust law if they try to enjoin a “willing licensee��essentially a “no-injunction rule.� While that approach has intuitive appeal, is it consistent with core antitrust principles? Does the�no-injunction properly consider whether the relevant conduct harms competition?� Have the U.S. Federal Trade Commission's actions emboldened foreign competition agencies to act aggressively?� These and other questions were addressed.

Featuring:

Hon. Maureen K. Ohlhausen,�Acting Chairman, Federal Trade Commission
Mr. Alex Okuliar,�Partner, Orrick, Herrington & Sutcliffe LLP

Benefit-Cost Analysis and the Courts

info@fed-soc.org (The Federalist Society) — 16 Aug 2017 14:38:43 GMT

Administrative Law & Regulation Practice Group Podcast

This call highlighted recent trends in how the courts have considered benefit-cost analysis when reviewing regulations under various statutes. Our experts examined�the pros and cons of greater judicial review of regulatory analysis and the effect of judicial review on agency behavior. Professor Emily Hammond,�Professor of Law�at�The George Washington University Law School,�and Eugene Scalia,�Partner at Gibson, Dunn & Crutcher LLP, �joined us to discuss these important topics. �

Featuring:

Emily Hammond,�Professor of Law,�The George Washington University Law School
Eugene Scalia,�Partner, Gibson, Dunn & Crutcher LLP

ALI Civil Justice Update

info@fed-soc.org (The Federalist Society) — 10 Aug 2017 15:15:09 GMT

Litigation Practice Group Podcast

Since 1923,�the �American Law Institute has exercised more influence on judge-made common law than any other private institution. The ALI�s most influential work has come in the form of periodic publications known as Restatements of the Law. These descriptions of existing law are relied on and trusted by judges, lawyers, legal scholars, and law students for thoughtfully objective analysis. In 2009, ALI published the first volume of “Restatement of the Law Third, Torts: Liability for Physical and Emotional Harm.� For the first time in the institute�s history, its restatement went beyond reviewing existing law and recommended fundamental change: an unprecedented expansion of landowners� duty of care to all visitors, including unwanted trespassers. This restatement was lauded by the trial bar and sent shockwaves through corporate legal circles.�Although ALI has as much right as other interest groups to advocate for changes in the law, is it still entitled to special deference from judges? Justice Antonin Scalia raised concerns in a 2015 opinion. The authors of ALI restatements, he observed, have “over time . . . abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be.� Victor Schwartz, Partner at Shook Hardy & Bacon, joined�us for a discussion on the American Law Institute's evolving position on civil liability reform.

Featuring:

Victor E. Schwartz,�Partner, Shook, Hardy & Bacon LLP

Litigation Update: UT-Austin Faces Lawsuit Over Race-Based Admissions

info@fed-soc.org (The Federalist Society) — 10 Aug 2017 15:13:36 GMT

Civil Rights Practice Group Podcast

In July 2017, Students for Fair Admissions, a non-profit membership organization comprised of over 21,000 students, parents, and others, filed a lawsuit in Texas state court against the University of Texas at Austin. The organization alleges that UT�s racial preferences in admissions violate the Texas Constitution and a Texas statute. In particular, the Texas Constitution provides that: “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.� This Equal Rights Amendment was purportedly enacted by the people of Texas to provide more expansive protection against discrimination than the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Edward Blum, the president of Students for Fair Admissions, joined us to discuss the use of race-based preferences in the admissions process and the organization�s new lawsuit against the University of Texas at Austin.

Featuring:

Edward Blum,�Visiting Fellow, American Enterprise Institute,�President, Students for Fair Admissions,�President, Project on Fair Representation

Please visit the�Students for Fair Admissions website�for more information on this subject.

Ransomware, Cybercrime Victims and Law Enforcement

info@fed-soc.org (The Federalist Society) — 9 Aug 2017 15:10:29 GMT

Criminal Law & Procedure Practice Group Podcast

Recent headlines make clear the threat posed by cyber criminals, especially those that deploy so-called ransomware.� Although federal law enforcement has urged victims to report cyber incidents and generally recommends that victims not give in to a ransom demand unless all other options are exhausted, a recent report by IBM Security found that 70 percent of businesses infected have paid ransom.

The ransomware epidemic highlights a potential asymmetry of interests between cybercrime victims and law enforcement.� The chief concern of a victim of a ransomware attack may be to regain access to business data and systems, even if paying the ransom funds the perpetrator and potentially leads to further attacks.� Meanwhile, law enforcement has only a limited ability to assist a victim in incident response.� How can cybercrime victims and law enforcement better work together to better protect victim interests and better advance law enforcement's work?

Featuring:

Prof. Howard W. Cox,�Adjunct Professor, George Washington University
Steven�Chabinsky,�Global Data, Privacy, and Cybersecurity Practice Chair,�White & Case LLP

The Future of Fintech Regulation

info@fed-soc.org (The Federalist Society) — 7 Aug 2017 16:06:02 GMT

Financial Services & E-Commerce Practice Group Podcast

Technology is having a significant impact on how financial services are being delivered. The rise of non-bank financial firms using the internet as�a means of distribution is calling into question the divide between state and federal regulation and the definition of what a “bank� is. The Office of the Comptroller of the Currency has responded by offering a new banking charter for non-depository�fintech�firms, while the states have filed law suits to prevent what they see as an illegal overreach by the OCC into their jurisdiction. How�fintech�firms are regulated, and by whom, could have a significant impact on how innovative, accessible, and inclusive financial services are in the future.

Featuring:�

Brian Knight,�Senior Research Fellow, Financial Markets Working Group, Mercatus Center, George Mason University
John W. Ryan,�President and Chief Executive Officer, Conference of State Bank Supervisors
Moderator: Hon. Wayne A. Abernathy,�Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association

DOL Overtime Update

info@fed-soc.org (The Federalist Society) — 28 Jul 2017 16:00:25 GMT

Labor & Employment Law Practice Group Podcast

On Wednesday, the Department of Labor�published a Request for Information seeking comments from the public on the Obama Administration�s 2016 changes to the overtime exemption regulations which would have required payment of overtime to any employee earning less than $913 per week ($47,476 annualized). That regulation was enjoined by the Eastern District of Texas just days before it was to go into effect. Tammy McCutchen, who was Wage and Hour Division Administrator�in 2004 when DOL last changed the rules and is a member of the legal team challenging the 2016 regulations, will discuss the RFI, the litigation and the interplay between them.

Featuring:

Tammy D. McCutchen ,�Shareholder, Littler Mendelson, PC

Lee v. US: Effectiveness of Counsel

info@fed-soc.org (The Federalist Society) — 27 Jul 2017 16:27:42 GMT

Professional Responsibilities & Legal Education Practice Group Podcast

Jae Lee lived in the United States as a legal permanent resident since 1982. In 2009, he was arrested for possession of ecstasy and intent to distribute. Lee�s counsel advised him to accept a guilty plea because of the compelling case against him, assuring Lee that in doing so he would not face deportation. However, because he plead guilty to an aggravated felony, Lee was set for deportation under the Immigration and Nationality Act. �Lee appealed, claiming he had ineffective counsel under the two-pronged Strickland Standard: whether counsel was ineffective and if the counsel�s actions affected the outcome of the case. Had he known he could be deported, Lee argued, he would have gone to trial.

On June 23, the Supreme Court ruled 6-2 in favor of Lee. Laura Howell and Brian R. Frazelle, both authors of amicus briefs in this case, joined us to discuss the ruling and its implications.

Featuring:

Brian R. Frazelle, Appellate Counsel, Constitutional Accountability Center
Laura Howell,�Assistant Attorney General, Alabama Attorney General's Office

Global Politics of Internet Regulation: Actors and Trajectory

info@fed-soc.org (The Federalist Society) — 26 Jul 2017 16:25:18 GMT

Telecommunications & Electronic Media Practice Group Podcast

In recent years, the United Nations� International Telecommunication Union has become an arena where governments promote rival visions of the future of the organization and, more importantly, how the Internet itself should be governed.� These debates reflect a growing tension around a foundational question: to what extent can and should nation-states act to manage the flow of information within their sovereign territory?� As the Internet�s importance as a driver for global economic and social growth has grown over the past decade, so too has the interest of some governments to secure for themselves a larger role in regulating the technical, economic, and policy aspects of its management. �

Governments are driven by a range of objectives as they consider the future of the Internet, including access and uptake, competition policy, privacy and security, and, in some cases, regime stability.� Will it be possible to accommodate some governments� desire for a more robust role and still maintain essential democratic principles such as the free flow of information between people around the world, universal human rights, and the core belief that has driven the Internet�s exponential growth over the past decade: that users, companies, and civil society � not governments � ought to control the Internet�s future?� What are the political, economic, and geopolitical factors driving Internet regulation and policies?� Umair Javed moderated a discussion with Will Hudson of Google, Sally Wentworth of the Internet Society, and Patricia Paoletta of Harris, Wiltshire & Grannis to explain recent activities at the UN to influence global Internet policy.

Featuring:

Will Hudson,�Senior Advisor for International Policy, Google Inc.
Patricia J. Paoletta,�Partner, Harris, Wiltshire & Grannis LLP
Sally Wentworth,�Vice President of Global Policy Development, Internet Society
Moderator: Umair Javed,�Associate, Wiley Rein LLP�

Are Existing Civil Rights Policies Based on a Statistical Understanding That Is the Opposite of Reality?

info@fed-soc.org (The Federalist Society) — 25 Jul 2017 15:36:21 GMT

Civil Rights Practice Group Podcast

For decades, the DOJ�s civil rights enforcement policies regarding lending, school discipline, and criminal justice have been premised on the belief that relaxing standards and otherwise reducing the frequency of adverse outcomes will reduce percentage racial differences in rates of experiencing those outcomes.��Exactly the opposite is the case.�Generally reducing any adverse outcome tends to increase, not decrease, percentage racial differences in rates of experiencing those outcomes. This Teleforum discussed whether the Sessions DOJ will be able to understand the statistical issues and, if so, how such understanding should affect civil rights enforcement policies. Click�here�to access materials referenced in this Podcast. Click�here�for Jim's website.

Featuring:

James P. Scanlan,�Attorney at Law
Moderator: Roger B. Clegg,�President and General Counsel, Center for Equal Opportunity

Immigration Moratorium Back in the Courts

info@fed-soc.org (The Federalist Society) — 25 Jul 2017 15:34:40 GMT

International & National Security Law Practice Group Podcast

Eighteen days after the Supreme Court granted certiorari in�Trump v. International Refugee Assistance Project�and stay applications were granted in part, on July 14, 2017, Judge Watson of the District Court of Hawaii ruled that grandparents, grandchildren, aunts, uncles, and other relatives of people could not be prevented from entering the country as they qualified as persons with a “bona fide relationship� under the Supreme Court ruling.

On July 19, 2017, the Supreme Court upheld parts of the District Court order. Ilya Somin and Josh Blackman joined us again to discuss�developments in the litigation of Executive Order 13780.

Featuring:�

Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law, Houston
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University

Antitrust in the Modern Era

info@fed-soc.org (The Federalist Society) — 24 Jul 2017 15:33:12 GMT

Corporations, Securities & Antitrust Practice Group Podcast

With a change in administration, businesses and consumers alike are searching the tea leaves for indications about how new policy setters will analyze market power, mergers and acquisitions.� Will economic analysis play a greater or lesser role?�Will the conventional distinctions between horizontal and vertical mergers persist?�How will consumer interest be weighed? On the international front, is foreign countries� use of competition laws to influence or judge American businesses on the rise and, if so, to what effect?

Featuring:�

Hon. Joshua D. Wright, Professor of Law, Antonin Scalia Law School, George Mason University

State Efforts to Rein In ADA (Americans with Disabilities Act) Lawsuits

info@fed-soc.org (The Federalist Society) — 24 Jul 2017 15:31:07 GMT

Labor & Employment Law Practice Group Podcast

July 26th�will mark the 26th anniversary of the Americans with Disabilities Act. Enacted in 1990 to prohibit discrimination of the disabled and provide disability access to public accommodations nationwide, it has also been used throughout the years as the basis for thousands of lawsuits across the country. These lawsuits can sometimes result in financial windfalls for trial attorneys with little to no impact on improving access for the disabled community. Arizona Attorney General Mark Brnovich discussed the strategies his office has employed to ensure this important law is used properly.

Featuring:

Hon. Mark Brnovich,�Arizona Attorney General

Reauthorization of Section 702

info@fed-soc.org (The Federalist Society) — 19 Jul 2017 15:46:48 GMT

International & National Security Law Practice Group Podcast

Section 702 of the Foreign Intelligence Surveillance Act (FISA) is up for reauthorization in 2017. An earlier version of the program was instituted�after 9/11 by President George W. Bush. In 2007, Congress adopted the Protect America Act and one year later passed the FISA Amendments Act, which included Section 702. Section 702 allows the government to target for surveillance non-U.S. citizens “reasonably believed to be located outside the United States to acquire foreign intelligence information.� The authorization does not extend to non-citizens outside the country to gain information on citizens or permanent residents believed to be residing in the United States.

While proponents of the law argue it is necessary for national security, critics claim that U.S. citizens are too often incidentally swept into surveillance due to the nature of the “targeting procedures� employed by intelligence agencies, and therefore reforms are needed to protect their privacy. Our experts discussed reauthorization, what it would mean if Congress chose not to act, and what kinds of reforms are under consideration.

.Featuring:�

Adam Klein,�Senior Fellow, Center for a New American Security
Kate Martin,�Senior Fellow, Center for American Progress�
Moderator: Karen Lugo,�Founder, Libertas-West Project

Eminent Domain: A Comparative Perspective by Professor Ilya Somin, et al.

info@fed-soc.org (The Federalist Society) — 18 Jul 2017 21:42:06 GMT

Environmental Law & Property Rights Practice Group Podcast

The taking of private property for development projects has caused controversy in many nations, where it has often been used to benefit powerful interests at the expense of the general public. In their recent book,�Eminent Domain: A Comparative Perspective�(Cambridge University Press), editors Ilya Somin, Iljoong Kim, and Hojun Lee use a common framework to analyze the law and economics of eminent domain around the world. They show that seemingly disparate nations face a common set of problems in seeking to regulate the condemnation of private property by the state. They include the tendency to forcibly displace the poor and politically weak for the benefit of those with greater influence, disputes over compensation, and resort to condemnation in cases where it destroys more economic value than it creates. With contributions from leading scholars in the fields of property law and economics, the book offers a comparative perspective and considers a wide range of possible solutions to these problems. Professor Richard Epstein and Professor Ilya Somin joined us to discuss this interesting book.

Featuring:

Professor�Richard A. Epstein,�Laurence A. Tisch Professor of Law, New York University School of Law
Professor�Ilya Somin,�Professor of Law, Antonin Scalia Law School, George Mason University

The Layered Model of Adjudication and Enforcement of Net Neutrality with the FTC, DOJ, and State AGs

info@fed-soc.org (The Federalist Society) — 14 Jul 2017 21:16:16 GMT

Telecommunications & Electronic Media Practice Group Podcast

A number of regulatory advocates assert that Title II of the Communications Act, enforced by the Federal Communications Commission, is the only way to protect net neutrality. Research by Roslyn Layton, PhD,�who has studied net neutrality in 50 countries, suggests otherwise. Moreover, a layered model using existing antitrust and consumer protection laws enforced by the Federal Trade Commission, Department of Justice, and State Attorneys General may well provide more effective and less costly regulation. Alex Okuliar, formerly an advisor to FTC Commissioner (now Acting Chairman) Ohlhausen, interviewed�Roslyn Layton about her research on these issues and the layered model of enforcement.

Featuring:�

Roslyn Layton, Visiting Fellow, American Enterprise Institute
Moderator: Alex Okuliar, Partner, Orrick, Herrington & Sutcliffe LLPAlexander Okuliar Partner, Orrick, Herrington & Sutcliffe LLP

Persuader Rule Update

info@fed-soc.org (The Federalist Society) — 12 Jul 2017 21:14:01 GMT

Labor & Employment Law Practice Group Podcast

On March 24, 2016 the DOL�s Office of Labor-Management Standards (OLMS) issued the so-called “persuader�rule� that would greatly inhibit the ability of businesses to rely on labor experts�and the ability of employers to obtain legal advice in responding to union organizing campaigns. For nearly 50 years the DOL has recognized that�advice, including legal advice,�is excluded from reporting under federal labor law. The�new�persuader�rule would have forced lawyers and law firms that counsel a business on most labor relations matters to disclose not only their work with that client, but also all fees and arrangements for all clients for all labor-relations services.� Several lawsuits were filed challenging this rule on statutory and First Amendment grounds.�On June 27, 2016, a district court in Texas issued a preliminary injunction enjoining DOL from implementing the new rule. The district court then made that preliminary injunction permanent in November 2016, and DOL has appealed to the Fifth Circuit.��While DOL�s appeal is pending, on�June 12 DOL issued a proposal to rescind the rule.

Christopher�C.�Murray, a shareholder at Ogletree Deakins, represents some of the business groups�in the Texas litigation�who sued to stop the “persuader�rule� from taking effect. He provided an update on the current state of play with regard to the litigation and proposed rulemaking.

Featuring:

Christopher C. Murray,�Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
Moderator: Karen Harned,�Executive Director, National Federation of Independent Business Small Business Legal Center

Compensation for the Wrongfully Imprisoned?

info@fed-soc.org (The Federalist Society) — 11 Jul 2017 21:11:45 GMT

Criminal Law & Procedure Practice Group Podcast

In recent years, there have been a growing number of cases where people have been freed from prison after they were exonerated or their convictions were overturned. Some states have statutes that provide compensation under some circumstances to such individuals, but the scope of those statutes and their applicability varies, with other�states providing no means of compensation at all. A number of�advocacy groups are pushing for changes. What, if anything, should be done? What kind of compensation are the wrongfully imprisoned entitled to? What kind of financial obligations for these cases can state treasuries bear? What is the perspective of law enforcement on these questions? This Teleforum explored these and related issues.

Featuring:

David LaBahn, President and CEO, Association of Prosecuting Attorneys
Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University

Turkey in NATO

info@fed-soc.org (The Federalist Society) — 7 Jul 2017 18:01:49 GMT

International & National Security Law Practice Group Podcast

Turkey�s President Erdogan has secured authoritarian rule through constitutional restructuring. He does not tolerate dissent and has arrested journalists, prosecutors, judges, military officials, police, academics and civil servants. Turkey would arguably not qualify to join NATO today. Turkey is seeking common cause with Russia and Iran. Erdogan has called America�s Kurdish allies in Syria “terrorists� and launched air strikes against them. NATO has never expelled a member state. When are the risks to NATO countries� security and intelligence compelling enough to consider expelling Turkey? Are other, lesser sanctions�an option? What would be the mechanism to accomplish this?

Featuring:�

Alan Makovsky, Senior Fellow, Center for American Progress
Blaise Misztal, Director of National Security, Bipartisan Policy Center

Courthouse Steps: Maslenjak v. United States Update

info@fed-soc.org (The Federalist Society) — 7 Jul 2017 17:58:50 GMT

Criminal Law & Procedure Practice Group Podcast

At the close of the Bosnian civil war, Divna Maslenjak sought refuge for herself and her family in the U.S. due to fear of persecution regarding their Serbian identity in modern-day Bosnia and the threat of reprisal against her husband, who she claimed had evaded military conscription in the Bosnian Serb militia. After the family was granted refuge and Maslenjak became a U.S. citizen, a U.S. court convicted Maslenjak�s husband Ratko on two counts of falsifying claims regarding Serbian military service on U.S. government documents, since Ratko had in fact served in the Serbian military. When Ratko applied for asylum to avoid deportation, Divna Maslenjak admitted to lying about her husband�s military service and was charged with two counts of naturalization fraud for previously denying that she had given false information to a U.S. official. At her trial, jurors were told that a naturalization fraud conviction could be carried out for false claims in Maslenjak�s application process, even if the claims did not affect whether she was approved. Convicted on both counts, Divna Maslenjack faced two years of probation and lost her citizenship. The Sixth Circuit affirmed her conviction, claiming that naturalization fraud did not require proof of a material false statement.

Vikrant Reddy, a Senior Research Fellow at the Charles Koch Institute, discussed�the potential impact of the recent Supreme Court ruling and the main question of the case: whether immaterial false statements should be a basis for withdrawing an individual�s citizenship.

Ziglar v. Abbasi Decided - Are Government Officials Liable for Damages?

info@fed-soc.org (The Federalist Society) — 7 Jul 2017 17:56:19 GMT

International & National Security Law Practice Group Podcast

Ziglar v. Abbasi�is the result of over a decade of remands and appeals. The case was originally filed by the Center for Constitutional Rights on behalf of incarcerated Muslim, South Asian, and Arab non-citizens who were targeted after 9/11 by law enforcement as “terrorism suspects.� The defendants in the case, high level officials in the Bush administration, such as Attorney General John Ashcroft and FBI director Robert Mueller, and low level detention officials, filed a motion to dismiss, which was rejected by the in the District Court.

In 2009, the Supreme Court decided in�Ashcroft v. Iqbal�that government officials were not liable for discriminatory actions of their subordinates without evidence they directly ordered the actions. Meanwhile, five of the petitioners in Ziglar settled with the government, and the case was remanded to the District Court and amended. In 2010, the District Court granted a new motion of dismissal, but only for the high level officials. This dismissal was reversed by the Second Circuit.

The main question the Supreme Court answered was whether these high-level government officials could be sued for damages under the�Bivens�precedent. The precedent, created in a 1971 case involving the Federal Bureau of Narcotics, created an implied cause of action for any person whose Fourth Amendment rights are violated by federal officials. On Monday, June 19 the Supreme Court refused to extend the�Bivens�precedent to the petitioners, reversing the decision by the Second Circuit and remanding the case.

David Rivkin of Baker Hostelter joined�us to discuss the opinion and its significance.

Featuring:

David B. Rivkin Jr.,�Partner,�Baker & Hostetler LLP�

Improving the Use of Science in Regulation

info@fed-soc.org (The Federalist Society) — 6 Jul 2017 17:54:24 GMT

Administrative Law & Regulation and Environmental Law & Property Rights Practice Group Podcast

Regulations intended to address public health and environmental risks depend heavily on scientific information. Yet, they are often the subject of heated debate, involving accusations of “politicized science,� “advocacy science,� and “junk science.� Susan Dudley discussed her�forthcoming paper�with Marcus Peacock that explores the motivations and institutional incentives that have led to this acrimony. The paper illustrates the problem with a case study of the National Ambient Air Quality Standards issued under the Clean Air Act, and offers recommendations for improving how science is used to inform regulatory policy.

Featuring:�

Hon.�Susan E. Dudley,�Director, Regulatory Studies Center and Distinguished Professor of Practice, The George Washington University

Courthouse Steps: Hernandez v. Mesa Decided

info@fed-soc.org (The Federalist Society) — 29 Jun 2017 17:51:58 GMT

International & National Security Law Practice Group Podcast

On Monday, the Supreme Court vacated and remanded�Hernandez v. Mesa�to the Fifth Circuit.�The case involved a cross-border shooting and a�Bivensclaim.

In July of 2010, a 15-year-old adolescent named Sergio Adrian Hernandez Guereca and his friends were playing along a concrete structure on the border of the U.S. and Mexico. When Jesus Mesa, Jr., a U.S. Border Patrol Agent arrived, he detained one of the youths on the border, and shot and killed Hernandez, who was hiding behind a pillar of the Paso Del Norte Bridge on the Mexican side of the border. Hernandez�s parents sued Agent Mesa under the Fourth and Fifth Amendment for the use of unlawful and disproportionate force. Agent Mesa argued that the Fourth and Fifth Amendments did not apply because Hernandez was not a U.S. citizen.

Steve Giaier of the House Committee on Homeland Security joined us to discuss the Court�s decision to vacate and remand and what it means for the case going forward.

Featuring:

Steven Giaier, Senior Counsel, House Committee on Homeland Security

Courthouse Steps: Murr v. Wisconsin Decided

info@fed-soc.org (The Federalist Society) — 28 Jun 2017 19:53:54 GMT

Environmental Law & Property Rights Practice Group Podcast

On June 23, the Supreme Court issued its opinion in�Murr v. Wisconsin. This is a regulatory takings case which addressed�the question: should two legally distinct but commonly owned contiguous parcels be combined, as described in�Penn Central Transportation Company v. City of New York, for takings analysis purposes?

In 1960 and 1963, the Murrs purchased two adjacent lots in St. Croix County, Wisconsin, each over an acre in size. In 1994 and 1995, the parents transferred the parcels to their children. These lots became nonconforming due to various setbacks imposed in the 1970s, but a grandfathering provision would have allowed independent and separate uses � but only if the lots were not owned by the same individuals. Seven years later, the children wanted to sell one of the two original lots and were denied permission to do so by the St. Croix County Board of Adjustment. The Murrs sued the state and county and claimed the county�s actions resulted in an uncompensated taking of their property. The trial court granted summary judgement to the state and county and the Court of Appeals of Wisconsin affirmed.

James Burling, Vice President of Litigation at the Pacific Legal Foundation, joined us to discuss this interesting case and offer his�thoughts following the decision.�

Featuring:

James S. Burling, Vice President of Litigation, Pacific Legal Foundation

Courthouse Steps: California Public Employees� Retirement System v. ANZ Securities

info@fed-soc.org (The Federalist Society) — 28 Jun 2017 19:51:34 GMT

Litigation Practice Group Podcast

On April 17, 2017, the Supreme Court heard oral argument in�California Public Employees� Retirement System v. ANZ Securities. Between July 2007 and January 2008, Lehman Brothers raised over $31 billion through debt offerings. California Public Employees� Retirement System (CalPERS), the largest pension fund in the country, purchased millions of dollars of these securities. CalPERS sued Lehman Brothers in 2011, and their case was merged with another retirement fund�s putative class action suit against Lehman Brothers and transferred to a New York district court. Later that year, the other parties settled, but CalPERS decided to pursue its claims individually. The district court dismissed for untimely filing, and the U.S. Court of Appeals for the Second Circuit affirmed.

The question before the Supreme Court was whether the filing of a putative class action serves, under the�American Pipe & Construction Co. v. Utah�rule, to satisfy the three-year time limitation in Section 13 of the Securities Act with respect to the claims of putative class members. On Monday, the Supreme Court upheld the Court of Appeals dismissal of the lawsuit. Mark Chenoweth of the Washington Legal Foundation�joined us to discuss the decision and its significance.

Featuring:

Mark Chenoweth,�General Counsel, Washington Legal Foundation

Courthouse Steps: Trinity Lutheran Church of Columbia, Inc. v. Comer - Decided

info@fed-soc.org (The Federalist Society) — 28 Jun 2017 19:49:41 GMT

Religious Liberties Practice Group Podcast

The Missouri Department of Natural Resources (DNR) denied a Learning Center run by Trinity Lutheran Church of Columbia, Inc. (Trinity) federal funding to refurbish children�s playgrounds on the grounds of religious affiliation. The DNR offers Playground Scrap Tire Surface Material Grants to organizations that qualify for resurfacing of playgrounds. Though the licensed pre- school Learning Center incorporates religious instruction into is curriculum, the school is open to all children. Trinity�s Learning Center was denied funding based on Article I, Section 7 of the Missouri Constitution; the section reads: “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.�

Trinity claimed that the DNR infringed upon their rights under the Equal Protection Clause of the Fourteenth Amendment and the First Amendment�s protections of freedom of religion and speech. The district court dismissed Trinity�s allegations, claiming that Trinity failed to file a specific claim. Trinity responded by amending its complaint to an allegation that other religious institutions had previously received the DNR funding; nevertheless, the district court denied the motions. The Eighth Circuit Court of Appeals upheld the lower court decision, agreeing with both the dismissal and denial of motions.

In a 7-2 opinion written by Chief Justice Roberts, the Supreme Court ruled in favor of Trinity Lutheran. David Cortman of the Alliance Defending Freedom discussed the decision and its significance.

Featuring:�

David A. Cortman, Lead counsel in�Trinity Lutheran Church of Columbia v. Pauley, Senior Counsel and Vice President of U.S. Litigation, Alliance Defending Freedom�

Immigration Moratorium in the Supreme Court

info@fed-soc.org (The Federalist Society) — 27 Jun 2017 19:47:02 GMT

International & National Security Law Practice Group Podcast

On Monday, June 26, the Supreme Court granted certiorari in�Trump v. International Refugee Assistance Project�and stay applications were granted in part. The case is based on the January 21�Executive Order No. 13780, “Protecting the nation from foreign terrorist entry into the United States.� The order suspended immigrant and nonimmigrant entry into the country by citizens of seven majority Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days. It also suspended refugee admission into the United States for 120 days, and barred entry of Syrian refugees until further notice. The stated order�s purpose was to “ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.�

The Washington State Attorney General filed a lawsuit against the order in District Court citing harm to Seattle residents. Judge James Robart in the Western District of Washington issued a restraining order on February 3 halting President Trump�s executive order nationwide. The Department of Justice appealed the restraining order to the Ninth Circuit Court of Appeals, which rejected the Justice Department�s appeal for an emergency stay.

Three International & National Security Law�experts joined us�for a great discussion on what the Supreme Court�s actions mean for the current application of the EO and a preview of the case before the Court.�

Featuring:

Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law, Houston
David B. Rivkin Jr., Partner, Baker & Hostetler LLP
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University

Courthouse Steps: Sessions v. Morales-Santana Update

info@fed-soc.org (The Federalist Society) — 27 Jun 2017 19:30:10 GMT

Civil Rights Practice Group Podcast

On November 9, 2016, the Supreme Court heard oral argument in�Lynch�v.�Morales-Santana.�Morales-Santana�s father was born in Puerto Rico but acquired U.S. citizenship in 1917 under the Jones Act of Puerto Rico.�Morales-Santana was born in 1962 in the Dominican Republic to his father and Dominican mother, who were unmarried at the time. In 1970, upon his parents� marriage, he was statutorily “legitimated� and was admitted to the U.S. as a lawful permanent resident in 1976.

The Immigration and Nationality Act of 1952, which was in effect at the time of�Morales-Santana�s birth, limits the ability of an unwed citizen father to confer citizenship on his child born abroad, where the child�s mother is not a citizen at the time of the child�s birth, more stringently than it limits the ability of a similarly situated unwed citizen mother to do the same.

In 2000,�Morales-Santana was placed in removal proceedings after having been convicted of various felonies. An immigration judge denied his application for withholding of removal on the basis of derivative citizenship obtained through his father. He filed a motion to reopen in 2010, based on a violation of equal protection and newly obtained evidence relating to his father, but the Board of Immigration Appeals denied the motion. The U.S. Court of Appeals for the Second Circuit reversed the Board�s decision, however, and concluded that�Morales-Santana was a citizen as of birth. The Attorney General of the United States then obtained a grant of certiorari from the Supreme Court.

The two questions before the Supreme Court were: (1) whether Congress�s decision to impose a different physical-presence requirement on unwed citizen mothers of foreign-born children than on other citizen parents of foreign-born children violates the Fifth Amendment�s guarantee of equal protection; and (2) whether the court of appeals erred in conferring U.S. citizenship on respondent, in the absence of any express statutory authority to do so.

Featuring:�

Curt Levey,�President, Committee for Justice; Legal Affairs Fellow, Freedom Works

Chevron's Foundation: Congressional Delegation of Interpretive Primacy

info@fed-soc.org (The Federalist Society) — 23 Jun 2017 20:28:06 GMT

Administrative Law & Regulation Practice Group Podcast

This Teleforum explores the foundation for�Chevron�deference to agency statutory interpretation, and the implications of that foundation. In particular, it considers whether the Supreme Court�s justification of�Chevron�as deriving from an implicit delegation of interpretive primacy to an agency within the context of taking action with the force of law is justifiable. It also considers whether a better justification is the implicit constraint inherent in Article III of the Constitution that courts should avoid engaging in policy decisionmaking to the extent possible when performing their judicial functions. It goes on to consider the implications of these two different justifications for�Chevron, potentially addressing the applicability of�Chevron�to actions that do not carry the force of law (i.e.�Chevron�s step zero),�Chevron�s major question exception, the appropriate judicial inquiry at step two of�Chevron, and perhaps even the extent to which Congress can override the�Chevron�doctrine as a canon of statutory interpretation.

Featuring:�

Mark Seidenfeld, Patricia A. Dore Professor of Administrative Law,�Florida State University�College of Law

Courthouse Steps: Two Cases - Matal v Tam and Packingham v North Carolina

info@fed-soc.org (The Federalist Society) — 26 Jun 2017 20:25:52 GMT

Free Speech & Election Law Practice Group Podcast

The Court has ruled today in two important cases,�Matal�v. Tam�(aka "The Slants" copyright case) and�Packingham v. North Carolina, which concerns a North Carolina law that restricts the access of convicted sex offenders to “commercial social networking� websites. Mr. Michael Huston and Mr. Ilya Shapiro joined�us for this special Teleforum in which the holdings and reasoning of both cases were discussed.

Featuring:

Mr. Michael R. Huston,�Associate Attorney, Gibson Dunn & Crutcher LLP
Mr. Ilya Shapiro,��Senior Fellow in Constitutional Studies, Cato Institute

Courthouse Steps: Sandoz Inc. v. Amgen Inc.

info@fed-soc.org (The Federalist Society) — 20 Jun 2017 20:23:52 GMT

Intellectual Property Practice Group Podcast

In a decision likely to shape not only future biosimilar litigation but the biosimilar industry generally, the U.S. Supreme Court on June 12,�2017�handed down�its�much-anticipated ruling in�Amgen v. Sandoz.

In the first case interpreting the Biologics Price Competition and Innovation Act (BPCIA), the Court (J. Thomas) unanimously reversed the Court of Appeals for the Federal Circuit, holding that biosimilar makers need not wait for FDA approval before providing the reference product sponsor with 180-day notice of commercial marketing. The Court also held that the statute does not provide a federal injunctive cause of action to force biosimilar applicants to provide their FDA application to the reference sponsor, but remanded to the Federal Circuit to determine whether injunctive relief might be available to reference sponsors under state law. The decision raises intriguing questions of statutory construction and policy and is expected to speed market entry of biosimilars and increase competition.The Federalist Society�s uniquely qualified, expert panel discussed�the decision and its implications for the industry and patent rights generally.

Featuring:

Prof. Gregory Dolin,�Co-Director, Center for Medicine and Law, University of Baltimore School of Law
Prof. Erika Lietzan,�Associate Professor of Law, University of Missouri School of Law

Microsoft v. Baker Decided

info@fed-soc.org (The Federalist Society) — 19 Jun 2017 20:21:58 GMT

Litigation Practice Group Podcast

Microsoft v. Baker�involved�a class action lawsuit against the Microsoft Company by plaintiffs who alleged that during games on their Xbox video game console, the game disc would come loose and scratch the internal components of the device, permanently damaging the Xbox. Since only .4% of Xbox consoles experienced this issue, the district court determined that "a class action suit could not be certified and individuals in the suit would have to come forward on their own." The named plaintiffs voluntarily dismissed their claims with prejudice. The case was then appealed to the U.S. Court of Appeals for the Ninth Circuit where the court overturned the lower court's decision and held that the district court misapplied the law and abused its discretion in removing the class action allegations.

On Monday, June 12 the Supreme Court unanimously reversed the ruling of the Ninth Circuit and remanded the decision. Ted Frank of the Competitive Enterprise Institute joined us to discuss the holding and its significance.

Featuring:

Theodore H. Frank, Senior Attorney, Director, Center for Class Action Fairness, Competitive Enterprise Institute

Legislating Clemency

info@fed-soc.org (The Federalist Society) — 16 Jun 2017 20:20:07 GMT

Criminal Law & Procedure Practice Group Podcast

The enactment of lengthy no-parole sentences and the atrophy of other statutory early release mechanisms has placed unusual demands on the clemency mechanism in recent years, notably in the federal system. Similarly, an increase in the number and severity of collateral penalties has made pardon the only way most people with a criminal record can pay their debt to society. As Enlightenment philosophers recognized, clemency was never intended to substitute for a well-functioning legal system. With all due respect to Alexander Hamilton, in today�s world it is questionable whether a politician is “a more eligible dispenser of the mercy of the government� than a court.

The American Law Institute recently approved a revision of the sentencing articles of the Model Penal Code, the first such revision in 60 years. The revised MPC includes provisions intended to reduce the need for executiveclemency, in two ways. First, the MPC provides authority for courts to reduce prison sentences in situations where circumstances have fundamentally changed. Second, the MPC proposes a comprehensive scheme for managing the collateral consequences of conviction that makes courts the primary source of relief. Former U.S. Pardon Attorney Margaret Love, currently the Executive Director of the Collateral Consequences Resource Center, will discuss the merits and potential consequences of these proposed MPC reforms.

Featuring:�

Margaret Love, Law Office of Margaret Love
Moderator: John Malcolm,�Director, Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation

Federal Reserve Accountability and the CHOICE Act

info@fed-soc.org (The Federalist Society) — 15 Jun 2017 15:57:39 GMT

Financial Services & E-Commerce Practice Group Podcast

To whom is the Federal Reserve accountable?� Does the Fed's insistence on its "independence" mean it thinks the answer is: To no one?� Who should oversee the results, successful or unsuccessful, of the Fed's actions?� One answer was given by a former president of the New York Fed years ago: "The Congress which set us up has the authority and should review our actions at any time they want to, and in any way they want to." �The CHOICE Act, recently passed by the House Financial Services Committee would in its Title X., "Fed Oversight Reform," create greater Fed accountability to the Congress.�This Federalist Society Teleforum explored the bill's provisions and the issues involved.

Featuring:�

Alex Pollock, Senior Fellow, R Street Institute
Norbert Michel,�Senior Research Fellow, Financial Regulations and Monetary Policy, The Heritage Foundation

National Intelligence Reform

info@fed-soc.org (The Federalist Society) — 14 Jun 2017 15:55:53 GMT

Criminal Law & Procedure Practice Group Podcast

During the presidential campaign, there were calls for�changes to�the Office of the Director of National Intelligence (ODNI), a federal agency created in response to the events of 9/11 to ensure that the seventeen�organizations�that make up the intelligence community act in a coordinated fashion. Following President Trump�s inauguration, former Senator Dan Coats was appointed as the Director of National Intelligence (DNI). There has also been significant media coverage around the relationship between the intelligence community and the President. During this Teleforum, we were joined by intelligence experts to discuss the relationship between the President and the intelligence community, whether the ODNI is in need of reform, and the top priorities of�DNI Coats.�

Featuring:�

Benjamin Powell,�Partner, Wilmer Cutler Pickering Hale and Dorr LLP
David Shedd,�Advisory Board Member, Beacon Global Strategies LLC
Moderator: Matthew R. A. Heiman,�Vice President, Corporate Secretary & Associate General Counsel, Johnson Controls

Courthouse Steps: Esquivel-Santana v. Sessions Update

info@fed-soc.org (The Federalist Society) — 14 Jun 2017 15:54:05 GMT

Criminal Law & Procedure Practice Group Podcast

The Immigration and Nationality Act (INA) was used as grounds for the deportation of Juan Esquivel-Quintana, a permanent resident admitted to the U.S. in 2000, after he pled guilty to a California statute in 2009, making sexual intercourse with a minor more than three years younger than the perpetrator a misdemeanor or felony. After the California ruling, Esquivel-Quintana moved to Michigan where the Department of Homeland Security used INA to remove him from the country. INA states that a non-citizen convicted of an aggravated felony (ex: sexual abuse of a minor) may be removed from the United States. An immigration judge authorized Esquivel-Quintana�s removal from the country after finding him guilty of sexual abuse of a minor. The Board of Immigration Appeals (BIA) affirmed the decision without looking at the individual facts of the case; and the U.S. Court of Appeals affirmed the BIA�s decision, establishing that BIA should be afforded deference considering an ambiguous statute under�Chevron, USA, Inc. v. Natural Resources Defense Council, Inc.�Additionally, BIA found that the rule of lenity, which favors defendants in the face of ambiguous statutes, did not apply.

Vikrant Reddy, a Senior Research Fellow at the Charles Koch Institute, discussed the potential impact of the recent Supreme Court ruling and the main question of the case: whether a California statute�s “unlawful sexual intercourse with a minor� should be considered an aggravated felony (i.e. “sexual abuse of a minor�) under the Immigration and Nationality Act, and therefore, require mandatory removal.

Featuring:

Vikrant P. Reddy,�Senior Research Fellow, Charles Koch Institute

Courthouse Steps: Advocate Health Care v. Stapleton Decided

info@fed-soc.org (The Federalist Society) — 7 Jun 2017 20:41:54 GMT

Religious Liberties Practice Group Teleforum

Advocate Health Care v. Stapleton�is a combination of three cases,�Advocate Health Care v. Stapleton,�St. Peter�s Healthcare v. Kaplan,�and�Dignity Health v. Rollins, that confront the Employee Retirement Income Security Act of 1974 (ERISA) as it applies to churches and non-church religious non-profits. ERISA sets minimum standards for pension plans in private industry, such as an appeals process for participants and the right to sue for benefits. Churches are exempted from ERISA, however, the circuit courts have split over whether non-profit hospitals and schools are also exempted. Eric Baxter of the Becket Fund joined us�again�to discuss the 8-0 decision issued by the Supreme Court on June 5.

Featuring:

Eric Baxter, Senior Counsel, The Becket Fund for Religious Liberty

Courthouse Steps: BNSF Railway Co. v. Tyrrell

info@fed-soc.org (The Federalist Society) — 7 Jun 2017 20:39:16 GMT

Federalism & Separation of Powers Practice Group Podcast

In 2014, the Supreme Court unanimously held in�Daimler AG v Bauman�that, as a general matter, companies could only be sued in the state in which they are headquartered and incorporated or the plaintiff is injured. Nonetheless, the Supreme Court in�BNSF Railways Co.. v. Tyrell�was asked to define, once again, when a company has a substantial and continuous enough presence in a state to provide “general jurisdiction.� In�BNSF, plaintiffs brought suit in Montana state court although neither were injured in that state and BNSF is headquartered in Texas.� On May 30, the Supreme Court, in an 8-1 decision issued by Justice Ginsburg reaffirmed its holding in�Daimler.� In�BNSF, it found that -- barring an exceptional case -- companies may only be sued where they are headquartered/incorporated or the plaintiff is injured. �Karen Harned discussed the BNSF opinion and its impact on business and the plaintiff�s bar.

Featuring:

Karen Harned,�Executive Director, National Federation of Independent Business Small Business Legal Center

Litigation Update: United States Telecom Association v. Federal Communications Commission

info@fed-soc.org (The Federalist Society) — 6 Jun 2017 21:35:26 GMT

Telecommunications Practice Group Podcast

On May 1, the D.C. Circuit denied petitions for en banc review of�United States Telecom Association v. Federal Communications Commission. The petitioners challenge the FCC�s Open Internet Order, in which the FCC established Internet access as a telecommunications service subject to Title II of the Communications Act and adopted net neutrality rules.� At the same time, the new Chairman of the FCC, Ajit Pai, has announced that he plans to reclassify Internet access as a Title I information service and roll back some of the net neutrality rules.

Daniel Berninger, one of the petitioners in the case, and�Adam�White, who has been counsel for the intervenors, joined�us to discuss the status of the case. In particular, discussed the D.C. Circuit�s order denying rehearing, the concurring opinion by Judges Srinivasan and Tatel, the dissenting opinions from Judges Brown and Kavanaugh, the pending FCC rulemaking, and the potential for Supreme Court review of the D.C. Circuit�s decision affirming the FCC�s Open Internet Order. Brett Shumate, counsel to petitioners Alamo Broadband and Daniel Berninger, moderated the discussion.

Featuring:

Daniel Berninger, Founder, VCXC - Voice Communication Exchange Committee�
Adam J. White,�Research Fellow, The Hoover Institution and Adjunct Professor, Antonin Scalia Law School, George Mason University
Moderator: Brett A. Shumate,�Partner, Wiley Rein LLP

Hively v. Ivy Tech Community College

info@fed-soc.org (The Federalist Society) — 2 Jun 2017 21:33:42 GMT

Religious Liberties Practice Group Podcast

On April 4, 2017, the Seventh Circuit handed down a divided�en banc�opinion�in�Hively v. Ivy Tech Community College, opening a circuit split on how to interpret Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on "race, color, religion, sex, or national origin[.]" In�Hively, the Seventh Circuit became the first Court of Appeals to hold that sex discrimination encompasses discrimination based on sexual orientation. It held that plaintiff Kimberly Hively could pursue a claim against her former employer, Ivy Tech Community College, for her firing, which she claimed was motivated by her sexual orientation. In doing so, the court opened a split with the Eleventh Circuit, which had held just a few months earlier that employer decisions based on sexual orientation were not discrimination prohibited by Title VII. In addition to paving the way for a potential Supreme Court case to resolve the issue, the Seventh Circuit's decision includes an array of opinions demonstrating different methods of statutory interpretation.

Featuring:

Kenneth A. Klukowski, General Counsel, American Civil Rights Union
Prof. Anthony Michael Kreis, Visiting Assistant Professor of Law, Chicago-Kent College of Law

Courthouse Steps: D.C. Circuit En Banc Argument

info@fed-soc.org (The Federalist Society) — 1 Jun 2017 21:31:34 GMT

Federalism & Separation of Powers Practice Group Podcast

The D.C. Circuit heard a rare doubleheader of en banc arguments on major structural separation of powers questions on May 24.�

First up was�Raymond J. Lucia Companies, Inc. v. SEC, which presented the question whether Administrative Law Judges at the SEC are “Officers of the United States� who must be selected in compliance with the Appointments Clause. The SEC contends that its ALJs are employees, not officers, because the ALJs do not exercise “significant authority pursuant to the laws of the United States,� which the Supreme Court has described as the hallmark of officer status.�Last August, a three-judge panel of the D.C. Circuit agreed with the SEC, relying almost exclusively on an earlier (divided) D.C. Circuit precedent,�Landry v. FDIC, 204 F.3d 1125 (D.C. Cir. 2000), which held the ALJs at the FDIC are not officers because they do not issue final agency decisions. Three months later, the Tenth Circuit issued a 2-1 decision finding that SEC ALJs are officers who must be selected pursuant to the Appointments Clause. The Tenth Circuit panel expressly disagreed with�Lucia�and�Landry�that authority to issue final agency decisions is a prerequisite for officer status. The D.C. Circuit subsequently vacated its panel decision and granted en banc review. The status of ALJs under the Appointments Clause has important implications not only for the SEC�s enforcement of the securities laws but also for the system of administrative agency adjudication as a whole.

The second case,�PHH Corp. v. CFPB, presented the question whether an “independent� administrative agency may be led by a single person.� In a 100-page opinion by Judge Kavanaugh (joined by Judge Randolph) drawing on historical practice and first principles of separation of powers, the panel concluded that the statutory provision vesting the CFPB�s broad enforcement authority in a single director removable by the President only “for cause� violated Article II of the Constitution. The panel emphasized the absence of any historical precedent for an independent agency with a single director�a structure that created, in the panel�s description, an administrative official with more power than anyone in the federal government other than the President. The panel explained that this concentration of authority in a single person unaccountable to the President except for cause posed a “threat to individual liberty.��The panel remedied the constitutional defect by severing the statute�s “for cause� removal provision, thus making the CFPB director removable by the President at will. Judge Henderson dissented in part, arguing that the panel could have resolved the case on the basis of PHH�s statutory rather than constitutional challenges. The D.C. Circuit granted en banc review on both the constitutional� and statutory questions.�The Justice Department (under the Trump Administration) filed an amicus brief in support of the challengers, while the CFPB continues to defend the constitutionality of its structure through its independent litigation authority.

Featuring:

Thaya Brook Knight,�Associate Director of Financial Regulation Studies, Cato Institute
Christopher G. Michel, Associate, Bancroft PLLC

Courthouse Steps: Cooper v. Harris Redistricting Update

info@fed-soc.org (The Federalist Society) — 31 May 2017 21:29:56 GMT

Free Speech and Election Law Practice Group Podcast

On May 22, the Supreme Court threw out two North Carolina congressional districts as discriminatory. State legislatures face confusion over how to redistrict without violating either the Voting Rights Act or the Equal Protection Clause of the 14^th�Amendment. What does this case mean for the redistricting that will occur throughout the country after the 2010 Census?� How can courts distinguish between legally acceptable partisan and unacceptable racial motives in redistricting when certain racial groups disproportionately support one particular political party?�Hans von Spakovsky, a former commissioner on the Federal Election Commission and former Counsel to the Assistant Attorney General for Civil Rights at the U.S. Justice Department, discussed these issues and the�Cooper�decision.

Featuring:

Hans A. von Spakovsky,�Manager, Election Law Reform Initiative and Senior Legal Fellow, The Heritage Foundation

Courthouse Steps Decision: TC Heartland LLC v. Kraft Foods Group Brands LLC

info@fed-soc.org (The Federalist Society) — 26 May 2017 15:29:11 GMT

Intellectual Property Practice Group Podcast

On May 22, 2017, the Supreme Court handed down its unanimous opinion in the closely-watched�TC Heartland LLC v. Kraft Foods Group Brands LLC�case. The patent venue statute provides that a domestic corporation may be sued for patent infringement anywhere the defendant “resides,� and the question before the Court was whether that rule incorporates the broader definition of corporate residence found in the general venue statute. The district court and the Court of Appeals for the Federal Circuit both held that it did, thus giving patent owners more choices of where they could sue for infringement. However, the Supreme Court reversed, holding that a corporate defendant only “resides� in its state of incorporation.

While the Supreme Court rested its opinion solely on the statutory language and its own precedent interpreting it, many of the arguments raised in the amicus brief supporting both sides focused on the policy implications. In particular, the briefs argued that the Court should consider the effect its decision would have on certain patent assertion entities (PAEs) or “patent trolls��non-practicing patent owners who litigate their patents, oftentimes in the Eastern District of Texas. Whether such arguments persuaded the Court is unclear, though it is clear that the Court�s narrow rule for where patent owners may sue will change the litigation landscape for practicing and non-practicing entities alike.

Featuring:

Mr. William J. Brown, Jr.,�Managing Partner, Brown Wegner LLP
Prof. J. Devlin Hartline,�Assistant Director, Center for the Protection of Intellectual Property (CPIP) and Adjunct Professor, Antonin Scalia Law School, George Mason University

Update: In re Fosamax (Alendronate Sodium) Products Liability Litigation

info@fed-soc.org (The Federalist Society) — 25 May 2017 15:22:57 GMT

Litigation Practice Group Podcast

In a recent decision, the Third Circuit held that hundreds of state-law claims alleging that bone fractures were caused by an osteoporosis medication were not preempted by federal law. While defendants argued, and the district court agreed, that the record showed that the FDA would not have approved stronger warnings in the product labeling, the Third Circuit concluded that the record raised factual issues that should go to a jury. In doing so, the court rejected defendants� contention that preemption was a purely legal issue for the court to decide and suggested that the evidence must show that there was a “high probability� that the FDA would have rejected stronger labeling in order to invoke preemption. Was the appellate court correct? How does its decision fit with other recent preemption cases? Jay Lefkowitz and Doug Smith joined us to discuss these and other issues relating to the court�s decision.

Featuring:

Jay P. Lefkowitz, P.C., Partner, Kirkland & Ellis LLP
Douglas G. Smith, P.C., Partner,�Kirkland & Ellis LLP

Legal Challenge to the President's Executive Order on Reducing Regulation and Controlling Regulatory Costs

info@fed-soc.org (The Federalist Society) — 19 May 2017 15:21:24 GMT

Administrative Law & Regulation Practice Group Podcast

On January 30, 2017, President Trump issued an Executive Order entitled Reducing Regulation and Controlling Regulatory Costs. The Executive Order instructs federal agencies to identify two existing regulations for repeal for each new regulation proposed. The Order further instructs the Director of the Office of Management and Budget to set an incremental cost target for each agency for each future fiscal year. Subject to certain exceptions, each agency must meet its target by offsetting the costs of new regulations by cost savings from repealed rules.

A lawsuit has been filed challenging the legality of the Executive Order in federal district court in Washington, D.C. The complaint argues, among other things, that the Order violates the separation of powers, the President's obligations under the Take Care Clause, and the Administrative Procedures Act. Thomas M. Johnson, Jr., is the Deputy Solicitor General of West Virginia and counsel of record on an amicus brief co-filed with the State of Wisconsin on behalf of a 14-state coalition supporting the legality of the Executive Order. Mr. Johnson joined us to discuss the Order and the pending litigation. This Teleforum is the fourth in our�Executive Order Teleforum Series.

Featuring:

Thomas M. Johnson, Jr.,�Deputy Solicitor General of West Virginia

Spokeo v. Robins: One Year Later

info@fed-soc.org (The Federalist Society) — 18 May 2017 15:19:02 GMT

Litigation Practice Group Podcast

When is an alleged injury “concrete and particularized� under Article III of the U.S. Constitution? Spokeo, a self-proclaimed “online people search� site, was sued by Thomas Robins for publishing false information about him, which he claimed damaged his employment prospects. After being dismissed by the District Court and the Ninth Circuit for failing to state an injury “in fact,� the case was appealed to the Supreme Court where, one year ago, a 6-2 decision saw the Court vacate and remand the case. Legal experts Jeffrey Jacobson�and Alan Raul joined us as we discussed the lasting implications of this decision on its first anniversary.��

Featuring:�

Jeffrey S. Jacobson, Partner,�Kelley Drye & Warren LLP
Alan Charles Raul, Partner, Sidley Austin LLP

The Political Spectrum: The Tumultuous Liberation of Wireless Technology, from Herbert Hoover to the Smartphone

info@fed-soc.org (The Federalist Society) — 12 May 2017 20:59:01 GMT

Telecommunications & Electronic Media Practice Group Podcast

Popular legend has it that before the Federal Radio Commission was established in 1927, the radio spectrum was in chaos, with broadcasting stations blasting powerful signals to drown out rivals. In this fascinating and entertaining history, Prof. Thomas Winslow Hazlett, a distinguished scholar in law and economics, debunks the idea that the U.S. government stepped in to impose necessary order. Instead, regulators blocked competition at the behest of incumbent interests and, for nearly a century, have suppressed innovation while quashing out-of-the-mainstream viewpoints.
�
In his book,�The Political Spectrum: The Tumultuous Liberation of Wireless Technology, from Herbert Hoover to the Smartphone, Prof. Hazlett details how spectrum officials produced a “vast wasteland� that they publicly criticized but privately protected. The story twists and turns, as farsighted visionaries�and the march of science�rise to challenge the old regime. Over decades, reforms to liberate the radio spectrum have generated explosive progress, ushering in the “smartphone revolution,� ubiquitous social media, and the amazing wireless world now emerging. Still, the author argues, the battle is not even half won.

Featuring:

Prof. Thomas W. Hazlett,�H.H. Macaulay Endowed Professor of Economics, Clemson College of Business

President Trump's Religious Liberties Executive Order

info@fed-soc.org (The Federalist Society) — 11 May 2017 20:54:19 GMT

Religious Liberties Practice Group Podcast

On May 4, President Trump signed a Religious Liberty Executive Order relaxing IRS enforcement of the Johnson Amendment, which bans tax-exempt organizations like churches from political speech and activities. The “Promoting Free Speech and Religious Liberty� Executive Order also directs “the Secretary of Health and Human Services� to “consider issuing amended regulations, consistent with applicable law, to address conscience-based objections to the preventive-care mandate.�

An earlier version of the Executive Order was leaked in February, and contained many provisions, specifically about LGBTQ discrimination and federal contractors, which did not make it into the final. Prof. Carl Esbeck of the University of Missouri School of Law and Mr. Gregory Baylor of the Alliance Defending Freedom joined us to discuss the order and its precursor. This Teleforum is the third in our�Executive Order Teleforum Series.

Featuring:

Mr. Gregory Baylor,�Senior Counsel & Director of the Center for Religious Schools, Alliance Defending Freedom�
Prof. Carl Esbeck,�R.B. Price Professor Emeritus of Law/ Isabelle Wade & Paul C. Lyda Emeritus of Law, University of Missouri School of Law�

Litigation Update: Exxon Investigation

info@fed-soc.org (The Federalist Society) — 10 May 2017 20:52:44 GMT

Litigation Practice Group Podcast

On April 20th, eleven state Attorneys General filed a joint amicus brief in support of ExxonMobil and its request to stop an investigation into allegations of fraud and deceptive practices surrounding the relationship between fossil fuels and climate change. Texas AG Ken Paxton was joined by ten other state Attorneys General on the brief in a New York District Court. On May 9, AG Paxton joined us to share�his views on the underlying investigation, whether it impinges on Exxon�s free speech protections, and the ramifications a potential lawsuit could have on the fossil fuels industry.� ��

Featuring:

Hon. Ken Paxton,�Attorney General, Texas

The False Claims Act � Enforcement of the Regulatory State: Time for A Change?

info@fed-soc.org (The Federalist Society) — 5 May 2017 20:50:13 GMT

Administrative Law & Regulation Practice Group Podcast

Since the Supreme Court�s June 2016 decision in�Universal Health Services, Inc., v. United States ex rel Escobar,�136 S. Ct. 1989 (2016), there has been much discussion about whether the Court�s reformulation of the standards applicable to implied false certification benefits relators or defendants. However, the use of implied certification by relators and the DOJ to impose on defendants their interpretation of a regulation or term of a contract or grant has received much less attention.

Increasingly, relators and the DOJ have been using the FCA to pursue civil fraud claims not based on factual misrepresentations, but rather on the relator�s or the Government�s view of what the “correct� interpretation of a regulation or a contract or grant term should be. It is not unusual for that interpretation to be different than the interpretation advanced in the promulgation of the regulation or different than the approach practiced by the promulgating agency.�As the DOJ speaks officially for the sovereign United States, the DOJ (and relators suing on behalf of the United States) reserves the right to make interpretative disagreements into claims of fraud.

This teleforum will explore implied certification where the dispute involves issues of regulatory or contractual interpretation and whether such a matter is really an administrative law dispute or fraud.� �

Featuring:

Marcia G. Madsen, Partner, Mayer Brown LLP�
Brian D. Miller, Shareholder, Rogers Joseph O�Donnell

Hillbilly Elegy

info@fed-soc.org (The Federalist Society) — 4 May 2017 15:41:03 GMT

Practice Groups Podcast

Hillbilly Elegy�is a passionate and personal analysis of a culture in crisis�that of white working-class Americans. The decline of this group has never before been written about as searingly from the inside. J. D. Vance tells the story of what a social, regional, and class decline feels like when you were born with it hung around your neck. The Vance family story begins hopefully in postwar America. J. D.�s grandparents were “dirt poor and in love,� and moved north from Kentucky�s Appalachia region to Ohio to escape the dreadful poverty around them. They raised a middle-class family, and eventually their grandchild (the author) would graduate from Yale Law School, a conventional marker of their success.

But as the family saga of�Hillbilly Elegy�plays out, we learn that this is only the short, superficial version. Vance�s grandparents, aunt, uncle, sister, and, most of all, his mother, struggled profoundly with the demands of their new middle-class life, and were never able to fully escape the legacy of abuse, alcoholism, poverty, and trauma so characteristic of their part of America. Vance piercingly shows how he still carries the demons of their chaotic family history.

A deeply moving memoir with its share of humor and vividly colorful figures,�Hillbilly Elegy�is the story of how upward mobility really feels. And it is an urgent and troubling meditation on the loss of the American dream for a large segment of this country.

Author J.D. Vance and Adam White of the Hoover Institute will join us to discuss�Hillbilly Elegy�and the future of blue-collar America. �

Featuring:

J.D. Vance, Author,�Hillbilly Elegy�and�Principal, Mithril Capital Management LLC�
Moderator: Adam J. White,�Research Fellow, The Hoover Institution and Adjunct Professor, Antonin Scalia Law School, George Mason University

Courthouse Steps: Amgen, Inc. v. Sandoz, Inc.

info@fed-soc.org (The Federalist Society) — 28 Apr 2017 15:38:14 GMT

Intellectual Property Practice Group Podcast

The Biologics Price Competition and Innovation Act of 2010 (42 U.S.C. § 262) created an abbreviated pathway for FDA approval of biological products determined to be “biosimilar� to a reference product. The Act outlines a patent resolution and information exchange scheme, with litigation safe harbors during this “patent dance.�

Subsection (l)(2)(A) provides that not later than 20 days after the application is accepted for review, “�the subsection (k) applicant ��shall provide�to the reference product sponsor a copy of the application�and other information that describes the processes used to manufacture the biological product�� Subsection (l)(8)(A) provides “[t]he subsection (k) applicant�shall provide�notice to the reference product sponsor not later than 180 days before the date of the first commercial marketing of the biological product�licensed under�subsection (k).�

In 2015, Sandoz filed a subsection (k) application based on Amgen�s filgrastim (Neupogen®), but refused to provide its (l)(2)(A) disclosure and claimed that pre-FDA approval notice satisfied (l)(8)(A). Amgen sued in federal court on state law claims of unfair competition and conversion, and patent infringement, and requested a preliminary injunction. The district court granted Sandoz� motion for partial summary judgment, holding that (l)(2)(A) disclosure was optional and that Sandoz did not have to wait for FDA approval before providing (l)(8)(A) notice.

In a fractured opinion, the Federal Circuit affirmed on the (l)(2)(A) issue, holding that subsection (l)(9)(C) provided a remedy for the reference product sponsor to bring an immediate declaratory judgment action if the subsection (k) applicant failed to provide its (l)(2)(A) information, showing that disclosure was optional. The court reversed on the (l)(8)(A) issue, holding that notice before the FDA approved the subsection (k) application was ineffective under the statute. The Court granted certiorari on both issues.

This case presents intriguing questions of statutory interpretation, as the boundaries of the BCPIA are explored.

Featuring:

Mr. Andrew A. Hufford,�Intellectual Property Attorney,�Brinks Gilson & Lione

Federal Oversight of Local Police Departments

info@fed-soc.org (The Federalist Society) — 25 Apr 2017 20:46:23 GMT

Criminal Law & Procedure Practice Group Podcast

Under Attorney Generals Eric Holder and Loretta Lynch, the Department of Justice entered into a number of consent decrees with local police departments to change certain police practices.� Given the ongoing review of these decrees, how will the federal government�s approach to police practices change during Jeff Sessions� tenure as Attorney General?� What alternative methods might the DOJ employ or encourage states and municipalities to employ to help remedy problematic police practices?

Featuring:

Chuck Canterbury,�President, Fraternal Order of Police
Vanita Gupta,�President, The Leadership Conference on Civil and Human Rights
Moderator: Brian Fish,�Special Assistant, United States Attorney, Baltimore, Maryland

Courthouse Steps: Trinity Lutheran Church of Columbia v. Comer

info@fed-soc.org (The Federalist Society) — 21 Apr 2017 20:44:21 GMT

Religious Liberties Practice Group Podcast

The question at the heart of the case is whether or not the First Amendment�s free exercise of religion and the Fourteenth Amendment's Equal Protection Clause protect religious institutions from discrimination regarding the distribution of public funds. Ilya Shapiro of the CATO Institute and Hannah C. Smith of The Becket Fund for Religious Liberty joined us after oral arguments to discuss the case and the potential weight of the precedent set by decision.�

Featuring:

Ilya Shapiro,�Senior Fellow in Constitutional Studies, Cato Institute
Hannah C. Smith, Senior Counsel, The Becket Fund for Religious Liberty

Consumer Financial Protection Bureau Update - April 2017

info@fed-soc.org (The Federalist Society) — 19 Apr 2017 20:42:46 GMT

Financial Services & E-Commerce Practice Group Podcast

Members of the Federalist Society�s Financial Services & E-Commerce Practice Group Executive Committee provided an update on recent important activity at the Consumer Financial Protection Bureau (CFPB).�The call will cover many interesting�topics including an update of PHH�s D.C. Circuit U.S. Court of Appeals case�against the CFPB, a recent Executive Order which appears to apply to the CFPB, congressional activity regarding the CFPB, the CFPB�s recent fines and other actions, and the CFPB�s (and Federal Reserve Board�s) Office of Inspector General (OIG) audit report entitled “The CFPB Can Strengthen Contract Award Controls and Administrative Processes.��

Featuring:

Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association
Julius L. Loeser,�Of Counsel, Winston & Strawn LLP

Telecommunications Law in the New Administration

info@fed-soc.org (The Federalist Society) — 18 Apr 2017 20:40:35 GMT

Telecommunications & Electronic Media Practice Group Podcast

In late March, Congress used the Congressional Review Act to reverse the FCC�s controversial Broadband ISP Privacy Order. The FCC had overwritten the FTC�s prior regulation of ISP privacy, after President Obama took to YouTube following the 2014 mid-term elections, to call for the regulation of ISPs as�common carriers, �under a framework dating from the monopoly provision of telephone service.�

The current FCC Chairman, Ajit Pai has announced he aims to deregulate, focused on removing outdated regulations to encourage investment and innovation. Pai�s�Digital Empowerment Agenda�sees competitive broadband networks as engines of economic growth.� Observers expect the underlying decision from the Obama era to regulate ISPs as common carriers � aka�Open Internet�or�Net Neutrality�� to be re-considered soon. The Chairman has also proposed revising broadcast ownership rules to reflect today�s more diverse media landscape, and repurposing spectrum to facilitate the next generation of mobile broadband and Internet of Things. Maximizing access to spectrum for “5G� broadband and IoT will require repurposing some federal spectrum, so the President�s federal spectrum manager at Commerce (NTIA) will play a critical role.

In our third segment of the�Legal Options for the New Administration Teleforum Series, Bryan Tramont, Chair of the Federalist Society Telecommunications Executive Committee, moderated a discussion with Chairman Ajit Pai�s Senior Counsel, Nick Degani, and Patricia Paoletta, a telecom partner at the law firm of Harris, Wiltshire & Grannis LLP.�

Featuring:

Nicholas Degani,�Senior Counsel to FCC Chairman Ajit Pai; formerly Wireline Legal Advisor to FCC Commissioner Ajit Pai
Patricia Paoletta,�Partner at Harris, Wiltshire & Grannis LLP, named by the Trump-Pence Transition Team to the FCC Landing Team
Moderator:�Bryan Tramont, Managing Partner of Wilkinson, Barker & Knauer, former FCC Chief of Staff; Chair of the Federalist Society Telecommunications Executive Committee

Litigation Update: Davis v. Guam

info@fed-soc.org (The Federalist Society) — 13 Apr 2017 15:31:35 GMT

Litigation Practice Group Podcast

On March 8, Judge Frances M. Tydingco-Gatewood of the District Court of Guam struck down a Guam law that permitted only those who meet the definition of “Native Inhabitants of Guam� to vote in a future status plebiscite. This decision has been met with opposition from elected officials, protests at the federal courthouse, public rallies, and now an appeal to the Ninth Circuit Court of Appeals.

Supporters of the plebiscite are forcing a reexamination of the role of the United States on this strategically important island and�opponents contend�they are doing so without giving all citizens a voice in the process. What did the district court decide, and what does the reaction say about the rule of law and respect for the Constitution?� Christian Adams joined us to discuss the latest in�Davis v. Guam.

Featuring:

J. Christian Adams, Election Lawyer Center

Making the Administrative State More Accountable

info@fed-soc.org (The Federalist Society) — 11 Apr 2017 15:29:52 GMT

Administrative Law & Regulation Practice Group Podcast

How might America reform the modern administrative state�not only to limit its power, but to restore its constitutional accountability to Congress, the President, and the courts? That is the subject of�a�recent report�by�National Affairs, on policy reforms for a more accountable administrative state. In its four chapters, the report:

1. Diagnoses the fundamental problems underlying the modern administrative state, which reflect a failure of republican governance;
2. Proposes to restore Congress to its crucial constitutional role as the "First Branch" in lawmaking, policymaking, appropriations and oversight;
3. Proposes to modernize White House oversight of agency regulatory actions, primarily by shifting the Office of Information and Administration's role from one of reaction to one of action; and
4. Proposes to reform both the laws governing agency process and the laws governing judicial review of agency action, in order to improve the quality of agency actions and, relatedly, to ensure more meaningful judicial�review of agency actions.

To discuss these issues and proposals, please join us for a teleforum discussion with the report�s three authors:�Adam White,�Oren Cass, and�Kevin Kosar.�

Featuring:

Oren Cass, Senior Fellow, Manhattan Institute
Kevin Kosar,�Governance Project Director and Senior Fellow, R Street Institute
Adam White,�Research Fellow, The Hoover Institution and Adjunct Professor, Antonin Scalia Law School

Can You Recruit on Campus?

info@fed-soc.org (The Federalist Society) — 10 Apr 2017 15:28:11 GMT

Labor & Employment Law Practice Group Podcast

Are college job fairs and recruiting doomed as discriminatory activities?� In February, a District Court in California ruled that job applicants could maintain a disparate impact claim under the Age Discrimination in Employment Act (ADEA) challenging the practice of recruiting entry-level workers mostly through a program available only to recent college graduates. But last October, the Eleventh Circuit affirmed en banc the dismissal of a case brought by an over-40 job seeker who alleged that the company engaged in age discrimination by using screening guidelines describing the “targeted candidate� as someone “2-3 years out of college� who “adjusts easily to changes,� and suggesting to avoid “applicants in sales for 8-10 years.� The two cases are Rabin v. PricewaterhouseCoopers LLP, --- F.Supp.3d ----, 2017 WL 661354� (N.D.Cal., 2017) and Villarreal v. R.J. Reynolds Tobacco, 839 F.3d 958 (11th Cir. 2016) Petition for Certiorari Filed (NO. 16-971), Feb 02, 2017.

Eric S. Dreiband, a partner in the Washington office of Jones�Day and former General Counsel of the Equal Employment Opportunity Commission, shared�his thoughts on these cases and took listener questions.

Featuring:

Eric S. Dreiband, Partner, Jones Day

Lucas v. South Carolina Coastal Council at 25

info@fed-soc.org (The Federalist Society) — 7 Apr 2017 15:26:30 GMT

Environmental Law & Property Rights Practice Group Podcast

This spring marks the 25th anniversary of the U.S. Supreme Court's decision in�Lucas v. South Carolina Coastal Council.� In�Lucas, a 5-4 Court majority held that a state law can effect a "regulatory taking" and trigger inverse condemnation requirements if it deprives an owner of all viable uses of his land.� Join our panel to hear a discussion of questions such as: Did�Lucas�mark a major change in Supreme Court regulatory takings doctrine? Was the decision about right, or did it go too far or not far enough?� Is�Lucas�still relevant to regulatory takings law today, and what are the chances that the decision might be reconsidered or extended? �

Featuring:

James S. Burling, Vice President of Litigation, Pacific Legal Foundation
Professor Eric R. Claeys, Professor of Law, Antonin Scalia Law School Professor�
Michael A. Wolf,�Professor of Law, Richard E. Nelson Chair in Local Government,�University of Florida Levin College of Law

Courthouse Steps: Fashionable Copyright Law in the U.S. Supreme Court

info@fed-soc.org (The Federalist Society) — 5 Apr 2017 15:23:42 GMT

Intellectual Property Practice Group Podcast

Last Wednesday the Supreme Court handed down a 6-2 opinion resolving a long mystifying test of when a feature of a useful article may be protected by copyright law.�Hewing closely to the text of the Copyright Act, the opinion, authored by Justice Thomas, announced a new separability test holding that a feature incorporated into the design of a useful article is eligible for copyright protection if the feature (1) can be perceived as a 2 or 3 dimensional work of art separate from the useful article and (2) would qualify as a protectable pictorial, graphic, or sculptural work if it were imagined separately from the useful article. �

Professor Sandra Aistars of Antonin Scalia Law School at George Mason University explored the�implications for copyright in general and industries beyond fashion.

Featuring:

Prof. Sandra Aistars, Clinical Professor and Senior Scholar and Director of Copyright Research and Policy of CPIP, Antonin Scalia Law School, George Mason University

All Falling Faiths: Reflections on the Promise and Failure of the 1960s

info@fed-soc.org (The Federalist Society) — 4 Apr 2017 15:21:30 GMT

Practice Group Podcast

In this warm and intimate�memoir, Judge Wilkinson of the United States Court of Appeals for the Fourth Circuit, delivers a chilling message. The 1960s inflicted enormous damage on our country; even at this very hour we see the decade�s imprint in so much of what we say and do. The chapters reveal the harm done to the true meaning of education, to our capacity for lasting personal commitments, to our respect for the rule of law, to our sense of rootedness and home, to our desire for service, to our capacity for national unity, to our need for the sustenance of faith. Judge Wilkinson does not seek to lecture but to share in the most personal sense what life was like in the 1960s, and to describe the influence of those eventful years upon the present day.

Judge Wilkinson acknowledges the good things accomplished by the Sixties and nourishes the belief that we can learn from that decade ways to build a better future. But he asks his own generation to recognize its youthful mistakes and pleads with future generations not to repeat them. The author�s voice is one of love and hope for America. But our national prospects depend on facing honestly the full magnitude of all we lost during one momentous decade and of all we must now recover.

Featuring:

Danielle Sassoon, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of NY�
Hon. J. Harvie Wilkinson III, Judge, United States Court of Appeals, Fourth Circuit

Fairness in Class Litigation Act

info@fed-soc.org (The Federalist Society) — 3 Mar 2017 15:34:52 GMT

Litigation Practice Group Podcast

On Saturday, March 11 the House passed the Fairness in Class Litigation Act by a vote of 220-201. The stated purpose of the Act is to “(1) assure fair and prompt recoveries for class members and multidistrict litigation plaintiffs; (2) diminish abuses in class action and mass tort litigation; and (3) �restore the intent of the framers�by ensuring Federal court consideration of interstate controversies of national importance consistent with diversity jurisdiction principles� (H.R.985, 2017).

The Bill amends the federal judicial code�s standards for the certification of class action. For example, the bill requires that proposed class members to show that they suffered the same type and degree of injury. The bill also limits the amount and timing of attorney�s fees in a class action. Attorney�s cannot be paid more than the class members, and they must be paid after the class members receive payment.

Andrew Grossman Partner at Baker & Hostetler LLP and Adjunct Scholar at the Cato Institute will join Professor Howard M. Erichson of Fordham to discuss the legislation as deliberations begin in the Senate Judiciary Committee.

Featuring:

Professor Howard M. Erichson, Professor of Law, Fordham University School of Law
Andrew Grossman, Partner, Baker & Hostetler LLP,�Adjunct Scholar, the Cato Institute

Courthouse Steps: Saint Peter�s Healthcare System v. Kaplan

info@fed-soc.org (The Federalist Society) — 31 Mar 2017 15:33:00 GMT

Religious Liberties Practice Group Podcast

This case is a combination of three cases,�Advocate Health Care v. Stapleton,�St. Peter�s Healthcare v. Kaplan,�and�Dignity Health v. Rollins, that confront the Employee Retirement Income Security Act of 1974 (ERISA) as it applies to churches and non-church religious non-profits. ERISA sets minimum standards for pension plans in private industry, such as an appeals process for participants and the right to sue for benefits. Churches are exempted from ERISA, however, the circuit courts have split over whether non-profit hospitals and schools are also exempted. Eric Baxter of the Becket Fund joined us to recap the oral arguments for this case, which were held on March 27.

Featuring:

Eric Baxter, Senior Counsel, The Becket Fund for Religious Liberty

Courthouse Steps: TC Heartland v. Kraft Foods

info@fed-soc.org (The Federalist Society) — 29 Mar 2017 17:42:11 GMT

Intellectual Property Practice Group Podcast

The question presented in�TC Heartland LLC v. Kraft Foods Group Brands LLC�is seemingly straightforward: Does the statute governing venue generally, 28 U.S.C. § 1391(c), supplement the patent venue statute, 28 U.S.C. § 1400(b)? In particular, the issue is whether § 1391(c)(2)�s broad residency definition, which provides that a corporate defendant “shall be deemed to reside . . . in any judicial district in which such defendant is subject to the court�s personal jurisdiction,� should be read into § 1400(b), which provides that a patent infringement action “may be brought in the judicial district where the defendant resides.� If a corporate defendant “resides� wherever a court has personal jurisdiction over it, a patent owner will typically have many choices of where it may sue that corporation for infringement.

TC Heartland is incorporated and headquartered in Indiana, while Kraft Foods is incorporated in Delaware and headquartered in Illinois. Kraft Foods sued in the District of Delaware, arguing that TC Heartland established personal jurisdiction�and thus venue�when it knowingly shipped a large number of allegedly infringing goods into that forum. The Federal Circuit held that the patent venue statute is supplemented by the broad definition of residency in § 1391(c). TC Heartland now asks the Supreme Court to reverse the decision and to hold that § 1400(b) is the sole and exclusive statute governing venue in patent infringement actions.

The case itself has garnered much attention because the same broad venue rules�also allow non-practicing entities�so-called “patent trolls��to sue in the Eastern District of Texas. Indeed, the policy implications of the case have taken center stage among many commentators.

The issue of where patent owners may sue alleged infringers is an important one, and this case will determine whether patent owners, like federal plaintiffs generally, have numerous choices, or whether they are limited by the narrow patent venue rules that the Supreme Court has already said should stand alone.

Featuring:

Prof. J. Devlin Hartline, Assistant Director, Center for the Protection of Intellectual Property (CPIP) and Adjunct Professor, Antonin Scalia Law School, George Mason University

"Deep Pocket Jurisprudence�" and Meaningful Civil Justice Reform

info@fed-soc.org (The Federalist Society) — 28 Mar 2017 16:11:16 GMT

Litigation Practice Group Podcast

This Teleforum discussed�what Victor Schwartz has labelled "Deep-Pocket Jurisprudence™." According to Mr. Schwartz, this�occurs when state appellate courts expand tort law to include an innocent defendant because the wrongdoer is "judgment proof" or cannot be reached by the judicial process. The Supreme Court of Iowa has used the term and condemned the practice.

This call�focused on the possible enactment of federal civil justice reform. On March 9 and 10th 2017 the House of Representatives passed three federal civil justice reform measures, namely the H.R. 720, Lawsuit Abuse Reduction Act, H.R. 725, Innocent Party Protection Act and H.R.925, the Fairness in Class Litigation Act. Each enjoy strong support from Speaker Paul Ryan and this marks the earliest in a congressional term that such federal civil justice reform measures have passed the House. Nevertheless, it remains to be seen whether they will pass through the Senate and be approved by President Trump.

Featuring:

Victor E. Schwartz, Partner, Shook, Hardy & Bacon LLP

Pena-Rodriguez v. Colorado: Post Decision Recap

info@fed-soc.org (The Federalist Society) — 24 Mar 2017 16:09:24 GMT

Criminal Law & Procedure Practice Group Podcast

On March 6, 2017, the Supreme Court released its 5-3 decision�in�Pena-Rodriguez v. Colorado. The majority opinion, written by Justice Kennedy,�reveresed and remanded the case holding�that when there is a�juror's clear statement that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the trial court consider the evidence of the�statement and any resulting denial of the jury trial guarantee. John Richter, Partner at�King & Spalding, joined us to discuss the important ramifications of the Court's striking decision.�

Featuring:

John Richter, Partner, King & Spalding

Courthouse Steps: Microsoft v. Baker

info@fed-soc.org (The Federalist Society) — 23 Mar 2017 15:04:30 GMT

Litigation Practice Group Podcast

On March 21, 2017, the Supreme Court will hear oral argument in�Microsoft v. Baker. The case involves a class action lawsuit against the Microsoft Company by plaintiffs who alleged that during games on their Xbox video game console, the game disc would come loose and scratch the internal components of the device, permanently damaging the Xbox. Since only .4% of Xbox consoles experienced this issue, the district court determined that "a class action suit could not be certified and individuals in the suit would have to come forward on their own." The named plaintiffs voluntarily dismissed their claims with prejudice. The case was then appealed to the U.S. Court of Appeals for the Ninth Circuit where the court overturned the lower court's decision and held that the district court misapplied the law and abused its discretion in removing the class action allegations.

As�Microsoft v. Baker�comes before the Supreme Court, the major question is whether or not appellate courts have the jurisdiction to review a class action suit after the plaintiffs voluntarily dismiss their claims with prejudice.

Featuring:

Cory L. Andrews, Senior Litigation Counsel, Washington Legal Foundation

Courthouse Steps: Impression Products v. Lexmark International and the Law of Patent Exhaustion

info@fed-soc.org (The Federalist Society) — 22 Mar 2017 15:02:06 GMT

Intellectual Property Practice Group Podcast

May a patent owner use contracts to prohibit any resale or reuse of its patented products beyond the initial purchaser? OnTuesday, March 21, 2017, the Supreme Court will hear oral argument in�Impression Products v. Lexmark International, which raises this important question.

Lexmark makes patented toner cartridges and sells them with a contract restriction that the cartridges not be resold or refilled. Impression Products buys used Lexmark toner cartridges, refills, and resells them. Lexmark argues that because the license accompanying the original sale of the cartridges prohibits transferring the cartridges, any reuse and refilling of the cartridges is an unauthorized use and thus a patent infringement. If Lexmark�s argument wins, then manufacturers of patented goods will be able to restrict downstream uses of their goods by use of licenses, and no privity of contract will be required to hold third parties liable. On the other hand, defendant Impression Products argues that the “patent exhaustion� doctrine should operate here to restrict Lexmark from asserting any patent rights after a first, authorized sale. Also at issue is whether first sales in foreign countries instead of the U.S. should affect the outcome.

The case will have significant effects on the ability of patent owners to control the downstream uses of their patented products, and may affect the ability of patent owners to prevent the importation of “grey market� goods that have been lawfully sold in other countries, similarly to the Supreme Court�s holding in the 2013 copyright case of�Kirtsaeng v. John Wiley & Sons, Inc.�

Professor David Olson of Boston College Law School offered impressions and predictions after the Court heard oral argument.

Featuring:

Prof. David S. Olson, Associate Professor, Boston College Law School

Courthouse Steps: Supreme Court Oral Arguments in Murr v. Wisconsin

info@fed-soc.org (The Federalist Society) — 22 Mar 2017 14:58:01 GMT

Environmental Law & Property Rights Podcast

On March 20, the Supreme Court will hear oral argument in�Murr v. Wisconsin. This is a regulatory takings case which addresses the question: should two legally distinct but commonly owned contiguous parcels be combined, as described in�Penn Central Transportation Company v. City of New York, for takings analysis purposes?

In 1960 and 1963, the Murrs purchased two adjacent lots in St. Croix County, Wisconsin, each over an acre in size. In 1994 and 1995, the parents transferred the parcels to their children. These lots became nonconforming due to various setbacks imposed in the 1970s, but a grandfathering provision would have allowed independent and separate uses � but only if the lots were not owned by the same individuals.� Seven years later, the children wanted to sell one of the two original lots and were denied permission to do so by the St. Croix County Board of Adjustment. The Murrs sued the state and county and claimed the county�s actions resulted in an uncompensated taking of their property. The trial court granted summary judgement to the state and county and the Court of Appeals of Wisconsin affirmed.

James Burling, Vice President of Litigation at the Pacific Legal Foundation and Misha Tseytlin, the Solicitor General for the State of Wisconsin, will join us to discuss this interesting case and offer their thoughts following oral argument.�

Featuring:

James S. Burling, Vice President of Litigation, Pacific Legal Foundation
Misha Tseytlin, Solicitor General for the State of Wisconsin

The Role of White House Counsel

info@fed-soc.org (The Federalist Society) — 17 Mar 2017 14:56:23 GMT

Administrative Law and Federalism & Separation of Powers Practice Groups Podcast

In recent weeks, there has been a�flurry�of editorials on the proper role of the White House Counsel, driven by criticism of White House Counsel Donald McGahn. After the rollout of President Trump�s Immigration Executive Order, some, like�Jack Goldsmith, have written that McGahn should have worked with other agencies before the Order was released to prevent the chaos that ensued.

But what is the proper role of the White House Counsel? Is it to coordinate inter-agency reaction? Should he or she provide legal support to the President first? Or is his or her real client the�office�of the presidency? Former White House Counsel C. Boyden Gray and former Deputy White House Counsel Timothy Flanigan joined us to help answer these questions and many others.

Featuring:

Hon. Timothy E. Flanigan, Chief Legal & Compliance Officer, Corporate Secretary, Cancer Treatment Centers of America; Former Deputy White House Counsel to President George W. Bush
Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates; Former White House Counsel to President George H.W. Bush

Accelerating Financial Inclusion and Inclusive Growth

info@fed-soc.org (The Federalist Society) — 17 Mar 2017 14:54:25 GMT

Financial Services & E-Commerce Practice Group Podcast

Today, approximately two billion people lack access to financial services. Because of their exclusive reliance on cash, these individuals operate in a “shadow economy,� are subject to greater criminal activity, higher transaction costs, and do not enjoy the same opportunities, benefits, and protections of traditional bank accounts and financial services. Last year, the World Bank and several organizations from the public and private sector announced a commitment to extend basic financial services to everyone by 2020.

Shamina Singh, the President of Mastercard�s Center for Inclusive Growth, discussed the importance of financial inclusion to the U.S. and global economy and how governments, private sector leaders and philanthropic organizations have been focused on research and solutions to address these issues and foster greater inclusion.

Featuring:

Shamina Singh, President of the Mastercard Center for Inclusive Growth and Chair of the Corporation for National and Community Service

Foreign Government Partnerships

info@fed-soc.org (The Federalist Society) — 15 Mar 2017 14:51:58 GMT

International & National Security Law Podcast

Historically, protecting national security meant protecting one�s own citizens and sovereign territory from the threats or opposing interests of other nation-states. The concept has broadened, however, as transnational terrorists act with unprecedented scale and range: the threats they pose are of a magnitude previously only possible for nation-states, and they act indiscriminately among the several countries they feel justified in attacking. The United States� interest in defeating these actors, then, is one that is shared by many other countries that are not necessarily our allies in a larger sense.

In this the final episode of our three-part�Security Partnership Series, we discussed the benefits and limits of partnerships with�foreign�government agencies for counterterrorism purposes. What conditions form the basis of a productive partnership?� How might such partnerships compromise our operations? How do we decide how much information to share?� Does partnering with a�foreign�country�s intelligence agency limit our own independent intelligence gathering capabilities?� Perhaps most controversially � what limits can or should be imposed on the methods used to collect the counterterrorism intelligence to be shared? Of the�foreign�governments that have publicly complained about the United States� use of certain signals intelligence capabilities, do their intelligence agencies nevertheless desire the information collected? Likewise, although the United States has banned certain interrogation methods domestically, might our intelligence agencies nevertheless want to obtain human intelligence information gathered by�foreign�agencies using those or other similar methods?

Featuring:

Amb. Ryan C. Crocker�, Dean of the Bush School of Government and Public Service, Texas A&M University
William K Lietzau, Vice President, Deputy General Counsel, PAE�
Salli A. Swartz, Partner, Artus Wise Partners�
Moderator: Adam Pearlman, Special Advisor to the International and National Security Law Practice Group�

Unwarranted: Policing Without Permission by Barry Friedman

info@fed-soc.org (The Federalist Society) — 15 Mar 2017 14:48:24 GMT

Criminal Law & Procedure Practice Group Podcast

In June 2013, documents leaked by Edward Snowden sparked widespread debate about secret government surveillance of Americans. Just over a year later, the shooting of Michael Brown, a black teenager in Ferguson, Missouri, set off protests and triggered concern about militarization of law enforcement and discriminatory policing. In�Unwarranted, Barry Friedman argues that these two seemingly disparate events are connected?and that the problem is not so much the policing agencies as it is the rest of us. We allow these agencies to operate in secret and to decide how to police us, rather than calling the shots ourselves. And the courts, which we depended upon to supervise policing, have let us down entirely.

The book's author, Professor Barry Friedman,�the Jacob D. Fuchsberg Professor of Law at�New York University School of Law, Professor Orin Kerr the�Fred C. Stevenson Research Professor of Law at The George Washington University Law School, and�John Malcolm, Director and�Senior Legal Fellow at the�Edwin Meese III Center for Legal and Judicial Studies for the Heritage Foundation, joined us to discuss this new�book.�

Featuring:

Prof. Barry Friedman,�Jacob D. Fuchsberg Professor of Law, New York University School of Law
Prof. Orin Kerr,�Fred C. Stevenson Research Professor of Law, The George Washington University Law School
Moderator:�John G. Malcolm,�Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

Impression Products v. Lexmark International and the Law of Patent Exhaustion

info@fed-soc.org (The Federalist Society) — 9 Mar 2017 18:51:15 GMT

Intellectual Property Practice Group Podcast

The Federalist Society will host a teleforum discussion of�Impression Products v. Lexmark International, which is scheduled for argument before the Supreme Court March 21, 2017. At issue in the case is whether a patent owner may use a combination of patent rights and contract law to restrict what purchasers of patented printer toner cartridges may do with the cartridges. Lexmark makes patented toner cartridges and sells them with a restriction that the cartridges not be resold or refilled. Impression Products buys used Lexmark toner cartridges, refills, and resells them. Lexmark argues that Impression Products� toner refilling activities violate Lexmark�s patent rights because the license to use the patented product that was given to consumers prohibited refilling, thus putting such use and resale of the patented products outside of the scope of the patent license, in violation of Lexmark�s patent rights. For its part, Impression Products argues that the “patent exhaustion� doctrine should operate here to restrict Lexmark from asserting any patent rights after a first, authorized sale. Also at issue is whether first sales in foreign countries instead of the U.S. should affect the outcome.

Featuring:

Prof. Adam Mossoff, Co-Founder, Director of Academic Programs & Senior Scholar, Center for the Protection of Intellectual Property; Professor, Antonin Scalia Law School, George Mason University
Prof. David Olson, Associate Professor, Boston College Law School
Mr. Steven Tepp, President & CEO of Sentinel Worldwide; Professorial Lecturer in Law, George Washington University Law School
Moderator:�Prof. Kristen Osenga, Professor of Law, University of Richmond

Courthouse Steps: Hernandez v. Mesa

info@fed-soc.org (The Federalist Society) — 8 Mar 2017 18:49:13 GMT

International & National Security Law Podcast

On February 21, the Supreme Court heard argument in�Hernandez v. Mesa.�In July of 2010, a 15-year-old adolescent named Sergio Adrian Hernandez Guereca and his friends were playing along a concrete structure on the border of the U.S. and Mexico. When Jesus Mesa, Jr., a U.S. Border Patrol Agent arrived, he detained one of the youths on the border, and shot and killed Hernandez, who was hiding behind a pillar of the Paso Del Norte Bridge on the Mexican side of the border. Hernandez�s parents sued Agent Mesa under the Fourth and Fifth Amendment for the use of unlawful and disproportionate force. Agent Mesa argued that the Fourth and Fifth Amendments did not apply because Hernandez was not a U.S. citizen.

The District Court found for Agent Mesa, while the U.S. Court of Appeals for the Fifth Circuit held that the Fifth Amendment protections against deadly force applied but the Fourth Amendment did not, and that Agent Mesa should not receive qualified immunity. The main questions for the Supreme Court to answer are: Does the Fourth Amendment apply? Should qualified immunity apply to the border patrol agent? And can Agent Mesa make a�Bivens�claim?

Steve Giaier of the House Committee on Homeland Security attended oral argument and shared�his perceptions.

Featuring:

Steven Giaier, Senior Counsel, House Committee on Homeland Security

Hardie v. NCAA: Can the NCAA Bar Convicted Felons from Coaching in NCAA-Certified Recruiting Tournaments?

info@fed-soc.org (The Federalist Society) — 7 Mar 2017 18:44:24 GMT

Civil Rights Practice Group Podcast

Hardie v. NCAA�is a recently argued case from the Ninth Circuit. It involves a NCAA ban on all convicted felons from coaching in NCAA-certified tournaments held for recruiting student-athletes to NCAA Division I schools. The key question is whether this policy has a “disparate impact� (disproportional statistical effect, but without any racially discriminatory intent) on African Americans -- and whether Title II of the 1964 Civil Rights Act, which precludes “discrimination or segregation on the ground of race, color, religion, or national origin� in “places of public accommodation,� bans such disproportionate results. The district court ruled that Title II did not cover disparate impact, but, in a surprising move, the NCAA abandoned that winning argument on appeal.

Pacific Legal Foundation Senior Attorney Joshua Thompson discussed the parties� arguments and explained why PLF as amicus was the only party to support the lower court�s judgment. Roger Clegg, President and General Counsel of the Center for Equal Opportunity, will also join us to moderate the call.

Featuring:

Mr.�Joshua P. Thompson,�Senior Attorney,�Pacific Legal Foundation
Moderator: Mr. Roger Clegg, President & General Counsel, Center for Equal Opportunity

Freddie & Fannie Shareholder Litigation Update

info@fed-soc.org (The Federalist Society) — 2 Mar 2017 16:35:52 GMT

Litigation Practice Group Podcast

During the 2008 financial crisis, Congress provided Fannie Mae and Freddie Mac with billions of dollars in emergency funds to keep them afloat, supplemented by the investments of private investors who bet that these entities would return to profitability. In 2012, just as Fannie and Freddie were indeed becoming profitable again, the Government instituted a "net worth sweep" that required them to remit to the government nearly all of their profits every quarter. Fannie and Freddie have paid the government over $246 billion so far. In the process, the stock was rendered virtually worthless. Investors filed myriad lawsuits as the net worth sweep came into effect. After four years of litigation and an initial dismissal by the district court, the D.C. Circuit has now largely affirmed but also sent key contract-based claims for monetary relief back to the district court for further review. This Teleforum discusses this historic litigation, its implications for the housing market and the proper role of the Government, and the investors' prospects for success on their claims.

Featuring:

John Carney, Editor, Breitbart News
Jason A. Levine, Litigation Partner, Vinson & Elkins LLP�

Courthouse Steps: Packingham v. North Carolina

info@fed-soc.org (The Federalist Society) — 2 Mar 2017 16:34:16 GMT

Free Speech & Election Law Practice Group Podcast

In�Packingham v. North Carolina, the Supreme Court will decide whether the First Amendment bars a state from banning citizens from accessing social media sites like Facebook and Twitter. A North Carolina state makes it a felony for any person on the state's registry of former sex offenders to "access" a wide array of websites--including Facebook, YouTube, and nytimes.com--that enable communications among users if the site is known to allow minors to have accounts. The statute does not require the state to prove the defendant has actually had contact with a minor, intended to do so, or accessed a website for any illicit or improper purpose. ?Lester Packingham was convicted of violating the law for a Facebook post in which he celebrated the dismissal of a traffic ticket, declaring "God is Good!" Packingham and his supporters contend that law amounts to a sweeping, overbroad, and vague ban on protected speech untailored to any legitimate interest and unjustified by any compelling need.

Featuring:

Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute

Travel Moratorium Executive Order

info@fed-soc.org (The Federalist Society) — 1 Mar 2017 16:31:22 GMT

International & National Security Law Practice Group Podcast

On January 21, President Trump signed an executive order “Protecting the nation from foreign terrorist entry into the United States.� The order suspended immigrant and nonimmigrant entry into the country by citizens of seven majority Muslim countries: Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days. It also suspended refugee admission into the United States for 120 days, and barred entry of Syrian refugees until further notice. The stated order�s purpose was to “ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles.�

David Bier of CATO and Andrew C. McCarthy of�National Review, who have both written on the topic (see their�pieces�here�and�here�respectively), joined activist Shireen Qudosi, Director of Muslim Matters with America Matters, to discuss the legality of the executive order in the second episode of our�Executive Orders Teleforum�Series.

Featuring:

Andrew C. McCarthy, Senior Fellow, National Review Institute
David J. Bier, Immigration Policy Analyst, Cato Institute�s Center for Global Liberty and Prosperity�
Shireen Qudosi, Director of Muslim Matters, America Matters�

Public-Private Partnerships in Cybersecurity and Technology

info@fed-soc.org (The Federalist Society) — 28 Feb 2017 16:29:23 GMT

International & National Security Law Practice Group Podcast

The second Teleforum in our�Security Partnership Series�will examine the complex mechanics and ethics of cyber partnerships and many important questions. Should government agencies be enlisting private security firms to help prevent hacking into their own systems? On the other hand, should insurance companies require private company customers to do the same? Should private corporations, particularly financial institutions, be required to report hacking incidents to the federal government, and, if so, to what agency, for what purpose? Consumer protection? Economic security? What are the lawful responses to being hacked for government or industry? Is the best defense a good offense? How effective are today�s consumer-level encryption algorithms? Does public/private cooperation on the cybersecurity front impact private companies� willingness and ability to cooperate with intelligence investigations under the supervision of the Foreign Intelligence Surveillance Court?

As behavior in the cyber domain has perhaps become the most ubiquitous asymmetric threat to modern life, governments, companies, and individuals each have unprecedented exposure to theft and sabotage. Home networks are compromised through connected thermostats; commercial airliners� flight controls have been hacked through in-flight entertainment systems; passwords and credit card data are stored on servers that are the targets of daily hacking attempts, with that data often appearing for sale online.

Featuring:

Prof. Catherine B. Lotrionte,�Director of the Institute for Law, Science and Global Security and Visiting Assistant Professor of Government and Foreign Service, Georgetown University
Adam Segal,�Ira A. Lipman Chair, Emerging Technologies & National Security and Director of the Digital & Cyberspace Policy Program, Council on Foreign Relations (CFR)
Moderator: Adam Pearlman,Special Advisor to the International and National Security Law Practice Group�

The Congressional Review Act�s �Rediscovery� and Hidden Uses

info@fed-soc.org (The Federalist Society) — 27 Feb 2017 16:27:16 GMT

Administrative Law & Regulation Practice Group Podcast

In 1996, Congress passed the Congressional Review Act (CRA). Before an executive agency rule�broadly defined to include agency guidance documents�can take effect, the CRA requires the agency to submit it to Congress and the Government Accountability Office. The CRA�provides fast-track procedures for�Congress to overrule any rule with a joint resolution of disapproval if the President signs it into law (or Congress overrides any veto).�The expedited procedures may be used�during the first 60 session days after the rule is submitted�and during the first 60 session days of the next session if the rule was submitted near the end of the previous session. The only successful invalidation of a regulation prior to this year was in 2001, when the Department of Labor ergonomics rule issued at the end of the Clinton Administration was voided.

In the last few months, there has been renewed attention to the CRA, with Congress� action to overrule many more rules. And some have�asserted�that the law may have much broader implications for rules passed over the past 8 years�and not previously sent to Congress as the CRA requires.��

Former Congressman David McIntosh, who sponsored the CRA, and former congressional counsel to Mr. McIntosh, Todd Gaziano, will join us to discuss the ins and outs of the CRA and its potential applications�in the coming months. This Teleforum is the second installment in our�Legal Options for the New Administration�series.�

Featuring:

Hon. David M. McIntosh, President of the Club for Growth and Vice Chairman of The Federalist Society�
Todd F.�Gaziano, Senior Fellow in Constitutional Law and Executive Director of Pacific Legal Foundation�s DC Center

In Re: Walgreen Co. Stockholder Litigation Update

info@fed-soc.org (The Federalist Society) — 24 Feb 2017 16:25:26 GMT

Litigation Practice Group Podcast

According to the�Competitive Enterprise Institute, over 97% of mergers and acquisitions result in "strike suits," litigation seeking to enjoin a merger that often quickly settles for attorneys' fees and supplemental disclosures to shareholders. In�In Re: Walgreen Co. Stockholder Litigation, 832 F.3d 718, a recent case over such a settlement, Judge Richard Posner called the practice a "racket," and the Seventh Circuit rejected the lawsuit�s claims. Meanwhile, Delaware and New York courts have come out on opposite sides of the issue.

Ted Frank of the Competitive Enterprise Institute, who successfully argued�Walgreen�and has multiple appeals on the subject pending in other jurisdictions, discussed developments in the area over the last year and answer questions.

Featuring:

Theodore H. Frank, Senior Attorney & Director, Center for Class Action Fairness (CCAF), CEI

Supreme Court Preview: Packingham v. North Carolina

info@fed-soc.org (The Federalist Society) — 23 Feb 2017 20:05:21 GMT

Criminal Law & Procedure Practice Group Podcast

On February 27, the Supreme Court will hear oral argument in�Packingham v. North Carolina. This First Amendment case deals with whether a state may bar citizens from accessing social media sites like Facebook and Twitter. A North Carolina state law makes it a felony for any person on the state's registry of former sex offenders to "access" a wide array of popular websites that enable communications among users if the site is known to allow minors to have accounts. The statute does not require the state to prove the defendant has actually had contact with a minor, intended to do so, or accessed a website for any illicit or improper purpose. In the trial court, the Defendant was convicted of violating the law for a Facebook post in which he celebrated the dismissal of a traffic ticket, declaring "God is Good!" Some contend that the law amounts to a sweeping, overbroad, and vague ban on protected speech untailored to any legitimate interest and is unjustified by any compelling need.

Jonathan Sherman, Partner at Boies Schiller Flexner and Melissa Arbus Sherry, Partner at Latham & Watkins will provide a preview of this interesting case.

Featuring:

Jonathan Sherman,�Partner at�Boies Schiller Flexner
Melissa Arbus Sherry,�Latham & Watkins

Courthouse Steps: McLane v. EEOC

info@fed-soc.org (The Federalist Society) — 23 Feb 2017 20:03:25 GMT

Labor & Employment Law Practice Group Podcast

In�McLane v. EEOC�the Supreme Court is being asked to resolve a circuit split regarding appellate court standard of review of district court decisions to quash or enforce an EEOC subpoena.

Damiana Ochoa worked for McLane Company, a supply chain company. After returning from maternity leave, Ms. Ochoa was required to take a “physical abilities� test, which she failed three times. Subsequently, she was fired and Ms. Oschoa brought a gender discrimination claim against McLane. The district court denied part of one of the subpoenas EEOC issued to McLane. The 9th Circuit reversed, reviewing the district court�s decision to limit the scope of the EEOC subpoena “de novo,� which is contrary to the deferential review eight other appellate courts follow. The Supreme Court has been asked to resolve this circuit court split.

Karen Harned, Executive Director of the National Federation of Independent Business Small Business Legal Center, attended oral argument and will join us to provide her impressions of argument, examine the case, and explore potential impacts of the upcoming decision on employers, employees, and the EEOC during this Courthouse Steps Teleforum conference call.

Featuring:

Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center

Litigation Update: American Bankers Association and Washington Federal v. U.S.

info@fed-soc.org (The Federalist Society) — 21 Feb 2017 20:01:21 GMT

Litigation Practice Group Podcast

The American Bankers Association and Washington Federal, a bank holding company, have filed a suit against the United States government for reducing the amount of dividends paid to banks that own Federal Reserve stock. In the Federal Reserve Act of 1913, the Federal Reserve agreed to pay 6% annual dividends to stockholders of regional Federal Reserve Banks, but Congress decreased that amount to 2% in 2015 in the Fixing America�s Surface Transportation Act, or FAST Act, which appropriated the other 4% of would-be-dividends for highway funding. Proponents of the change argue that 6% dividends were exorbitant returns for the stock, and that banks are still guaranteed a positive return, even at 2%.

Brett Shumate and Steve Obermeier of Wiley Rein, who represent the plantiffs in this case, joined us to discuss the pending litigation.

Featuring:

Stephen J. Obermeier, Partner, Wiley Rein LLP
Brett A. Shumate,�Partner, Wiley Rein LLP

Federal, State, Local, and Tribal Partnerships Feat. Governor Tom Ridge

info@fed-soc.org (The Federalist Society) — 17 Feb 2017 19:59:14 GMT

International & National Security Law Practice Group Podcast

Over the last fifteen years, homeland security has become a field unto itself. The United States Department of Homeland Security (DHS) has become the second-largest federal executive department in the number of people it employs, and includes three law enforcement agencies and a military service (the United States Coast Guard). But the heavy responsibility of keeping Americans safe at home extends well beyond the jurisdiction of that department alone. Still at the federal level, the Department of Justice has four law enforcement agencies of its own, the Department of Defense is authorized to support domestic law enforcement and disaster response operations under certain circumstances (consistent with the Posse Comitatus Act), and the Departments of State, Treasury, Interior, Transportation, and Energy all have components that perform some domestic security-related functions.

Vertical integration has also been a strategic focus. DHS-led intelligence fusion centers, and Federal Bureau of Investigation (FBI) led Joint Terrorism Task Forces (JTTF) each include non-federal, that is state, local, or tribal personnel to help accomplish their missions, and surplus military-grade equipment has increasingly proliferated into local law enforcement. Each of these measures is controversial, with some municipalities attempting to limit by legislation their police forces� participation in JTTFs, and many observers criticizing the increased “militarization� of law enforcement. Further, the rise of so-called “sanctuary cities� also pits some localities against federal immigration laws in ways that may have significance for counterterrorism efforts.

This first episode in our�Security Partnership Teleforum Series�explored the limits of federal, state, local, and tribal cooperation. Can and should federal authorities commission local law enforcement to surveil potential threats, and compel compliance with immigration enforcement efforts? How blurred is the line now between “domestic surveillance� for “domestic security� purposes (to which the Fourth Amendment applies) and broader national security concerns that have a foreign intelligence nexus that might be governed by the Foreign Intelligence Surveillance Act? Are there limits on how technologies developed for intelligence gathering purposes may be used in law enforcement missions? What limits should there be on the military�s supplying equipment and training to law enforcement agencies?

Featuring:

Governor Tom Ridge, Chairman, Ridge Global, Formerly the First Secretary of the U.S. Department of Homeland Security, Former Governor of Pennsylvania
Moderator: Adam R. Pearlman, Special Advisor, International and National Security Law Practice Group

FTC, Past and Future

info@fed-soc.org (The Federalist Society) — 16 Feb 2017 15:31:57 GMT

Telecommunications & Electronic Media and Intellectual Property Practice Group Podcast

The Federal Trade Commission has dual missions to protect consumers and competition. The agency has a 100+ years of history as an antitrust enforcer and general consumer protection agency. And over the last 20 years it has emerged as the lead U.S. agency addressing consumer privacy and data security. During the past administration, the agency faced challenges within and without. How well has it executed its dual missions? What external factors (such as actions by the CFPB and FCC) have affected its ability to further its missions? And how might the agency improve in the coming administration? To answer these questions we'll talk to Heritage Senior Fellow Alden Abbot and FTC Acting Chairman Maureen K. Ohlhausen.

Featuring:

Alden Abbott, Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and the John, Barbara, and Victoria Rumpel Senior Legal Fellow, The Heritage Foundation
Hon. Maureen K. Ohlhausen, Commissioner, Federal Trade Commission

Criminal Regulatory Statutes: Is �Deliberate Indifference� Sufficient Mens Rea For A �Knowing" Violation? Case Update: Farha v. United States

info@fed-soc.org (The Federalist Society) — 15 Feb 2017 15:28:11 GMT

Criminal Law & Procedure Practice Group Podcast

Farha v. United States,�currently pending on a petition for writ of certiorari to the U.S. Supreme Court, is a case study raising basic notions of due process, fair notice, the rule of lenity, mens rea, and whether�administrative and civil remedies would be more appropriate.� What began as a highly publicized raid by some 200 FBI agents on a Florida health care company over an accounting dispute ended in the indictment, conviction, and prison sentences for the Wellcare executives for fraud.��

On appeal, where the case was captioned�Clay v. United States, the U.S. Court of Appeals for the Eleventh Circuit upheld the convictions over the objections of�the defendants that the jury instruction impermissibly allowed the jury to convict if the defendants were “deliberately indifferent� to the law�s requirement as opposed to finding a “knowing� violation as the statute requires.� The Supreme Court in 2011, in�Global-Tech Appliances, a civil case involving patent infringement, held that "knowledge" cannot include "deliberate indifference" to show sufficient mens rea to establish infringement. Accordingly, the cert petition, filed by Seth Waxman of WilmerHale, seeks to have the Court rule that the jury instructions should require a higher mens rea standard,�all the more so in a criminal case.�

This case is particularly important for all regulated industries, where there are numerous�laws and complex regulations governing conduct subject to administrative, civil, and criminal enforcement.

Featuring:

Paul Kamenar,�Washington, D.C. Public Policy Attorney and Senior Fellow, Administrative Conference of the U.S.
Jeff Lamken, Partner,�MoloLamken
Moderator:�John G. Malcolm,�Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

Supreme Court Preview: Hernandez v. Mesa

info@fed-soc.org (The Federalist Society) — 13 Feb 2017 15:26:02 GMT

International & National Security Law Practice Group Podcast

On February 21, the Supreme Court will hear argument in Hernandez v. Mesa. In July of 2010, a 15-year-old adolescent named Sergio Adrian Hernandez Guereca and his friends were playing along a concrete structure on the border of the U.S. and Mexico. When Jesus Mesa, Jr., a U.S. Border Patrol Agent arrived, he detained one of the youths on the border, and shot and killed Hernandez, who was hiding behind a pillar of the Paso Del Norte Bridge on the Mexican side of the border. Hernandez�s parents sued Agent Mesa under the Fourth and Fifth Amendment for the use of unlawful and disproportionate force. Agent Mesa argued that the Fourth and Fifth Amendments did not apply because Hernandez was not a U.S. citizen. The District Court found for Agent Mesa, while the U.S. Court of Appeals for the Fifth Circuit held that the Fifth Amendment Protections against deadly force applied but the Fourth Amendment did not, and that Agent Mesa should not receive qualified immunity.

Professor Andrew Kent of Fordham University School of Law and Professor Stephen I. Vladeck of UT Austin Law School joined us to examine the case and its implications for extraterritorial application of the Bill of Rights and for qualified immunity.

Featuring:

Prof. Andrew Kent, Professor of Law, Fordham University School of Law
Prof. Stephen I. Vladeck, Professor of Law, The University of Texas at Austin School of Law

President Trump's "One-In-Two-Out" Executive Order

info@fed-soc.org (The Federalist Society) — 10 Feb 2017 15:48:10 GMT

Administrative Law & Regulation Practice Group Podcast

President Trump took a step toward fulfilling his campaign promise to cut regulations last week when he signed an�executive order�calling for two regulations to be eliminated for every new one issued. The president has indicated that the order will yield “the largest ever cut by far in terms of regulations.� But some are worried that it is a�Sophie�s choice�for regulatory agencies, and the order will change how regulators do business in the U.S.

Professor Susan Dudley, director of the George Washington University Regulatory Studies Center explained what the order does and does not do. Jitinder Kohli, former head of the UK Better Regulation Executive, described lessons learned from the UK�s “one-in-three-out� policy. This Teleforum was the first episode in the�Executive Order Teleforum Series.�

Featuring:

Professor Susan Dudley, Director, George Washington University Regulatory Studies Center
Jitinder Kohli, Director in Public Sector Practice, Deloitte Consulting

Pending Litigation and the New Administration

info@fed-soc.org (The Federalist Society) — 9 Feb 2017 15:46:16 GMT

Litigation Practice Group Podcast

Given the size and scope of the federal government, many agency regulations, guidance documents, and cases are left in various stages of development as the executive branch changes hands. The first episode of our�Legal Options for the New Administration Teleforum Series�focused on pending litigation in the executive branch. Is the administration free to dismiss or stop prosecuting cases which do not align with its policies? Can the administration stop defending actions in court? What are the constraints? What has been the past practice? These and other questions were discussed by our experts.�

Featuring:

Steven G. Bradbury, Partner, Dechert LLP�
William S. Consovoy, Partner, Consovoy McCarthy Park PLLC

What Are We Learning About For-Profit Education?

info@fed-soc.org (The Federalist Society) — 7 Feb 2017 15:17:56 GMT

Administrative Law & Regulation Practice Group Podcast

During the Obama administration, the Department of Education promulgated a host of rules aimed specifically at for-profit educational institutions, which enroll over a million students. For instance, the Obama Department of Education has required for-profit schools to show that graduates are spending less than 20% of their postgraduate discretionary incomes on student loan repayment as a condition of for-profit schools� continued eligibility for federal financial aid dollars. Another rule threatens to make it substantially easier for graduates of for-profit schools to demand student loan forgiveness. Now that President Trump has taken office, will his administration change course on these regulations? What are the options if his administration wishes to do so, and how feasible are they for the sector?

Lucas Townsend, a partner at Gibson Dunn with substantial experience litigating agency challenges, surveyed some of the most significant regulations. He discussed options for the Trump administration or Congress to withdraw or alter these actions.

Featuring:

Lucas Townsend,�Partner, Gibson Dunn

Capital Punishment After the 2016 Elections

info@fed-soc.org (The Federalist Society) — 6 Feb 2017 15:15:51 GMT

Criminal Law & Procedure Practice Group Podcast

In recent decades, there has been much study and debate in the criminal justice community regarding capital punishment and its continued use in most jurisdictions in the United States. Some argue that years of litigation and growing cost have contributed to a new fragility in support for the death penalty and point to polling that reflects decreased enthusiasm for it. Others assert the November 2016 election results at the State and Federal levels demonstrate capital punishment continues to be firmly backed by the public and will remain in place indefinitely.

Professor Carol Steiker of Harvard Law School, author of the recently released,�Courting Death - The Supreme Court and Capital Punishment�and Professor William Otis, Adjunct Professor of Law for Georgetown University Law Center and former federal prosecutor, joined us for an insightful look at this important topic.

Featuring:

Professor�William G. Otis,�Adjunct Professor of Law, Georgetown University Law Center
Professor Carol Steiker,�Henry J. Friendly Professor of Law, Harvard Law School

The Campus Rape Frenzy: The Attack on Due Process at America's Universities by Professor KC Johnson and Stuart Taylor

info@fed-soc.org (The Federalist Society) — 3 Feb 2017 19:25:25 GMT

Criminal Law & Procedure Practice Group Podcast

In recent years, our nation�s college campuses have been portrayed as awash in a violent crime wave�and university leaders, professors, and students as�indifferent to female sexual assault victims in their midst. In their recently published book,�The Campus Rape Frenzy: The Attack on Due Process at America's Universities,�authors Professor KC Johnson and Stuart Taylor examine these assertions in detail. The book presents evidence to the contrary and argues that these claims do not have any bearing in reality. �

New York Law School Professor Nadine Strossen joined us to moderate an illuminating discussion with the�authors.

Featuring:

Professor KC Johnson, Professor of History at Brooklyn College and the CUNY Graduate Center
Stuart Taylor, Washington writer, lawyer, and National Journal contributing editor
Moderator: Professor�Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School

The UNSCR 2334 Against Israel: What Is President Trump To Do?

info@fed-soc.org (The Federalist Society) — 30 Jan 2017 19:22:08 GMT

International & National Security Law Practice Group Podcast

Since the Obama administration abstained from the United Nations Security Council vote on Resolution 2334 that condemns Israeli settlements in the West Bank and Jerusalem, there has been much speculation as to the force, effect, and consequence of this Resolution. There are many concerns, including that this United Nations declaration may enable boycotts of Israel and that the Palestinian government might attempt to utilize the pronouncement to bring Israel before the International Criminal Court. President Trump�s has stated that he intends to alter or blunt the instrument. What will be the effect of this United Nations censure, and what are the options available to President Trump?�

Featuring:

Prof. Bernard Avishai, Adjunct Professor of Business, Hebrew University of Jerusalem, Visiting Professor of Government, Dartmouth College�
Prof. Orde Kittrie,�Senior Fellow, Foundation for Defense of Democracies, Professor of Law, Sandra Day O'Connor College of Law, Arizona State University
Prof. Eugene Kontovorich, Professor of Law, Northwestern Pritzker School of Law�

Courthouse Steps: Ziglar v. Abbasi

info@fed-soc.org (The Federalist Society) — 27 Jan 2017 22:27:57 GMT

International & National Security Law Practice Group Podcast

In 2009, the Supreme Court decided in�Ashcroft v. Iqbal�that government officials were not liable for discriminatory actions of their subordinates without evidence they directly ordered the actions. Meanwhile, five of the petitioners in Ziglar settled with the government, and the case was remanded to the District Court and amended. In 2010, the District Court granted a new motion of dismissal, but only for the high level officials. This dismissal was reversed by the Second Circuit and then the government petitioned the Supreme Court for review.

Professor Jamil Jaffer joined us to discuss the oral argument of this case, which was held on January 18. �

Featuring:

Prof. Jamil N. Jaffer,�Adjunct Professor of Law and Director, Homeland and National Security Law Program, Antonin Scalia Law School�and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee

Reframing Financial Regulation: Enhancing Stability and Protecting Consumers

info@fed-soc.org (The Federalist Society) — 27 Jan 2017 22:26:11 GMT

Financial Services & E-Commerce Practice Group Podcast

Reframing Financial Regulation: Enhancing Stability and Protecting Consumers, edited by Hester Peirce and Benjamin Klutsey, brings together a diverse set of authors to provide alternative ways to regulate different aspects of the financial system. The chapters embody approaches that rely less on centralized, top-down regulations and more on market discipline and oversight. The recently published book, which reflects a wide variety of viewpoints and approaches, seeks to initiate a lively conversation about how a thoughtfully regulated, market-based financial system can facilitate risk sharing, efficiently provide access to capital, and enable households to save for the future. Senior Research Fellow and the Director of the Financial Markets Working Group at the Mercatus Center at George Mason University, Hester Peirce, joined us to discuss this new book. �

Featuring:

Hester Pierce, Senior Research Fellow and the Director of the Financial Markets Working Group at the Mercatus Center

Consumer Financial Protection Bureau Update - January 2017

info@fed-soc.org (The Federalist Society) — 27 Jan 2017 22:24:16 GMT

Financial Services & E-Commerce Practice Group Podcast

Members of the Federalist Society�s Financial Services & E-Commerce Practice Group Executive Committee will provide an update on recent important activity at the Consumer Financial Protection Bureau (CFPB).�The discussion will cover a multitude of topics including Fair Lending Priorities in 2017, a new�proposed�CFPB arbitration rule,�CFPB restitution�fines�imposed on�Equifax Inc. and�TransUnion Inc., the�CFPB's recently released 2016 Annual Employee Survey, the�CFPB's Diversity and Inclusion Strategic�Plan for 2016-2020,�the role of emotion in consumer protection law, and the potential impact of the new Administration on the Bureau. �

Featuring:

Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association
Julius L. Loeser,�Of Counsel, Winston & Strawn LLP

The Second Annual Mike Lewis Memorial

info@fed-soc.org (The Federalist Society) — 25 Jan 2017 22:21:39 GMT

International & National Security Law Practice Group Podcast

In the summer of 2015, the Federalist Society lost a great friend with the passing of Professor Michael W. Lewis. Professor Lewis was a veteran, a scholar, and a loving father and husband. His specialties were in the areas of the law of armed conflict and International Humanitarian Law. Last year, the Mike Lewis Memorial Teleforum focused on the U.S. Department of Defense Law of War Manual. This year, our experts will discuss the White House Report on the Use of Force.

In December 2016, the Obama Administration released a comprehensive report on the "legal and policy frameworks" governing the use of military force.� The report sets forth the Obama Administration's view of the domestic and international legal bases for military operations against terrorist groups; the law of armed conflict and targeting in those operations; detention; civilian casualties; interrogation; and other related issues.� This Podcast analyzed the document's description of the applicable law, but also considered why the Obama Administration chose to release this unusual document at this point and what effect (if any) it will have on policy and practice going forward.

Featuring:

Mr. Steven G. Bradbury,�Partner, Dechert LLP
Mr. Phillip Carter,�Senior Fellow & Director of the Military, Veterans, and Society Program, Center for a New American Security
Adam Klein,�Senior Fellow, Center for a New American Security

Courthouse Steps: Lee v. Tam

info@fed-soc.org (The Federalist Society) — 19 Jan 2017 15:44:31 GMT

Litigation, Intellectual Property, and Free Speech & Election Law Practice Groups Teleforum

Can the government police speech it thinks is offensive, even when members of the group the government seeks to protect disclaim any offense? Section 2(a) of the Lanham Act allows the government to deny trademark registration to "disparaging" speech. On Wednesday, January 18, the Supreme Court will hear oral argument in�Lee v. Tam, a case challenging the constitutionality of this statute.

In�Lee, an Asian-American rock band called “The Slants� was denied trademark registration after the Patent and Trademark Office found the trademark disparaging to Asians. A panel of the U.S. Court of Appeals for the Federal Circuit affirmed the decision. But the en banc Federal Circuit�without being asked�decided to vacate that decision and consider whether § 2(a) violates the First Amendment. The full Federal Circuit ultimately reversed the panel decision. The federal government then asked the Supreme Court to weigh in.

Is the Court likely to affirm the Federal Circuit decision striking down the disparagement clause as violative of the First Amendment? And what will be the implications if it does? Megan Brown and Dwayne Sam of Wiley Rein LLP attended the oral arguments and offered their impressions and predictions during this Courthouse Steps Teleforum conference call.

Featuring:

Ms. Megan L. Brown,�Partner, Wiley Rein LLP
Mr. Dwayne D. Sam,�Associate, Wiley Rein LLP

State Farm Fire and Casualty Co. v. U.S. ex rel. Rigsby Decided

info@fed-soc.org (The Federalist Society) — 18 Jan 2017 15:17:15 GMT

Litigation Practice Group Podcast

In a unanimous decision, the Supreme Court upheld the U.S. Court of Appeals ruling in favor of the respondent. The respondent, Cori Rigsby, violated the seal requirement of the False Claims Act (FCA) by disclosing her complaint against State Farm, regarding allegedly fraudulent actions taken post-Katrina, before the defendant was served. State Farm argued that the case should have been immediately dismissed due to the procedural violation. The question at hand was whether a claim made under the FCA should be dismissed because the complaining party violated the seal requirement.

Mr. Lawrence Ebner, founder of Capital Appellate Advocacy, author of�multiple pieces�on the case, and Counsel of Record on the�DRI Amicus Brief�in support of the petitioner, joined us to discuss the decision and its implications for the future.

Featuring:

Mr. Lawrence Ebner,�Founder, Capital Appellate Advocacy

Courthouse Steps: Samsung v. Apple: Design Patents at the Supreme Court

info@fed-soc.org (The Federalist Society) — 18 Jan 2017 15:15:02 GMT

Intellectual Property Practice Group Teleforum

The Federalist Society will host a one hour Teleforum to discuss the recent Supreme Court decision in�Samsung v. Apple--a rare Supreme Court design patent case regarding the shape of the face and grid of icons in Apple's iPhones. Trevor Copeland of Brinks Gilson & Lione, Austin and Art Gollwitzer of Michael Best, Chicago will engage over the specific statutory and policy issues in the decision. Prof. Ryan Holte of SIU School of Law will moderate.

Featuring:

Mr. Trevor Copeland,�Shareholder, Brinks Gilson & Lione
Mr. Art Gollwitzer,�Partner, Michael Best & Friedrich LLP
Moderator: Prof. Ryan Holte,�Assistant Professor of Law, SIU School of Law

Business and the Roberts Court

info@fed-soc.org (The Federalist Society) — 12 Jan 2017 15:13:27 GMT

Litigation Practice Group Teleforum

In recent years, the Supreme Court appears to have taken a greater interest in "business" issues. Does this reflect a change in the Court's orientation, or is it the natural outcome of the appellate process? Is the Court "pro-business"? If so, in what ways do the Court's decisions support business interests and what does that mean for the law and the American public?�Business and the Roberts Court�provides the first critical analysis of the Court's business-related jurisprudence. Author and Editor Jonathan Adler joined us along with two chapter authors, Brian Fitzpatrick and Richard Lazarus, to discuss their contributions to this important volume.

Featuring:

Prof. Jonathan H. Adler,�Johan Verheij Memorial Professor of Law; Director, Center for Business Law and Regulation, Case Western Reserve University School of Law
Prof. Brian T. Fitzpatrick�,�Professor of Law, Vanderbilt University Law School
Prof. Richard J. Lazarus,�Howard and Katherine Aibel Professor of Law, Harvard Law School

Courthouse Steps: Cash or credit? Price control or speech control?

info@fed-soc.org (The Federalist Society) — 11 Jan 2017 15:11:31 GMT

Litigation Practice Group Podcast

Credit-card companies charge a transaction fee, and merchants often pass that cost onto consumers by raising prices across the board. Some merchants, however, would like to charge more only to credit customers. Ten states prohibit merchants from charging such "swipe fees," and the states argue that this is classic economic regulation. The merchants counter that the states permit them to offer a cash discount equivalent in value to a credit surcharge, and therefore claim that the swipe-fee bans merely prohibit truthful speech, in violation of the First Amendment. The Second and Fifth Circuits have sided with the states, but the Eleventh Circuit struck down Florida's law on First Amendment grounds. The Supreme Court heard argument on Tuesday, January 10 in the case from New York,�Expressions Hair Design v. Schneiderman.

Mr. Jesse Panuccio, a partner and appellate lawyer at Foley & Lardner LLP, joined us to discuss the argument and the case. He is counsel of record on an amicus brief filed in support of the merchants' position and on behalf of a group of state-based, free-market think tanks.

Featuring:

Mr. Jesse Panuccio,�Partner, Foley & Lardner LLP

Courthouse Steps: Gloucester County School Board v. G.G.

info@fed-soc.org (The Federalist Society) — 10 Jan 2017 15:09:38 GMT

Administrative Law & Regulation Practice Group Podcast

In late October�the Supreme Court accepted a petition from the School Board of Gloucester County, Virginia seeking to overturn a lower court�s order that a 17-year-old transgender student, born female but identifying as male, be allowed to use the boys� restroom during senior year of high school. The Department of Education�s interpretation of Title IX and 34 C.F.R. § 106.33, reflects that public schools must “generally treat transgender students consistent with their gender identity.� The Court will consider this interpretation and hear argument on whether courts should extend deference to unpublished “guidance� letters issued by the U.S. Department of Justice and the U.S. Department of Education. Kyle Duncan, attorney for the School Board of Gloucester County, recently filed the Board�s Supreme Court brief and joined us to discuss this important case.

Featuring:

Kyle Duncan,�Partner, Schaerr Duncan LLP

Statewide vs. Local Right to Work Laws

info@fed-soc.org (The Federalist Society) — 6 Jan 2017 15:07:52 GMT

Labor and Employment Law Practice Group Podcast

In 1957, an article in the�Stanford Law Review�asked the question: can counties and cities pass right to work ordinances under the Taft-Hartley Amendments to the National Labor Relations Act? The law explicitly allowed states to prohibit "agency-shop" contracts, but did not clearly address subdivisions of states. This question of federal preemption was addressed by courts only three times in more than fifty years. In that time, twenty-six states have passed statewide right to work laws. But recently, Hardin County in Kentucky passed, and the federal Court of Appeals for the Sixth Circuit upheld, a local right-to-work ordinance. Consequently, this sleeper issue may be hugely important in "purple" states across the country.Our�panel of labor law and federalism experts talked about the law and politics of local right to work laws.

Featuring:

Mr. Andrew R. Kloster,�Attorney, Washington, DC
Mr. James Sherk,�Research Fellow in Labor Economics, The Heritage Foundation
Prof. Ariana R. Levinson,�Professor of Law, University of Louisville Brandeis School of Law
Moderator:�Mr.�Raymond J. LaJeunesse Jr.,�Vice President & Legal Director, National Right to Work Legal Defense Foundation

Metadata, Surveillance, and Intelligence Collection in the Trump Administration

info@fed-soc.org (The Federalist Society) — 5 Jan 2017 15:04:08 GMT

International & National Security Law Practice Group Podcast

President-elect Trump has made counterterrorism a focal point of his administration. The disciplined use of metadata, surveillance, intelligence collection, and information sharing is vital to counterterrorism efforts. Drawing on his former experience as a prosecutor, judge, and the second United States Secretary of Homeland Security, the Hon. Michael Chertoff offered guidance on how these tools can be used most effectively to protect against security challenges such as crowd-sourced terrorism and hostile nation states.

Featuring:

Hon. Michael Chertoff,�Senior Of Counsel, Covington & Burling LLP and Executive Chairman and Co-Founder, The Chertoff Group

Conscience Cases and Religious Liberty

info@fed-soc.org (The Federalist Society) — 21 Dec 2016 15:28:31 GMT

Religious Liberties Practice Group Podcast

With the legalization of gay marriage, numerous cases have arisen in which private citizens have refused to provide services to same-sex citizens getting married. Bakers, photographers, and even local magistrates have been taken to court for discrimination. In this Teleforum, our Religious Liberties experts will join us to discuss whether refusing products or services for same-sex weddings should count as sexual orientation discrimination, and if so, whether the law should provide exemptions for refusals based on religion or conscience about the nature of marriage.

Featuring:

Dr. Ryan T. Anderson,�Senior Research Fellow in American Principles and Public Policy, The Heritage Foundation
Prof. Anthony Michael Kreis, Visiting Assistant Professor of Law, Chicago-Kent College of Law

The Future of Labor Law under the New Administration

info@fed-soc.org (The Federalist Society) — 16 Dec 2016 19:18:17 GMT

Labor & Employment Law Practice Group Podcast

2016 was a big year for labor and employment law. In�Friedrichs v. California Teachers Association, a deadlocked Supreme Court allowed a lower court ruling to stand, denying a First Amendment challenge to mandatory union dues. Meanwhile, President Obama�s Department of Labor released a new overtime regulation which would more than double the maximum salary required for exemption from overtime pay. The implementation of the regulation was halted just a few days before going into effect by a nationwide injunction by a federal district court judge.

With 2017 ahead and the general election behind, our experts discussed the future of labor law under the Trump administration.

Featuring:

Mr. David S. Fortney,�Co-founder,Fortney & Scott, LLC
Brent Garren, Deputy General Counsel, Local 32 BJ, Service Employees International Union
John S. Irving,�Of Counsel, Kirkland & Ellis LLP

Courthouse Steps: Salman v. US: Decision Recap

info@fed-soc.org (The Federalist Society) — 15 Dec 2016 19:15:43 GMT

Criminal Law & Procedure Practice Group Podcast

On Tuesday, December 6, the Supreme Court handed down a unanimous opinion in�Salman v. United States�affirming the judgment of the U.S. Court of Appeals for the Ninth Circuit. This insider trading case considered whether a personal benefit can be established by the fact that a tippee shared a close family relationship. The teleforum recapped Justice Alito's opinion for the Court which held the Court's prior decision in�Dirks v. SEC�"allowed the jury to infer that the tipper here breached a duty because he made a 'gift of confidential information to a trading relative.'"

Featuring:

Todd F. Braunstein,�Global Head of Legal Investigations, Willis Towers Watson

The Future of Religious Liberties under the New Administration

info@fed-soc.org (The Federalist Society) — 15 Dec 2016 19:12:36 GMT

Religious Liberties Practice Group Podcast

What is ahead for religious liberties under the Trump administration? Will churches be granted a victory in Trinity Lutheran v. Pauley? Will Trump�s Justice and Education Departments continue the push for transgender rights in public schools? Professor Richard Garnett of The University of Notre Dame Law School and Professor Thomas Berg of the University of St. Thomas School of Law joined us to answer these questions and many others on religious liberties in 2017.

Featuring:

Professor Thomas C. Berg, James L. Oberstar Professor of Law and Public Policy, University of St. Thomas School of Law
Professor Richard W. Garnett,�Paul J. Schierl/Fort Howard Corporation Professor and Concurrent Professor of Political Science, University of Notre Dame Law School

ABA Rule 8.4

info@fed-soc.org (The Federalist Society) — 13 Dec 2016 19:07:45 GMT

Professional Responsibility & Legal Education and Free Speech & Election Law Practice Groups Podcast

Professor Eugene Volokh of the UCLA School of Law joined us Monday, December 12 to discuss the ABA�s new�Rule 8.4�on professional misconduct. The Rule states that it is professional misconduct for a lawyer 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.� The ABA goes further in Comments, stating that “Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others,� and that the Rule applies in any situation, even social, that is “connected to the practice of law.� Professor Volokh discussed the First Amendment implications and reaction to the new rule.

Featuring:

Professor Eugene Volokh,�Gary T. Schwartz Professor of Law, UCLA School of Law

Presidential Conflicts?

info@fed-soc.org (The Federalist Society) — 12 Dec 2016 19:04:57 GMT

Practice Group Podcast

“Suggestions that President-elect Donald Trump put his business holdings in a 'blind trust,' which would mean selling them to avoid potential conflicts of interest are unrealistic and unfair,� says David Rivkin, of Baker and Hostetler, in a recent�Washington Post�piece. University of Minnesota Law School Professor Richard Painter said, in a�New York Times�piece, that President-elect Trump�s announced plans to cure conflict-of-interest concerns are “not enough.� Join us as these two legal scholars discuss their positions in greater detail.

Featuring:

Professor Richard Painter,�S. Walter Richey Professor of Corporate Law, University of Minnesota Law School
Mr. David B. Rivkin Jr.,�Partner, BakerHostetler

Redistricting Tested in the Supreme Court

info@fed-soc.org (The Federalist Society) — 7 Dec 2016 15:12:43 GMT

Free Speech & Election Law and Civil Rights Practice Groups Podcast

On December 5, the U.S. Supreme Court will hold oral arguments on two redistricting cases,�Bethune-Hill v. Virginia State Board of Electionsand�McCrory v. Harris. After the movement of population, both Virginia and North Carolina legislatures redrew plans for their state legislative districts. However, plaintiffs in each state challenged the plans as racial gerrymanders diluting the vote of African-American voters. Both cases raise the question of how to comply with the Voting Rights Act requirement that racial minorities have the ability to elect representatives of their choice, along with the Constitutional prohibition of race predominating in the drawing of plans. The Court will be also be asked to clarify the acceptable ways to consider minority populations in drawing plans, what plaintiffs need to show to prove a racial gerrymander, and what would trigger strict scrutiny.

Featuring:

Ms. Maya M. Noronha,�Associate, Baker & Hostetler LLP

Courthouse Steps: Moore v. Texas

info@fed-soc.org (The Federalist Society) — 2 Dec 2016 16:31:46 GMT

Criminal Law & Procedure Practice Group Podcast

On November 29, the Supreme Court heard oral arguments in�Moore v. Texas. This case involves the death penalty and the intellectually disabled. Specifically, whether in capital cases it violates the Eighth Amendment and the High Court�s prior rulings in�Hall v. Florida�and�Atkins v. Virginia�to preclude the application of current medical standards and require older medical standards to determine the intellectual disability of a criminal defendant.

Featuring:

Kent S. Scheidegger,�Legal Director & General Counsel, Criminal Justice Legal Foundation

The Siege of Aleppo and War Crimes

info@fed-soc.org (The Federalist Society) — 2 Dec 2016 16:28:48 GMT

International & National Security Law Practice Group Podcast

For months, Syrian and Russian warplanes have bombed Aleppo,�killing and wounding residents.�Russian officials have referred to the siege as “diplomacy backed by force.� �The US Ambassador to the UN has called it “barbarism.� �The US and France have called for a War Crimes investigation, but any meaningful action at the UN has been blocked by Russia�s place on the Security Council. �In this Teleforum, two distinguished professors with extensive practical experience examined the status of the siege under the Law of Armed Conflict and International Humanitarian Law.

Featuring:

Prof. Laurie R. Blank,�Clinical Professor of Law, Emory University School of Law
Michael A. Newton,�Professor of the Practice of Law Director, Vanderbilt-in-Venice Program, Vanderbilt University Law School

Joint Employment Update

info@fed-soc.org (The Federalist Society) — 30 Nov 2016 16:26:52 GMT

Labor & Employment Law Practice Group Podcast

Ronald Meisburg, former National Labor Relations Board Member and General Counsel, joined us to discuss recent updates to joint employment law. Joint Employment is defined under the Fair Labor Standards Act (FLSA) and the Migrant and Seasonal Agricultural Workers Protection Act as a form of employment that “exists when an employee is employed by two (or more) employers such that the employers are responsible, both individually and jointly, to the employee for compliance with a statute.�

This issue has risen to the forefront of labor law as President Obama�s Department of Labor has become more aggressive in his last year and as businesses grapple with the coming of a new administration.

Featuring:

Hon. Ronald Meisburg,�Special Counsel, Hunton & Williams

Courthouse Steps: Overtime Regulation

info@fed-soc.org (The Federalist Society) — 28 Nov 2016 20:51:47 GMT

Litigation and Labor & Employment Practice Groups Podcast

In May, the Department of Labor announced a new overtime regulation, which would require all employers to pay overtime to their salaried employees who make under $47,476 annually. The rule was set to take effect on December 1, 2016. However, 21 states filed suit against the federal government claiming that the rule violated the Fair Labor Standards Act (FLSA) and states� rights by increasing the overtime threshold, which was $23,660 under the FLSA, so drastically and by setting automatic increases to the threshold every three years. The states argue the rule will decrease full-time employment while increasing unemployment and will burden state governments unlawfully under the 10th Amendment by forcing them to conform to the new regulations. The U.S. Chamber of Commerce and a coalition of business groups also filed their own suit against the law. The cases were consolidated.

On November 16, Judge Mazzant of the District Court for the Eastern District of Texas heard the states' motion for a preliminary injunction to temporarily block the rule. On November 22, Judge Mazzant granted the states� motion and issued a preliminary injunction prohibiting the Department of Labor from implementing and enforcing the new rule. Solicitor General Lawrence VanDyke, Michael Hancock of Cohen Milstein, and Jesse Panuccio of Foley & Larner LLP joined us to discuss the court's ruling and the future of the overtime rule under the new administration.

Featuring:

Mr. Lawrence Van Dyke,�Solicitor General of Nevada
D. Michael Hancock,�Of Counsel, Cohen Milstein
Jesse Panuccio, Partner, Foley & Lardner LLP

The Morality of Consent

info@fed-soc.org (The Federalist Society) — 22 Nov 2016 16:06:10 GMT

Professional Responsibilities Practice Group Podcast

The Federalist Society's Legal Classics Revisited series returns to the writing of Professor Alexander Bickel and his last work,�The Morality of Consent. In a July 11, 2016 Teleforum, we discussed Bickel's�Least Dangerous Branch.�The Morality of Consentis far shorter and was in manuscript form when Bickel died. Based on notes of magazine articles and lectures rather than on the author's plan for a single text, the book is unified by its larger themes rather than a conventional outline.

Professor Bickel viewed the mid-20th century as a time when the American legal system was challenged by the civil rights movement, the Vietnam protests, and a national reaction led by Richard Nixon. Each raised questions about obedience to the law as it existed. These events from generations ago led Bickel to consider the process by which Americans made law and came to accept and obey it. He worked hard to define the paradox presented by civil disobedience which seemed to be established within American law and yet carried the potential to destroy both law and ordered society. Contemporary readers will find the effort instructive and successful, at least in part. But questions remain. Bickel addressed other topics which "touch and concern" his questions, his misgivings, and his faith in the enterprise of Law. Bickel grappled with questions that resist final answers in each chapter of his book, a legal classic worth a visit in our own day.

Featuring:

Dean Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine
James A. Haynes, Former Attorney and Alternate Judge, U.S. Dept of Labor, Employees Compensation Appeals Board
John J. Park, Jr., Of Counsel, Strickland Brockington Lewis LLP

Broadband Privacy: FCC vs. FTC

info@fed-soc.org (The Federalist Society) — 9 Nov 2016 16:27:00 GMT

Telecommunications & Electronic Media Practice Group Podcast

On October 27th, 2016, on a 3-2 party line vote, the Federal Communications Commission adopted controversial new privacy and data security rules for broadband ISPs. The FCC determined such rules were necessary because its Open Internet Order reclassified broadband providers as Title II common carriers. Prior to this reclassification, broadband ISPs operated under the generally applicable privacy and data security framework set forth by the Federal Trade Commission. However, the FCC�s new rules differ from the FTC�s framework in significant ways. Did the FCC need to adopt these new rules to protect consumers, and if so, why? Are there good reasons for these rules to differ from the FTC�s approach, which governs the rest of the Internet? What will be the practical effect of these new rules on companies, competition, and consumers? What might we see from the courts and Congress on this issue in the future? Our panelists discussed these questions and more in a lively Teleforum.

Featuring:

Dallas Harris,�Policy Fellow, Public Knowledge,�
Michelle Rosenthal,�Senior Corporate Counsel, T-Mobile
Moderator: Neil Chilson, Attorney-Advisor to Commissioner Maureen Ohlhausen, Federal Trade Commission

Courthouse Steps: NLRB v. SW General, Inc

info@fed-soc.org (The Federalist Society) — 8 Nov 2016 16:25:18 GMT

Litigation, Federalism & Separation of Powers, and Labor & Employment Practice Groups Podcast

On November 7, the Supreme Court heared oral argument in National Labor Relations Board v. SW General, Inc., which deals with presidential appointment powers and centers on a dispute over provisions of the Federal Vacancies Reform Act of 1998 (FVRA). The case challenges a 2013 National Labor Relations Board (NLRB) determination of unfair labor practices at an Arizona ambulance company, SW General. SW General contends that under the FVRA, President Obama's appointment of an acting general counsel, Lafe Solomon, for an NLRB vacancy was illegal, and therefore the case against them should be dismissed.

The U.S. Court of Appeals for the District of Columbia Circuit agreed that the acting general counsel Solomon's tenure violated the FVRA and invalidated the decision. The federal government now seeks relief from the High Court, based on alternative statutory interpretation that the President's appointment was fully permissible under the law.

Featuring:

John Elwood,�Partner, Vinson & Elkins LLP

Right to Vote on Island of Guam Limited to Natives: A Litigation Update

info@fed-soc.org (The Federalist Society) — 7 Nov 2016 16:23:44 GMT

Civil Rights Practice Group Podcast

Although a territory of the United States and subject to the Constitution�s guarantees of non-discrimination, Guam law permits only those who meet the definition of “Native Inhabitants of Guam� to vote in a future status plebiscite. Guam thus excludes most citizens of the United States from voting in the plebiscite. Supporters of the plebiscite are forcing a reexamination of the role of the United States on this strategically important island without giving all citizens a voice in the process. What are the implications for the reach of the U.S. Constitution and U.S. national security? An ongoing lawsuit against Guam will be discussed.

Featuring:

J. Christian Adams,��Election Lawyer Center

Courthouse Steps: State Farm Fire and Casualty Co. v. U.S. ex rel. Rigsby

info@fed-soc.org (The Federalist Society) — 3 Nov 2016 15:46:24 GMT

Litigation Practice Group Podcast

On Tuesday, November 1, the Supreme Court heard�oral argument on the case�State Farm Fire and Casualty Co. v. U.S. ex rel. Rigsby. The defendant, Cori Rigsby, violated the seal requirement of the False Claims Act (FCA) by disclosing her complaint against State Farm before the defendant was served. Although Rigsby won her original case against State Farm under the FCA, the U.S. Court of Appeals immediately dismissed the case due to the procedural violation. The question the Supreme Court must answer is what standards should be used to determine whether a claim made under the False Claims Act should be dismissed because the complaining party violated the seal requirement?

Featuring:

Cory Andrews,�Senior Litigation Counsel, Washington Legal Foundation

Felony Voting

info@fed-soc.org (The Federalist Society) — 3 Nov 2016 19:17:39 GMT

Civil Rights Practice Group Podcast

Mr. Kirk will discuss the successful challenge brought by the leaders of the Virginia General Assembly to Governor Terry McAuliffe�s attempt to�repeal Virginia�s constitutional prohibition against felon voting by Executive Order. The Executive Order purported�to exercise the Governor's�clemency power to restore political rights (including the rights to vote and to sit on juries) to over 200,000 convicted felons. Mr. Kirk�will focus in particular on issues that could arise in connection with other states� prohibitions against felon voting, including the argument that such provisions discriminate on the basis of race.

Featuring:

Michael Kirk,�Partner, Cooper & Kirk PLLC

Race-Based Admissions: Student Lawsuits Against Harvard and UNC Move Forward

info@fed-soc.org (The Federalist Society) — 31 Oct 2016 19:16:01 GMT

Civil Rights Practice Group Podcast

In 2014, the Students for Fair Admissions ("SFFA"), a membership organization comprised of students, parents, and concerned citizens, sued both Harvard University and the University of North Carolina at Chapel Hill for racial discrimination in the admissions process. SFFA alleged that the universities were capping the number of Asian Americans they admit and using racial classifications to engage in discrimination. After a brief stay pending resolution of�Fisher v. University of Texas, both cases are now moving forward. This call will provide a litigation update on these and other cases.

Featuring:

Mr. William Consovoy,�the lead attorney for SFFA, Partner, Consovoy McCarthy PLLC

Chevron in the Circuit Courts

info@fed-soc.org (The Federalist Society) — 29 Oct 2016 03:31:29 GMT

Administrative Law and Regulation Practice Group Podcast

Recent opinions from the Supreme Court and policy debates within the halls of Washington have placed a renewed focus on the amount of judicial deference administrative agencies receive when interpreting statues. Kent Barnett of the University of Georgia Law School and Christopher Walker of Ohio State�s Moritz College of Law have authored a law review article entitled�Chevron�in the Circuit Courts that empirically examines the effect of so-called�Chevron, and its weaker cousin�Skidmore, deference on cases heard by the federal intermediate appellate courts. Their article features circuit and agency-specific data on when and where Chevron really matters. Stephen Vaden will moderate a discussion with the papers' authors in a teleforum that should be of interest to both administrative law practitioners and those engaged in the debate over the size and role of the administrative state.

Featuring:

Prof. Kent Barnett,��Associate Professor of Law, University of Georgia Law School
Prof. Christopher Walker,�Associate Professor of Law, Ohio State University, Michael E. Moritz College of Law
Moderator: Stephen Vaden,�Associate, Jones Day

Eleventh Hour Changes to the Census: Newly Proposed Racial Categorizations

info@fed-soc.org (The Federalist Society) — 27 Oct 2016 03:29:45 GMT

Civil Rights Practice Group Podcast

On September 30, the Office of Management and Budget (OMB) proposed a new rule on the nation�s racial categorizations, titled “Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity.� This rule would apply to federal programs throughout the federal government.

Two proposed changes stand out: the first would create a new ethnic group by bringing together people who originated in the North Africa and the Middle East (MENA), and the second would eliminate a question on race for Hispanics, effectively making “Hispanics� their racial identifier. OMB calls this a “limited revision,� but the changes would impact many areas including congressional redistricting and affirmative action programs. Currently Hispanics mark two boxes, an ethnic one for Hispanic, a second one for race. Thus over 50 percent of Hispanics (29 million in the 2010 census) are categorized as white. Since Hispanics account for 75 percent of the growth of whites today, preventing them from being identified as white in government statistics would have real and important effects.

Featuring:

Mr. Roger Clegg,�President & General Counsel, Center for Equal Opportunity
Mr. Mike Gonzalez,�Senior Fellow, The Heritage Foundation

Courthouse Steps: Samsung v. Apple: Giants in the Supreme Court

info@fed-soc.org (The Federalist Society) — 24 Oct 2016 15:16:06 GMT

Intellectual Property Practice Group Podcast

After years of litigation, the bitterly fought and highly publicized smartphone patent war between two of the biggest players in the industry, Apple and Samsung, finally reached the U.S. Supreme Court. While Apple has already won the patent infringement case, the Supreme Court addressed the complicated question of how to determine damages based on a design patent in a product with thousands of other patents covering it as well. Is the statutory language clear and controlling? Are profits from the entire value of the phone the right measure? Or something less? Do design patents even have any economic value at all in a technically complex product? Is the design of a smartphone more like the design of an entire car, or just a cup holder? Our speakers will discuss the oral argument, their views on the merits of the case, as well as the important policy questions related to the economic value of design patents.

Featuring:

Ms. Rachel W. Apter,�Senior Associate, Orrick
Prof. Mark D. Janis,�Robert A Lucas Chair of Law; Director, Center for Intellectual Property Research, Maurer School of Law, Indiana University, Election Lawyer Center

FTC�s 6(b) Patent Assertion Entity Study

info@fed-soc.org (The Federalist Society) — 19 Oct 2016 02:49:29 GMT

Intellectual Property Practice Group Podcast

On October 6, 2016, the Federal Trade Commission released the long-awaited results of its 6(b) study on patent assertion entities (PAEs). The study provides detailed information about the litigation and licensing activities by the approximately twenty companies the FTC ordered to submit data. The study does more than just describe this data, though. Given that PAEs' function in the innovation industries, the FTC also proposed a number of legislative and judicial recommendations concerning how patents are asserted against alleged infringers. Thus, the FTC's PAE study is an important part of the policy debates about patents, patent licensing, patent litigation, and the impact these have on the innovation economy. In this Teleforum, the panelists discussed the study findings and their reactions to the study and its policy proposals.

Featuring:

Prof. Jorge L. Contreras,�Associate Professor, S.J. Quinney College of Law, University of Utah
Prof. Kristen Osenga,�Professor of Law, University of Richmond School of Law
Ms. Laurie Self,�Vice President and Counsel of Government Affairs,�Qualcomm Incorporated
Moderator: Prof. Adam Mossoff,�Professor of Law and Co-Director of Academic Programs and Senior Scholar of CPIP, Antonin Scalia Law School, George Mason University

Religious Liberty vs. Nondiscrimination: Reconcilable or Intractable?

info@fed-soc.org (The Federalist Society) — 14 Oct 2016 14:47:49 GMT

Civil Rights Practice Group Podcast

Recent legal developments ranging from Supreme Court decisions to administrative actions have raised significant issues about the balance between religious liberties and prohibitions against discrimination. To what extent must an individual�s right to religious freedom yield to the state�s interest in protecting individuals against discrimination? Does the Free Exercise Clause extend beyond one�s home or church?

The U.S. Commission on Civil Rights recently issued a report that appears to tilt in favor of nondiscrimination over religious liberty. What does this portend for the future of religious liberty?

Featuring:

Hon. Peter N. Kirsanow,�,�Commissioner, U.S. Commission on Civil Rights

How Should "Administrative Law" Be Taught Today?

info@fed-soc.org (The Federalist Society) — 13 Oct 2016 14:45:46 GMT

Administrative Law & Regulation Practice Group Podcast

The growing role of the administrative agencies in American government is mirrored by a growing role of administrative law in legal education. The trend is exemplified by many law schools' introduction of "Legislation and Regulation" (or "Leg-Reg") as a first-year course.

But as the administrative stats and administrative law grow and change, how should the curriculum change?

To discuss this, the Administrative Law Section is pleased to host a teleforum with three leading administrative law scholars: Prof. Dan Farber of the University of California-Berkeley Law, Prof. Kristin Hickman of the University of Minnesota Law School, and Jim Tozzi, former regulatory official of the United States Office of Management and Budget and Director of Multinational Business Services at the Center for Regulatory Effectiveness.

The discussion will be moderated by Adam White, a Research Fellow at Stanford's Hoover Institution and an adjunct professor at George Mason University's Antonin Scalia Law School.

Featuring:

Prof. Dan Farber,�Sho Sato Professor of Law, Co-Director and Center for Law, Energy & Environment, California-Berkeley Law
Prof. Kristin Hickman,�Distinguished McKnight University Professor, Harlan Albert Rogers Professor in Law, University of Minnesota Law School and Associate Director, Corporate Institute
Jim Tozzi,�Former Regulatory Official of the United States Office of Management and Budget and Director of Multinational Business Services at the Center for Regulatory Effectiveness
Moderator: Adam White,�Research Fellow, The Hoover Institution

Courthouse Steps: Pena-Rodriguez v. Colorado

info@fed-soc.org (The Federalist Society) — 11 Oct 2016 13:52:08 GMT

Criminal Law & Procedure Practice Group Podcast

On Tuesday, October 11, the Supreme Court will hear oral arguments in�Pena-Rodriguez v. Colorado. This case involves the constitutionality of a Colorado rule that bars a defendant from introducing evidence that a juror was racially biased. The justices will consider whether applying a no-impeachment rule to block evidence in this context violates the Sixth Amendment right to an impartial jury.

Featuring:

John C. Richter,�Partner, King & Spalding

Courthouse Steps: Salman v. U.S. Oral Arguments

info@fed-soc.org (The Federalist Society) — 10 Oct 2016 13:49:27 GMT

Criminal Law & Procedure Practice Group Podcast

On Wednesday, October 5, the Supreme Court heard�argument in�Salman v. U.S.�on what constitutes a personal benefit in insider trading.� The Court will consider the Ninth Circuit�s holding in this matter that a personal benefit can be established by the fact that a tippee shared a close family relationship. The Second Circuit previously held in�United States v. Newman�that a personal benefit to an insider necessary to establish insider trading under�Dirks v. SEC�requires proof of “an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature.��

Featuring:

Todd F. Braunstein,�Global Head of Legal Investigations, Willis Towers Watson

Ballot Selfies are Free Speech

info@fed-soc.org (The Federalist Society) — 7 Oct 2016 15:28:44 GMT

Free Speech and Election Law Practice Group Podcast

On Wednesday, September 28, the First Circuit Court of Appeals decided�Rideout v. Gardner, the first federal appellate ruling regarding restrictions on "ballot selfies,� or photographs of one�s own ballot. The court ruled that New Hampshire's prohibition does not survive intermediate First Amendment scrutiny. Steve Klein of the Pillar of Law Institute, who is lead counsel in a similar case in Michigan, discussed the ruling�s implications for political speech relating to polling places and the status of ballot selfie challenges nationwide.

Featuring:

Mr. Stephen R. Klein,�Attorney, Pillar of Law Institute

Clean Power Plan Oral Argument Recap

info@fed-soc.org (The Federalist Society) — 6 Oct 2016 15:41:55 GMT

Environmental Law & Property Rights Practice Group Podcast

On Tuesday, September 27, the D.C. Circuit Court of Appeals heard�en banc�West Virginia v. Environmental Protection Agency, the case that will determine the fate of President Obama�s Clean Power Plan. If enacted, the Clean Power Plan would set a national limit for carbon emissions, and require each state to reduce its own output and meet state-specific standards. In February, the Supreme Court voted 5-4 to stay the Clean Power regulations while the case was pending in the D.C. Court. Twenty-four states, and various energy producers, have joined the suit against the federal government. Does the EPA have the authority to regulate a state�s carbon emissions under the Clean Air Act? Elbert Lin, the Solicitor General of West Virginia, will once again join us to discuss the oral arguments in this very important case.

Featuring:

Mr. Elbert Lin,�Solicitor General, State of West Virginia

JCPOA: One Year in Review

info@fed-soc.org (The Federalist Society) — 4 Oct 2016 16:30:01 GMT

International & National Security Law Practice Group Podcast

After one year of Joint Comprehensive Plan of Action assessments and critiques, have American security interests been damaged? Is Iranian gamesmanship ephemeral, or durably threatening? Critics point to evasions of the JCPOA like the easing of economic sanctions and the un-reviewed arms deals and contracts with Russia to say that the “deal� has only served as cover for Iranian nuclear infractions. Is the U.S. Congress empowered to demand a better deal, even after a year of performance and European reliance on a return to the status quo ante for financial re-engagement with Iran? Are there historic precedents for resetting the terms? In light of coming sunset clauses that may see Iran at near zero break-out time, what leverage potential does NATO possess, and do any “snap back� sanctions represent real restraining power?

Featuring:

Mark Dubowitz,�Executive Director, Foundation for Defense of Democracies (FDD)
Peter Harrell,�Adjunct Senior Fellow, Center for a New American Security

Unraveled: Obamacare, Religious Liberty, and Executive Power

info@fed-soc.org (The Federalist Society) — 30 Sep 2016 16:28:13 GMT

Litigation and Administrative Law & Regulation Practice Groups Podcast

Six years after its enactment, Obamacare remains one of the most controversial, divisive, and enduring political issues in America. In this much-anticipated follow-up to his critically acclaimed�Unprecedented: The Constitutional Challenge to Obamacare�(2013), Professor Blackman argues that, to implement the law, President Obama has broken promises about cancelled insurance policies, exceeded the traditional bounds of executive power, and infringed on religious liberty. At the same time, he writes that conservative opponents have stopped at nothing to unravel Obamacare, including a three-week government shutdown, four Supreme Court cases, and fifty repeal votes. Author Joshua Blackman and Michigan Law Professor Nicholas Bagley joined us to discuss the book and the saga of Obamacare.

Featuring:

Prof. Josh Blackman, �Author, Unraveled: Obamacare, Religious Liberty, & Executive Power, Associate Professor of Law, Houston College of Law
Prof. Nicholas Bagley,�Assistant Professor of Law, University of Michigan Law School

President Obama and Nuclear Tests

info@fed-soc.org (The Federalist Society) — 30 Sep 2016 16:26:27 GMT

International & National Security Law Practice Group Podcast

In 1996, President Bill Clinton signed the Comprehensive Nuclear Test Ban Treaty, but the treaty did not go into effect because the Senate refused to ratify it. Twenty years later, the Obama administration still favors ratification of the treaty as part of its nuclear disarmament strategy. President Obama appears to be attempting to go around the Senate by signing a U.N. Security Council Resolution that would, according to a National Security Council spokesman, “call on states not to test and support the CTBT�s objectives,� but would not be legally binding. Professor Kontorovich of Northwestern University School of Law and Professor Spiro of Temple Law School joined us to debate the international & national security law implications of these actions.

Featuring:

Prof. Eugene Kontorovich,�Professor of Law, Northwestern Pritzker School of Law
Prof. Peter J. Spiro, Charles R. Weiner Professor of Law, Temple University Beasley School of Law�

Midnight Monuments: The Antiquities Act and the Executive Authority to Designate National Monuments

info@fed-soc.org (The Federalist Society) — 26 Sep 2016 15:54:11 GMT

Environmental Law and Property Rights Practice Group Podcast

The Antiquities Act of 1906 provides, in part, that “The President may, in the President's discretion, declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on the Federal Government to be national monuments.� 54 U.S.C. §320301(a). Declaring a national monument brings substantial new layers of protected status to the areas or thing so designated, precluding many previously-authorized uses of the area or thing as well. To varying degrees, U.S. Presidents have exercised this authority both during the regular course of their administration and sometimes with heightened vigor at the end, or “midnight hour,� of their final term. Our experts examined the historic use of the Antiquities Act authority and particularly the phenomena of “midnight monument� designations across administrations, including those already completed or anticipated by the now-outgoing Obama Administration. Their analysis included a discussion of the controversial proposal to designate a Bears Ears national monument in Utah in the coming weeks, the historically large expansion in August of the Papahanaumokuakea Marine National Monument to 582,578 square miles of land and sea, the September 15 designation of the Northeast Canyons and Seamounts Marine National Monument, and more.

Featuring:

Prof. Donald J. Kochan,�Professor and Associate Dean for Research and Faculty Development, Chapman University School of Law
Prof. Charles Wilkinson�Distinguished Professor, Moses Lasky Professor of Law History and Society in the American West; Indian Law; Public Land Law; Water Law

Regulations at the End of the Obama Administration

info@fed-soc.org (The Federalist Society) — 23 Sep 2016 15:51:31 GMT

Administrative Law & Regulation Practice Group Podcast

From the EPA to HHS to the CFPB, the volume of regulatory rulemaking and other agency actions has been a major point of controversy throughout the Obama Administration�s eight years. So it is only fitting that the Administration�s closing months should spur research on new regulations and those yet to come before the Administration�s clock strikes “midnight.� On September 22, the Federalist Society will host a teleforum to discuss these issues, with the authors of two such studies.

In “600 Major Regulations,� Sam Batkins of the American Action Forum updates the AFF�s 2015 report on the Administration�s volume of "major rules��that is, the rules that each have a projected impact of $100 million or more annually. According to his report, the Administration�s 600 rules in 7.5 years "is 20 percent more than the previous president did in eight years,� and will "cost for more than $740 billion in regulatory burdens.�

And in “The Final Countdown: Projecting Midnight Regulations,� Sofie Miller and Daniel P�rez of George Washington University�s Regulatory Studies Center analyze the “midnight rules� that the Obama Administration might finalize in coming weeks and months, before the next President has a chance to block them. Applying new quantitative models, they forecast that an average of 72 "economically significant� rules will be published between July 2016 and January 2017, a 118% increase over the Obama Administration�s current average rate of regulation.

The Federalist Society�s Administrative Law Section is pleased to host two of the authors of these reports to discuss their findings: Sam Batkins and Sofie Miller. The discussion will be moderated by Adam White, a research fellow at the Hoover Institution.

Featuring:

Sam Batkins,�Author, Director of Regulatory Policy, American Action Forum
Sofie Miller�Senior Policy Analyst, Regulatory Studies Center, George Washington University
Moderator: Adam White,�Research Fellow, The Hoover Institution

Litigation Update: Crisis Pregnancy Centers and the First Amendment

info@fed-soc.org (The Federalist Society) — 22 Sep 2016 15:49:59 GMT

Religious Liberties Practice Group Podcast

On September 8, 2016 Liberty Counsel filed its opening brief with the Ninth Circuit Court of Appeals in�Mountain Right to Life v. Kamala Harris. The case is a challenge to California�s Assembly Bill 775, which requires all “licensed covered facilit(ies)� which have a “primary purpose� of “providing family program or pregnancy-related services� to tell clients on site that “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women.� The legislation was passed in response to pro-life crisis pregnancy centers, which do not mention abortion in their pregnancy counseling.

Featuring:

Stephen Casey,�Author, President and Senior Counsel, Casey Law Office, P.C.

Stolen Sovereignty: How to Stop Unelected Judges from Transforming America

info@fed-soc.org (The Federalist Society) — 20 Sep 2016 20:26:23 GMT

Administrative Law & Regulation Practice Group Podcast

Stolen Sovereignty: How to Stop Unelected Judges from Transforming America, by Daniel Horowitz, discusses the possible political repercussions of President Obama�s judicial appointments. President Obama has filled roughly 30% of the federal judicial seats in his tenure as President. In this Teleforum, Daniel Horowitz will discuss his book and how he believes the will of the people is being usurped by activist judges.

Featuring:

Daniel Horowitz,�Author,�Stolen Sovereignty: How to Stop Unelected Judges from Transforming America
Moderator: Hon. Eileen J. O'Connor,�Founder, Law Office of Eileen J. O'Connor, PLLC

Recent Developments Impacting the Ethical Practice of Law

info@fed-soc.org (The Federalist Society) — 16 Sep 2016 20:24:21 GMT

Professional Responsibility & Legal Education Practice Group Podcast

Our panel of three experts in legal and judicial ethics discussed several recent cases and regulatory developments in the field, with an eye to translating these developments into practical wisdom about their likely impact on law practice in 2016 and beyond.

Topics included the American Bar Association's move to expand the scope of the regulation of race, gender and other harassment and discrimination into the practice of law generally, including law firm management; amendments to the rules of discovery to help reduce the gamesmanship now often infecting the process; the extent to which the Supreme Court's decision in the North Carolina Dentists case may foreshadow limitations on the ability of states to regulate the practice of law without running afoul of the antitrust laws; whether competent legal advice must include a business advice component in certain settings; and how the use of social media to complain about a sitting judge can cross the line into unethical conduct.

Featuring:

Prof. W. William Hodes,Professor Emeritus of Law, Indiana University & President, The William Hodes Professional Corporation
Prof. Thomas D. Morgan,�Oppenheim Professor Emeritus of Antitrust and Trade Regulation Law, George Washington University Law School �
Prof. Ronald Rotunda,�Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University Dale E. Fowler School of Law �

Clean Power Plan in the Court

info@fed-soc.org (The Federalist Society) — 14 Sep 2016 17:34:52 GMT

Environmental Law & Property Rights and Federalism & Separation of Powers Practice Groups Podcast

On September 27, 2016, the D.C. Circuit Court of Appeals will hear oral argument in�West Virginia, et al. v. EPA, a case testing the constitutionality of the Clean Power Plan. Among two procedural peculiarities (the U.S. Supreme Court has granted a stay in the implementation of the Plan, and the D.C. Circuit Court of Appeals has,�sua sponte, decided to hear the case�en banc�without a prior three-judge panel), the case includes myriad federalism and separation of powers issues. Our experts will discuss the primary issues in the case � the balance of power between the federal and state governments, and the separation of powers within the federal government.

Featuring:

David Bookbinder,�Founding Member, Element VI Consulting
David B. Rivkin, Jr.,�Partner, Baker & Hostetler LLP �

The New Trail of Tears: How Washington Is Destroying American Indians

info@fed-soc.org (The Federalist Society) — 7 Sep 2016 15:50:02 GMT

Environmental Law & Property Rights Practice Group Podcast

Native Americans on reservations suffer higher rates of crime, addiction, alcoholism, and poverty than any other group of Americans. In her new book�The New Trail of Tears: How Washington Is Destroying American Indians, journalist Naomi Schaefer Riley examines the dismal situation�and the rays of hope�and shows how the cycles of poverty, addiction, crime, and family breakdown are perpetuated by government policies. “Indians,� writes Riley, “have chosen civilization; now it�s time for America to make them equal Americans.� With commentary by the Goldwater Institute Vice President for Litigation, Timothy Sandefur, our Teleforum will look at the legal and political problems that plague the more than 500 reservations in North America.

Featuring:

Naomi Schaefer Riley,�New York Post�columnist, author of�The New Trail of Tears: How Washington Is Destroying American Indians
Commentary by: Timothy Sandefur,�Vice President for Litigation, Goldwater Institute�

Clean Power Plan Litigation Update

info@fed-soc.org (The Federalist Society) — 1 Sep 2016 22:50:30 GMT

Environmental Law & Property Rights Practice Group Podcast

On Tuesday, September 27, the D.C. Circuit Court of Appeals will hear�West Virginia v. Environmental Protection Agency, the case that will determine the fate of President Obama�s Clean Power Plan. If enacted, the Clean Power Plan would set a national limit for carbon emissions, and require each state to reduce its own output and meet state-specific standards. In February, the Supreme Court voted 5-4 to stay the Clean Power regulations while the case was pending in the D.C. Court. Twenty-four states, and various energy producers, have joined the suit against the federal government. Does the EPA have the authority to regulate a state�s carbon emissions under the Clean Air Act? Elbert Lin, the Solicitor General of West Virginia, will join us to discuss the arguments as briefed in this highly important case.

Featuring:

Mr. Elbert Lin,�Solicitor General, State of West Virginia

Sanctioning (Government) Lawyers

info@fed-soc.org (The Federalist Society) — 30 Aug 2016 22:48:45 GMT

Litigation and Professional Responsibilities & Legal Education Practice Group Podcast

On May 19, 2016, the United States District Court for the Southern District of Texas entered a Memorandum Opinion and Order in which it found that lawyers from the United States Department of Justice violated their duty of candor in the course of their representation and imposed sanctions. The court initially required additional ethics training for all Justice Department attorneys practicing in 26 states for a period of five years. The Court concluded, in part, that “the Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions.� The Justice Department acknowledged that its attorneys made mistakes and misrepresentations to the court and opposing counsel, but contended that none were intentional, and agreed to some limited sanctions. Since then, the court has stayed its order.

What are the limits, if any, to Court sanctions for attorney conduct? Here to discuss these issues are Thomas H. Dupree Jr., who formerly served in the Department of Justice, and Richard Painter, whose experience includes service in the White House Counsel�s Office.

Featuring:

Mr. Thomas H. Dupree Jr.,�Partner, Gibson Dunn
Prof. Richard W. Painter,�S. Walter Richey Professor of Corporate Law, University of Minnesota Law School

Pipeline Takings: When Can Your Property Be Taken?

info@fed-soc.org (The Federalist Society) — 29 Aug 2016 22:46:51 GMT

Environmental Law & Property Rights

The use of eminent domain to condemn property for pipelines has become an increasingly controversial practice. Critics claim that it undermines private property rights and causes environmental damage. Defenders argue it is essential to enable effective exploitation of the nation's energy resources. In recent months, Georgia and South Carolina have passed new legislation limiting pipeline condemnations, an effort backed by a coalition of conservative property rights advocates and left of center environmentalists. Similar reforms have been proposed in many other states. This forum will examine the growing controversy over pipeline takings.

Featuring:

Prof. Alexandra Klass,�Distinguished McKnight University Professor, University of Minnesota Law School
Prof. Ilya Somin,�Professor of Law, Antonin Scalia Law School, George Mason University

The Constitutionality of Independent Agencies: The CFPB

info@fed-soc.org (The Federalist Society) — 25 Aug 2016 16:14:28 GMT

Litigation Practice Group Podcast

In April, the mortgage lender PHH Corporation challenged the constitutionality of the Consumer Financial Protection Bureau (CFPB) after being ordered by the CFPB to disgorge $109 million. PHH challenged the bureau�s legitimacy under Article II, and cited�Free Enterprise Fund v. Public Company Accounting Oversight Board�as relevant precedent, because PCA officers could be removed for cause, and then, only by officers of the SEC. Meanwhile, the CFPB cited�Humphrey�s Executor v. United States, in which the Supreme Court upheld the constitutionality of the Federal Trade Commission Act, which allowed the president to remove an FTC commissioner only for cause.�Professor Peter Conti-Brown of The Wharton School and Gregory Jacob, partner at O'Melveny & Myers LLP joined us to discuss�the CFPB and the constitutionality of other independent agencies like it.

Featuring:

Mr. Peter Conti-Brown,�Assistant Professor of Legal Studies and Business Ethics, The Wharton School
Mr. Gregory F. Jacob,�Gregory F. Jacob Partner, O'Melveny & Myers LLP

Religious Freedom of Religious Colleges

info@fed-soc.org (The Federalist Society) — 25 Aug 2016 16:11:52 GMT

Religious Liberties Practice Group Podcast

Mr. Gregory S. Baylor of Alliance Defending Freedom discussed�current and future challenges to the religious freedom of faith-based institutions of higher education, with a special focus on the ongoing debate over California Senate Bill 1146. Earlier versions of SB1146 would have significantly curtailed longstanding religious freedom protections in state anti-discrimination law, thereby exposing faith-based schools to liability for discrimination on the basis of religion, sexual orientation, and gender identity in student and employee relations. The bill's prime sponsor recently removed its most controversial provisions, but he indicated that a similar bill may be proposed in the next legislative session.

Featuring:

Mr. Gregory S. Baylor,�Senior Counsel & Director of the Center for Religious Schools, Alliance Defending Freedom

Former NSA and CIA Director General Michael V. Hayden

info@fed-soc.org (The Federalist Society) — 24 Aug 2016 16:08:32 GMT

International & National Security Law Practice Group Podcast

General Michael V. Hayden, former Director of the National Security Agency and the Central Intelligence Agency, and retired United States Air Force four-star general, joined us to discuss his new book, Playing to the Edge: American Intelligence in the Age of Terror, his memoir as a career intelligence officer and leader. Though the book covers the arc of his entire professional life, our Teleforum focuses primarily on the cyber world, which General Hayden describes as “a domain of conflict and cooperation whose importance seems to grow by the hour� couched “in an era of shrinking trust in government and expanding global threats."

Featuring:

General Michael V. Hayden�Principal, The Chertoff Group, Former NSA and CIA Director
Moderator: Prof. Jamil N. Jaffer,�Adjunct Professor and Director, Homeland and National Security Law Program

Voter ID: A Debate

info@fed-soc.org (The Federalist Society) — 22 Aug 2016 15:07:51 GMT

Free Speech & Election Law Practice Group Podcast

Recent North Carolina, North Dakota, Texas, and Wisconsin court decisions have invalidated voter ID laws under constitutional and Voting Rights Act challenges. How do these recent decisions square with Crawford v. Marion County Election Board, where the United States Supreme Court upheld the Indiana voter ID law in 2008? In this podcast, Maya M. Noronha, an election attorney at BakerHostetler, and Dan Tokaji, a law professor at The Ohio State University, Moritz College of Law, addressed these recent decisions and debated the legality of voter ID laws.

Featuring:

Ms. Maya Noronha,�Associate,�BakerHostetler
Prof. Daniel P. Tokaji,�Moritz College of Law, The Ohio State University

When Lines in The Sea Fail: China Dismisses Hague Arbitration Court Ruling

info@fed-soc.org (The Federalist Society) — 19 Aug 2016 15:04:30 GMT

International & National Security Law Practice Group Podcast

The Chinese Supreme People�s Court and the Chinese government have denounced the Permanent Court of Arbitration at the Hague�s recent ruling. According to The United Nations Convention on the Law of the Sea (UNCLOS) provisions, island-building activity and territorial claims in the South China Sea violated international and environmental law. Was China bound by this ruling, although China objects to The Hague Arbitration Court�s jurisdiction, and claims that consent was not given? When international law, agreements, and norms are summarily voided by a losing nation, what should be the international legal and political response? Regarding international agreements specifically, does this case provide warnings for signatories to treaties and agreements? Are there lessons for the United States in the consideration of potential reservations, opt-outs, alternate venues, or waivers, and whether they were given proper regard by the Court?

Featuring:

Prof. James Kraska,�Howard S. Levie Professor in the Stockton Center for the Study of International Law at the U.S. Naval War College in Newport, Rhode Island
Prof. Julian Ku,�Maurice A. Deane Distinguished Professor of Constitutional Law and Faculty Director of International Programs, Hofstra University School of Law

Changing the Rules of Discovery

info@fed-soc.org (The Federalist Society) — 19 Aug 2016 14:58:15 GMT

Litigation Practice Group Podcast

A “requester pays� amendment to the Federal Rules of Civil Procedure (FRCP) would require that those seeking discovery pay for its costs, moving federal civil litigation away from the current “American rule� that requires all parties to bear their own litigation expenses, including the costs of responding to discovery requests. Supporters of “requester pays� argue that discovery requests can be so broad and costs can be so high that they become a disincentive to defend. Opponents claim that the amendment would make legal proceedings even more expensive for individual litigants, who would be unable to pay for the discovery necessary to make a case against larger and more powerful defendants. Here to discuss this idea are Alex Dahl of Brownstein Hyatt Farber Schreck LLP and Professor Benjamin Spencer of UVA School of Law.

Featuring:

Alexander R. Dahl, Shareholder, Brownstein Hyatt Farber Schreck
Prof. A. Benjamin Spencer, Earle K. Shawe Professor of Law, University of Virginia School of Law

Who is Winning The Intimidation Game?

info@fed-soc.org (The Federalist Society) — 18 Aug 2016 21:27:08 GMT

Free Speech & Election Law Practice Group Podcast

Everyone is interested in free, fair and open elections. For decades, the country has debated the proper balance between First Amendment speech rights and campaign finance and disclosure laws. In a new book, The Intimidation Game, Kimberley Strassel seeks to show, through first-hand accounts, how this tension can and has been used against free speech and free association, chilling or even silencing political opposition.

Featuring:

Kimberley A. Strassel, Wall Street Journal Editorial Board Member, Author of�The Intimidation Game

Church Playgrounds & Blaine Amendments

info@fed-soc.org (The Federalist Society) — 17 Aug 2016 23:29:33 GMT

Religious Liberties Practice Group Podcast

The Supreme Court has agreed to hear�Trinity Lutheran Church of Columbia, Inc. v. Pauley. The case focuses on religious liberties and the Establishment Clause, and whether the First Amendment allows states to disfavor religious institutions. The Missouri Constitution has a clause against the use of public funds for religious entities, reading “that no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion�� In this case, The Department of Natural Resources turned down a request by a church-run preschool for a grant for new rubber ground in their playground. Does the exclusion of churches from an otherwise neutral and secular aid program violate the constitution? Our experts join us today to discuss the upcoming case and to give some background on the relevant precedent in this area of law.

Featuring:

Prof. Thomas C. Berg, James L. Oberstar Professor of Law and Public Policy, University of Saint Thomas School of Law
Prof. Martin S. Lederman,�Associate Professor of Law, Georgetown University Law Center
Prof. Christopher C. Lund, Associate Professor of Law, Wayne State University

Constitutional Challenges to the America Invents Act

info@fed-soc.org (The Federalist Society) — 16 Aug 2016 02:10:17 GMT

Intellectual Property Practice Group Podcast

The America Invents Act (AIA) significantly affects the Constitutional separation of powers by creating a new inter partes review (IPR) regime for challenging an issued patent under an Article II Executive Branch entity, the Patent Trials and Appeals Board (PTAB). In practice, the PTAB has become an alternative forum for accused infringers to attack patent claims with less risk and expense than in U.S. federal district courts. Combined with the reluctance and sometime refusal of Article III courts (including the U.S. Court of Appeals for the Federal Circuit) to exert authority over final application of patent law, the statutory adjudicative powers given PTAB judges give rise to separation of powers issues.

As a result, patents that have successfully overcome validity challenges in a “final judgment� of a court are now subjected to double jeopardy in the PTAB, and those valuable but limited patent property rights can be challenged and taken away entirely within an Article II administrative forum. At least two cases pending cert before the U.S. Supreme Court challenge provisions of the AIA on separation of power bases (Cooper v. Lee�and�MCM Portfolio LLC v. Hewlett-Packard Co.), while another (Cuozzo Speed Technologies,�LLC v. Lee) challenging the differences between the PTAB�s and the courts� claim construction regimes has already been decided. In Cuozzo, the Court upheld the PTAB/USPTO�s application of a different claim construction standard from the courts, tipping the scales against patentees who face a validity challenge during IPRs as compared against in federal district court. Critics of the AIA rules �and particularly IPRs� as applied by the USPTO/PTAB assert that they weaken patents and the patent system, and undermine the incentives for innovation that have driven economic growth for much of this country�s history. This teleforum will include a discussion of the Constitutional challenges to the AIA�s patent review provisions, including the Court�s hints in�Cuozzo�that it is aware of other Constitutional issues.

Featuring:

Mr. Rob Greenspoon, Founding Member, Flachsbart & Greenspoon, LLC
Prof. Adam Mossoff, Professor of Law and Co-Director of Academic Programs, Senior Scholar,Center for the Protection of Intellectual Property, Antonin Scalia School of Law, George Mason University
Mr. Tejinder Singh, Partner, Goldstein & Russell
Moderator: Mr. Trevor K. Copeland, Shareholder, Brinks Gilson and Lione

Court Rulings on Election Law

info@fed-soc.org (The Federalist Society) — 10 Aug 2016 17:23:43 GMT

Civil Rights and Free Speech & Election Law Practice Groups Teleforum

There have been a series of recent court decisions at both the federal district court and court of appeals level involving election reforms in North Carolina, North Dakota, Texas and Wisconsin. These cases involve state statutes on voter ID, early voting, same day registration, and out-of-precinct voting. Hans von Spakovsky, Manager of the Election Law Reform Initiative at the Heritage Foundation, a former Commissioner on the Federal Election Commissioner, and the former Counsel to the Assistant Attorney General for Civil Rights at the U.S. Justice Department will discuss these developments and the status of the litigation and the law governing elections and voting.

Featuring:

Hans A. von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, The Heritage Foundation

Searching: The Limits of Warrants Under ECPA

info@fed-soc.org (The Federalist Society) — 9 Aug 2016 20:29:19 GMT

Litigation and Criminal Law Practice Group Podcast

The case of�In the Matter of a Warrant to Search a Certain E-mail Account Controlled and Maintained by Microsoft Corporation�stems from Microsoft's refusal to comply with a search warrant, which would have required Microsoft to hand over the contents of e-mails stored on a server in Ireland, but accessible from the company's U.S. headquarters. The U.S. government had applied for the warrant under Electronic Communications Privacy Act (ECPA). Reversing a lower court decision in favor of the government, the Second Circuit ruled that ECPA warrants did not have extraterritorial effect without express Congressional authorization.

Were the Second Circuit and Microsoft correct? Or was the government, which had contended that the data would be seized in the U.S rather than where it was stored, and therefore the warrant would not be exercised extraterritorially? Is the case a win for the protection of privacy? Will it help protect the relationships and agreements of U.S. entities with foreign nations? Will it be a huge burden to force the government to use the mutual legal assistance process when a provider opts to store the data at issue outside the U.S.?

Featuring:

Jeffrey M. Harris, Partner, Bancroft PLLC
Prof. Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland and National Security Law Program, George Mason University School of Law and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee

The Climate Change Investigations � Fair Regulation of Markets or Executive Overreach that Chills Free Speech?

info@fed-soc.org (The Federalist Society) — 8 Aug 2016 20:27:20 GMT

Litigation Practice Group Teleforum

Climate change activists have for the past year been urging the Department of Justice and state attorneys general to investigate ExxonMobil, think tanks, and other corporations and organizations that have expressed skepticism or otherwise presented contrary views either on the science or the policy of climate change regulatory action. These calls include members of Congress petitioning the U.S. Department of Justice to investigate whether Exxon and its “brain trust� violated civil RICO, an ongoing Martin Act investigation launched last fall by the New York Attorney General, and more recently, subpoenas issued by the US Virgin Islands and civil investigative demands from the Massachusetts AG. A press conference on March 29, 2016 attended by former vice-president Al Gore, represented that these calls for investigations are supported by a coalition of 20 attorneys general. The next day a majority of state attorneys general, 29 in all, issued a press release that they would not be joining in that call for investigations or other regulatory action, citing respect for the rule of law and the First Amendment. Asserting that good science embraces disagreement and the chilling effect on research when the government decides what is “truth� and what is “fraud,� these majority states revealed a stark divide in our polity about the proper role of the executive branch � state and federal � in formulating, enforcing and financing climate change policy.

At the March 29, 2016 press conference, former vice-President Gore asserted that “our democracy�s been hacked� and that these state and federal enforcement actions were necessary to remedy Congress�s and other legislative inactivity. In this Teleforum, Andrew Grossman � who has been involved in both defending targets of the subpoenas and in challenging the lawfulness of their issuance � discussed some of the legal and policy questions implicated by this division between the states, and the executive branches and Congress, such as: Should a corporation�s published research that expresses concerns about climate change be grounds for civil RICO or other regulatory action? Would such potential liability disincentive research? Should the government decide what is truth and what is not in the historically uncertain arena of science? Should those matters be decided in legislative hearings with the opportunity for the expression of multiple views on the science, policy, and proposed solutions? Should there have to be a substantiated allegation of unlawful conduct before such investigatory powers are wielded? Who has been defrauded? Is there harm in forcing corporations and think tanks to open up their records, research and communications � isn�t that a good way to determine whether there has been fraud on the energy markets? On the other hand, has Exxon sold oil or raised capital by claiming climate change is not affected by fossil fuels? Are consumers/investors uncritical consumers of industry information? What are the pros and cons of legislative action, inaction or accretional action versus sweeping state and federal executive enforcement actions? What regulatory authority or past practice provides a template for these investigations, and what are their practical and historical goals and outcomes? Do think tanks have a different status vis-a-vis the First Amendment than a for profit business selling fossil fuels, and if so what role, if any, does the source of their funding play?

Featuring:

Andrew Grossman, Partner, Baker & Hostetler LLP and Adjunct Scholar, The Cato Institute
Margaret A. (Peggy) Little, Partner, Little and Little, & Director, The Federalist Society's Pro Bono Center

Protecting Eligible Voters: Evenwel v. Abbott and the Future of Redistricting

info@fed-soc.org (The Federalist Society) — 5 Aug 2016 20:25:32 GMT

Civil Rights Practice Group Podcast

In�Evenwel v. Abbott, the Supreme Court held that the Constitution�s one-person, one-vote rule allows States to draw their legislative districts based on total population. In doing so, the Court rejected the appellants� argument that the one-person, one-vote rule protects eligible voters and thus required States to equalize the population of eligible voters, not total population. The Court explicitly declined to resolve whether States may draw districts to equalize voter-eligible population rather than total population.

Our experts analyzed�the Supreme Court�s decision and reviewed�the constitutional history underlying the one-person, one-vote doctrine. They discussed the impact of�Evenwel�on future redistricting decisions, including the Court�s willingness to accept legislative districts based on eligible voters.

Featuring:

J. Michael Connolly, Counsel, Consovoy McCarthy Park PLLC
Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute

Class Action in Consumer Finance Agreements

info@fed-soc.org (The Federalist Society) — 27 Jul 2016 18:27:15 GMT

Litigation Practice Group Podcast

The Federal Arbitration Act (FAA), passed in 1925, generally requires courts to look favorably upon all arbitration agreements. In 2011, the Supreme Court upheld an arbitration agreement in a contract for mobile phone services that contained a class action ban. The court ruled that a state law that prevented the class action ban from being enforced was “an obstacle to the accomplishment of the FAA�s objectives.�

However, Congress passed the Dodd-Frank Act in 2010, which authorizes the Consumer Financial Protection Bureau (CFPB) to study arbitration agreements in consumer contracts and limit or prohibit them if doing so would be in the public interest and for the protection of consumers. In May 2016, the CFPB issued a proposed rule that would ban arbitration agreements that acted to prevent class action lawsuits and would further establish certain reporting requirements for other arbitrations that are filed between consumers and providers.

Our experts�discussed this proposed rule, including the history that led us to this point and the potential impact it will have if it is finalized.

Featuring:

Prof. Jason Johnston, Henry L. and Grace Doherty Charitable Foundation Professor of Law, University of Virginia School of Law�
Thaddeus King, Officer, Consumer Banking,The Pew Charitable Trusts

The Opioid Epidemic: Problem and Prescription

info@fed-soc.org (The Federalist Society) — 27 Jul 2016 18:25:23 GMT

Criminal Law & Procedure Practice Group Podcast

Over 75�Americans die every day of an opioid overdose (both prescription drug opioids and heroin), a number that has quadrupled since 1999. Meanwhile, the amount of prescription drug opioids (oxycodone, hydrocodone and their ilk) sold in the United States has grown fourfold during the same period.

Our experts explored the scope of this growing problem, and the proposed legislative solution, the Comprehensive Addiction and Recovery Act signed into law by President Obama on July 22, 2016.

Featuring:

Shane Dana, Federal Bureau of Investigation;�Case Agent, Chasing the Dragon Project
Drew Hudson, Legislative Counsel, United States Senate Judiciary Committee
Moderator:�James Baehr, Assistant United States Attorney, Eastern District of Louisiana

The Future of Mandatory Union Dues

info@fed-soc.org (The Federalist Society) — 22 Jul 2016 16:04:51 GMT

Labor & Employment Law Practice Group Podcast

Friedrichs v. California Teachers Association�was anticipated to be one of the most significant cases of the Supreme Court�s term. In�Friedrichs, the Court was considering whether to overrule its prior decision in�Abood v. Detroit Board of Education(1977), which held that public employees can be required to financially support union collective-bargaining with government, but not union political activities. In 2014, the Court sharply criticized�Abood�s rationales in�Harris v. Quinn, but stopped short of overruling it.�Friedrichs�was primed to be the final word onAbood�s continuing validity. However, with Justice Scalia�s passing in February, the Court deadlocked 4-4 in�Friedrichs, and�Abood�remains the law of land.

This Teleforum explored�the legal landscape post-Friedrichs. This includes the other cases challenging�Abood�that are pending in the lower courts, and the legal arguments for and against upholding�Abood. It also includes cases that concern related matters, such as whether individuals can be required to affirmatively object to paying “non-chargeable� union dues under�Abood, and whether individuals who are not full-fledged employees can be included in systems of exclusive representation in the wake of�Harris.

Featuring:

Scott A. Kronland, Partner, Altshuler Berzon LLP�
William Messenger, Staff Attorney, National Right to Work Legal Defense Foundation, Inc.�

Trillions of Dollars at Stake: The Internet of Things

info@fed-soc.org (The Federalist Society) — 21 Jul 2016 16:00:57 GMT

Telecommunications & Electronic Media Practice Group Podcast

Cisco and other industry leaders estimate that the Internet of Things (the “IoT�) has the potential to inject trillions of dollars of value over the next decade into both the public and private sectors. It holds tremendous promise to transform and improve our lives, generating unprecedented opportunities in the way we govern and are governed, the way we do business, and the way we manage our daily activities. We stand at the cusp of an era in which everything from cars to cows can be given an Internet address and connected to the IoT network.

This rapid expansion of new technologies and capabilities brings new technical, legal, and policy challenges to the forefront. The IoT has undoubtedly caught the attention of federal policy makers, as demonstrated by the National Telecommunications and Information Administration�s (“NTIA�) recent request for comments. There are many potential touchpoints in the IoT ecosystem for regulators and policymakers, from addressing spectrum requirements to ensuring the security of systems to establishing data protection frameworks. Unfortunately, the risk of overregulating or promulgating inconsistent regulations runs high.

Our experts discussed the current and future regulatory landscape of the IoT. Is the NTIA�s proceeding a harbinger for more regulation in this nascent space? What is the correct framework to ensure the successful deployment of the IoT? Is there any role for government? What policy decisions could make or break the evolution of the IoT?

Featuring:

Neil Chilson, Attorney-Advisor to Commissioner Maureen Ohlhausen, Federal Trade Commission
Jamie Susskind, Legislative Counsel, Senator Deb Fischer
Eric Wenger, Director for Cybersecurity and Privacy Policy, Global Government Affairs, Cisco
Moderator:�Kelly A. Donohue, Partner, Wilkinson Barker Knauer LLP

Privacy and Cell-Site Simulators

info@fed-soc.org (The Federalist Society) — 20 Jul 2016 15:18:04 GMT

Criminal Law & Procedure Practice Group Podcast

Cell-site simulators are devices used by law enforcement. In response to the signals emitted by a cell-site simulator, cellular devices in the proximity identify the simulator as the most attractive cell tower in the area and transmit signals to the simulator that identify the device. Using these simulators, investigators can locate cellular devices whose unique identifiers are already known to law enforcement, or determine the unique identifiers of an unknown device by collecting limited signaling information from devices in the simulator user�s vicinity.

It has been a subject of debate whether the use of cell-site simulators by the government requires a warrant supported by probable cause. In September 2015, the Justice Department released a policy requiring federal investigators to obtain a warrant prior to employing a simulator, except under exceptional circumstances.

Is there a Fourth Amendment reasonable expectation of privacy in the data collected by cell-site simulators? Who is in the best position to establish limits in this area (if any), Congress or the courts? Should investigators be permitted to use simulators, even with a warrant?

Featuring:

Howard W. Cox, Adjunct Professor, George Washington University
Prof. Brian L. Owsley, Assistant Professor of Law, UNT Dallas College of Law

Limits on Settlements

info@fed-soc.org (The Federalist Society) — 20 Jul 2016 15:16:49 GMT

Litigation Practice Group Podcast

On June 10, U.S. Sens. Ted Cruz, John Cornyn, Orrin Hatch, James Lankford, and Mike Lee introduced the Stop Settlements Slush Fund Act. The Act would prohibit the Department of Justice from enforcing settlements that allow parties to give money to outside parties chosen by the administration instead of the Treasury. Many of these outside parties have been non-profits that Congress had recently removed from federal funding.

Featuring:

Paul J. Larkin Jr., Senior Legal Research Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
Prof. David Min, Assistant Professor of Law, University of California, Irvine School of Law