This series of podcasts features experts who analyze the latest developments in the legal and policy world. The podcasts are in the form of monologues, podcast debates or panel discussions and vary in length. The Federalist Society takes no position on particular legal or public policy issues; all e…
For the past few Supreme Court terms we have hosted Mark Rienzi, President of the Becket Fund and Professor of Law at Catholic University of America, for a discussion of Religious Liberty at the Court moderated by William Saunders, Professor and Co-director of the Center for Religious Liberty at Catholic University of America. This installment looked at the most recent term including the unanimous holding in Groff v. DeJoy and provided a preview of the October term.Featuring: --Prof. Mark L. Rienzi, President, Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, Catholic University; Visiting Professor, Harvard Law School--[Moderator] Prof. William L. Saunders, Professor - Human Rights, Religious Liberty, Bioethics, Catholic University of America
In 2021, both Florida and Texas enacted legislation to limit how social media platforms could limit what users post. The Texas law, challenged in NetChoice v. Paxton found a sympathetic audience in the Fifth Circuit, but the Eleventh Circuit was much more skeptical of the Florida law's constitutionality in NetChoice v. Moody. In January 2023, the Supreme Court requested the Biden Administration to weigh in on the constitutionality of these laws. The NetChoice duel is likely to be on the calendar for the Court in this next term, with a decision in 2024.This webinar gathered a panel of experts to discuss the appeals courts vivid differences in approach to issues arising from social media content moderation. The panel also considered changes in the legal landscape since these petitions were filed, including whether recent Court decisions related to Section 230 of the Communications Decency Act have bearing on the issues raised by NetChoice.
In his new book Our Dear-Bought Liberty: Catholics and Religious Toleration in Early America, Professor Michael D. Breidenbach investigates the way American Catholics fundamentally contributed to the conception of a separation between Church and State in the founding era, overcoming suspicions of loyalties to a foreign power with a conciliatory approach. In this installment in our “Talks with Authors” series, Prof. Breidenbach joins us to discuss his book and the story it tells in a conversation moderated by Prof. William Saunders.Featuring:--Prof. Michael D. Breidenbach, Associate Professor of History, Ave Maria University & Senior Affiliate for Legal Humanities, Program for Research on Religion and Urban Civil Society, University of Pennsylvania--(Moderator) Prof. William Saunders, Professor - Human Rights, Religious Liberty, Bioethics, Catholic University of America
In the fall 2023 term, the Court is currently set to consider a case of whether a civil rights "tester," someone who collects information as to whether a place of public accommodation is in compliance with laws like the Americans with Disabilities Act (ADA) without an intent actually to visit those places or use those services, has standing to sue such businesses. At issue is whether "tester" Deborah Laufer, had standing to bring suit against Acheson Hotels. Laufer alleged that the website for a hotel operated by Acheson Hotels had insufficient information to comply with the ADA and accommodate those with disabilities. Acheson Hotels argued that since Ms. Laufer had no intention of visiting the hotel in question, she, therefore, had no standing to sue. Ms. Laufer lost in district court, which threw out her suit for lack of standing, but the First Circuit reinstated her lawsuit, ruling she did have standing. That prompted an appeal by Acheson Hotels to the Supreme Court, which granted certiorari.Interestingly, after certiorari was granted, Ms. Laufer dropped her case in district court after an attorney who has represented her in other cases was disciplined by a federal Court located in Maryland. Ms. Laufer's lawyers thus also asked SCOTUS to dismiss the Acheson Hotels case for mootness, given that the district case is no longer live. Oral argument in Acheson Hotels, LLC v. Laufer is still set for October 4, 2023. In this recorded webinar Karen Harned, who filed an amicus brief in the case, provided a preview of the case and the issues worth tracking in this conversation. Featuring:--Karen Harned, President, Harned Strategies LLC--(Moderator) Joel Nolette, Associate, Wiley Rein LLP
Big Data is one of the most important resources in the world, yet the rules for its protection are just beginning to develop. The danger comes into focus by the possibility of a nation-state cyber operation attacking Big Data and having a major detrimental impact on the functioning of another nation-state. Consider, for example, a cyber attack corrupting, stealing, or destroying the records of important financial institutions, causing widespread confusion and panic. Would such an attack warrant a kinetic, lethal response, with bullets and bombs? This issue implicates the UN Charter, the Law of War, International Humanitarian Law, jus in bello and jus ad bellum, attempts to formulate rules in the Tallinn Manual, conflicting priorities among nations, and pure geopolitics. Professor Paul Stephan of the University of Virginia Law School and John Eisenberg, Former Deputy Counsel to the President and NSC Legal Advisor, joined us to explore the issue. Mike Lewis was a naval aviator, and then a renowned law professor, widely admired by other scholars and practitioners. He was a great friend of the Federalist Society, appearing at dozens of lawyer and student chapter events, as well as the 2014 National Convention. He was also a member of the Executive Committee of the Society's International & National Security Law Practice Group. Each year, the Practice Group holds a Teleforum in his honor. Featuring: John Eisenberg, Former Assistant to the President and Deputy Counsel to the President, Former NSC Legal Advisor Prof. Paul Stephan, John C. Jeffries, Jr., Distinguished Professor of Law, University of Virginia School of Law [Moderator] Vince Vitkowsky, Partner, Gfeller Laurie LLP
The Supreme Court is scheduled to hear Harrington v. Purdue Pharma in December 2023. The case presents the issue of the authority of a court to provide a release from liability against non-consenting victims in favor of third parties who are not in bankruptcy. This case involves releases in favor of the non-debtor Sackler family who owned Purdue Pharma and are accused of fueling the national opioid epidemic. Some say the bankruptcy system provides a more effective and efficient mechanism for resolving mass torts. Others say it is a vast expansion of court power without statutory or Constitutional authority.Please join us as Professor Anthony Casey and Clifford White debate the merits of the case and discuss what to expect at the Supreme Court.
In Jackson v. Raffensperger, 316 Ga. 383 (2023), the Supreme Court of Georgia struck down the state's licensing law for lactation care providers. The law, which was the first of its kind in the nation, would have forced hundreds of women out of work. The Court held the law unconstitutional under the Georgia constitution's due process clause. With this decision, Georgia joined other states such as Texas and Pennsylvania in recently distinguishing the state's standard of review from the federal standard of review.Renée Flaherty and Jaimie Cavanaugh, both attorneys with the Institute for Justice, join us to discuss the case.
John Malcolm and John Yoo examined the indictment of former President Donald Trump in the 2020 election probe in Georgia as he now faces 91 charges across four separate indictments. They discussed the facts and law of Trump's latest indictment and the intersection between criminal law, presidential elections, and the Constitution.
John Malcolm and John Yoo continued their discussion of presidential power with a focus on the Hunter Biden investigations. They took a look at the probes surrounding Hunter Biden's business dealings, the role of President Joe Biden, and the competing roles of Congress and the executive branch in the investigations.
Efforts to achieve “environmental justice” have been a top priority of the Biden Administration and its Environmental Protection Agency (EPA). As stated in the EPA's FY 2022-2026 Strategic Plan, “EPA will center its mission on the integration of justice, equity, and civil rights across the nation's environmental protection enterprise,” (27). Accordingly, the EPA has invoked Title VI of the Civil Rights Act in some of its environmental emissions investigations even where the situation appears compliant with applicable environmental laws. One such investigation recently occurred in Louisiana where the EPA found “significant evidence” of disparate adverse impacts on Black residents of St. John the Baptist Parish, St. James Parish, and an Industrial Corridor in the area. These disparate impacts were alleged to be the result of poor air quality despite the fact that the EPA had deemed the relevant emissions compliant with applicable laws shortly before opening their civil rights investigation. In May 2023, the Louisiana Attorney General filed suit against the EPA, arguing that EPA lacked authority to impose disparate-impact based mandates under Title VI and that the agency had unconstitutionally delegated power to special interest groups to direct how EPA conducted investigations. Shortly after the State sought a preliminary injunction, the EPA abruptly abandoned its pending investigations, although it continues to adhere to its Title VI disparate-impact regulations generally. Briefing is ongoing and a hearing has been set for January 9, 2024. Click here to view the complaint.Drew Ensign served as Special Assistant Solicitor General and Counsel to the State of Louisiana during this matter. Please join us as he delivers a Litigation Update on the case.
During President Obama's second term, the U.S. Education Department began sharing studies indicating that black students were disciplined at higher rates than their white peers. These data were viewed as evidence of racial bias, and, in 2014, the Education and Justice Departments jointly published a resource package to help American schools “…promote fair and effective disciplinary practices that will make schools safe, supportive, and inclusive for all students,” (DOJ). Supporters applauded these steps from the federal government saying they reduced schools' racial disparities in disciplinary decisions thereby curtailing the “school-to-prison pipeline.” Critics countered that the guidance misstated federal civil rights law, encouraged racial discrimination in the allocation of school discipline to produce demographic parity, and left classrooms less functional. The 2014 resource package was ultimately rescinded in 2018 under the Trump Administration, only to be largely restored by the Biden Administration. In May 2023, the Education and Justice Departments published a “Resource on Confronting Racial Discrimination in Student Discipline.”What is the best path forward for appropriate and meaningful disciplinary decision making in American schools? How will our school children be best served? What does the evidence really show about race and school discipline? Please join us as an expert panel discusses the legal and educational contours of the most recent guidance on race and school discipline.
Fairfax County, Virginia's Thomas Jefferson High School for Science and Technology – commonly known as TJ – is the #1 ranked public high school in the country. In 2020, the Fairfax County School Board enacted measures intended to increase racial diversity in TJ's student body. These policies changed the school's admissions process and drew criticism from some TJ parents, locals, and national observers. The changes included discontinuing the admissions test, allowing race-consciousness, and capping the number of students allowed admission from each of the district's 23 middle schools. In the end, the new system led to a reduction in the number of Asian-American students admitted to TJ. In March 2021, Coalition for TJ sued the Fairfax County School Board over the new admissions policies alleging discrimination against applicants of Asian heritage. The U.S. District Court for the Eastern District of Virginia granted Coalition for TJ's motion for summary judgment in February 2022. Fairfax County School Board then appealed the District Court's permanent injunction to the Fourth Circuit. The Fourth Circuit stayed the District Court order. The Coalition for TJ filed an emergency stay application to the U.S. Supreme Court but was denied; the case was remanded to the Fourth Circuit and heard in September 2022. In May 2023, the Fourth Circuit reversed the District Court allowing the new admissions plan to be enacted. Coalition for TJ's legal representation, Pacific Legal Foundation, is now planning to file a cert petition to the U.S. Supreme Court. In the lead up to filing, Erin Wilcox will join us to discuss the case and offer an update on the latest events.
Environmental, Social, and Corporate Governance (ESG) investing has grown in popularity in recent years. As a result of major investment firms and individual stockholders making ethical and social considerations in their investing, firms and corporations have developed ESG rating matrices to grade publicly traded companies on their commitment to diversity and the fight against climate change.These ranking systems, however, have raised eyebrows in light of recent news that major tobacco companies are receiving higher ESG scores than the electric car manufacturer, Tesla. Serious questions are being raised about the reliability of these rating systems as tools for investors, and whether a company's focus on diversity and inclusion on its board of directors should be considered an ethical investment, even if its main product is responsible for millions of deaths every year.
How far can states use their local economy to put economic pressure on other states to change their policies? In National Pork Producers Council v. Ross (2023), the Supreme Court considered this question, and had a very unusual split 5-4 with Justices Gorsuch, Thomas, Sotomayor, Kagan, and Barrett in the majority. The Court rejected a challenge to a California regulation that prohibited the in-state sale of pork which was previously out-of-state “confined in a cruel manner.”This panel will discuss the decision and the originalist foundations, if any, of the dormant Commerce Clause jurisprudence. Additionally, even if it properly exists, what is its extent and the impact of the Court's decision?
John Malcolm and John Yoo revive their discussion of presidential power, prosecution, impeachment, and separation of powers with the prosecution of former President Donald Trump for the events surrounding the January 6, 2021 attack on the U.S. Capitol. They will discuss the facts and law of Trump's indictment, the developments in the Hunter Biden investigations, and the intersection between criminal law, presidential elections, and the Constitution.
Does New York's “rent stabilization” law violate the federal Constitution? The law, which regulates approximately 1 million apartments in New York City, was enacted more than fifty years ago and remains in effect based on an every-three-year declaration of a housing “emergency.” The law does not merely regulate rent levels. It also limits a property owner's right to determine who uses an apartment, to convert the property to new uses or to replace the existing building with a new structure, and to occupy the property for use by the owner and his or her family.A lawsuit filed in 2019, Community Housing Improvement Program v. City of New York, asserted that the New York law—including 2019 amendments that significantly increased the restrictions on property owners— violates due process and affects both physical and regulatory takings of the property that it regulates. The case was first dismissed at the District level. Earlier this year, the United States Court of Appeals for the Second Circuit affirmed the District Court's ruling and found the 2019 amendments compliant with the Fifth Amendment to the U.S. Constitution. The case now moves to the Supreme Court as plaintiffs—armed with 14 amicus briefs—petition the Court to reverse the Second Circuit's decision.Rent regulation is not just a New York phenomenon. Other cities across the country have enacted, or are considering, rent regulation legislation. Andrew Pincus, lead counsel for the plaintiffs, will discuss the constitutional challenge in the context of the Supreme Court's evolving property rights jurisprudence.
OnOn Thursday, June 22, 2023, the Supreme Court issued its decision in Arizona v. Navajo Nation. In a 5-4 decision, the Court held that the United States owes no “affirmative duty” to the Navajo Nation to secure water, reversing a decision by the US Court of Appeals for the 9th Circuit. The majority held that the 1868 Treaty of Bosque Redondo did not establish a federal obligation to provide water. The decision hinged on the way the court framed the Nation's claims. Accepting the federal government's argument, the majority viewed Indian treaties as establishing rights to various resources, including land, timber, minerals, and water. Each property right was seen as a "stick in the bundle of property rights that make up a reservation." Consequently, the burden was placed on the Navajo Nation to demonstrate that the treaty explicitly obligated the United States to go beyond recognizing tribal water rights. Drawing on precedents like United States v. Jicarilla Apache Nation, the Court held that the United States only owes obligations to Indian tribes as explicitly stated in treaties, statutes, or regulations. In other words, once the federal government recognizes tribal property rights through a treaty, its obligations are limited unless further enactments exist.AJ Ferate and Jennifer Weddle joined us to break down the Court's findings.Featuring:Jennifer Weddle, Shareholder & Co-Chair, American Indian Law Practice Group, Greenberg Traurig LLPAnthony J. Ferate, Of Counsel, Spencer Fane LLP
Buettner-Hartsoe v. Baltimore Lutheran High School Association d/b/a Concordia Preparatory School poses a question of whether Title IX applies to schools that do not receive federal financial aid.Former students of Concordia Preparatory School, a private school, sued Concordia Prep. under Title IX alleging that the school had not adequately addressed complaints of sexual assault and sexual harassment. Concordia Prep. argued the lawsuit should be dismissed because, as a private school that did not receive federal financial assistance, it was not subject to Title IX. Judge Bennett of the United States District Court for the District of Maryland rejected that argument, instead holding that, because the school received a federal tax exemption as a 501(c)(3) organization, it was therefore subject to Title IX because it is a 501(c)(3) organization, regardless of the fact the school does not otherwise receive direct federal aid, nor any financial aid from the U.S. Department of Education.Traditionally, independent schools that do not receive federal financial aid have not been considered to be subject to Title IX's requirements. This decision could substantively expand the number of schools which are interpreted to be subject to Title IX. The case is currently on appeal. Mary Margaret Beecher of Napa Legal Institute, which filed an amicus brief in the case, joined us to discuss the case, the nature of the litigation, and the possible effects of this decision. Featuring:--Mary Margaret Beecher, Vice President and Executive Director, Napa Legal Institute--(Moderator) Amanda Salz, Associate, Morgan, Lewis, & Bockius LLP
In 1984, Hon. Pauline Newman became the first judge appointed directly to the United States Court of Appeals for the Federal Circuit. Judge Newman has served on that court since, and serves to this day. Reports surfaced in April of this year that Federal Circuit Chief Judge Kimberly Moore had initiated a complaint against Judge Newman under the Judicial Conduct and Disability Act of 1980. On May 10, 2023, Judge Newman filed suit in the United States District Court for the District of Columbia against Chief Judge Moore; two other Federal Circuit judges in their capacities as members of the special committee appointed by Chief Judge Moore to investigate the complaint; and the Judicial Council of the Federal Circuit and its members. Judge Newman's federal lawsuit raises issues not just of judicial conduct (given the underlying complaint) and patent law (which are interesting given Judge Newman's and the court's history as well as what some view as its drift away from innovation-protective jurisprudence), but also separation of powers (since Judge Newman was appointed by the President and confirmed by the Senate), and even age/disability discrimination (Judge Newman is 95 years old). Our panel discussed these and related issues arising from this most-unusual set of circumstances. Featuring: Prof. Paul R. Gugliuzza, Professor of Law, Temple University Beasley School of LawProf. Josh Blackman, Professor of Law, South Texas College of Law HoustonProf. Arthur Hellman, Professor Emeritus of Law, University of Pittsburgh School of LawCheryl Stanton, Chief Legal and Government Affairs Officer, BrightStar CareModerator: John J. Park Jr., Of Counsel, Strickland Brockington Lewis LLP
Artificial intelligence (AI) technologies are not new, but they have made rapid advances in recent years and attracted the attention of policymakers and observers from all points on the political spectrum. These advances have intensified concerns about AI's potential to discriminate against select groups of Americans or to import human bias against particular ideologies.AI programs like ChatGPT learn from internet content and are liable to present opinions – specifically dominant cultural opinions – as facts. Is it inevitable that these programs will acquire and reproduce the discriminatory ideas or biases we see in humans? Because AI learns by detecting patterns in real world data, are disparate impacts unavoidable in AI systems used for hiring, lending decisions, or bail determinations? If so, how does this compare to the bias of human decision-making unaided by AI?Increasingly, laws and regulations are being proposed to address these bias concerns. But do we need new laws or are the anti-discrimination laws that already govern human decision-makers sufficient? Please join us as an expert panel discusses these questions and more.
The regulatory environment in the United States is often complex. State and federal laws sometimes contradict each other. The transition of the American Presidency from one political party to another can lead to rapid and dramatic changes in the regulatory landscape. Even transfers of power between administrations of the same party or shifting priorities of one administration can cause significant changes in regulation. This phenomenon of swift changes in regulatory policy is sometimes referred to as regulatory whiplash. Please join us as an expert panel discusses regulation and regulatory whiplash in the context of civil rights.
On July 4, 2023, a preliminary injunction was issued in Missouri v. Biden (Western District of Louisiana, 3:22-CV-01213). At issue is the constitutionality of alleged collusion between various federal government agencies and social media companies. Plaintiffs allege that Defendants – including President Biden, White House Press Secretary Karine Jean-Pierre, Secretary Xavier Becerra, Secretary Alejandro Mayorkas, and numerous other key federal officials – violated the First Amendment by attempting to suppress protected speech. Defendants have described the speech in question as disinformation, misinformation, and malinformation. Some observers are calling the case a major battleground for the future of internet speech. Please join us as Harmeet K. Dhillon and Casey Mattox deliver an update on recent events.
On Friday, June 30, 2023, the Supreme Court issued its decision in Biden v. Nebraska. The case arose after President Biden enacted a plan to cancel between $10,000 and $20,000 in student loans for qualified borrowers through executive action. The Biden Administration argued that the Secretary of Education was granted the authority to forgive student loans in the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act).In a 6-3 decision, the Court held that the HEROES Act does not grant the Secretary of Education the authority to establish a student loan forgiveness program discharging approximately $430 billion in student loans and affecting nearly all borrowers. Chief Justice Roberts delivered the Court's opinion; Justice Barrett filed a concurring opinion focused primarily on the Major Questions Doctrine; Justice Kagan filed the dissenting opinion.Please join us as Jesse Panuccio discusses the decision.
In his newly released book We May Dominate the World: Ambition, Anxiety, and the Rise of the American Colossus, Sean A. Mirski tells the story of how the United States asserted its growing power in the Western hemisphere in the century following the Civil War. Sean Mirski joined us to discuss this chapter of America's history and to share the lessons that we can draw from it as China and other states seek hegemony within their own regions today. Featuring:-- Sean A. Mirski, Senior Associate, Arnold & Porter-- Moderator: Daniel G. West, Director, SCF Partners
As wireless devices become critical to our daily lives, the process of allocating and managing electromagnetic spectrum rights has become more important but also more contested. Breakdowns in the federal spectrum coordination process and the inability to free up enough spectrum for commercial use threaten American leadership in wireless technology and limit the benefits Americans can get from their wireless devices.Two former National Telecommunications and Information Administration (NTIA) administrators joined us for a discussion of how the NTIA makes spectrum policy and what reforms are needed to ensure effective federal policy that advances both federal and commercial interests.Featuring:- Hon. John Kneuer, President and Founder, JKC Consulting LLC; Former Administrator, NTIA- Hon. David Redl, Founder and President, Salt Point Strategies; Former Administrator, NTIA- Moderator: Scott D. Delacourt, Partner, Wiley Rein LLP- Moderator: Joe Kane, Director of Broadband and Spectrum Policy, Information Technology and Innovation Foundation
In Counterman v. Colorado, the Court considered a question of free speech and criminal law: whether, in order for a statement to be categorized as a "true threat" and thus not protected under a right to free speech, the speaker must subjectively know or intend the threatening nature of the statement, or whether it is enough that an objective "reasonable person" would regard the statement as a threat of violence. On June 27, 2023 the Court held that “The State must prove in true-threats cases that the defendant had some subjective understanding of his statements' threatening nature, but the First Amendment requires no more demanding a showing than recklessness.”In this Post-Decision Courthouse Steps webinar, where we broke down and analyzed the Court's decision. Featuring:--Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation
On June 30, 2023 U.S. Supreme Court decided 303 Creative LLC v. Elenis. Petitioner Lorie Smith, an artist in Colorado and owner/founder of the graphic design firm 303 Creative LLC. challenged Colorado’s Anti-Discrimination Act (CADA) on the grounds it is unconstitutional, arguing, among other things, it violates her right to free speech. The Court ruled “The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees.” Please join us for a Post-Decision Courthouse Steps webinar, where a panel of experts will break down and analyze the Court’s decision. Featuring: Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity Prof. Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law [Moderator] Prof. Michael Dimino, Professor of Law, Widener University Commonwealth Law School
On June 22, 2023, the Supreme Court released its decision in Samia v. United States. The main question at issue in the case was whether the admission of a codefendant's redacted out-of-court confession that incriminates the defendant due to its content violates the Confrontation Clause of the Sixth Amendment. The Court held “the Confrontation Clause was not violated by the admission of a nontestifying codefendant's confession that did not directly inculpate the defendant and was subject to a proper limiting instruction.”In this Post-Decision Courthouse Steps webinar, we broke down and analyzed the Court's decision. Featuring:--Robert McBride, Partner-in-Charge, Northern Kentucky, Taft Stettinius & Hollister LLP
On June 29, 2023 SCOTUS issued an opinion concerning Title VII, religious liberties, and employment law. In deciding Groff v. DeJoy, the Court held “ Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”The case involved Gerald Groff, a Christian who due to his religious convictions treated Sundays as a sabbath and thus did not work on those days, who formerly worked for the U.S. Postal Service in Pennsylvania. His refusal to violate his beliefs to work Sunday shifts led to disciplinary action and his eventual resignation. Groff sued and the following litigation raised two questions that the Court considered. Both concerned the protections provided to employees who seek to practice their religious beliefs in the context of the workplace. One was whether the Court should overrule the “more-than-de-minimis-cost” test for refusing religious accommodations under Title VII of the Civil Rights Act of 1964 established in Trans World Airlines, Inc. v. Hardison. The other concerned whether burdens on employees are sufficient to constitute “undue hardship on the conduct of the employer's business” for the employer under Title VII.In this Post-Decision Courthouse Steps webinar, where we broke down and analyzed the Court's decision. Featuring:--Stephanie Taub, Senior Counsel, First Liberty Institute--Bruce Cameron, Senior Atorney, National Right to Work Legal Defense Foundation
On Friday, June 23, 2023, the Supreme Court released its decision in United States v. Hansen. At issue in Hansen was whether 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), a federal criminal statute that prohibits encouraging or inducing unlawful immigration for commercial or financial benefit sometimes termed “the encouragement provision,” violates the First Amendment.Helamen Hansen operated an advising service for undocumented immigrants who wanted to pursue U.S. citizenship. Under the encouragement provision, Hansen was convicted of two counts of encouraging or inducing illegal immigration for financial gain (along with other federal crimes). He challenged those convictions, contending the law is facially overbroad. The Ninth Circuit agreed, vacating his convictions on those counts. The Court heard Oral Argument on March 27, 2023.Please join us for a Post-Decision Courthouse Steps webinar, where we will break down and analyze the Court’s decision. Featuring:Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland
On Tuesday, June 27, 2023, the Supreme Court issued its decision in Mallory v. Norfolk Southern Railway Co. The question before the Court was whether a Pennsylvania law governing out-of-state corporations registered to do business inside the state that purports to confer general personal jurisdiction over the registrant violates the Due Process Clause of the Fourteenth Amendment.The Court vacated and remanded the case in a 5-4 opinion authored by Justice Gorsuch holding that the law comports with the Due Process Clause as set forth in Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co. (243 U.S. 93). Justice Barrett filed a dissenting opinion. Please join us as Ashley Keller, John Masslon, and Professor Brian Fitzpatrick discuss the decision.
On Tuesday, June 27, 2023, the Supreme Court issued its decision in Moore v. Harper. The case concerned the Elections Clause of the U.S. Constitution and “the claim that the Clause vests state legislatures with authority to set rules governing federal elections free from restrictions imposed under state law,” 600 U.S. ___ (2023). In a 6-3 decision, the Court rejected the “independent state legislature” doctrine recognizing the North Carolina Supreme Court's authority to review the legislature's rules for federal elections. Chief Justice Roberts issued the opinion of the Court; Justice Kavanaugh filed a concurring opinion; Justice Thomas filed a dissenting opinion. Please join us as Andrew Grossman discusses the Court's opinion.
On Thursday, June 15, 2023, the Supreme Court issued its decision in Haaland v. Brackeen. The case was primarily concerned with the constitutionality of the Indian Child Welfare Act (ICWA), a federal law enacted in 1978 that governs state-level adoption and foster care cases involving Native American children. Among other provisions, the ICWA gives tribal governments jurisdiction over the adoption of Native American children who reside on a reservation or have certain tribal connections.In a 7-2 decision, the Court affirmed the Fifth Circuit's finding that the ICWA is constitutional, rejected petitioners' Tenth Amendment argument, and found that petitioners lacked the standing required for other challenges made. Justice Barrett delivered the opinion for the Court; Justices Gorsuch and Kavanaugh filed concurring opinions; Justices Thomas and Alito filed dissenting opinions. Please join us as Jennifer Weddle discusses the Court's findings.
On Thursday, June 29, 2023, the Supreme Court issued its decision in Students for Fair Admissions Inc. v. President and Fellows of Harvard College. The opinion jointly addressed the issues presented in SFFA v. Harvard and SFFA v. University of North Carolina. The question before the Court was whether the race-conscious admissions systems used by Harvard and UNC violate the Equal Protection Clause of the Fourteenth Amendment. In a 6-3 decision, the Court held that Harvard and UNC's admissions programs violate the Equal Protection Clause of the Fourteenth Amendment. Chief Justice Roberts wrote for the Court; Justices Thomas, Gorsuch, and Kavanaugh filed concurring opinions; Justices Sotomayor and Jackson filed dissenting opinions. Justice Jackson took no part in the consideration or decision of SFFA v. Harvard. Please join us as Curt Levey discusses the decision.
On March 28, 2023, the Supreme Court handed down its decision in Wilkins v. United States. The case involves a suit by neighbors to quiet title over a road easement that the United States interprets as allowing for public use. The United States argued the claim was jurisdictionally barred by the the Federal Quiet Title Act's 12-year time limit. The Court held that the Act's statute of limitations is a nonjurisdictional claims-processing rule because a procedural requirement is only jurisdictional if Congress clearly states that it is. Justice Clarence Thomas, joined by Chief Justice Roberts and Justice Alito, dissented and would have held the time-bar jurisdictional because it is a waiver of sovereign immunity.Jeffrey W. McCoy, attorney at the Pacific Legal Foundation, joined us for a courthouse steps decision teleforum moderated by Adam Griffin.Featuring: Jeffrey McCoy, Attorney, Pacific Legal FoundationModerator: Adam Griffin, Law Clerk, US District Courts
The Infrastructure Investment and Jobs Act, signed into law on November 15, 2021, requires the Federal Communications Commission (FCC), within two years, to promulgate rules to facilitate equal access to broadband internet services and to prevent "digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin." Significantly, the statute also requires that the rules take into account "issues of technical and economic feasibility." The FCC issued a notice of proposed rulemaking on December 22, 2022, and comments and reply comments have now been submitted.Given the importance of widespread access to broadband services, the "Digital Discrimination" proceeding is one of the most important items on the FCC's agenda. Does the agency have authority to adopt rules that would impose liability on broadband providers based only on a showing of unintentional disparate impact or is evidence of intentional discrimination required? In considering liability, how should the agency take into account claims relating to the technical and economic feasibility of making available access? What impact will the rules have on investment and innovation under various scenarios? What type of process should the Commission employ in considering complaints of digital discrimination?A panel of experts joined us for a lively discussion of these and other questions as the FCC prepares to adopt final rules in the digital discrimination proceeding.Featuring:- Seth L. Cooper, Director of Policy Studies & Senior Fellow, The Free State Foundation- Harold Feld, Senior Vice President, Public Knowledge- Clint Odom, Vice President, Strategic Alliances & External Affairs, T-Mobile- Moderator: Randolph J. May, President, The Free State Foundation
Last year, the Supreme Court issued a landmark decision in West Virginia v. EPA, in which the Court reinvigorated the "Major Questions Doctrine" of administrative law. Given the Federal Trade Commission's efforts to expand its rulemaking powers under Section 5 of the FTC Act and the likely return of the "net neutrality" fight at the Federal Communications Commission once a third Democratic commissioner is confirmed, this webinar explored how the reinvigorated "Major Questions Doctrine" may impact tech and telecom policy.Featuring:- Ian Heath Gershengorn, Partner and Chair, Appellate & Supreme Court Practice, Jenner & Block LLP; Former Acting Solicitor General- Thomas M. Johnson, Jr., Partner and Chair, Issues & Appeals Practice, Wiley Rein LLP; Former General Counsel, Federal Communications Commission- Hon. Maureen K. Ohlhausen, Partner and Chair, Antitrust & Competition Practice, Baker Botts LLP; Former Acting Chairman and Commissioner, Federal Trade Commission- Christopher J. Wright, Partner and Co-Chair, Issues & Appeals Practice, Harris, Wiltshire & Grannis LLP; Former General Counsel, Federal Communications Commission- Moderator: Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal & Economic Public Policy Studies
On June 20, Judge Amul Thapar of the Sixth Circuit published "The People's Justice," in which he explores "the human stories behind twelve illustrative cases on which Justice [Clarence] Thomas has ruled."In this video podcast, Judge Thapar joined the Federalist Society's Dean Reuter to discuss the book and Justice Thomas's legacy.Featuring:- Hon. Amul R. Thapar, U.S. Court of Appeals for the Sixth Circuit- Moderator: Dean Reuter, Senior Vice President and General Counsel, Federalist Society
If a federal agent violates a citizen's constitutional rights, does a justiciable cause of action arise? If yes, do federal courts have the power to award damages for constitutional violations? These questions have been considered by the U.S. Supreme Court in cases like Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) and Egbert v. Boule (2022). Three state supreme courts have recently issued competing decisions on whether similar separation of powers concerns arise when state courts recognize rights under state constitutions.Burnett v. Smith, issued on May 5, 2023, was the latest of these three decisions. The case arose after the plaintiff, garbage truck driver Cory Burnett, was pulled over by Iowa Department of Transportation Officer Philip Smith for a cracked windshield. Burnett was eventually arrested by Officer Smith for interference with official acts (Iowa Code §719.1). The charges were ultimately dismissed following a trial. Later, Burnett sued Officer Smith for, among other things, an unreasonable seizure directly under the Iowa Constitution. On appeal, the Supreme Court of Iowa unanimously affirmed the district court's judgment against Burnett and, in the process, held that courts in Iowa cannot imply remedies directly under the Iowa constitution, overruling Godfrey v. State (898 N.W.2d, 2017).In alignment with recent federal precedent, the court held that letting plaintiffs bring constitutional claims without the Iowa legislature first authorizing them “undermined the established allocation of responsibility between the legislative and the judicial branches of government.” This holding is at odds with decisions in Michigan (Bauserman v. Unemployment Insurance Agency) and Nevada (Mack v. Williams) where plaintiffs are allowed to sue without a legislative cause of action, provided certain conditions are met. Are state courts allowed to recognize remedies directly under their state constitutions? Or are they similarly constrained by separation of powers? Please join us as Anya Bidwell and Erin Hawley consider these questions and more.
On Thursday, June 8, 2023, the Supreme Court issued its decision in Allen v. Milligan. The case considered whether the districting plan adopted by the State of Alabama for its 2022 congressional elections violated §2 of the Voting Rights Act. §2 of the Voting Rights Act reads – “No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.”In a 5-4 decision with one concurring and two dissenting opinions, the Court held that “plaintiffs demonstrated a reasonable likelihood of success on their claim that HB1 violates §2,” 598 U.S. ___ (2023). The 112-page opinion is complex; it examines a considerable body of court precedent and law. Some court watchers and media outlets have described the Court's opinion as a surprise. Please join us as Professor Michael R. Dimino discusses the Court's opinion and what might come next.
Two cases concerning the FDA's approval of Mifepristone, Alliance for Hippocratic Medicine v. United States Food and Drug Administration (AHM v. FDA) and Washington v. United States Food and Drug Administration (WA v. FDA) have caused significant conversations concerning the FDA's approval processes, statutes of limitation for challenges to approvals, standing, administrative review, and judicial authority. The cases present interesting questions concerning the regulatory process, separation of powers, and the role of judges. In AHM v. FDA, a judge out of the Northern District of Texas blocked the FDA's approval of the drug, meaning it could no longer be distributed as an FDA-approved drug. The same day, in WA v. FDA, however, a separate district judge ruled the FDA was being overly restrictive and barred it from altering the regulatory status of Mifepristone in approximately a third of the country. Perhaps due to the drastic split between the courts, both cases have quickly ascended through the courts of appeals. In this program a panel of experts discuss these cases, their substance, and the possible ramifications of future decisions. Featuring: --Thomas Jipping, Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation--Adam Unikowsky, Partner, Jenner & Block LLP--[Moderator] Jennie Lichter, Deputy General Counsel, The Catholic University of America
In October 2022, President Biden issued an executive order regarding the European Union - U.S. Data Privacy Framework. The Framework allows for data flows between the EU and the U.S., and it was established after the European Court of Justice struck down a prior agreement known as the EU-U.S. Privacy Shield. The executive order addresses U.S. collection of signals intelligence, which has been a source of concern for EU regulators and privacy advocates. The executive order limits signals intelligence collection to defined national security objectives, requires the privacy and civil liberties of all persons be considered regardless of nationality, and the collection must be proportionate. In addition, the executive order calls for a multi-layered review process that will allow individuals to lodge complaints regarding the collection of signals intelligence.Our experts will discuss whether the Framework addresses the concerns of privacy advocates in the EU and the U.S., and they will consider the implications of the review process for U.S. intelligence collection. This program will also explore whether the EU and U.S. can reach a durable privacy agreement given the tension between EU privacy preferences and U.S. national security needs.Featuring:Max Schrems, Founder, NOYBStewart Baker, Of Counsel, Steptoe & Johnson LLPModerator: Matthew R. A. Heiman, General Counsel & Corporate Secretary, Waystar Health; Senior Fellow and Director of Planning, National Security Institute
Artificial intelligence is a remarkable, disruptive force. AI services like ChatGPT already perform tasks once thought impossible for computers to complete. And AI's capabilities are growing exponentially. Although AI promises many benefits, it also carries risks and potential for abuse, which has led some commentators across the ideological spectrum to call on the government to regulate AI. What is the government's role, if any, in the AI revolution? Is the government capable of regulating AI without creating excessive externalities? Join three new voices in administrative law for a framing of the key debates emerging around AI regulation. Featuring: --Eli Nachmany, Law Clerk to Hon. Steven J. Menashi, U.S. Court of Appeals for the Second Circuit--Laura Stanley, Law Clerk to Hon. Stephen Schwartz, U.S. Court of Federal Claims --Seanhenry VanDyke, Law Clerk to Hon. Gregory Katsas, U.S. D.C. Circuit Court of Appeals--[Moderator] Prof. Aram Gavoor, Associate Dean for Academic Affairs; Professorial Lecturer in Law, The George Washington University Law School
Most of the public debate about administrative deference has been focused on federal agencies and the Chevron and Auer doctrines. There is an old adage though that “You can't fight City Hall.” This panel discussion among current and former local government attorneys took a critical look at this adage through the lens of administrative deference at the local level. Topics included an evaluation of Chevron and Auer-type deference at the local level when interpreting municipal ordinances (noting, for example, that Florida has recently barred Chevron deference for localities), whether the lack of separation of powers within local governments alters how administrative deference should be assessed, whether deferential standards of appellate review for local government decisions provides an adequate judicial check, and what procedural due process safeguards have been effective in ensuring that “you can fight City Hall” when a litigant has a meritorious case. Featuring:--Amanda Conn, General Counsel, WSSC Water; Professorial Lecturer in Law, George Washington Law School--Craig E. Leen, Partner, K&L Gates; Professorial Lecturer in Law, George Washington Law School; Former OFCCP Director and Former Coral Gables City Attorney --Michael Murawski, Executive Director, City of Naples Commission on Ethics and Government Integrity--(Moderator) Hon. Alexander S. Bokor, Judge, Florida Third District Court of Appeal; Former Assistant County Attorney for Miami-Dade County