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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…

The Federalist Society


    • Nov 22, 2021 LATEST EPISODE
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    Latest episodes from Teleforum

    Litigation Update: Vaccination Mandates

    Play Episode Listen Later Nov 22, 2021 57:18

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

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

    Play Episode Listen Later Nov 22, 2021 69:22

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

    A Seat at the Sitting

    Play Episode Listen Later Nov 2, 2021 90:22

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

    The FTC in the Current Administration: Buckle Your Seatbelts

    Play Episode Listen Later Nov 2, 2021 59:30

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

    China Fully Engaged in Latin America: What Is the U.S. Plan?

    Play Episode Listen Later Oct 26, 2021 66:25

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

    Discussion: The OCR's Investigation of State Mask Mandate Bans

    Play Episode Listen Later Oct 21, 2021 59:11

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

    What is the Right Way Forward on Clemency Reform?

    Play Episode Listen Later Oct 19, 2021 56:33

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

    The DOJ, Domestic Terrorism, and School Boards

    Play Episode Listen Later Oct 19, 2021 47:09

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

    HUD and the Disparate Impact Rule

    Play Episode Listen Later Oct 14, 2021 50:46

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

    Litigation Update: Eviction Moratoria

    Play Episode Listen Later Oct 14, 2021 22:55

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

    Cancel Culture and Higher Education

    Play Episode Listen Later Oct 6, 2021 57:55


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


    Redistricting: Discussing the John R. Lewis Voting Rights Advancement Act

    Play Episode Listen Later Oct 5, 2021 58:44

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

    Litigation Update: Alabama Association of Realtors v. HHS

    Play Episode Listen Later Sep 30, 2021 50:53

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

    Corporate Social Responsibility, Investment Strategy, and Liability Risks

    Play Episode Listen Later Sep 30, 2021 89:38

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

    Can Congress Forbid A State from Cutting its Taxes?

    Play Episode Listen Later Sep 28, 2021 59:45

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

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

    Play Episode Listen Later Sep 27, 2021 42:22

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

    Fireside Chat: Alex Pollock and Fifty Years Without Gold

    Play Episode Listen Later Sep 23, 2021 62:22


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


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

    Play Episode Listen Later Sep 14, 2021 60:19

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

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

    Play Episode Listen Later Sep 9, 2021 56:54

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

    Litigation Update: SCOTUS and the Texas Heartbeat Bill

    Play Episode Listen Later Sep 9, 2021 41:57

    On September 1, 2021, the Texas Heartbeat bill went into effect, banning abortions as soon as cardiac activity is present in an unborn child—around six weeks gestation. The bill also allows private citizens to sue and enforce the new law. Opponents of the bill appealed to the Supreme Court for an emergency stay and the Court denied relief, allowing the Texas law to go into effect. Joining us to discuss the Supreme Court's decision and its implications is Ethics and Public Policy Distinguished Senior Fellow Ed Whelan. Read additional comment from Mr. Whelan on National Review. Featuring:-- Edward Whelan, Distinguished Senior Fellow and Antonin Scalia Chair in Constitutional Studies, Ethics and Public Policy Center

    Taxation by International Consent?

    Play Episode Listen Later Sep 1, 2021 58:03

    Finance ministers from leading industrial states have been trying, this summer, to work out an agreement on a minimum rate for corporate taxes. Does it matter that this agreement won't be adopted by the constitutional procedure for making treaties? Will it still matter, by itself, to U.S. tax law and tax enforcement? Should we expect other nations to abide by an agreement of this kind? Discussion with:-- Michael Ramsey, San Diego Law School (author of “Evading the Treaty Power?” FIU L.Rev 2016)-- Joshua Wu, former Deputy Assistant AG, Tax Division -- Stephen Krasner, Professor of International Relations, Stanford University (author of Power, The State and Sovereignty). -- Moderator: Jeremy Rabkin, Scalia Law School.

    Litigation Update: Brach v. Newsom

    Play Episode Listen Later Aug 31, 2021 49:26

    In July 2021, the U.S. Court of Appeals for the Ninth Circuit ruled that California's recent school closures violated parental rights to direct the education of children, and reversed the lower court's decision upholding California's regulations as they relate to private education. Robert Dunn, who argued the case at the Ninth Circuit for plaintiffs, joins us to discuss the litigation, this ruling, and its implications.Featuring: -- Robert Dunn, Partner, Eimer Stahl LLP-- Moderator: Hon. Jennifer Perkins, Division One, Arizona Court of Appeals

    Fireside Chat: Professor George La Noue

    Play Episode Listen Later Aug 31, 2021 55:41

    Professor George La Noue joins us to discuss his recently published article, “The Race Card in ARPA's Food Supply Deck,” published by the Federalist Society Review on July 12, 2021. In his article, Professor La Noue discusses the American Rescue Plan Act of 2021, which appropriated $1.9 trillion, $28.6 billion of which would be administered by the Small Business Administration. Since passage, numerous lawsuits have been filed against the SBA on Fifth Amendment grounds alleging unconstitutional sex-based and race-based discrimination. Other suits have been filed against the United States Department of Agriculture for an allegedly unconstitutional loan forgiveness scheme on the same Fifth Amendment grounds. Read Professor La Noue's analysis of the arguments and country-wide pending litigation is here.Featuring: -- Professor George La Noue, Professor Emeritus of Political Science and Professor Emeritus of Public Policy, University of Maryland Baltimore County -- Moderator: Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law

    The Biden Administration's Housing Policy Moves

    Play Episode Listen Later Aug 30, 2021 57:40

    In a January 26, 2021 White House Memorandum, President Biden directed the Secretary of Housing and Urban Development to reexamine actions taken during the Trump presidency, and ordering the Secretary to ensure the 1968 Fair Housing Act, which bans discrimination, was being properly administered. On that initiative, Housing Secretary Marcia Fudge moved to reinstate two Obama-era Fair Housing rules rejecting former Secretary Ben Carson's previous directives.Secretary Fudge rescinded Secretary Carson's interpretation of the disparate impact rule, rescinded the Preserving Community and Neighborhood Choice Rule, and reinstated the Affirmatively Furthering Fair Housing Rule. Here to discuss the pros, cons, and implications of HUD's recent changes are several housing policy experts: Howard Husock, Bryan Greene, and Daniel Huff with moderator Ken Marcus. Featuring: -- Howard Husock, Senior Fellow, Domestic Policy Studies, American Enterprise Institute -- Bryan Greene, Vice President, Policy Advocacy, National Association of Realtors -- Daniel Huff, former General Deputy Assistant Secretary, United States Department of Housing and Urban Development-- Moderator: Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law

    Vaccine Mandates and Exemptions: Public Universities, Private Colleges, and More

    Play Episode Listen Later Aug 18, 2021 55:42

    As students prepare return to universities across the country, many schools are putting in place Covid vaccine mandates. These mandates require proof of vaccination, and typically include medical and religious exemptions. But, as Professor Ronald Colombo's new paper raises, some kinds of exemption schemes may be unjustly discriminatory. Beyond the issue of exemptions, some students and staff object to the mandates as such. A group of students challenged one such mandate at Indiana University; in July, a district court judge sided with the university, and the ruling was recently upheld 3-0 by the U.S. Court of Appeals for the Seventh Circuit. These cases, the nature of the mandates and exemptions, and more will be discussed in this virtual program.Featuring:-- Prof. Ronald J. Colombo, Professor of Law, Maurice A. Deane School of Law, Hofstra University-- Moderator: Stephanie Taub, Senior Counsel, First Liberty

    Litigation Update: Crowe v. Oregon State Bar

    Play Episode Listen Later Aug 17, 2021 50:23

    Last year, the Oregon state bar Bulletin ran two controversial comments. State bar members objected, arguing that because membership in the state bar is mandatory, publication of the comments constituted impermissible political commentary, and mandatory state bar dues could not be used to subsidize activity unrelated to the regulation of the state bar. The case landed in the Ninth Circuit which affirmed the district court without deciding whether the controversial comments were germane to the bar's purpose. Instead, the Court held that the Supreme Court's 1990 decision in Keller v. State Bar of California foreclosed the plaintiff's speech claim, rejecting the plaintiffs' argument that since Abood—which underwrote Keller—had been overruled, exacting scrutiny governed speech claims in the context of mandatory bar membership. The plaintiffs appeal this question to the Supreme Court, asking the Court to either read Keller to require exacting scrutiny or to overrule Keller and provide clarity to the courts across the country that are fielding free speech claims from similarly situated attorneys who are also members of integrated state bars.Joining us to discuss are Jacob Huebert, lead counsel in the Crowe litigation, and Erik Jaffe, Partner at Schaerr Jaffe LLP, who will play the double role of moderator and devil's advocate. Featuring:-- Jacob Huebert, Senior Attorney, Goldwater Institute -- Moderator: Erik S. Jaffe, Partner, Schaerr Jaffe LLP

    Litigation Update: InterVarsity Christian Fellowship/USA v. University of Iowa et al.

    Play Episode Listen Later Aug 4, 2021 37:27

    On July 16, 2021, the U.S. Court of Appeals for the Eight Circuit issued a decision in InterVarsity Christian Fellowship/USA v. University of Iowa et al. A three-judge panel composed of Circuit Judges Loken, Grasz, and Kobes held that University officials violated the First Amendment when they deregistered a Christian student group, further holding that the university officials were not entitled to qualified immunity. The University of Iowa deregistered two Christian student groups, finding that the groups violated the University's “Human Rights Policy” by requiring their membership and/or leadership to sign a statement of faith in order to join. The first group—Business Leaders in Christ—sued and successfully received a preliminary injunction. Following that litigation, the University reviewed its human rights policy and then deregistered the second group—InterVarsity Christian Fellowship. InterVarsity fought the deregistration, then sued alleging the application of the human rights policy was discriminatory and arguing First Amendment free speech, free association, and free exercise violations in addition to several state law claims. Not only did the District Court enter summary judgment for InterVarsity, but the Court also denied individual University defendants qualified immunity relying on the earlier Business Leaders in Christ preliminary injunction grant. The University appealed and the Eighth Circuit affirmed in a decision with implications for campus free speech, religious liberty after Fulton, and qualified immunity.Joining us to discuss the case is Casey Mattox, Vice President for Legal and Judicial Strategy at Americans for Prosperity and Senior Fellow for Free Speech at the Charles Koch Institute. Casey is also a member of the Federalist Society's Free Speech and Election Law Practice Group. Featuring: -- Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Propserity; Senior Fellow for Free Speech, Charles Koch Institute

    Gender Based Board Quotas, the Fourteenth Amendment, and Meland v. Weber

    Play Episode Listen Later Aug 3, 2021 57:36

    On June 21, 2021, the Court of Appeals for the Ninth Circuit ruled a shareholder-plaintiff had standing to sue California's Secretary of State. Creighton Meland, a shareholder at OSI Systems, Inc., sued alleging that Senate Bill 826, which was signed into law in 2018, violates the Fourteenth Amendment because it requires corporations to elect a sliding scale quota of women to corporate board member seats. The District Court ruled Meland had no standing because SB 826 governed corporations, not shareholders, and at the time of Meland's suit OSI was in compliance so any controversy was moot.The Ninth Circuit disagreed, allowing Meland's suit to go forward by finding that the practical effect of SB 826 was to govern shareholders and direct them to vote on the basis of gender to avoid the imposition of fines or penalties for noncompliance. The court further held that Meland's suit alleged a direct harm and did not rely on prudential standing since he alleged personal harm rather than injury to the corporate entity.Here to discuss the merits of the underlying law and the likely next steps in the current litigation are Professor Ann Ravel of Berkeley Law, a former Commissioner and Chair at the Federal Election Commission, who helped negotiate a $310 million settlement against Google resulting in the creation of a corporate-level diversity, equity, and inclusion initiative, and Anastasia P. Boden, an attorney in Pacific Legal Foundation's Economic Liberty Project and lead counsel in the Meland v. Weber litigation. Our speakers are joined by moderator Megan Brown, a Partner at Wiley Rein. Featuring:-- Ann Ravel, Lecuter, Berkeley Law; Former Commissioner and Char at the Federal Election Commission -- Anastasia P. Boden, Senior Attorney, Pacific Legal Foundation-- Megan L. Brown, Partner, Wiley Rein

    A Webinar on Central Bank Digital Currencies

    Play Episode Listen Later Aug 3, 2021 58:22

    With expressions ranging from enthusiasm to serious interest, central banks from China to Europe have been actively exploring the potential for Central Bank Digital Currencies (CBDCs). On June 28, Federal Reserve Board Vice Chairman for Supervision Randal Quarles offered comments that, far from equivocal, expressed great doubt about the feasibility and desirability for the Federal Reserve sponsoring such a currency.On July 29 at 2 PM ET the Federalist Society will host a webinar of CBDC experts to comment on Vice Chairman Quarles' remarks. What were the key points he made, what did he not say, what is the significance of his comments, what issues remain? Most important of all, what are the prospects for CBDCs, abroad as well as in the U.S.?Controversies focus on CBDC implications for privacy, greater personal financial inclusion, government control of credit, innovation, government assumption of banking activities, broadening the tax base, and more.Speaking on the webinar will be Bert Ely, Chris Giancarlo, and Peter Earle. Featuring:-- Bert Ely, principal of Ely & Co. Inc., long-time expert, consultant, and commentator on financial services institutions and developments, including conditions in the banking industry and the FDIC, monetary policy, the payments system, and the growing federalization of credit risk.- Chris Giancarlo, former Chairman of the Commodity Futures Trading Commission, and currently senior counsel at Willkie Farr & Gallagher. On June 9, 2021, he testified on CBDC before the Senate Banking Committee's Economic Policy Subcommittee.-- Peter C. Earle, economist and writer with the American Institute for Economic Research, with 20+ years as a trader and analyst at a number of securities firms and hedge funds, his research focuses on financial markets, cryptocurrencies, monetary policy-related issues, the economics of games, and problems in economic measurement. -- Moderator: Alex J. Pollock, Distinguished Senior Fellow, R. Street Institute; former Principal Deputy Director, Office of Financial Research, U.S. Department of Treasury; author of Finance and Philosophy--Why We're Always Surprised

    Foreign Policy in the Biden Administration

    Play Episode Listen Later Aug 2, 2021 56:07

    This virtual event will examine current national security issues, including relations with China, as well as coordination with allies, utilization of available legal tools, and whether those tools might be effective.Featuring:-- Hon. Nazak Nikakhtar, Nazak served as Assistant Secretary for Industry and Analysis at the U.S. Department of Commerce's International Trade Administration. She also served as the U.S. government's top official for export controls on dual-use items and technologies, performing the non-exclusive functions and duties as Under Secretary for the Bureau of Industry and Security.-- Adam J. Szubin, Mr. Szubin served for two years as Acting Treasury Department Under Secretary for Terrorism and Financial Intelligence. During his nearly 13 year tenure at the Treasury, Mr. Szubin served as the Director of Treasury's Office of Foreign Assets Control (OFAC) for nine years and Senior Advisor to the Under Secretary for Terrorism and Financial Intelligence.- Moderator: Eric J. Kadel, Jr., Partner, Sullivan & Cromwell LLP

    Congressional Oversight and Investigations: New Developments and Outlook for the 117th Congress

    Play Episode Listen Later Aug 2, 2021 57:29

    With Democrats holding power in both houses of Congress and the White House, how will congressional oversight and investigations affect private industry and the Biden Administration during the 117th Congress? What should we expect if Republicans take back one or both houses of Congress in the midterm elections? What should private entities expect from congressional investigations, and what effect will recent court decisions such as Mazars have on industry? A panel of current and former congressional investigators will discuss these issues and more, as well as how recent investigations and judicial decisions will affect the structural relationship between Congress and the Executive Branch in the years ahead.Featuring: -- Ashley Callen, Deputy Staff Director, House Oversight and Reform Committee -- Daniel Goshorn, Chief Investigative Counsel, U.S. Senate Committee on Finance -- Allison Murphy, Former Chief Oversight Counsel of the House Select Subcommittee on the Coronavirus Crisis, Majority Staff; Partner in the Government, Regulatory & Internal Investigations Practice Group, Kirkland & Ellis-- Christopher Armstrong, Former Chief Oversight Counsel, Senate Committee on Finance; Partner, Holland & Knight LLP -- Moderator: Michael D. Bopp, Partner, Gibson Dunn & Crutcher LLP---

    Opioids in 2021: Enforcement Strategies and Policy Prescriptions

    Play Episode Listen Later Aug 2, 2021 58:56

    Opioid deaths in the US rose 29% during the course of the recent COVID pandemic. More than 55,000 Americans die annually from opioid consumption. Overtaken to some extent by other events, the opioid crisis is still with us and might be getting worse. The four participants in this panel discussion brought a wealth of experience and insight to this ongoing problem from both a law enforcement and public health perspective. Discussion ranged from the successes and failures of various law enforcement strategies and experiences to the efficacy of various public health policies and their often unintended consequences. This panel examined and discussed what has been learned to date in the efforts and what those lessons should tell us about what needs to be done to end the opioids crisis.Featuring: Robert M. Duncan, Jr., Partner, Dinsmore & Shohl LLPChristina E. Nolan, Shareholder, Sheehey Furlong & Behm PCProf. Tomas J. Philipson, Daniel Levin Professor of Public Policy, University of ChicagoJeffrey A. Singer, Senior Fellow, Cato Institute* * * * * As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

    Talks with Authors: A Dubious Expediency

    Play Episode Listen Later Jul 27, 2021 61:56

    A Dubious Expediency: How Race Preferences Damage Higher Education is a collection of eight essays written by experts in the field examining and analyzing the impact of racial diversity preferences and identity politics in American colleges and universities. The book's title comes from a 1976 California Supreme Court opinion in Bakke v. UC Regents authored by Justice Stanley Mosk, who wrote:“To uphold the [argument for race-preferential admissions] would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality.”In the book, the authors take up the question of race-based preferences in higher education, arguing that mounting empirical evidence shows race-based solutions cause long term harm both to intended beneficiaries and to society as a whole. Join Professor Gail Heriot and Professor Mamion Schwarzschild, co-editors of A Dubious Expediency, to discuss.Featuring:-- Gail L. Heriot, Professor of Law, University of San Diego School of Law -- Maimon Schwarzschild, Professor of Law, University of San Diego School of Law

    Private Entities and Public Concern

    Play Episode Listen Later Jul 27, 2021 98:49

    Aside from the purely legal questions already addressed in this programming series, how should we think about the practical and philosophical questions at stake? Many of us start with the presumption that the social media companies are private businesses and therefore may operate according to viewpoint norms as their owners see fit. But the growing reliance on big tech platforms, combined with the behavior of such platforms in restricting the scope of permissible speech, has raised concerns across the political spectrum, including among those of generally libertarian policy preferences. And the new interest in considering a range of regulatory options is not breaking down along conventional left/right lines. How should we think about these larger philosophical questions? Featuring: -- Ashley Keller, Partner, Keller Lenker LLC-- Genevieve Lakier, Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School-- Randy E. Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center-- William Baude, Professor of Law, Aaron Director Research Scholar, University of Chicago Law School-- Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, D.C. Circuit

    The Implications of the Latest Congressional Review Act Disapprovals

    Play Episode Listen Later Jul 15, 2021 65:19

    The Congressional Review Act (CRA) was used in 2017 to overturn 15 rules issued near the end of the Obama administration. The shift in political control in the White House and Congress this year set the stage for a possible repeat with respect to Trump administration rules. The CRA's period for expedited congressional procedures (free of the Senate filibuster) has now expired for late Trump era regulations, and Congress overturned only three such rules. On June 24, Congress finished action to repeal the EEOC conciliation rule and the OCC (Comptroller) true lender rule, and it took final action to repeal the EPA methane rule the following day. President Biden has since signed all three resolutions, making them law.This latest cycle of CRA actions merit general exploration as well as consideration of the specific rules at issue. What process did Congress use to disapprove the three rules? Why did it use the CRA relatively sparingly this year, and what will the impact be of the three disapprovals? The answers to the last two questions are arguably related. When Congress uses the CRA to repeal federal regulations, the respective agencies are automatically barred from issuing another rule that is “substantially the same” as the one disapproved without new statutory authorization. Though there is no court ruling on what the CRA's anti-circumvention clause means, the resulting uncertainty may have skewed the CRA's use in interesting ways.Join Todd Gaziano and Professor Jonathan Adler discuss the CRA, how it has been used, and the ramifications of its use on the three rules this year and on future federal regulations. Featuring: -- Todd F. Gaziano, Chief of Legal Policy and Strategic Research and Director, Center for the Separation of Powers, Pacific Legal Foundation -- Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Director of the Center for Business Law & Regulation, Case Western Reserve University School of Law

    Courthouse Steps Decision Webinar: Transunion LLC v. Ramirez

    Play Episode Listen Later Jul 12, 2021 26:27

    On June 25, 2021, the Supreme Court issued its decision in Transunion LLC v. Ramirez. In this case, a class of plaintiffs sued the credit reporting company TransUnion under the Fair Credit Reporting Act. The plaintiffs alleged that the process Transunion used to flag consumer credit worthiness accounts—running consumers names against the U.S. Treasury Departments' Office of Foreign Assets Control database of terrorists, traffickers, and other criminals and flagging those names that matched database listed names—resulted in harm to the plaintiffs where the match was only a coincidence.Although the initial class contained 8,185 members, only 1,853 class members incurred harm since Transunion only conveyed credit reports flags for that subset to third parties during the relevant period.The District Court ruled the whole 8,185 member class had standing to sue. The Supreme Court reversed on the standing issue, ruling that the 6,332 class members whose information had not been conveyed to third parties during the relevant period had no Article III standing since they had suffered no cognizable injury. Featuring:-- Theodore "Ted" Frank, Director of Litigation and Senior Attorney, Hamilton Lincoln Law Institute

    Courthouse Steps Decision Webinar: Penneast Pipeline Co. v. New Jersey

    Play Episode Listen Later Jul 12, 2021 49:50


    On June 29, 2021, the Supreme Court held that the Eleventh Amendment did not bar Penneast Pipeline Co., exercising federal eminent domain authority under the Natural Gas Act, from suing the State of New Jersey to acquire state-owned property to construct a natural gas pipeline. The Supreme Court rejected New Jersey's arguments that the federal eminent domain power had not been properly delegated to PennEast, and even if the authorization were appropriate, the State's sovereign immunity precluded this federal court suit. The federal government has always had the supreme power to condemn state property,the Court ruled, and the tradition of delegating this power to build public infrastructure goes back to the days of the nation's founding. Penneast was represented by former Solicitor General, Paul Clement.Chief Justice Roberts delivered the opinion of the Court, joined by Justices Breyer, Alito, Sotomayor and Kavanaugh. Justice Gorsuch filed a dissent joined by Justice Thomas. Justice Barrett filed a dissent joined by Justices Thomas, Kagan, and Gorsuch. Featuring: -- Paul D. Clement, Partner, Kirkland & Ellis LLP -- Roger J. Marzulla, Partner, Marzulla Law


    Severability and Article III Powers

    Play Episode Listen Later Jul 12, 2021 85:27

    What should the Supreme Court do when it finds one provision of a statute unconstitutional? There is a significant split between current Justices on the question where Congress has not provided express instructions on severance within the statute. Several believe the Court should save the rest of the statute, while others have expressed skepticism towards this practice.This distinguished panel will explore the foundations of the severability doctrine and the authority of Article III judges in such cases. Panelists will offer their differing views of severability and discuss where the doctrine may be headed.Featuring:-- Prof. William Baude, Professor of Law, University of Chicago Law School-- Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston-- Erin M. Hawley, Senior Legal Fellow, Independent Women's Law Center -- Prof. Kevin C. Walsh, Assistant Professor, University of Richmond School of Law-- Moderator: Megan L. Brown, Partner, Wiley

    Courthouse Steps Decision Webinar: Brnovich v. Democratic National Convention

    Play Episode Listen Later Jul 12, 2021 36:46


    On July 1, 2021, the Supreme Court issued its decision in Brnovich, Attorney General of Arizona v. Democratic National Convention. The DNC sued the state of Arizona arguing that two of the State's election procedures—refusing to count ballots that were incorrectly cast out of precinct and forbidding most third parties from collecting vote-by-mail ballots for delivery—had a disparate impact on racial minority voters in violation of Section 2 of the Voting Rights Act (VRA). The DNC also alleged that the ballot-collection measure was enacted with discriminatory intent.Although the District Court found no violation of the Voting Rights Act and a panel of the Ninth Circuit affirmed, an en banc panel of the Ninth Circuit reversed finding disparate impact and that the District Court had clearly erred in finding no discriminatory intent. The Supreme Court reversed and remanded the Ninth Circuit's decision, holding 6-3 that Arizona's voting rules did not violate Section 2 of the Voting Rights Act and that the ballot collection measure was not enacted with discriminatory intent. Justice Alito delivered the opinion of the Court joined by Chief Justice Roberts and Justices Thomas, Gorsuch, Kavanaugh, and Barrett. Justice Gorsuch filed a concurrence in which Justice Thomas joined. Justices Kagan, Breyer, and Sotomayor dissented. Featuring:-- Derek T. Muller, Professor of Law, University of Iowa College of Law


    Questions of Federal Preemption

    Play Episode Listen Later Jul 9, 2021 80:10

    Several states are considering how to regulate the content moderation practices of social media and other tech platforms. Some are focused primarily on protecting a wider range of expressible user viewpoints, while other states are concerned with strengthening incentives on platforms to engage in more aggressive moderation of potentially harmful speech. Some states are also pursuing antitrust enforcement actions against some tech platforms. Such state level regulation of national – even global – platforms, raises the prospect of a patchwork of competing state regulatory frameworks. States have their own antitrust statutes that can differ from federal standards, and historically have had authority to regulate and set boundaries for material that cannot be published, such as libel, and content harmful to minors. How should we think about state regulatory efforts when applied to technology platforms - is regulatory federalism likely to be beneficial, or should federal law preempt such efforts? What role can or should the FCC play in preempting such state regulation? How does the Dormant Commerce Clause affect state level efforts to regulate content and content moderation policies of social media within state borders?Featuring confirmed speakers to date:-- Hon. Brendan Carr, Commissioner, Federal Communications Commission-- Daniel Francis, Furman Fellow, New York University School of Law-- Paul Watkins, Managing Director, Patomak Global Partners-- Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, D.C. Circuit

    Courthouse Steps Decision Webinar: Nestle USA, Inc. v. Doe et al

    Play Episode Listen Later Jul 7, 2021 58:45


    On June 17, 2021, the Supreme Court issued its 8-1 decision in Nestle USA, Inc. v. Doe et al and the consolidated case of Cargill, Inc. v. Doe I. In this case, six people from Mali who had been trafficked as child slaves onto cocoa farms in the Ivory Coast sued under the Alien Tort Statute, arguing that since the American companies Nestle and Cargill provided financial and technical support to those farms, they should be liable for aiding and abetting human trafficking. The Ninth Circuit had reversed the District Court, finding that the respondents had adequately pled a domestic application of the Alien Tort Statute because the corporate decisions driving contracting with the Ivory Coast farms originated in the United States. The Supreme Court reversed the Ninth Circuit holding that the presumption against extraterritoriality required plaintiffs to establish relevant conduct in the United States and that general corporate activity like decision making was insufficient.Justice Thomas announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which Chief Justice Roberts and Justices Breyer, Sotomayor, Kagan, Gorsuch, Kavanaugh and Barrett joined. Justices Thomas, Gorsuch and Sotomayor all filed concurring opinions and Justice Alito dissented.Featuring: -- Ilya Shapiro, Vice President and Director, Robert A. Levy Center for Constitutional Studies, Cato Institute -- William S. Dodge, John D. Ayer Chair in Business Law and Martin Luther King Jr. Professor of Law, UC Davis School of Law -- Moderator: Julian Ku, Senior Associate Dean for Academic Affairs, Faculty Director of International Programs, and Maurice A. Deane Distinguished Professor of Constitutional Law, Maurice A. Deane School of Law at Hofstra University


    Courthouse Steps Decision Webinar: Americans for Prosperity v. Bonta

    Play Episode Listen Later Jul 7, 2021 45:45

    On July 1, 2021, the Supreme Court issued its decision in Americans for Prosperity Foundation v. Bonta, Attorney General of California. California state law required charitable organizations soliciting donors in the state to register with the California Attorney General. To file, charities had to submit their IRS Form 990 along with all Schedules including Schedule B which discloses donor names and information.Two conservative organizations refused to submit Schedule B and ultimately sued arguing that the compelled disclosure of their donor lists violated their First Amendment right to freedom of association. Disclosure would make their donors less likely to donate or associate with the charities of their choice.The case went through multiple appeals to the Ninth Circuit finally arriving in the Supreme Court, which cited NAACP v. Alabama, clarified the applicable exacting scrutiny standard, and held California's Schedule B disclosure requirement facially unconstitutional. Joining us to discuss is Mr. Erik Jaffe, a Partner at Schaerr Jaffe LLP and the author of an amicus brief in support of the petitioners.Featuring:-- Erik Jaffe, Partner, Schaerr Jaffe LLP

    Courthouse Steps Decision Webinar: Collins v. Yellen

    Play Episode Listen Later Jul 7, 2021 44:05


    On June 23, 2021, the U.S. Supreme Court in Collins v. Yellen held 7-2 that 1) because the Federal Housing Finance Agency did not exceed its authority under the Housing and Economic Recovery Act of 2008, the anti-injunction provisions of the Recovery Act bar the statutory claim brought by shareholders of Fanne Mae and Freddie Mac; and 2) the Recovery Act's structure violates the separation of powers.Justice Alito wrote the majority opinion. Justice Gorsuch joined the opinion as to all but Part III–C, Justices Kagan and Breyer joined as to all but Part III–B, and Justice Sotomayor joined as to Parts I, II, and III–C. Justice Thomas filed a concurring opinion. Justice Gorsuch filed an opinion concurring in part. Justice Kagan filed an opinion concurring in part and concurring in the judgment, in which Justices Breyer and Sotomayor joined as to Part II. Justice Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined.Two experts will discuss the ruling and its implications for administrative law, the separation of powers, and more.Featuring: -- Jason Levine, Partner, Alston & Bird-- Jeffrey McCoy, Attorney, Pacific Legal Foundation


    Talks with Authors: Crisis of the Two Constitutions

    Play Episode Listen Later Jul 6, 2021 63:37

    Join Professor Gerard V. Bradley and Dr. Charles Kesler, author of Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness, to discuss Kessler's recently published book. See a brief overview included below:American politics grows embittered because it is increasingly torn between two rival constitutions, two opposed cultures, two contrary ways of life. American conservatives rally around the founders' Constitution, as amended and as grounded in the natural and divine rights and duties of the Declaration of Independence. American liberals herald their “living Constitution,” a term that implies that the original is dead or superseded, and that the fundamental political imperative is constant change or transformation (as President Obama called it) toward a more and more perfect social democracy ruled by a Woke elite.Crisis of the Two Constitutions details how we got to and what is at stake in our increasingly divided America. It takes controversial stands on matters political and scholarly, describing the political genius of America's founders and their efforts to shape future generations through a constitutional culture that included immigration, citizenship, and educational policies. Then it turns to the attempted progressive refounding of America, tracing its accelerating radicalism from the New Deal to the 1960s' New Left to today's unhappy campus nihilists. Finally, the volume appraises American conservatives' efforts, so far unavailing despite many famous victories, to revive the founders' Constitution and moral common sense. From Ronald Reagan to Donald Trump, what have conservatives learned and where should they go from here?Along the way, Charles R. Kesler argues with critics on the left and right, and refutes fashionable doctrines including relativism, multiculturalism, critical race theory, and radical traditionalism, providing in effect a one-volume guide to the increasingly influential Claremont school of conservative thought by one of its most engaged, and engaging, thinkers.Featuring: -- Prof. Charles R. Kesler, Author, Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness, Senior Fellow, The Claremont Institute -- Moderator: Prof. Gerard V. Bradley, Professor of Law, Univeristy of Notre Dame Law School

    Courthouse Steps Decision Webinar: Goldman Sachs Group, Inc. v. Arkansas Teacher Retirement System

    Play Episode Listen Later Jul 6, 2021 29:43

    The Supreme Court issued its decision in Goldman Sachs Group, Inc., v. Arkansas Teacher Retirement System on June 21, 2021. Justice Barrett delivered the opinion of the Court, which Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh joined in full.In this case, a group of Goldman shareholders sought to certify a class action suit against Goldman arguing that they had detrimentally relied on Goldman's alleged misrepresentations about conflict management, which had resulted in inflation maintenance and subsequent shareholder loss. In arguing for class certification, the plaintiffs relied on the Supreme Court's 1988 Basic Inc. v. Levinson decision allowing plaintiffs to prove reliance based on evidence common to the class. Goldman argued against certification and against the Basic presumption by presenting evidence showing the alleged misrepresentations had not affected stock prices.On its second attempt, the District Court certified a class and the Second Circuit affirmed. In its decision, the Supreme Court remanded to the Second Circuit to consider the generic nature of the alleged misrepresentations even though that evidence might get to materiality not usually considered at the initial certification stage under Rule 23. The Court also clarified the Basic presumption holding that a defendant does bear the burden of persuasion to rebut the presumption of reliance allowed to class action plaintiffs. Joining us to discuss is Mr. Ted Frank, a class action litigator and the Director of the Center for Class Action Fairness at the Hamilton Lincoln Law Institute. Featuring:-- Theodore "Ted" Frank, Director of Litigation and Senior Attorney, Hamilton Lincoln Law Institute

    Courthouse Steps Decision Webinar: NCAA v. Alston

    Play Episode Listen Later Jul 1, 2021 38:34


    On June 21, 2021, the U.S. Supreme Court unanimously decided NCAA v. Alston in favor of respondent. Writing for the Court, Justice Gorsuch explained that the district court's injunction on NCAA rules limiting the benefits schools can make available to student athletes is consistent with antitrust law and principles. Justice Kavanaugh filed a concurring opinion. A former senior DOJ Antitrust official joins us to discuss the ruling and its implications.Featuring: -- Michael Murray, Former Principal Deputy Assistant Attorney General, Antitrust Division, U.S. Department of Justice


    Covid-19 Vaccines and Intellectual Property

    Play Episode Listen Later Jul 1, 2021 61:44

    In October 2020, two countries, India and South Africa, that had been hit particularly hard by the COVID-19 virus and its variants and by inadequate supply of personal protective equipment, diagnostic tests, and medicines, requested a waiver of intellectual property protections covering COVID-19 vaccines. Specifically, these countries are seeking a waiver that would exempt World Trade Organization (WTO) member countries from obligations related to patents, copyrights, industrial designs, and trade secrets under TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights). Among other things, TRIPS requires member countries to provide minimum intellectual property protections and enforcement mechanisms that support these intellectual property rights. In a move that surprised many, on May 5, 2021, United States Trade Representative Katherine Tai issued a statement announcing the current administration's support for this waiver, but initially for vaccines only rather than the additional COVID-19 health technologies covered by the waiver proposal. In Tai's announcement, she stated that “The Administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines.” The purpose of the waiver, as Tai notes, is to “get as many safe and effective vaccines to as many people, as fast as possible.” Since Representative Tai's statement, there has been much commentary in favor and against the waiver and the U.S. support for it, but after the most recent TRIPS Council meeting, text-based negotiations have begun on the India/South Africa proposal and a European Union communication emphasizing elimination of trade barriers, voluntary agreements, and clarifications of the TRIPS Agreement's compulsory licensing rules. In this webinar, experts in intellectual property and international trade will help explain the pros and cons of the waiver proposal, what effects it may have on the pandemic, and what other impacts the waiver may have long term.Featuring: -- Jorge Contreras, Professor of Law, University of Utah College of Law -- James Bacchus, Distinguished Professor of Global Affaris and Director, Center for Global Economic and Environmental Opportunity, University of Central Florida -- Ana Santos Rutschman, Assistant Professor, Saint Louis University School of Law -- Brook K. Baker, Professor of Law, Northeastern University School of Law -- Moderator: Steven M. Tepp, President and CEO, Sentinel Worldwide

    Courthouse Steps Decision Webinar: Holly Frontier Cheyenne Refining LLC v. Renewable Fuels Association

    Play Episode Listen Later Jun 30, 2021 46:17

    On June 25, the Supreme Court issued its decision in Holly Frontier Cheyenne Refining LLC. v. Renewable Fuels Association. This case turned on the interpretation of the statutory term “extension” contained in the Renewable Fuel Program. In an effort to encourage refineries to produce renewable fuel, Congress directed the EPA to require refineries to blend certain percentages of renewable fuel into their products, while allowing certain exemptions to small refineries. In this case, the exemptions granted to several small refineries had lapsed. When they reapplied and received exemptions, biofuels interests sued. They argued that, because these refineries' exemptions had lapsed, they were no longer eligible under the terms of the statute, which provides that small refineries can apply for “an extension of the exemption [for] . . . disproportionate economic hardship.” The Tenth Circuit interpreted the statutory language to bar an exemption grant based on the lapse—granting an exemption after a lapse would not be an “extension.” The Supreme Court reversed, holding that “extension” as used in this statute does not require “unbroken continuity” and determining that the statutory language's context indicated Congressional intent to allow small refineries to apply for an exemption even if they hadn't continuously received one before.Justin Schwab, former EPA Deputy General Counsel and founder of CGCN Law, previewed the case for us on April 27, 2021. He joins us again to discuss the opinion.Featuring:-- Justin Schwab, Founder, CGCN Law, PLLC

    Navigating High Profile Defamation

    Play Episode Listen Later Jun 30, 2021 59:46

    The rise in cancel culture aided by online activity—and more recently by the national press—can result in significant harm to an individual's or a company's reputation. Speaking out on nearly any topic on an online platform has become increasingly risky because it takes no time for a profile or a post to move from virtual anonymity to notoriety. Join Libby Locke, a Partner at Clare Locke LLP, to discuss how individuals and companies can respond effectively to high-profile reputational attacks.Featuring:-- Libby Locke, Partner, Clare Locke LLP -- Moderator: Hon. G. Barry Anderson, Associate Justice, Minnesota Supreme Court

    Current Status of Police Reform Legislation

    Play Episode Listen Later Jun 30, 2021 54:49

    Over the past year, police reform has become a priority for many at both the state and federal levels. In this teleforum, Zack Smith at The Heritage Foundation will recap some of the recent efforts to pass police reform legislation at the state and federal levels and will provide an update on where police reform stands in the 117th Congress.Featuring:-- Zack Smith, Legal Fellow, Meese Center for Legal and Judicial Studies, The Heritage Foundation

    Courthouse Steps Decision Webinar: Yellen v. Confederated Tribes of the Chehalis Reservation

    Play Episode Listen Later Jun 30, 2021 42:31

    The Supreme Court issued its decision in Yellen, Secretary of Treasury v. Confederated Tribes of the Chehalis Reservation on June 25, 2021. In this case, the Coronavirus Aid, Relief, and Economic Security (CARES) Act allotted 8 million dollars to “Tribal governments” defined as the “recognized governing body of an Indian tribe” under the Indian Self-Determination and Education Assistance Act.Under this definition, Alaska Native Corporations (ANCs) qualified for CARES Act Covid-19 relief. Several other Indian tribes sued, arguing that the money should be reserved for federally recognized tribes. The District Court entered summary judgment for the ANCs and the Department of the Treasury, the D.C. Circuit reversed, and the Supreme Court ultimately held that the ANCs do qualify for Covid-19 relief under the CARES Act.Joining us to discuss are Anthony “AJ” Ferate and Jennifer Weddle.Featuring:-- Anthony "AJ" Ferate, Of Counsel, Spencer Fane LLP-- Jennifer Weddle, Shareholder, GreenbergTraurig

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