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Teleforum

Updated 8 days ago

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Politics
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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 expressions of opinion are those of the speakers. We hope these broadcasts, like all of our programming, will serve to stimulate discussion and further exchange regarding important current legal issues.

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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 expressions of opinion are those of the speakers. We hope these broadcasts, like all of our programming, will serve to stimulate discussion and further exchange regarding important current legal issues.

iTunes Ratings

35 Ratings
Average Ratings
25
5
0
2
3

The best law podcast out there

By 1Lsudokufan - May 14 2019
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It’s impressive how FedSoc cranks out these teleforums on a weekly basis, covering a wide variety of topics with an array of speakers. I can almost never jump on a phone for the actual calls so I appreciate these podcasts. Fantastic series.

To be fair

By PodcastListener38 - Oct 25 2015
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The person below should have read the next 9 words in the description: "all expressions of opinion are those of the speakers."

iTunes Ratings

35 Ratings
Average Ratings
25
5
0
2
3

The best law podcast out there

By 1Lsudokufan - May 14 2019
Read more
It’s impressive how FedSoc cranks out these teleforums on a weekly basis, covering a wide variety of topics with an array of speakers. I can almost never jump on a phone for the actual calls so I appreciate these podcasts. Fantastic series.

To be fair

By PodcastListener38 - Oct 25 2015
Read more
The person below should have read the next 9 words in the description: "all expressions of opinion are those of the speakers."
Cover image of Teleforum

Teleforum

Latest release on Feb 26, 2020

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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 expressions of opinion are those of the speakers. We hope these broadcasts, like all of our programming, will serve to stimulate discussion and further exchange regarding important current legal issues.

Rank #1: Social Media Content Control

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In two recently filed lawsuits conservative organizations have complained that Google has restricted their access to readers. Gab, which provides its own site for conservative and alt right voices, complained when Google refused to include Gab’s app in its app store. Per Gab, Google’s true reason for this was to stymie Gab’s competition with Google’s business partner Twitter, violating the antitrust laws. Prager University complained that Google and YouTube unlawfully censored its educational videos by restricting their availability to younger viewers. Prager asserts that its videos are fully appropriate for younger viewers and that Google/YouTube’s real objection is to their admittedly conservative point of view. PragerU’s counsel, former California governor Pete Wilson, asserts that this “is speech discrimination plain and simple, censorship based entirely on unspecified ideological objection to the message or on the perceived identity and political viewpoint of the speaker” and thus violates both the First Amendment and California law.
At the same time Google and Facebook assert they are free to run their private businesses as they deem appropriate. They also face intensive pressure from American politicians and foreign governments to moderate their platforms. Facebook and Google were called before a committee of the House of Representatives, which assailed them for doing too little about “fake news” on their sites. In Germany, Facebook was recently compelled to remove a post critical of Islamic migrants.
This Teleforum will consider the obligations, if any, that American law, including the antitrust laws and the First Amendment, place on popular social media outlets. It will consider whether they can, or can be required to, restrict online content that some deem objectionable.

Featuring:

Prof. Thomas C. Arthur, L. Q. C. Lamar Professor of Law, Emory University School of Law

Prof. Eric Goldman, Professor of Law, Santa Clara University School of Law, Co-Director, High Tech Law Institute & Supervisor, Privacy Law Certificate
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Jan 22 2018

1hr 7mins

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Rank #2: Courthouse Steps: Masterpiece Cakeshop v. Colorado CRC

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On December 5th, The Supreme Court will hear oral arguments in Masterpiece Cakeshop v. Colorado CRC. The case, one of the most highly publicized of the term, involves questions of religious liberty, expressive acts, and compelled speech.
Two men, Charlie Craig and David Mullins, were planning their wedding and sought a wedding cake from Jack Phillips, the owner of Masterpiece Cakeshop. Phillips told the men that he could not make them a cake, citing his religious beliefs. The Colorado Civil Rights Commission determined that Phillips was discriminating against the couple on the basis of sexual orientation. Phillips was told to “cease and desist” such discrimination and was ordered to provide “remedial measures.” As a result, Phillips stopped offering custom cakes entirely.
The case deals with the balance of religious liberties and equality through anti-discriminatory laws. It also involves the Free Speech Clause, as Phillips considers his custom cakes art and himself an artist. Phillips and many others see the “cease and desist” as a form of compelled speech, since he would be legally obligated to create art with a message he does not support.
Kim Colby, Director at the Center for Law & Religious Freedom at the Christian Legal Society, will attend oral argument and join us to discuss her impressions.

Featuring:
Kim Colby, Director, Center for Law & Religious Freedom, Christian Legal Society

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Dec 05 2017

1hr 6mins

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Rank #3: Sanctuary Cities

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In 2015, 32-year old Kate Steinle was shot in San Francisco by an Illegal Immigrant. The immigrant was previously deported five times and had seven prior felony convictions. This incident, along with additional stories of criminal behavior by illegal aliens, drew national attention to the issue of sanctuary cities.The Center for Immigration Studies defines sanctuary cities as localities which, by statute or action, seek to shield information regarding illegal aliens from Immigration and Customs Enforcement (ICE). Sanctuary counties, however, vastly outnumber sanctuary cities, and seven states have adopted statewide sanctuary policies. As of 2017, undocumented immigrants were estimated to number about 12.5 million, with the largest populations of such immigrants in California, Florida, New York, and Texas. Of the illegal immigrants arrested by ICE in 2017, 74% had criminal histories and 16% faced criminal charges. In light of the data, concerns arise that sanctuary cities, by withholding information from ICE, protect illegal aliens who are also dangerous criminals from deportation and thereby pose national security risks.
Furthermore, 8 U.S.C. § 1373 prohibits state and local governments or officials from inhibiting the flow of information regarding immigrants to ICE. Seeking to enforce §1373, President Trump in 2017 issued an executive order conditioning federal grants to states and municipalities upon cooperation with Immigration and Customs Enforcement (ICE). Subsequent legal challenges brought by cities such as Chicago and Philadelphia have successfully blocked the order’s enforcement, citing the Constitution’s requirement that Congress must approve any new conditions on federal funding. State and local governments, however, have also launched their own anti-sanctuary initiatives. Tennessee, for instance, banned sanctuary cities in May of this year, following Texas, whose law mandating full local cooperation with federal immigration enforcement was upheld by the Fifth Circuit, and numerous municipalities in California have declared opposition to their state’s sanctuary policies. California’s sanctuary laws have also been challenged in a lawsuit brought by the United States, which claims that these laws violate the Supremacy Clause of the U.S. Constitution.
Featuring:
William A. Stock, Partner, Klasko Immigration Law Partners, LLP
Christopher Hajek, Director of Litigation, Immigration Reform Law Institute
Moderator: Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Aug 03 2018

58mins

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Rank #4: The Campus Rape Frenzy: The Attack on Due Process at America's Universities by Professor KC Johnson and Stuart Taylor

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In recent years, our nation’s college campuses have been portrayed as awash in a violent crime wave—and university leaders, professors, and students as indifferent to female sexual assault victims in their midst. In their recently published book, The Campus Rape Frenzy: The Attack on Due Process at America's Universities, authors Professor KC Johnson and Stuart Taylor examine these assertions in detail. The book presents evidence to the contrary and argues that these claims do not have any bearing in reality. -- New York Law School Professor Nadine Strossen joined us to moderate an illuminating discussion with the authors. -- Featuring: Professor KC Johnson, Professor of History at Brooklyn College and the CUNY Graduate Center and Stuart Taylor, Washington writer, lawyer, and National Journal contributing editor. Moderator: Professor Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School.

Feb 03 2017

58mins

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Rank #5: Outsourcing the Board

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In this groundbreaking work, Stephen M. Bainbridge and M. Todd Henderson change the conversation about corporate governance by examining the origins, roles, and performance of boards with a simple question in mind: why does the law require governance to be delivered through individual board members? While tracing the development of boards from quasi-political bodies through the current 'monitoring' role, the authors find the reasons for this requirement to be wanting. Instead, they propose that corporations be permitted to hire other business associations - known as 'Board Service Providers' or BSPs - to provide governance services. Just as corporations hire law firms, accounting firms, and consulting firms, so too should they be permitted to hire governance firms, a small change that will dramatically increase board accountability and enable governance to be delivered more efficiently. Outsourcing the Board should be read by academics, policymakers, and those within the corporations that will benefit from this change.
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Oct 05 2018

48mins

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Rank #6: Impeachment and Presidential Powers

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John Malcolm and John Yoo joined us to discuss developments on impeachment: the latest on the Ukraine investigation; the procedures for the House investigation; whether the allegations meet the standards for high crimes and misdemeanors; the White House’s strategy of non-cooperation; and more.

Featuring:
-- John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
-- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

Oct 29 2019

56mins

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Rank #7: Courthouse Steps: Masterpiece Cakeshop v. Colorado CRC Decided

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Masterpiece Cakeshop v. Colorado CRC, one of the most highly publicized of the term, was decided 7-2 in favor of the petitioner.
The facts of the case are as follows: two men, Charlie Craig and David Mullins, were planning their wedding and sought a wedding cake from Jack Phillips, the owner of Masterpiece Cakeshop. Phillips told the men that he could not make them a cake, citing his religious beliefs. The Colorado Civil Rights Commission determined that Phillips was discriminating against the couple on the basis of sexual orientation. Phillips was told to “cease and desist” such discrimination and was ordered to provide “remedial measures.” As a result, Phillips stopped offering custom cakes entirely.
The case deals with the balance of religious liberties and equality through anti-discriminatory laws. It also involves the Free Speech Clause, as Phillips considers his custom cakes art and himself an artist. Phillips and many others see the “cease and desist” as a form of compelled speech, since he would be legally obligated to create art with a message he does not support.
Dale Carpenter, Judge William Hawley Atwell Chair of Constitutional Law at the SMU Dedman School of Law and Kim Colby, Director at the Center for Law & Religious Freedom, Christian Legal Society, will join us to discuss this important decision.
Featuring:
Prof. Dale A. Carpenter, Judge William Hawley Atwell Chair of Constitutional Law; Professor of Law, SMU Dedman School of Law
Kim Colby, Director at the Center for Law & Religious Freedom, Christian Legal Society

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Jun 06 2018

1hr 15mins

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Rank #8: Hively v. Ivy Tech Community College

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

Jun 02 2017

57mins

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Rank #9: James Comey, Andrew McCabe, and the Office of the Inspector General

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Sep 11 2019

58mins

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Rank #10: The Future of Chevron Deference

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Skepticism of the Chevron doctrine has risen in recent years, with some commentators calling for the Court to overturn or Congress to repeal Chevron. The addition to the Supreme Court of Justice Neil Gorsuch -- a Chevron skeptic -- prompted much speculation about Chevron's future. The nomination of Judge Brett Kavanaugh -- another Chevron skeptic -- has only furthered that speculation. Our panel will discuss the future of the Chevron doctrine in light of these and other developments.
Featuring:
Professor Christopher Walker, Associate Professor of Law, The Ohio State University Moritz College of Law
Adam White, Director, Center for the Study of the Administrative State, Research Fellow, Hoover Institution
Moderator: Professor Jennifer L . Mascott, Professor of Law, Antonin Scalia Law School
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Oct 02 2018

1hr 1min

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Rank #11: The Limits of Political Redistricting: Gill v. Whitford

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Partisan disputes over the drawing of legislative districts are as old as the Republic itself. In recent years, these disputes have not been limited to the political realm. Ever since the Supreme Court's 1986 opinion in Davis v. Bandemer, litigants have raised challenges in federal courts over partisan gerrymandering. But lower courts have lacked guidance from the Supreme Court and struggled to identify the appropriate standards and evidence to use. In October, the Supreme Court heard Gill v. Whitford, an appeal of a lower court finding that Wisconsin's redistricting of its state legislature was an impermissible partisan gerrymander. What standards should courts apply when determining whether a partisan gerrymander is impermissible? What evidence should courts rely upon? Should courts even consider such challenges at all or leave the matter to the political process?
Featuring:
Prof. Nicholas Stephanopoulos, Professor of Law, Herbert and Marjorie Fried Research Scholar, University of Chicago Law School
Mr. Kevin St. John, Partner, Bell Giftos St. John LLC

Oct 10 2017

59mins

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Rank #12: 20 State Lawsuit Challenging Obamacare's Constitutionality

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Recently, 20 States, led by Attorney General Ken Paxton of Texas and Attorney General Brad Schimel of Wisconsin, filed a lawsuit challenging the constitutionality of Obamacare based upon Chief Justice John Robert's reasoning in NFIB. The Chief Justice had reasoned that Obamacare's individual mandate is only constitutional because it can be read together with a related tax penalty provision as a single tax. In the recent tax reform law, Congress eliminated the tax penalty, but left the individual mandate in place. Misha Tseytlin, Solicitor General of Wisconsin, explains the States' argument that this change in law renders the individual mandate unconstitutional under the Chief Justice's reasoning and that other portions of the law are inseverable from the mandate. Professor Jonathan Adler explains why he is skeptical of the state AGs' claims and identify potential obstacles to this suit's success.
Featuring:
Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law and Director of the Center for Business Law & Regulation, Case Western Reserve University School of Law
Misha Tseytlin, Solicitor General for the State of Wisconsin
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Mar 26 2018

59mins

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Rank #13: Presidential Use of Emergency Power

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There has been much in the news lately concerning the President's use of emergency power to shift budgeted funds from one purpose to another, namely, construction of a barrier along the southern border of the U.S. Does the President have inherent constitutional authority to declare an emergency and move the funds? Has Congress otherwise given the President statutory authority to do so, and, if so, has that authority been granted constitutionally? These and other questions will be debated on our Teleforum conference call.
Featuring:
Professor John C. Yoo, Emanuel Heller Professor of Law and Director of the Korea Law Center, the California Constitution Center, and Public Law and Policy Program, University of California at Berkeley School of Law
David A. French, Senior Fellow, National Review Institute, and Senior Writer, National Review

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Feb 04 2019

50mins

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Rank #14: Disparate Impact in School Discipline

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The Obama administration was aggressive in its use of the “disparate impact” approach to civil-rights enforcement, which holds that policies that have a different statistical result for various demographic groups are illegally discriminatory even if they are neutral by their terms, in their intent, and in their application. One example is in the school discipline area, where the administration’s Department of Education sent a “Dear Colleague” letter to state and local education officials, warning that this approach would be vigorously applied in K-12 schools receiving federal money and thus subject to the nondiscrimination provisions of Title VI of the 1964 Civil Rights Act.

Critics claim that this has resulted in students not being disciplined who should be, with the resulting disruption meaning that many students — and disproportionately poor and minority students — now have worse learning environments and that some teachers are being put at physical risk. Proponents of the policy claim it is necessary to protect the disciplined.

Jason Riley of the Manhattan Institute has recently written on this topic in his Wall Street Journal column, and Roger Clegg of the Center for Equal Opportunity has worked on this issue for the Federalist Society’s Regulatory Transparency Project. Both experts will join us to discuss this important topic.

Featuring:
Roger B. Clegg, President and General Counsel, Center for Equal Opportunity
Jason Riley, Senior Fellow, Manhattan Institute; Columnist, The Wall Street Journal; Author: False Black Power?

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Dec 26 2017

1hr 2mins

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Rank #15: The President's Impeachment

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In December 2019, the United States House of Representatives voted to impeach President Donald Trump. This is the third impeachment of a sitting U.S. President after Johnson and Clinton. As a part of their continuing conversation series, we are excited to host John Malcolm and John Yoo to discuss the vote, Trump’s letter, possible Senate trial rules, comparisons to the historic meaning of impeachment, and more.

Featuring:
-- John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
-- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

Dec 20 2019

1hr 1min

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Rank #16: UPDATE: Release of the Nunes Memorandum

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On Friday, February 2, President Trump agreed to release a memo written by the House Intelligence Committee about FBI surveillance activity of the members of the Trump campaign that occurred before the President took office. Those opposed to the release of the Nunes Memo, named for the Representative whose aids drafted the memo, argue that the release goes against intelligence protocol and is being utilized by Republicans to distract from the investigation in Russian interference in the 2016 election. Proponents of the release argue that it should be public to show the American people the actions of the FBI preceding the election. David Rivkin joins us to discuss the memo release and its possible effects.
Featuring:
David B. Rivkin Jr., Constitutional Lawyer and Former White House Counsel

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Feb 02 2018

1hr 1min

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Rank #17: Courthouse Steps: Murr v. Wisconsin Decided

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On June 23, the Supreme Court issued its opinion in Murr v. Wisconsin. This is a regulatory takings case which addressed the question: should two legally distinct but commonly owned contiguous parcels be combined, as described in Penn Central Transportation Company v. City of New York, for takings analysis purposes? -- In 1960 and 1963, the Murrs purchased two adjacent lots in St. Croix County, Wisconsin, each over an acre in size. In 1994 and 1995, the parents transferred the parcels to their children. These lots became nonconforming due to various setbacks imposed in the 1970s, but a grandfathering provision would have allowed independent and separate uses – but only if the lots were not owned by the same individuals. Seven years later, the children wanted to sell one of the two original lots and were denied permission to do so by the St. Croix County Board of Adjustment. The Murrs sued the state and county and claimed the county’s actions resulted in an uncompensated taking of their property. The trial court granted summary judgement to the state and county and the Court of Appeals of Wisconsin affirmed. -- James Burling, Vice President of Litigation at the Pacific Legal Foundation, joined us to discuss this interesting case and offer his thoughts following the decision. -- Featuring: James S. Burling, Vice President of Litigation, Pacific Legal Foundation.

Jun 28 2017

53mins

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Rank #18: The Trump Impeachment Effort

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Defenders of the Constitution designed impeachment to be a rare event, especially by making the requirement for removal a two-thirds vote of the Senate for treason, bribery, or other high crimes or misdemeanors, rather than “maladministration,” in their words. John Malcolm and John Yoo discuss the public hearings from the impeachment proceedings that began last month in the House of Representatives. How have the facts changed? What have been the procedures for the House investigation? Could the allegations plausibly meet the standards for high crimes and misdemeanors? How effective is the White House’s strategy of non-cooperation?

Featuring:
-- John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
-- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

Dec 05 2019

1hr 1min

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Rank #19: Litigation Update: The Government, Apple, and the Encryption Debate

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In 2016 the United States Department of Justice and Apple twice went to federal court over whether Apple could be required to assist the government in unlocking cell phones used by persons under investigation for criminal conduct. One case involved access to an iPhone used by one of the persons responsible for the mass shootings in San Bernardino, California. Another case involved an iPhone seized from a narcotics trafficking suspect in Brooklyn, New York. In both cases, however, the litigations were terminated as moot without final resolution when the government was able to access the iPhones in question without Apple’s assistance. Once again, however, the government and Apple are at odds — this time over access to iPhones used by a Saudi military trainee who in 2019 killed three sailors at a Navy base in Pensacola, Florida. What is the basis for compelling a third party to assist the government in its criminal investigations in accessing encrypted communications using its platforms? What are the key legal and policy issues at stake in this controversy? Joseph V. DeMarco of DeVore & DeMarco LLP, who filed amicus briefs in the 2016 litigations on behalf of various law enforcement organizations in support of the government, and who previously prosecuted cybercrime as an Assistant United States Attorney in the Southern District of New York, will explore these issues and offer perspectives on the implications of this crucial debate for national security as well as for criminal and civil litigations in state and federal court.

Featuring:
-- Joseph V. DeMarco, Partner, DeVore & DeMarco LLP

Feb 08 2020

34mins

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Rank #20: 2019 U.S. Supreme Court Criminal Law Roundup

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Aug 21 2019

46mins

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Update on Public Nuisance Lawsuits

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In AEP v. Connecticut (2011), the Supreme Court unanimously rejected federal common law nuisance claims brought by states and cities against companies alleged to have contributed to global warming by emitting greenhouse gases. The Court held that Congress, by enacting the Clean Air Act, had displaced the federal common law of nuisance and gave jurisdiction over these issues to the EPA. The Court declined to open up a “parallel track” to enforcing carbon emissions standards in the federal system via the federal courts. Since that time, states and municipalities in California and elsewhere have brought similar suits under state nuisance law, but judges have indicated this problem needs a national solution that “must be fixed by our [other] political branches.” At present, the First, Second, Fourth, Ninth, and Tenth Circuits are hearing arguments about whether these issues belong in the federal courts, state courts, or elsewhere.

Featuring:
-- Theodore J. Boutrous Jr., Partner, Gibson, Dunn & Crutcher LLP

Feb 26 2020

32mins

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Modernizing the National Environmental Policy Act (NEPA)

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On January 10, the White House Council on Environmental Quality (CEQ) proposed revisions to its regulations for implementing the National Environmental Policy Act (NEPA), signed into law in 1970. CEQ has not comprehensively updated these regulations for forty years.

Since its enactment, the NEPA environmental review and permitting process has become increasingly complex and time-consuming and extends far beyond what Congress originally intended. Importantly, NEPA is a procedural statute that requires Federal agencies to assess the environmental impacts of proposed major Federal actions. The purpose of NEPA is essential to sound governments. The chosen means is a “procedural” statute that requires Federal agencies to prepare a detailed statement on environmental impacts from a proposed Federal action, alternatives to the proposed action, unavoidable adverse effects, and any irreversible and irretrievable commitments of resources that would be involved.

The average length of an environmental impact statement is over 600 pages and the average time to complete a NEPA review of major projects is four and a half years. NEPA analyses are frequently challenged in the courts, which delays and increases the costs for transportation, water, pipelines and other infrastructure that benefit States, Tribes, and local communities. CEQ’s proposal would modernize and clarify the regulations to facilitate timely NEPA reviews by Federal agencies in connection with proposals for agency action.

This teleforum is co-hosted by the Federalist Society and ConservAmerica and will offer background on CEQ’s proposal and discuss caselaw that has resulted in calls for NEPA reform and modernization. Comments on CEQ’s proposal are due March 10.

Featuring:
-- Prof. Richard Esptein, The Laurence A. Tisch Professor of Law, New York University, and Senior Fellow at Hoover Institute
-- Mario Loyola, Senior Fellow, Competitive Enterprise Institute and former Associate Director for Regulatory Reform, White House Council on Environmental Quality
-- Moderator: Brent Fewell, General Counsel, ConservAmerica

Feb 25 2020

56mins

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Courthouse Steps Preview: United States Forest Service v. Cowpasture River Preservation Association

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On February 24, 2020 the Supreme Court will hear argument in two consolidated cases, U.S. Forest Service v. Cow Pasture River Assn. and Atlantic Coast Pipeline Assn. v. Cow Pasture River Assn., in which the Fourth Circuit invalidated the permit for construction of a multi-billion-dollar natural gas pipeline that crosses the Appalachian Trail on Forest Service land in Virginia. The issue is which, if any, federal agency can authorize construction that impacts the Trail, which crosses private, state and federal land from Georgia to Maine and operates under a host of statutes, regulations and private agreements. The case is a textbook study in legislative interpretation, congressional intent and private-public cooperative agreements.

Our presenters will be two of the lawyers who filed amicus briefs for parties directly impacted by the case. Keith Bradley, counsel for the Appalachian Trail Conservancy, is a partner with the Squire Patton Boggs firm in Denver and former counsel with the Department of Energy, where he was lead lawyer on implementation of the Iran nuclear deal. Tom Jensen is a partner with Perkins, Coie in Washington, D.C. He formerly served as the majority counsel to the U.S. Senate Committee on Energy and Natural Resources and was the associate director for natural resources on the White House Council on Environmental Quality. Roger Marzulla, partner at Marzulla Law in Washington, D.C. and former head of the U.S. Justice Department’s Environment and Natural Resources Division, will moderate.

Featuring:
-- Keith Bradley, Partner, Squire Patton Boggs (Denver)
-- Thomas C. Jensen, Partner, Perkins Coie LLP
-- Moderator: Roger J. Marzulla, Partner, Marzulla Law, LLC

Feb 22 2020

39mins

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Courthouse Steps Preview: Seila Law LLC v. Consumer Financial Protection Bureau (CFPB)

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In Seila Law LLC v. Consumer Financial Protection Bureau (CFPB), the Supreme Court will decide the constitutionality of the CFPB, an agency long criticized not just by the business community but also constitutional scholars who see major problems a single-director agency seemingly unaccountable to the president or anyone else. The lawsuit was brought by a law firm that assists in resolving personal-debt issues, among other legal work that puts it in the crosshairs of those who want greater regulation of consumer-facing financial services. The CFPB is the most independent of independent agencies, with power to make rules, enforce them, adjudicate violations in its own administrative hearings, and punish wrongdoers. It doesn’t need Congress to approve its budget, because its funding requests are met by another agency insulated from political control: the Federal Reserve. Even CFPB supporters concede that the CFPB structure and authority is unique. Please join John Eastman for a preview of oral arguments in this important case.

Featuring:
-- Prof. John Eastman, Henry Salvatori Professor of Law and Community Service and Director, Center for Constitutional Jurisprudence, Chapman University Fowler School of Law

Feb 18 2020

32mins

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The New Definition of “WOTUS”: Analysis of the Trump Administration’s “Navigable Waters Protection Rule”

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The Trump Administration recently released its final rule defining “waters of the United States” under the Clean Water Act. This rule, called the “Navigable Waters Protection Rule” is the replacement for the repealed 2015 Clean Water Rule. For decades, the Environmental Protection Agency and the U.S. Army Corps of Engineers have struggled to define “waters of the United States” in a way that passes legal muster. Criticism has long-focused on the alleged overreach by the agencies, the vagueness of the definition, and a disrespect for the state role in addressing clean water as envisioned by Congress. However, many critics of the new EPA and Corps’ rule argue that it is too narrow and not properly based on science. Please join us as our experts discuss the history of the “waters of the United States” definition, explain the new rule and what waters would be regulated, and provide their insight and perspective on the impact of this major new rule.

Featuring:
-- Daren Bakst, Senior Research Fellow in Agricultural Policy, The Heritage Foundation
-- Tony Francois, Senior Attorney, Pacific Legal Foundation
-- John Paul Woodley, Principal, Advantus Strategies, LLC

Feb 18 2020

53mins

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Litigation Update: FTC v. Qualcomm

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In January 2017, the Federal Trade Commission (FTC) filed an antitrust complaint against Qualcomm in the Northern District of California. The FTC alleged that Qualcomm had unlawfully monopolized the market for certain semiconductors important in smartphone technology. Among other things, the FTC claimed that Qualcomm had maintained its market position by requiring chip customers to license their chips separately (known as the “no license, no chips” policy) and had refused to license its standard-essential patents (SEPs) to competitors.

Judge Lucy Koh held a bench trial in January 2019 and issued a decision in favor of the FTC in May 2019. In a lengthy opinion, the court determined that Qualcomm’s “no license, no chips” policy violated antitrust law and that Qualcomm had a separate antitrust duty to deal with its competitors. Judge Koh then issued an injunction that, among other things, prohibited Qualcomm from conditioning the supply of chips on a customer’s patent-license status and required Qualcomm to negotiate and make available licenses on FRAND terms.

Qualcomm appealed to the Ninth Circuit. In August 2019, the Ninth Circuit issued an order partially staying Judge Koh’s injunction. According to the Ninth Circuit, “Qualcomm has shown, at a minimum, the presence of serious questions on the merits” of the district court’s opinion. Additionally, the Ninth Circuit needs to decide whether the district court’s “order and injunction represent a trailblazing application of the antitrust laws, or instead an improper excursion beyond the outer limits of the Sherman Act.”

While these issues alone would be interesting, this case is even more intriguing because the Department of Justice (DOJ) has intervened in the case – in favor of Qualcomm. The DOJ filed an amicus brief in favor of the stay of injunction, as well as an amicus brief on the merits. The Ninth Circuit has also granted DOJ’s request for five minutes of oral argument time. Oral argument in the Ninth Circuit is set for February 13, 2020.

This Litigation Update teleforum will recap the district court’s decision, discuss the arguments likely to be made on appeal, and explore the bigger issues this case brings up for antitrust policy.

Featuring:
-- Hon. F. Scott Kieff, Fred C. Stevenson Research Professor of Law and Director, Planning and Publications, Center for Law, Economics, & Finance, George Washington University Law School
-- Prof. Kristen Osenga, Austin E. Owen Research Scholar & Professor of Law, The University of Richmond School of Law

Feb 17 2020

39mins

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The Whys and Hows of Commenting on Rules

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Public notice and comment on rulemaking is a core requirement of the Administrative Procedure Act, and creates the administrative record on which any subsequent judicial review will be based. Yet many people (even people who take the trouble to vote) seem to think that commenting on rules is difficult or futile, and therefore don’t participate – even when they care about the outcome. This Teleforum will discuss the practical mechanics of tracking the development of rules and filing timely comments; in fact, timely filing is about the only legal requirement for getting comments onto the record. It will describe the sorts of comments that tend to be effective in persuading an agency, including comments made directly by affected small entities without professional representation. It will also explain the concept of a “Public Interest Comment” which argues, not on behalf of any particular party or cause (however worthy), but in favor of a balanced resolution of the conflicting considerations that an agency must take into account.

Featuring:
-- Prof. Susan Dudley, Director, GW Regulatory Studies Center and Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University
-- Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center
-- Prof. Brian F. Mannix, Research Professor, Regulatory Studies Center, George Washington University

Feb 13 2020

40mins

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Fitzpatrick v. Frank: Should Conservatives Embrace Class Actions?

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Professor Brian Fitzpatrick of Vanderbilt Law School and Ted Frank of the Center for Class Action Fairness debate Professor Fitzpatrick’s provocative new book, The Conservative Case for Class Actions (University of Chicago Press).

Feb 08 2020

1hr 5mins

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Litigation Update: The Government, Apple, and the Encryption Debate

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In 2016 the United States Department of Justice and Apple twice went to federal court over whether Apple could be required to assist the government in unlocking cell phones used by persons under investigation for criminal conduct. One case involved access to an iPhone used by one of the persons responsible for the mass shootings in San Bernardino, California. Another case involved an iPhone seized from a narcotics trafficking suspect in Brooklyn, New York. In both cases, however, the litigations were terminated as moot without final resolution when the government was able to access the iPhones in question without Apple’s assistance. Once again, however, the government and Apple are at odds — this time over access to iPhones used by a Saudi military trainee who in 2019 killed three sailors at a Navy base in Pensacola, Florida. What is the basis for compelling a third party to assist the government in its criminal investigations in accessing encrypted communications using its platforms? What are the key legal and policy issues at stake in this controversy? Joseph V. DeMarco of DeVore & DeMarco LLP, who filed amicus briefs in the 2016 litigations on behalf of various law enforcement organizations in support of the government, and who previously prosecuted cybercrime as an Assistant United States Attorney in the Southern District of New York, will explore these issues and offer perspectives on the implications of this crucial debate for national security as well as for criminal and civil litigations in state and federal court.

Featuring:
-- Joseph V. DeMarco, Partner, DeVore & DeMarco LLP

Feb 08 2020

34mins

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Litigation Update: City of Boise v. Martin

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Last month, the Supreme Court denied certiorari in City of Boise v. Martin, a case out of the U.S. Court of Appeals for the Ninth Circuit. The case involved a challenge to Boise’s enforcement of its criminal law prohibiting public camping against the homeless. The Ninth Circuit held that the Eighth Amendment’s prohibition on cruel and unusual punishment prohibits the enforcement of the law against the homeless when there are insufficient beds available in shelters. Although the Court denied review, the Ninth Circuit’s decision raises many important questions about many issues, including the effect on the homeless and surrounding communities, ways that law enforcement might react to their inability to enforce this law, and the potential constraints placed on the approximately 1600 municipalities in the Ninth Circuit—in particular San Francisco and Los Angeles, which have significant homeless populations—in their efforts to combat homelessness and the ills associated with it. Learn about this case's history, facts, unresolved questions, and legal implications moving forward.

Featuring:
-- Prof. Andrew Hessick, Judge John J. Parker Distinguished Professor of Law and Associate Dean for Strategy, The University of North Carolina at Chapel Hill School of Law
-- Prof. Carissa Hessick, Anne Shea Ransdell and William Garland "Buck" Ransdell, Jr. Distinguished Professor of Law, Associate Dean for Faculty Development, The University of North Carolina at Chapel Hill School of Law
-- Moderator: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC

Feb 07 2020

45mins

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Removal or Acquittal? President Trump's Trial in the Senate

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In December 2019, the United States House of Representatives voted to impeach President Donald Trump. This is the third impeachment of a sitting U.S. President after Johnson and Clinton. John Malcolm and John Yoo discuss the ongoing Senate trial, the debate over witnesses, comparisons to previous Senate trials, and more.

Featuring:
-- John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
-- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

Feb 05 2020

59mins

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Litigation Update: Rodgers v. Bryant

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In Rodgers v. Bryant, the 8th Circuit Court of Appeals upheld a statewide injunction of an anti-loitering statute. A notable dissent traced equitable jurisdiction from common-law England through to the current day, concluding that broad universal injunctions are only available in representative lawsuits like class actions and when relief for the plaintiff necessarily requires providing relief to others (as with public nuisances). Professor Samuel Bray, a leading scholar on remedies, described it as “the most detailed and learned decision yet on the history of equity and the scope of injunctions (on either side of this debate that has been running since 2016). The dissenting opinion should be required reading for anyone interested in national or universal injunctions." Anthony Sanders, Director of the Institute for Justice’s Center for Judicial Engagement, joins us to discuss the case, the decision, and its implications.

Featuring,
-- Anthony Sanders, Director, Center for Judicial Engagement, Institute for Justice

Jan 29 2020

29mins

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Amazon’s Case Against President Trump: Did DoD Unfairly give Microsoft the Right to be the JEDI Master?

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Amazon Web Services, Inc. (Amazon) has claimed in a lawsuit in the United States Court of Federal Claims that unlawful intervention by President Donald Trump deprived it of a $10 billion decade-long contract with the Department of Defense (DoD) for a cloud computing system known as the Joint Enterprise Defense Infrastucture (JEDI). Long considered the favorite, Amazon nevertheless lost the award to Microsoft Corp. in a competitive bidding process that Amazon claims was arbitrary and capricious and tainted by President Trump’s open feud with Amazon company founder Jeffrey Bezos.

Dan Kelly, Alexander Major and Franklin Turner, nationally recognized commentators and practitioners in the federal bid protest arena, will unpack what we know about Amazon’s case, and discuss the possible grounds, laws and regulations governing mandates for competitive contracting by federal agencies.

Featuring:
-- Alexander Major, Partner and Co-Leader of Government Contracts & Export Controls Practice Group, McCarter & English LLP
-- Franklin Turner, Partner and Co-Leader of Government Contracts & Export Controls Practice Group, McCarter & English LLP
-- Moderator: Daniel Kelly, Partner, Government Contracts & Export Controls Practice Group, McCarter & English LLP

Jan 24 2020

49mins

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Courthouse Steps Oral Argument Teleforum: Espinoza v. Montana Department of Revenue

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This teleforum addresses the January 22 Supreme Court argument in Espinoza v. Montana Department of Revenue. The question in this case is whether it violates the Free Exercise Clause for a state supreme court to invalidate a school choice program, merely because that program includes religious options, pursuant to that state’s Blaine Amendment. The Institute for Justice represents the Plaintiffs in the case.

Featuring:
-- Erica Smith, Senior Attorney, Institute for Justice

Jan 24 2020

31mins

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Courthouse Steps Oral Argument: Wire and Federal Program Fraud: A ‘Bridgegate’ Too Far?

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Bridget Anne Kelly and William Baroni were convicted of wire fraud, federal program fraud and conspiracy for orchestrating lane closures on the George Washington Bridge in September, 2013, as an elaborate punishment to the mayor of Fort Lee, New Jersey for refusing to endorse Governor Chris Christie for re-election. In Bridget Anne Kelly v. United States, the latest in a series of political corruption cases to reach the Supreme Court, the justices will consider whether these acts can amount to defrauding the government. Steve Klein, a partner at Barr & Klein PLLC and a member of the Free Speech & Election Law Executive Committee, discusses the implications of the case and give his thoughts on oral argument.

Featuring:
-- Mr. Steve Klein, Partner, Barr & Klein PLLC

Jan 15 2020

20mins

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Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation?

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Multidistrict litigation has been the subject of much controversy in recent years. Defendants lament the pressure to settle claims that they believe frequently lack merit and the inefficiencies of modern multidistrict litigation. In her recent book, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation, Professor Elizabeth Chamblee Burch marshals a wide array of empirical data to suggest that a systematic lack of checks and balances may disadvantage plaintiffs in multidistrict litigation as well. Rather than faithfully representing them, she asserts that plaintiffs’ lawyers may sell them out in backroom settlements that compensate lawyers handsomely, pay plaintiffs little, and deny them the justice they seek. Please join Professor Elizabeth Chamblee Burch and Douglas Smith for a discussion of this important book.

Featuring:
-- Prof. Elizabeth Chamblee Burch, Fuller E. Callaway Chair of Law, University of Georgia School of Law and author of Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation (Cambridge University Press 2019)
-- Douglas Smith, Partner, Kirkland & Ellis LLP

Jan 11 2020

37mins

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Is Another Brand of Judicial Deference on the Chopping Block?

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This teleforum will focus on the sundry problems with so-called "Brand X deference," whose name derives from the 2005 Supreme Court decision in National Cable & Telecom. Assoc. v. Brand X Internet Services. The judicial deference holding in the case was that federal agencies may issue new regulations that supersede previous interpretations of the relevant statute made by federal courts of appeals (unless that prior federal-court interpretation purported to be the only permissible interpretation of the statute). Hence, even if a federal circuit court of appeals has previously interpreted a statute, if an agency with jurisdiction subsequently issues a new regulation interpreting that statute differently, the federal court in a future case must defer (i.e., give Chevron deference) to the agency’s new interpretation of the statute.

This month the U.S. Supreme Court will consider whether or not to take up a case that could do for Brand X deference what Kisor v. Wilkie did for Auer deference. That is, the Court could radically reduce the scope of Brand X’s application and/or clarify that Brand X deference only applies when a prior federal court did not use traditional tools of statutory analysis in interpreting the statutory provision at issue. Or, the Court could go even further and do away with Brand X deference altogether, as then-Judge Gorsuch called for when he was serving on the Tenth Circuit.

Join us for this timely discussion of Baldwin v. U.S. (cert pending).

Featuring:
-- Mark Chenoweth, Executive Director & General Counsel, New Civil Liberties Alliance
-- Moderator: Robert T. Carney, Senior Counsel, Caplin & Drysdale

Jan 11 2020

51mins

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The Race to 5G and the World Radio Conference

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Heard about the “Race to 5G”? Wonder who are the U.S.’ leading rivals, and when and where the “race” is happening? This teleforum will provide answers and cover how outcomes from the World Radiocommunication Conference (WRC) affect the United States’ spectrum goals and priorities, including Wi-Fi, innovative satellite services, science research, and weather forecasting. Join us for this timely and important discussion with Ambassador Grace Koh, who led the U.S. Delegation to the recently concluded World Radiocommunication Conference, to examine how WRC outcomes position the U.S. in the Race to 5G. Tom Sullivan and Doug Kinkoph will also participate in this discussion, moderated by Patricia Paoletta (Harris, Wiltshire & Grannis LLP).

Featuring:
-- Doug Kinkoph, Associate Administrator, Office of Telecommunications and Information Applications, performing the non-exclusive functions and duties of the Assistant Secretary of Commerce for Communications and Information, National Telecommunications and Information Administration, Department of Commerce
-- Amb. Grace Koh, U.S. Representative and Head of Delegation to the International Telecommunication Union (ITU) World Radiocommunication Conference 2019
-- Thomas Sullivan, Chief, International Bureau, Federal Communications Commission
-- Moderator: Patricia Paoletta, Partner, Harris, Wiltshire & Grannis LLP

Jan 10 2020

51mins

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Courthouse Steps Oral Argument: Holguin-Hernandez v. U.S.

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At issue in the case of Holguin-Hernandez v. United States is whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence. Daniel Guarnera joined us to discuss the case as presented at oral argument before the Supreme Court on December 10, 2019.

Featuring:
-- Daniel Guarnera, Associate, Kellogg, Hansen, Todd, Figel & Frederick

Jan 03 2020

22mins

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Courthouse Steps Oral Argument Teleforum: Hernandez v. Mesa

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The case of Hernandez v. Mesa arises from a 2010 confrontation on the U.S.-Mexican border in which U.S. Border Patrol agent Jesus Mesa shot and killed Sergio Hernandez, a teenage Mexican national. Although the FBI apparently cleared Mesa of wrongdoing, and Hernandez was not standing on American soil at the time he was shot, the Hernandez family filed suit against Mesa and the federal government based on the Supreme Court's decision in Bivens v. Six Unknown Named Agents, which held that a federal agent can be found liable in damages under the Fourth Amendment for committing an unconstitutional search and seizure.

The central issue now before the Supreme Court is whether the Hernandez family can recover damages in a Bivens action for the killing of their son in violation of the Fourth and Fifth Amendments when there is no other available remedy under federal law. Peter Thomson joined us to discuss the oral argument and offered predictions on the outcome of the case as well as its greater implications.

Featuring:
-- Peter M. Thomson, Special Counsel, Stone Pigman Walther Wittmann LLC

Jan 03 2020

40mins

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The best law podcast out there

By 1Lsudokufan - May 14 2019
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It’s impressive how FedSoc cranks out these teleforums on a weekly basis, covering a wide variety of topics with an array of speakers. I can almost never jump on a phone for the actual calls so I appreciate these podcasts. Fantastic series.

To be fair

By PodcastListener38 - Oct 25 2015
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The person below should have read the next 9 words in the description: "all expressions of opinion are those of the speakers."