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Teleforum

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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

39 Ratings
Average Ratings
29
4
1
2
3

Quality of Audio

By Paul Bishop III - Mar 30 2020
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What kind of potato was this recorded on?

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.

iTunes Ratings

39 Ratings
Average Ratings
29
4
1
2
3

Quality of Audio

By Paul Bishop III - Mar 30 2020
Read more
What kind of potato was this recorded on?

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.
Cover image of Teleforum

Teleforum

Latest release on Jun 01, 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: 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 #2: Ethics CLE Teleforum 2018: New Issue in Legal Ethics, ABA Model Rule 8.4(g)

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Professional Responsibility & Legal Education Practice Group Teleforum
CLE not offered if Teleforum listened to after the event is concluded.

Written Materials are accessible through the link included on your ticket
The Federalist Society offers a unique opportunity to acquire one hour’s worth of ethics CLE credit.
Our visiting expert in legal and judicial ethics will discuss a recent regulatory development in the field, with the purpose of translating this development into practical wisdom about the likely impact on the practice of law in 2018 and beyond:
In August 2016, the American Bar Association approved Model Rule of Professional Conduct 8.4(g). The new provision provides that it is misconduct for an attorney to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Comment [4] explains that “conduct related to the practice of law . . . includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.”
The Model Rules are just that — models, that do not apply in any jurisdiction. Now the project goes to the states, as state courts consider whether to adopt Rule 8.4(g).
To date, seven states have rejected the rule: Arizona, Illinois, Minnesota, Montana, Nevada, South Carolina, and Tennessee have rejected the proposal. The Attorneys General of four states have concluded that adopting the rule would violate the First Amendment: Louisiana, South Carolina, Tennessee, and Texas. Only Vermont has adopted the model rule in its entirety.
In this teleforum, Professor Josh Blackman of the South Texas College of Law Houston will discuss the constitutional issues surounding Model Rule 8.4(g). Specifically, he will address how the Supreme Court’s recent decision in National Institute of Family and Life Advocates v. Becerra (2018) calls into question the state bar’s ability to regulate attorney speech, and how it will affect attorneys in their practice of law throughout the next few years.
Professor Blackman will also give his insights on the rising relevance of social media in regards to the law, and what implications exist for practicing attorneys who use social media.
Featuring:

Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law, Houston

Call begins at 1:55 p.m. Eastern Time.
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.
Because we are offering CLE for this Teleforum, it is open to non-members as well. The Teleforum call-in number will be available with the CLE materials upon registration.
One hour of ethics CLE available in some jurisdictions pending approval*
$25 for CLE (Federalist Society members)$50 for CLE (non-Federalist Society members)
Charges apply ONLY to those seeking CLE credit.
Registration for CLE credit is required.Attendance must be verified during the presentation.No registration or fee is required if you are not seeking CLE credit.

*Please note CLE applications will be made in accordance with any states that are requested during registration up until the day of the Teleforum. CLE credit is not guaranteed, as the decision to accredit the course is made by each individual state bar, but all states that attorneys request will be applied to.
Additional CLE Instructions:

Please check your confirmation email for the link to the ticket, where there will be a drop box link to download all CLE Materials including the links for the online Certificate of Attendance, Evaluation Form, and the PDF Written Materials.
Call into the Teleforum number 1-888-752-3232 before 1:55 p.m. ET on Thursday, October 18.
A registration page link will be sent to you the afternoon of October 18. Please make sure to electronically sign in using this link at the beginning of the call, preferably within the first 5 minutes of the call.
Listen for the "Unique Program Codes" during the call and enter those codes on your Certificate of Attendance to verify your attendance.
Fill out your Certificate of Attendance and Evaluation Form that will be provided with your confirmation email, within 14 days of the conclusion of the program.

Oct 25 2018

1hr 1min

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Rank #3: 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 #4: 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 #5: 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 #6: 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 #7: 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 #8: 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 #9: Preview: Trump v. Hawaii

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On April 25, the Supreme Court will hear oral argument in Trump v. Hawaii, the latest iteration of Hawaii’s challenge to President Trump’s Executive Order suspending immigrant and nonimmigrant entry into the country by citizens of specific countries. While the original order banned entry of citizens from seven majority Muslim countries, it was superseded by the current order which affects citizens from other countries as well, such as Chad, North Korea and Venezuela. Ilya Somin and Josh Blackman will join us to preview the case.
Featuring:

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

Apr 18 2018

59mins

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Rank #10: Courthouse Steps Decision: Weyerhaeuser v. United States Fish & Wildlife Service

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Edward Poitevent’s family has owned timber-rich land in Louisiana since Reconstruction. In the 1990s, Weyerhaeuser Company acquired a lease of the Poitevent property for its timber operations, and Weyerhaeuser also purchased a small piece of the land.
But, in 2012, under cover of the Endangered Species Act, the U.S. Fish and Wildlife Service designated more than 1,500 acres of this property owned by the Poitevent family and Weyerhaeuser a “critical habitat” for the endangered dusky gopher frog. That designation jeopardized development plans for the property that had been in place for years. In the landowners’ view, the designation amounted to a de facto uncompensated taking of the property for the frog
Moreover, no one in the state of Louisiana had spotted the frog in 50 years, and the frog would not survive on the property if it was moved to Louisiana. The only place the frog is found today is nearly 70 miles away from the property—in Mississippi. By locking down land on behalf of a frog that doesn’t - and cannot - live there because of the conditions of the property, the federal government - by its own admission - took an estimated $34 million in economic activity away from the Poitevents and Weyerhaeuser.
On November 27, 2018, the Supreme Court of the United States unanimously ruled that the Fish & Wildlife Service must show that “critical habitat” for an endangered species must in fact be habitat for a species before it can be designated as such. Moreover, in an important administrative law decision, the Court also held that the agency’s decision not to exclude the Poitevent and Weyerhaeuser property from the designation - despite the severe economic impact of the designation to the land owners - was judicially reviewable under the APA. The case is now remanded to the Fifth Circuit for it to consider anew in light of the High Court’s unanimous decision.
Featuring:
Mark Miller, Senior Attorney, Pacific Legal Foundation

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.

Nov 30 2018

50mins

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Rank #11: 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 #12: Courthouse Steps Oral Argument: Kisor v. Wilkie

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On the morning of March 27, the Supreme Court will hear oral argument in Kisor v. Wilkie. The Supreme Court granted certiorari in Kisor to decide whether to overrule Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), and Auer v. Robbins, 519 U.S. 452 (1997). Seminole Rock and Auer are often cited for the proposition that when an administrative agency promulgates a regulation and the regulation is ambiguous, a reviewing court must give “controlling weight” to the agency’s interpretation of the regulation unless the interpretation is plainly erroneous or is inconsistent with the regulation. A number of the Court’s members have cast doubt on the soundness of the Seminole Rock/Auer deference doctrine in recent years. Many observers believe that the doctrine’s days are numbered.
Importantly, the United States filed a merits brief in Kisor that forcefully criticized Auer/Seminole Rock deference, yet argued that the Court should not overrule Auer and Seminole Rock “in their entirety.” The brief foreshadows what will likely be a memorable oral argument, featuring Paul Hughes of Mayer Brown LLP and Solicitor General Noel Francisco. Hughes represents James Kisor, the Vietnam War veteran who is the petitioner in the case. Kisor is challenging a decision of the Department of Veterans Affairs (VA) that denied Kisor’s request for retroactive disability benefits connected to his wartime service. Francisco will be defending the VA’s decision.
Karen Harned, Andrew Varcoe, and moderator Stephen Vaden will join us on the afternoon of March 27 to discuss that morning’s oral argument in Kisor and its potential implications -- including the implications, if any, for the Chevron deference doctrine that applies to agency interpretations of statutory provisions (set forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984)). Harned and Varcoe will have attended the oral argument that morning and will be sharing their observations about it.
Featuring:
Karen Harned, Executive Director, NFIB Small Business Legal Center
Andrew Varcoe, Partner, Boyden Gray & Associates
Moderator: Stephen Vaden, General Counsel, United States Department of Agriculture

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.

Mar 28 2019

51mins

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Rank #13: 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 #14: Courthouse Steps Decision: McCoy v. Louisiana

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May 17 2018

31mins

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Rank #15: The Right to Bear Arms

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Does the Second Amendment “right of the people” to “bear arms” protect an individual right to carry handguns outside of the home for lawful purposes, or may government officials decide who has a “good reason” to do so? After Heller held that the Second Amendment’s right to keep and bear arms guarantees a right to keep handguns in the home and McDonald incorporated that fundamental constitutional right against the states, the circuit courts have split over whether discretionary “may issue” carry licensing regimes are permissible. How might the Supreme Court resolve the current New York City case regarding transport of handguns outside of the home, and what are the potential implications for the hotly-debated question whether the right to carry applies generally to the law-abiding public? And in the wake of the Coronavirus shutdowns, should gun shops be considered “necessary businesses,” so that citizens who so choose may acquire a gun to protect their families?

Featuring:
-- Stephen Halbrook, author of The Founders’ Second Amendment and Senior Fellow, Independent Institute
-- Moderator: Mark Smith, Presidential Scholar and Senior Fellow in Law and Public Policy, The King’s College in New York City

Apr 08 2020

1hr

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Rank #16: 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 #17: 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 #18: 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 #19: 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 #20: 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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Courthouse Steps Oral Argument Teleforum: Our Lady of Guadalupe School v. Morrissey-Berru

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In Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, the Supreme Court, in 2012, unanimously held that, under the First Amendment’s Religion Clauses, “it is impermissible for the government to contradict a church’s determination of who can act as its ministers.” Accordingly, the Court recognized that there is a “ministerial exception” that precludes application of employment-discrimination laws to claims concerning the relationship between a religious institution and its ministers. But who qualifies as a minister? The Hosanna-Tabor Court refused “to adopt a rigid formula,” but found that the employee at issue in that case was a minister in light of several “considerations”—the formal title given to the employee by the church, the substance reflected in that title, the employee’s own use of that title, and the important religious functions the employee performed.

Eight years later, the question of “who’s a minister?” is back before the Court in Our Lady of Guadalupe v. Morrissey-Berru, and St. James School v. Biel. In each case, teachers at Catholic schools brought discrimination claims, and the Ninth Circuit concluded the ministerial exception did not apply. Now before the Supreme Court, the schools contend that the Ninth Circuit has adopted the “rigid formula” that the Hosanna-Tabor Court eschewed, and they argue that in most cases a “religious functions” test is sufficient.

This is one of the few cases the Court has selected for telephonic argument, which will be held on May 11, 2020. Joining us hours after the argument, for a Courthouse Steps teleforum, will be Jesse Panuccio, who authored an amicus brief in the case on behalf of members of Congress and in support of the schools. Mr. Panuccio is a partner at Boies Schiller Flexner LLP and is the former Acting Associate Attorney General of the United States.

Featuring:
-- Jesse Panuccio, Partner, Boies Schiller Flexner LLP

Jun 01 2020

56mins

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"Junk Science" and Legal Testimony in a COVID World

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COVID-19 has disrupted the world like few other events in recent history. The disruptions are sure to lead to disagreements and serious legal disputes. As matters are sorted out in courts across the country, how should and how will science and expert testimony be used? How will the 'battle of experts' be engaged in the courts? Will standards of expertise change in either direction, either in sympathy for people who have suffered, or in anticipation of opportunistic plaintiffs seeking a payout?

Featuring:
-- Mark A. Behrens, Partner and Co-Chair, Public Policy Group, Shook Hardy & Bacon LLP
-- Jeff Stier, Senior Fellow, Taxpayers Protection Alliance

Jun 01 2020

48mins

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Drive-In Churches and the Constitution: Balancing the Religious Belief in Corporate Worship and Health Concerns Related to COVID-19

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Almost every religious institution closed its doors in mid-March in response to requests and then order from various levels of government in the name of slowing or stopping the spread of COVID-19. Many religious institutions responded to the shutdowns with ingenuity by finding ways to meet and still remain in compliance with the CDC’s recommendations of physical distancing and limits on meeting sizes. One of those solutions – drive-in services – became the target of growing government restrictions in parts of the country. Matt Martens and Hiram Sasser will discuss what is a drive-in religious service and the constitutionality of prohibiting such services during the current pandemic.

Featuring:
-- Matthew T. Martens, Partner, Wilmer Cutler Pickering Hale and Dorr LLP
-- Hiram Sasser, Executive General Counsel, First Liberty Institute

Jun 01 2020

57mins

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Courthouse Steps Decision Teleforum: Kelly v. United States

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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 a political punishment against the mayor of Fort Lee, New Jersey for refusing to endorse the Governor re-election. On appeal, Bridget Anne Kelly v. United States was the latest in a series of political corruption cases to reach the Supreme Court. In an unanimous decision written by Justice Kagan, the Court ruled that Kelly and Baroni’s acts did not amount to defrauding the government, and reversed their convictions.

Steve Klein, a partner at Barr & Klein PLLC and a member of the Free Speech & Election Law Executive Committee, will offer his thoughts on the implications of the ruling.

Featuring:
-- Mr. Stephen R. Klein, Partner, Barr & Klein PLLC

Jun 01 2020

36mins

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Courthouse Steps Decision Teleforum: United States v. Sineneng-Smith

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Today the Supreme Court released the decision in United States v. Sineneng-Smith. By a vote of 9-0, the judgment of the U.S. Court of Appeals for the Ninth Circuit was vacated and the case remanded. Although every member of the Court joined Justice Ginsburg's opinion, Justice Thomas also issued a concurring opinion indicating his doubt about the validity of the overbreadth doctrine. Join us today as Brian Fish discusses the decision in this case.

Featuring:
-- Brian M. Fish, Special Assistant, United States Attorney, Baltimore, Maryland

Jun 01 2020

39mins

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Courthouse Steps Decision Teleforum: Thryv, Inc. v. Click-To-Call Technologies, LP

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In Thryv, Inc. v. Click-To-Call Technologies, LP (Supreme Court, April 20, 2020), the Supreme Court held that the Patent Office decision to hear an inter partes review (“IPR”) challenge is not subject to judicial review on time-bar grounds. The majority found that ruling otherwise would “unwind the agency’s merits decision” and “operate to save bad patent claims.”

While this case deals largely with an issue of IPR appellate procedure, it should be interesting to a wider audience because it illustrates the Justices' disparate views on a key question: are issued patents property?

In a strongly worded dissent, Justice Gorsuch argued that the Constitution does not permit a “politically guided agency” (here the Patent Office) to revoke a property right (like an issued patent) without judicial review. He analogized issued patents to the land patents that the government once granted to “homesteaders who moved west.” He expressed his view that since the Court would not “allow a bureaucracy in Washington to ‘cancel’ a citizen’s right to his farm…” the Court should not allow the Patent Office to cancel an issued patent (especially without judicial review).

Justice Gorsuch’s dissent argued against the core principles established in the Supreme Court’s Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U. S. ___ (2018) decision—where he also dissented. In Oil States, the Supreme Court held that patents are not “property rights” in the traditional sense, but rather are “public franchises” granted (and subject to revocation) by the government. Oil States left, for another day, the question of whether compensation is required, and in what circumstances, when the government acts to revoke a previously granted patent.

In response to Justice Gorsuch’s dissent, the majority asserted that:

The dissent acknowledges that “Congress authorized inter partes review to encourage further scrutiny of already issued patents.” . . . The second look Congress put in place is assigned to the very same bureaucracy that granted the patent in the first place. Why should that bureaucracy be trusted to give an honest count on first view, but a jaundiced one on second look?

The majority reached its conclusion – the Patent Office’s decision to hear an IPR challenge is not reviewable on time-bar grounds – in harmony with the expressed purpose of IPR reviews: making it easier to eliminate “bad patents” and to prevent the “wast[e] of resources spent resolving patentability.” Essentially, majority concluded that if the patent owner was able to challenge the PTO’s decision to cancel a patent on the merits – as opposed to on the procedure – she would do so (and such merits based challenges are subject to judicial review).

Please join our expert, Daniel L. Geyser, in a discussion of the oral argument. Dan represented Click-to-Call Technologies, LP, in the Supreme Court.

Featuring:
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Mr. Daniel L. Geyser, Chair, Supreme Court and Appellate Practice, Geyser, P.C.

Jun 01 2020

41mins

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Courthouse Steps Oral Argument Teleforum: Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania

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The oral argument for this case will be held on May 6, 2020. At issue are: (1) Whether a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lacks standing to appeal a decision invalidating the rule if the litigant is also protected by an injunction from a different court; and (2) whether the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage.

Featuring:
-- Mark Rienzi, President, Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, Catholic University; Visiting Professor, Harvard Law School

Jun 01 2020

33mins

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Courthouse Steps Oral Argument: Barr v. American Association of Political Consultants Inc.

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The oral argument for this case will be held on May 6, 2020. At issue is whether the government-debt exception to the Telephone Consumer Protection Act of 1991’s automated-call restriction violates the First Amendment, and whether the proper remedy for any constitutional violation is to sever the exception from the remainder of the statute.

Featuring:
-- Prof. Michael R. Dimino, Sr., Professor of Law, Widener University Commonwealth Law School

Jun 01 2020

51mins

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Courthouse Steps Oral Argument: USAID v. Alliance for Open Society International, Inc.

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On May 5, 2020, the Supreme Court will hear arguments in an important First Amendment case, USAID v. Alliance for Open Society International, Inc., Case No. 19-177, regarding the scope of the government’s funding power to limit private speech. This is the second time this case has been argued in the Court. Like the prior appeal, this case addresses whether the government has the power to compel speech from grant recipients who received government funds to combat HIV/AIDS worldwide. This teleforum will provide an overview of the Court’s prior opinion, the First Amendment impact of this case, and several key points that the Court will likely address in its opinion.

Featuring:
-- Casey Mattox, Senior Fellow, Free Speech and Toleration, Charles Koch Institute
-- Krystal B. Swendsboe, Associate, Wiley Rein LLP

Jun 01 2020

46mins

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Legal Implications of the International Criminal Court's Decision to Investigate Americans

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In 2017, the prosecutor for the International Criminal Court (ICC) announced her formal request to open an investigation into war crimes and crimes against humanity allegedly committed by U.S. troops in Afghanistan. The ICC Pre-Trial Chamber denied the request, but after the prosecutor appealed, on March 5, 2020, the ICC Appeals Chamber authorized her to proceed with the investigation. This means that, in the near future, the ICC could issue warrants seeking the arrest of current and former U.S. officials, government employees, and military personnel—despite the fact that the U.S. has not ratified the Rome Statute of the ICC, has already investigated the alleged crimes, and rejects the ICC’s claims of jurisdiction over U.S. persons and actions. What are the ICC's authorities under international law; is the ICC on solid ground? Will this development lead the U.S. to take new steps to protect Americans?

Featuring:
-- Brett Schaefer, Jay Kingham Fellow in International Regulatory Affairs, Margaret Thatcher Center for Freedom, The Heritage Foundation
-- Charles "Cully" Stimson, Senior Legal Fellow and Manager, National Security Law Program, The Heritage Foundation

Jun 01 2020

1hr 8mins

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Courthouse Steps Oral Argument Teleforum: United States Patent and Trademark Office v. Booking.com

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It has long been a staple of trademark law that one cannot receive a registered trademark for a generic term - for instance a trademark for "socks" would be useless because it indicates the type of goods being sold, not the source of those goods. This doctrine has been generally applied to generic terms with a top level domain appended - so socks.com would be equally generic and not capable of being registered for federal trademark protection. However, this is being challenged by the website booking.com, which offers travel booking services. The U.S. Patent and Trademark Office rejected their trademark application for "booking.com," saying it is generic, but the District Court reversed, finding "booking.com" descriptive, not generic, and the Fourth Circuit affirmed. This question now finds itself before the Supreme Court, to determine whether a domain name that is a generic term plus a top level domain can be validly registered for trademark protection.

Featuring:
-- Mr. Arthur Gollwitzer, III, Partner, Michael, Best & Friedrich LLP
-- Mr. Zvi S. Rosen, Visiting Scholar and Professorial Lecturer in Law, George Washington University School of Law

Jun 01 2020

44mins

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Address by OIRA Administrator Hon. Paul J. Ray

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The Paperwork Reduction Act of 1980 created the Office of Information and Regulatory Affair (OIRA) within the Office of Management and Budget (Office of Management and Budget ). Executive Order 12291, issued by President Reagan in 1981, gave OIRA the responsibility to review the subject matter of government agency’ regulatory actions before publication in the Federal Register. The Office’s regulatory review persona was initially highly controversial, and it has been criticized throughout the past decades as being both too active and too passive, in regard to agency rules. Regardless of which side of the political spectrum critics fall on however, many believe OIRA is one of the most important, if relatively unknown, sources of government power in relation to the Executive branch and the Administrative state. Although OIRA has a number of specific statutory responsibilities (e.g., paperwork review and regulatory accounting), as a constituent of OMB it is part of the Executive Office of the President, and helps ensure that covered agencies’ rules reflect the President’s policies and priorities.

As our final event of our Executive Branch Review week, Paul Ray, head of OIRA, joins us to discuss his work and the current relevant issues facing the Office of Information and Regulatory Affairs.

Featuring:
-- Hon. Paul J. Ray, Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget

May 22 2020

43mins

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COVID Liability Issues

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COVID-19 has changed life as we know it in innumerable ways. But what can we expect from the trial bar and in litigation generally? How will liability issues be sorted during and in the wake of the COVID-19 pandemic? Further, who will decide? How can states and enforcement officials, businesses, and the legal community in general prepare for the coming wave of COVID-related litigation?

Featuring:
-- Christopher M. Carr, Attorney General, State of Georgia
-- Harold Kim, President, U.S. Chamber of Commerce Institute for Legal Reform

May 22 2020

57mins

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Executive Orders on Guidance: Implications and Next Steps

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In October of 2019, President Trump issued an executive order that imposed a series of restrictions and requirements on Federal agencies, and even included a requirement that agencies publish their guidance on the Internet. The purpose of the executive order was to promote transparency and democratic fairness in the administrative law process. This has led to a renewed debate over what the relationship should be between the executive branch and the administrative state, and has also led to some disagreement over whether the executive order represented any meaningful change from the status quo.

Featuring:
-- Hon. Steven Bradbury, General Counsel (and performing the functions and duties of Deputy Secretary), U.S. Department of Transportation
-- John Walke, Director, Clean Air Project, Climate & Clean Air Program, Natural Resources Defense Council
-- Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University

May 22 2020

1hr

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Federalism, COVID-19, and the Administrative State

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Questions of vertical and horizontal separation of powers have risen sharply during the coronavirus pandemic. Join us as John Malcolm and John Yoo discuss the balance of powers between the President, Congress, and state governors over lockdown and re-opening policy, testing, and medical expertise. They will also discuss the control over legal policy toward China and international organizations, recess appointments, and regulation of new technologies to combat the coronavirus.

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

May 22 2020

59mins

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Unitary Executive and Independent Agencies

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Article II of the United States Constitution provides that “The executive Power shall be vested in a President of the United States of America.” This declarative statement gave rise to a theory of U.S. constitutional law that posits the President should have control over the entire executive branch. This theory has been given increasing attention with the rise of the administrative state. Some argue that the President does not have enough direct power over executive branch agencies, and that this is a violation of the clear statement in Article II Section I of the Constitution. Others argue that allowing the presidency more power would lead to a more dictatorial executive branch, and lead to a weakening of democracy. Proponents of Unitary Executive Theory respond to this concern by arguing that the absence of a unitary executive undermines democracy because without it democratically elected presidents lack the power to enact the policies that the American people elected them to enact, and instead can be stymied by unelected members of the administrative state. Critics of the Unitary Executive Theory assert that the expertise and insulation from political processes necessary to efficiently run government can be found only in the administrative state. The issue has been further complicated by the increased frequency of inter-agency litigation in the form of different executive branch agencies inhabiting both sides of Supreme Court cases. Proponents of the Unitary Executive theory wonder whether an executive branch divided to this extent is what the founders envisioned while writing Article II.

Featuring:
-- Prof. William Buzbee, Professor of Law, Georgetown University Law Center
-- Hon. Daniel Gallagher, Deputy Chair, Securities Department, WilmerHale and former Commissioner of the SEC
-- Hon. Maureen Ohlhausen, Partner, Baker Botts LLP, and former Commissioner of the FTC
-- Prof. David Vladeck, A.B. Chettle Chair in Civil Procedure, Georgetown University Law Center, former Director of the FTC's Bureau of Consumer Protection

May 22 2020

58mins

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Nationwide Injunctions

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What is the true role and authority of courts to nullify Federal law? During the Obama administration, district judges issued twenty nationwide injunctions, and during the Trump administration district judges have issued over forty of these injunctions. This has led to questions from both sides of the aisle as to what the proper extent and purpose of such nationwide injunctions should be. The founding fathers set forth a clear system of checks and balances, creating a balance of power and a series of checks to tyranny that could be used to safeguard liberty. But were district courts meant to have the power to stymie laws passed by the federal government? On the other hand, must litigants bring cases in multiple districts or circuits in order to fully prevail?

Featuring:
-- Hon. Scott Keller, Partner, Baker Botts LLP
-- Hon. Ken Paxton, State Attorney General, Texas
-- Hon. Beth A. Williams, Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice

May 22 2020

59mins

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Section 230 of the Communications Decency Act

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May 22 2020

1hr 2mins

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FCPA Enforcement In the Trump Administration and Beyond

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The Foreign Corrupt Practices Act (FCPA) governs conduct of U.S. businesses and individuals conducting business abroad, penalizing them for paying bribes to foreign officials in business dealings. This teleforum will discuss recent developments in FCPA Enforcement (i.e., the new corporate enforcement policy/declinations, etc.), criticism of enforcement over the past few years, and offer predictions about what enforcement will look like during a second Trump term or a Biden presidency. Rod Rosenstein and Jonathan Su will offer commentary.

Featuring:
-- Rod J. Rosenstein, Partner, King & Spalding LLP
-- Jonathan C. Su, Partner, Latham & Watkins
-- Moderator: Brian Lichter, Senior Director, Global Investigations, Cognizant

May 20 2020

57mins

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View from the Ground Level - Practical Issues re: PPP Implementation: A Conversation with Banking Attorneys Around the Country

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This teleforum will be a collaborative discussion for attorneys who represent financial institutions, in particular those organizations that are participating in paycheck protection program created by the CARES Act.

Featuring:
-- Jennifer R. McCain, Shareholder, Maynard Cooper Gale
-- Christian Otteson, Partner, Shapiro Bieging Barber Otteson
-- Jonathan Hightower, Partner, Fenimore, Kay, Harrison & Ford, LLP
-- C. Wallace Dewitt, Adjunct Scholar, Center for Monetary and Financial Alternatives

May 20 2020

1hr

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iTunes Ratings

39 Ratings
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Quality of Audio

By Paul Bishop III - Mar 30 2020
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What kind of potato was this recorded on?

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.