FedSoc Forums

Qualified immunity is perhaps the nation’s most controversial legal doctrine. Proponents say qualified immunity is necessary to give government officials—especially police—breathing room to act in split-second situations without fear of lawsuits. By requiring that a right be “clearly established” before an official can be sued for violating it, the doctrine is supposed to ensure officials have notice of what conduct to avoid before they put a foot wrong. Meanwhile, critics argue that qualified immunity makes it too difficult for victims of government abuse to pursue justice and too often protects officials who have egregiously violated the Constitution, all while failing to put officials on notice. And now new Institute for Justice research finds that the doctrine shields a wide array of government officials and conduct, including premeditated First Amendment retaliation. Join us as we consider these two perspectives on qualified immunity and seek an answer to the question, “Do we need qualified immunity?”Featuring: Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School Michael Perloff, Interim Legal Director, ACLUModerator: Robert McNamara, Deputy Litigation Director, Institute for Justice

In June 2023, the Coutts bank closed the account of British politician Nigel Farage. While NatWest, the owner of Coutts, initially claimed that Farage failed to meet the Coutts eligibility criteria of holding £1,000,000 or more in his account, it was later revealed that Farage's account was closed in part as Coutts felt that his beliefs and values did not align with theirs. Debanking, the practice of financial institutions closing accounts or refusing services to certain individuals or businesses, has risen in prominence as its proponents argue that debanking is necessary for risk management and regulatory compliance in an increasingly complex world. They say that debanking helps banks avoid involvement in money laundering, fraud, or illegal activities and maintain the financial system's integrity. Critics, however, argue that debanking can lead to unfair discrimination and economic exclusion, particularly for unpopular religious or marginalized groups, and may even be used as a tool for censorship. They worry that debanking has been used to target religious organizations or individuals, infringing on religious freedom by limiting their access to essential financial services and hindering their ability to practice or promote their beliefs. Featuring: Hon. Kevin Cramer, U.S. Senator, North DakotaHon. Brenda Bird, Attorney General, IowaHon. Sam Brownback, Former U.S. Senator and United States Ambassador-at-Large for International Religious FreedomProf. Peter Conti-Brown, Class of 1965 Associate Professor of Financial Regulation at The Wharton School of the University of Pennsylvania and Nonresident Fellow in Economics Studies at The Brookings InstitutionJeremy Tedesco, Senior Counsel, Senior Vice President of Corporate Engagement, Alliance Defending FreedomModerator: J.C. Boggs, Partner, King & Spalding

United States of America v. Donald J. Trump, Waltine Nauta, and Carlos De Oliveira marked the first federal indictment of a former U.S. president. The prosecution, led by Special Counsel Jack Smith, argued that Trump illegally retained hundreds of classified government documents at his Mar-a-Lago residence after leaving office and obstructed efforts to retrieve them. He said this posed a national security risk and violated laws governing the handling of sensitive information. Trump's defense team, however, argued that the appointment of Jack Smith as special counsel was unconstitutional, violating the Appointments Clause. They claimed that Smith lacked the proper authority to bring charges, as he was not a Department of Justice employee at the time of his appointment. Judge Aileen Cannon dismissed the case on July 15, ruling that the appointment of Smith had been unconstitutional. Join us as we discuss the case and its implications.

Some Intellectual Property experts contend that American patent reliability has been in decline for 20 years. They point to the threat of inter partes review, the misuse of march-in rights under the Bayh-Dole Act, the imposition of reasonable or reference price clauses, direct government price-setting, and, most importantly, an inability to obtain an injunction after a finding of infringement. In fact, since the Supreme Court decided eBay v. MercExchange in 2006, injunctions have declined precipitously - some studies have shown as much as a 91% reduction.Are current patent owners and their licensees taking a risk in believing that their patents will accomplish their raison d’être… affecting the right to exclude? Is it true that patent owners cannot count on their patents to prevent copycat products from entering the market or to allow patent owners or their licensees to charge market prices for their goods? Should injunctive relief be more readily available in patent cases?This FedSoc forum will explore the history of injunctive relief in patent cases and explain the eBay opinion and how it is currently being applied by the trial courts. This program will also discuss potential legislative proposals to provide regular access to injunctive relief in order to restore patent reliability.Featuring:Prof. Jonathan Barnett, Professor, University of Southern California Gould School of LawProf. Thomas Cotter, Taft, Stettinius & Hollister Professor of Law, University of Minnesota Law SchoolNick Matich, Principal, McKool SmithHon. Paul Michel, Former Chief Judge, United States Court of Appeals for the Federal CircuitModerator: Jeffrey Depp, Policy Consultant, Center for Strategic and International Studies--To register, click the link above.

High school French teacher Peter Vlaming was fired from his job in West Point, Virginia, for declining to refer to a female student using male pronouns. Vlaming filed suit in state court, alleging that the school board had violated his rights to the free exercise of religion and free speech under the Virginia Constitution. Late last year, the Virginia Supreme Court held that the Virginia Constitution provides more robust protections for religious freedom than the federal Free Exercise Clause as interpreted in Employment Division v. Smith. As the Court wrote, “the federal Smith doctrine is not and never has been the law in Virginia, and its shelf life in the federal courts remains uncertain.” In its place, the Virginia Supreme Court adopted a history-and-tradition approach that asks whether the religious claimant has committed or is seeking to commit “overt acts against peace and good order,” and whether the government’s interest in negating that threat could be satisfied by “less restrictive means” than denying a religious exemption. This opinion raises a host of interesting questions: Will the U.S. Supreme Court’s history-and-tradition test for Second Amendment challenges be expanded to apply to other constitutional rights? Will other state courts follow the Virginia Supreme Court’s lead in applying it to their own state constitutions? Did the Virginia Supreme Court get its history right? Could its historical analysis serve as the basis for the U.S. Supreme Court to revisit Smith? What rights should public schoolteachers have in the classroom? Should courts resolve conflicts between the alleged free-exercise and free-speech rights of teachers and the alleged rights of students to engage in their own forms of self-expression? Finally, what role, if any, does Title IX play in the analysis? This panel will address these and other questions raised by this important decision. Featuring: Prof. Stephanie Barclay, Professor of Law, University of Notre Dame Law School Prof. Kate Carté, Professor of History, Southern Methodist University Chris Schandevel, Senior Counsel, Alliance Defending Freedom's Appellate Advocacy Team Adam Unikowsky, Partner, Jenner & Block LLC (Moderator) Eric Treene, Senior Counsel, Storzer and Associates; Adjunct Professor at the Catholic University of America Law School

Since its earliest days, the Biden Administration has been clear as to its goal of addressing what it sees as a crisis of student debt by forgiving notable segments of existing student loans. To that end, it has pursued several plans -- the attempted forgiveness of loans under the HEROES Act struck down in Biden v. Nebraska (2023), the SAVE Plan which is currently being litigated, and further yet-to-be-finalized actions from the Department of Education.The SAVE Plan, more officially titled "Improving Income Driven Repayment for the William D. Ford Federal Direct Loan Program and the Federal Family Education Loan (FFEL) Program.” (88 Fed. Reg. 43,820), seeks to amend the existing Higher Education Act REPAYE Program. It does so in three ways: lowering the cap for repayment relative to a borrower's discretionary income, redefining "discretionary" income, and canceling the loans of borrowers with a principal of $12000 or lower after 10 years of payments, adding a year for every $1000 borrowers had as a principal above that line. The Department of Education estimates these challenges would cost $137.9 billion over the next ten years, with others estimating the cost would be closer to half a trillion dollars.Much like the HEROES Plan before it, the SAVE Plan has been subject to several challenges that are currently being litigated. Join us for a litigation update where Abhishek Kambli and moderator Sheng Li will sum up the statuses of the ongoing challenges and discuss where they may be going next.Featuring:Abhishek Kambli, Deputy Attorney General - Special Litigation and Constitutional Issues, Office of the Kansas Attorney General(Moderator) Sheng Li, Litigation Counsel, New Civil Liberties Alliance

The development of standing jurisprudence has been inextricably intertwined with the growth of the administrative state over the past 60 years and the bevy of new statutory rights, privileges, obligations, constraints, and interbranch dynamics that came with it. Over the past three terms, the U.S. Supreme Court has issued numerous opinions that are rich with standing doctrine. Three new voices in administrative law--all recent law school graduates--will address recent developments in standing jurisprudence, focusing on State standing, associational standing, and post-TransUnion common law analogues. Featuring: Eric Bush, Law Clerk to the Hon. Justin Walker, U.S. Court of Appeals for the D.C. Circuit Shiza Francis, Associate, Shutts and Bowen LLP Aaron Watt, Law Clerk to the Hon. Brian Miller, Eastern District of Arkansas [Moderator] Prof. Aram Gavoor, Associate Dean for Academic Affairs, The George Washington University Law School

Some Intellectual Property experts contend that American patent reliability has been in decline for 20 years. They point to the threat of inter partes review, the misuse of march-in rights under the Bayh-Dole Act, the imposition of reasonable or reference price clauses, direct government price-setting, and, most importantly, an inability to obtain an injunction after a finding of infringement. In fact, since the Supreme Court decided eBay v. MercExchange in 2006, injunctions have declined precipitously - some studies have shown as much as a 91% reduction. Are current patent owners and their licensees taking a risk in believing that their patents will accomplish their raison d’être… affecting the right to exclude? Is it true that patent owners cannot count on their patents to prevent copycat products from entering the market or to allow patent owners or their licensees to charge market prices for their goods? Should injunctive relief be more readily available in patent cases? This FedSoc forum will explore the history of injunctive relief in patent cases and explain the eBay opinion and how it is currently being applied by the trial courts. This program will also discuss potential legislative proposals to provide regular access to injunctive relief in order to restore patent reliability. Featuring: Prof. Jonathan Barnett, Professor, University of Southern California Gould School of Law Prof. Thomas Cotter, Taft, Stettinius & Hollister Professor of Law, University of Minnesota Law School Nick Matich, Principal, McKool Smith Hon. Paul Michel, Former Chief Judge, United States Court of Appeals for the Federal Circuit Moderator: Jeffrey Depp, Policy Consultant, Center for Strategic and International Studies -- To register, click the link above.

In Vidal v. Elster (the “Trump Too Small” case), the Supreme Court unanimously upheld a federal limitation on registering trademarks that include other people’s names. All the Justices agreed that, though the limitation was content-based, it didn’t need to be judged under strict scrutiny. But behind this unanimity was a major rift about whether the Court should decide these matters by focusing on history and tradition, or should instead build on more recent precedents such as those dealing with “limited public forums.” Which is the better approach – and which is the one most likely to gain majority support in the future? Featuring: Prof. Barbara Lauriat, Associate Professor of Law & Dean’s Scholar in Intellectual Property, Texas Tech University School of Law Prof. Lisa Ramsey, Professor of Law, University of San Diego School of Law Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law Moderator: Prof. Zvi Rosen, Assistant Professor, Southern Illinois University School of Law

In Lindenberg v. Jackson National Life Ins. Co., 912 F.3d 348 (2018), the Sixth Circuit declared unconstitutional Tennessee’s law capping punitive damages based on the Tennessee constitution. But in the wake of Lindenberg, Tennessee state courts continue to reduce punitive damage awards in reliance on the statutory cap because the Tennessee Supreme Court has not directly addressed the law’s constitutionality. And in a case on a different statutory damages cap, the Tennessee Supreme Court indicated it likely would have disagreed with the Sixth Circuit. McClay v. Airport Mgmt Svcs, 596 S.W.3d 686, 693 n.6 (Tenn. 2020) Federal court certification of state law questions to state high courts is a thorny issue with competing concerns. All states but North Carolina permit certification, but the federal courts control which questions presented in the case it certifies for resolution. State courts are free to decline to answer the questions certified and to do so after a period of months, as happened in Lindenberg. Some experts point out that even when the state court chooses to answer the questions certified, the process can be time consuming and inefficient.Our panel will explore the issues of federalism, efficiency, and prudence presented when considering the question certification process between federal and state courts. Featuring: Hon. Rachel Wainer Apter, Associate Justice, Supreme Court of New Jersey Hon. Benjamin Beaton, United States District Court for the Western District of Kentucky Hon. Sarah Keeton Campbell, Justice, Supreme Court of Tennessee Moderator: Hon. Jennifer Perkins, Arizona Court of Appeals, Division One --- To register, click the link above.