FedSoc Forums

A New York City jury recently convicted former President Donald Trump of 34 criminal counts of falsifying business documents. In New York, it is a misdemeanor to falsify business records with “the intent to defraud,” a crime with a two year statute of limitations. If the falsification is carried out for the purpose of concealing another crime, it is a felony, with an extended statute of limitations. Following the verdict, Bragg pointed to the prosecution’s methodical presentation of “extensive hard evidence” in support of the outcome. Some legal experts agree. Others, however, have criticized the DA’s case and predict it will be overturned on appeal for any of several reasons. These include questions about Judge Merchan's impartiality, the prosecution’s legal theory, the evidence allowed and not allowed at trial, and the jury instructions. One much-discussed question, for example, is that Manhattan District Attorney Bragg’s case charged Trump with a felony records violation, but he did not specify until his closing argument what other crime(s) the records violations were designed to conceal. Moreover Judge Merchan's jury instructions told the jury that they need not agree on that question, but instead that they only had to agree that the violations were designed to conceal a crime. Was this correct as a matter of statutory and constitutional law? In addition, there are questions about whether some of the conduct alleged actually constituted a crime, for either statutory or constitutional reasons. There are also important questions about the propriety and prudence of bringing charges of this type against a former President of the opposite party from that of the other actors in the system. Finally, there are many important questions about what happens next. Join us for an expert discussion of this historic case and its wide-ranging legal and prudential implications. Featuring: Sarah Isgur, Senior Editor, The Dispatch Prof. William G. Otis, Adjunct Professor of Law, Georgetown Law

The Biden Administration recently proposed new regulatory guidelines that would permit agencies to impose price controls on products based on inventions derived from upstream federally funded research. The new regulations would affect such price controls by expanding the “march-in” power of the Bayh-Dole Act. In addition to its core function allowing universities and other contractors to retain ownership of inventions created with federal funds, this law authorizes, under very specific circumstances, the funding agency (e.g., the National Institutes of Health (NIH) or the Department of Energy) to grant licenses, without authorization of the patent owner, to any inventions made with funding provided by the agency. The proposed new guidelines would add the price of the end-product derived from those early-stage inventions to the list of specific circumstances. Since its enactment in 1980, the march-in power of the Bayh-Dole Act has never been used. When asked about using the price of the end product as one of the circumstances, the law’s namesake Senators, Birch Bayh and Bob Dole, stated the text of their law did not authorize price-based march-in. Importantly, the NIH has rejected numerous petitions over the past several decades to use the march-in power to lower the prices of patented drugs or medical devices. Proponents of the new regulatory guidelines, however, argue that the statute does authorize an agency to consider price as a march-in trigger and the Biden Administration argues that march-in is a key tool to lower drug prices. This panel discussed the regulatory proposal for price controls under the Bayh-Dole Act and other vehicles (e.g., the IRA and reasonable/reference pricing clauses in licenses or collaborative research agreements), whether they represent regulatory overreach by the Executive Branch, and whether it is wise policy to implement price controls on drugs and other products or services in the U.S. innovation economy.

Ranked choice voting, also known as instant runoff voting, is a voting method where voters select several candidates in the order of preference on a single ballot. Ranked choice voting has been used by certain states, cities, and political party primaries. Recently, a series of jurisdictions have implemented bans on ranked choice voting. A panel of experts, which includes an attorney, economist, and political scientist, will analyze ranked choice voting and present a diversity of perspectives on whether ranked choice voting should be implemented in American elections. Featuring: Lisa L. Dixon, Executive Director, Center for Election Confidence Dr. Martha Kropf, Professor, Political Science and Public Administration, University of North Carolina at Charlotte Walter K. Olson, Senior Fellow, Cato Institute (Moderator) Maya Noronha, Civil Rights Attorney

Balancing safety and justice is especially challenging in the pretrial context where difficult decisions must be made quickly while evidence is still being gathered. In September 2023, an overhaul of Illinois’ pretrial system went into effect, eliminating the use of cash bail while also expanding the authority of judges to detain defendants without bail. As states and local jurisdictions across the country weigh pretrial policies, what can we learn from the Illinois experience to date? This panel of experts will review preliminary data and specific cases that shed light on this question. The conversation will also consider to what degree experiences have differed in rural and urban areas and examine what adjustments are needed. Featuring: Robert Berlin, State’s Attorney, DuPage County, Illinois Hon. Eugene Doherty, Appellate Court Justice, Illinois Appellate Court for the Fourth District Dr. David Olson, Professor, Department of Criminal Justice and Criminology & Co-Director, Center for Criminal Justice, Loyola University Chicago (Moderator) Marc Levin, Chief Policy Counsel, Council on Criminal Justice and Senior Advisor, Right on Crime

Between 2010-2014, the Supreme Court handed down four decisions resulting in the Mayo-Alice two-step test for what counts as an invention or discovery eligible for patent protection. In the ensuing decade, the issue of whether this test is indeterminate, too restrictive, or both, has been vigorously debated by lawyers, judges, and scholars. Recently, Senators Thom Tillis (R-NC) and Christopher Coons (D-DE) introduced the Patent Eligibility Restoration Act (PERA), which would abrogate the Mayo-Alice test among other substantive and procedural reforms to patent eligibility doctrine. This webinar discussed PERA and its implications for the U.S. innovation economy as leader in innovation in the 21st century facing new challenges from global competitors like China.

Congress passed the Antiquities Act in 1906 to protect Native American archaeological sites from looters and vandalism, empowering the President to designate historic landmarks, structures, or objects of scientific interest as national monuments on federal land. However, it also imposed limitations, requiring such designations to cover only "the smallest area compatible with the proper care and management of the objects to be protected." Initially, Presidents designated monuments focused on safeguarding specific landmarks or structures. Over time, modern Presidents have expanded their authority under the Antiquities Act, interpreting "objects" broadly to include ecosystems. President Obama notably expanded the Act's use, establishing 29 new national monuments. However, this expansion faced pushback, with President Trump reducing the size of certain monuments and lifting usage restrictions. President Biden's subsequent actions, such as expanding the Grand Staircase monument and reinstating fishing bans, further illustrate the contentious nature of presidential monument designations. All these challenges present interesting questions of statutory interpretation, limits on presidential power, the authority of the judiciary to review Presidential action, and the scope and content of both the major questions doctrine and the nondelegation doctrine. Please join Adam Griffin, Separation of Powers Attorney at Pacific Legal Foundation, for a litigation update on these exciting cases and the future of presidential power under the Antiquities Act.

Throughout Arizona’s history as a state, the criminal code authorized penalties against any person who performed or procured an abortion for a pregnant woman. In 1971, Planned Parenthood Center of Tucson challenged that law on state and federal constitutional grounds. In early 1973, the state intermediate appellate court upheld the criminal law as constitutional. Shortly thereafter, SCOTUS issued Roe v. Wade recognizing a federal constitutional right to abortion. And the Arizona appellate court then enjoined enforcement of the state’s criminal abortion law. The Arizona legislature codified numerous abortion-related laws in the ensuing years. One such law, enacted in 2022, adopted a “15-week ban.” Later that same year, SCOTUS issued its opinion in Dobbs v. Jackson Women’s Health Organization, which overturned Roe and concluded that the federal constitution does not support a right to abortion. Dobbs thus set a collision course for two Arizona laws: the previously enjoined but still on-the-books criminal law from 1973 and the 2022 15-week ban. On April 9, 2024, the Arizona Supreme Court issued its opinion in Planned Parenthood v. Mayes / Hazelrigg, resolving the question of which law currently governs. Hon. James D. Smith will join us to break down the majority and dissenting opinions.

FTC Chair Khan has sought to implement aggressive and profound changes at the agency from novel approaches on antitrust to groundbreaking rulemakings. But will these efforts have lasting effects? Former FTC Chairs Tim Muris and Maureen Ohlhausen were joined by Howard Beales, former Director of the Bureau of Consumer Protection at the FTC, to compare these efforts with previous Chair-initiated policy shifts at the agency. Professors Muris and Beales also unveiled their extensive research, published by the Competitive Enterprise Institute, analyzing key differences compared to earlier FTC efforts at promoting change. This panel discussed: How should a change agent manage the existing career staff? How should relations with Congress and other key stakeholders be managed? How can change best be implemented in the face of a potentially hostile judiciary and other formidable obstacles? What role should institutional norms play in answering these questions?

On April 25th, the Environmental Protection Agency announced a suite of final rules meant to reduce pollution from fossil fuel-fired power plants. The rule was among four measures targeting coal and natural gas plants that the EPA said would provide “regulatory certainty” to the power industry and encourage them to make investments to transition “to a clean energy economy.” The measures include requirements to reduce toxic wastewater pollutants from coal-fired plants and to safely manage coal ash in unlined storage ponds. Supporters of the new rule argue that it aligns well with the EPA's statutory authority, the current state of electric markets, and available emissions-reduction technologies. However, opponents contend that it is legally flawed and could jeopardize grid reliability. What legal and policy issues does this rule potentially raise? Does it trigger "major questions" issues? Is the agency relying on unproven technology, potentially violating the statutory requirement that emission standards be based on proven systems? Moreover, does the rule infringe on state prerogatives for regulating existing sources? Join us as we delve into these questions and analyze the legal complexities surrounding this new rule. Featuring: Kevin Poloncarz, Partner, Covington & Burling LLP Justin Schwab, Founder, CGCN Law, PLLC

On April 23, 2024, the FTC voted 3-2 to adopt a final rule banning the use of non-compete agreements nationwide, impacting 30 million workers by the FTC’s own estimates. This near categorical ban on the non-compete agreements is a contrast from a regime in which these agreements had been recognized to have potential procompetitive value and therefore were reviewed for reasonableness. It also marks a departure from the state law in many jurisdictions. Less than 24 hours after the vote, two lawsuits have challenged the rule based on statutory and Constitutional grounds. This breaking news panel discussed the final rule, grounds for statutory and Constitutional challenges, and state AG reactions.