FedSoc Forums

The National Institute of Standards and Technology (NIST) seeks comments on the Draft Interagency Guidance Framework for Considering the Exercise of March-In Rights, which sets out the factors that an agency may consider when deciding whether to exercise Bayh-Dole march-in rights. The information received will inform NIST and the Interagency Working Group for Bayh-Dole (IAWGBD) in developing a final framework document that may be used by a funding agency when making a march-in decision. This panel seeks to answer what the new framework is while also debating the pros and cons. This FedSoc Forum aims for participants to have a better understanding of this proposed policy change, be able to assess the impact should it be enacted, and be motivated to actively engage in the ongoing debate.

On February 21, the Supreme Court unanimously decided McElrath v. Georgia, holding that a jury’s verdict that the defendant was not guilty by reason of insanity of malice murder constituted an acquittal for double jeopardy purposes notwithstanding any inconsistency with the jury’s other verdicts. McElrath concerned the case of Damian McElrath, who in 2017 was tried for malice murder, aggravated assault, and felony murder Under Georgia Law, in a case where a defendant is claiming insanity at the time of the crime, the jury can render one of four possible verdicts: Guilty, Guilty but Mentally Ill, Not Guilty by Reason of Insanity, or Not Guilty. The jury rendered a split verdict, finding McElrath not guilty by reason of insanity on the malice murder charge and guilty but mentally ill on the felony murder and aggravated assault charges. McElrath challenged his guilty but mentally ill conviction as repugnant to his acquittals. The Georgia Supreme Court, instead of overturning his conviction, vacated both the conviction and the acquittal and remanded the case for a retrial. McElrath then filed a plea in bar asserting that the Double Jeopardy Clause of the United States Constitution prohibited the State from subjecting him to a second trial on the malice murder charge. The Supreme Court heard oral arguments in the case in November of 2023. Please join us for a post-decision Courthouse steps program where we will break down and analyze this recent decision concerning double jeopardy and criminal law. Featuring: Zack Smith, Legal Fellow and Manager, Supreme Court and Appellate Advocacy Program, The Heritage Foundation

The First Step Act of 2018, passed as the result of bi-partisan efforts during the Trump administration, aimed to reduce the population of those in federal prison and to limit some federal prison sentences. Over the years some have contended the act is working well, while others argue it has only partially delivered on its goals or it was flawed from the start. Now, as the act recently celebrated its 5-year anniversary, join us for a panel discussing the First Step Act, its impact, legacy, and future. Featuring: Stephanie Kennedy, Policy Director, Council on Criminal Justice Rafael A. Mangual, Fellow and Deputy Director of Legal Policy Contributing Editor, City Journal, The Manhattan Institute (Moderator) Vikrant P. Reddy, Senior Fellow, Stand Together Trust

Two cases involving NetChoice, a company that represents social media giants like Facebook, Twitter, Google, and TikTok will be heard at the Supreme Court this term. Both cases concern issues of free speech and social media platforms. In Moody v. NetChoice, LLC, NetChoice challenges Florida law S.B. 7072, arguing it violates the social media companies’ right to free speech and that the law was preempted by federal law. The lower district court found that the law did not stand up to strict scrutiny. Additionally, the court found that this law didn’t serve a legitimate state interest. The U.S. Court of Appeals for the Eleventh Circuit affirmed this ruling. In NetChoice, LLC v. Paxton, NetChoice challenges the constitutionality of two sections of Texas law HB 20 (sections 7 and 2) that aims to regulate the content restrictions of large social media platforms. The lower district court found the sections unconstitutional and placed an injunction on the two sections. The Fifth Circuit reversed this decision, ruling that HB 20 doesn’t regulate the speech of the platforms, but instead protects the speech of users and regulates the platform's conduct. Both cases are set to be heard at the Supreme Court on February 26, 2024. Join us as we break down and analyze how Oral argument went the same day. Featuring: Allison R. Hayward, Independent Analyst

The U.S. antitrust agencies have recently proposed changes to the HSR merger filing process, broadening the scope of review beyond consumer and competitive effects to workers and other non-competition factors. Merging parties would also be required to prepare written responses to questions related to the transaction, bringing the U.S. more into line with filing requirements in certain foreign merger control regimes like the EU. The additional volume and scope of information contained in merging parties’ HSR filings would also allow the antitrust agencies to potentially apply more rigorous scrutiny of proposed transactions at an earlier stage because the information provided likely will take considerable time for the agency to review. This panel will discuss how in-house counsel is navigating these changes. Featuring: Kirstie Nicholson, Global Competition Counsel, BHP Gil Ohana, former Senior Director, Antitrust & Competition, Cisco Roman Reuter, Senior Counsel, International Competition Affairs, Deutsche Telekom AG Moderator: Chris Wilson, Partner, Gibson Dunn

State Attorneys General have long played a role in merger enforcement, challenging anticompetitive mergers and acquisitions either independently or by partnering with other states and federal enforcers. Today, states are showing a heightened interest in ramping up their merger enforcement. The panel will explore the role of states in merger reviews and recent trends in enforcement. The panel will also discuss legislative efforts by some states to expand the role of the attorney general in merger reviews.

On February 20, 2024, the U.S. Supreme Court will hear oral argument in Corner Post, Inc. v. Board of Governors of the Federal Reserve System. The case asks whether a plaintiff’s Administrative Procedure Act (APA) claim “first accrues” under 28 U.S.C. § 2401(a)—the six-year default federal statute of limitations—when an agency issues a rule or when the rule first causes a plaintiff to “suffer legal wrong” or “be adversely affected or aggrieved,” 5 U.S.C. § 702. Petitioner Corner Post is a North Dakota convenience store and truck stop that seeks to challenge a 2011 Federal Reserve rule governing certain fees for debit card transactions. Corner Post didn’t open its doors until 2018 but the lower courts in this case held that its challenge is time barred because the statute of limitations ran in 2017—before Corner Post accepted its first debit card payment. Please join us as we discuss the case and how oral argument went before the Court.

On February 20, 2024, the Supreme Court will hear argument in Bissonnette v. LePage Bakeries Park Street LLC. The court will consider whether the Federal Arbitration Act’s exemption for the employment contracts of “workers engaged in interstate commerce” applies to any worker who is “actively engaged” in the interstate transportation of goods, or whether the worker’s employer must also be in the “transportation industry.”Join us as Prof. Samuel Estreicher previews the case and the questions implicated by its potential outcomes.Featuring: Prof. Samuel Estreicher, Dwight D. Opperman Professor of Law Director, Center for Labor and Employment Law Co-Director, Institute of Judicial Administration, NYU School of Law

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below. Corner Post v. Board of Governors of the Federal Reserve System (February 20) - Does the six-year statute of limitations to challenge an action by a federal agency begin to run when the agency issues the rule or when the plaintiff is actually injured? Bissonnette v. LePage Bakeries Park Street, LLC (February 20) - Labor & Employment; Whether the Federal Arbitration Act’s exemption for the employment contracts of “workers engaged in interstate commerce” applies to any worker who is “actively engaged” in the interstate transportation of goods, or whether the worker’s employer must also be in the “transportation industry.” Warner Chappell Music v. Nealy (February 21) - Intellectual Property; Whether copyright plaintiffs can recover damages for acts that allegedly occurred more than three years before they filed their lawsuit. Ohio v. Environmental Protection Agency (February 21) - Environmental Law; (1) Whether the court should stay the Environmental Protection Agency’s federal emission reductions rule, the Good Neighbor Plan; and (2) whether the emissions controls imposed by the rule are reasonable regardless of the number of states subject to the rule. Moody v. NetChoice, LLC (February 26) - First Amendment; (1) Whether the laws’ content-moderation restrictions comply with the First Amendment; and (2) whether the laws’ individualized-explanation requirements comply with the First Amendment. NetChoice, LLC v. Paxton (February 26) - First Amendment; Whether the First Amendment prohibits viewpoint-, content-, or speaker-based laws restricting select websites from engaging in editorial choices about whether, and how, to publish and disseminate speech — or otherwise burdening those editorial choices through onerous operational and disclosure requirements. McIntosh v. United States (February 27) - Criminal Law & Procedure; Whether a district court can enter a criminal forfeiture order when the time limit specified in the Federal Rules of Criminal Procedure has already passed. Cantero v. Bank of America, N.A. (February 27) - Whether the National Bank Act preempts the application of state escrow-interest laws to national banks. Garland v. Cargill (February 28) - Second Amendment; Whether a “bump stock” – an attachment that transforms a semiautomatic rifle into a fully automatic, assault-style weapon – is a “machinegun,” which is generally prohibited under federal law. Coinbase v. Suski (February 28) - When an arbitration agreement tasks the arbitrator with deciding whether a dispute should be arbitrated, should courts or the arbitrator decide whether the agreement is narrowed by a later contract that does not address arbitration? Featuring: Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law Scott Dixler, Partner, Horvitz & Levy LLP Stephen Halbrook, Senior Fellow, Independent Institute Allison R. Hayward, Independent Analyst John Masslon, Senior Litigation Counsel, Washington Legal Foundation Moderator: Alexandra Gaiser, General Counsel, Strive

At the age of 96, Judge Pauline Newman is the nation’s oldest federal judge. In 1984, Judge Newman became the first judge appointed directly to the US Court of Appeals for the Federal Circuit. In April of last year, reports surfaced that Federal Circuit Chief Judge Kimberly Moore had initiated a complaint against Judge Newman under the Judicial Conduct and Disability Act of 1980. Although the complaint was initially based on alleged “cognitive decline,” it later morphed to focus on her unwillingness to cooperate with Judge Moore’s investigation. This program will provide an update on Judge Newman’s case and discuss issues related to this most-unusual set of circumstances. This program coincides with panelist David Lat’s recent interview with Judge Newman, available here, which allows viewers to hear Judge Newman in her own words. The Committee on Judicial Conduct and Disability released an opinion in the case, available here. Check out this recording for a discussion of Judge Newman’s case, the state of judicial conduct, and more.Featuring: David Lat, Founder, Original JurisdictionProf. Arthur Hellman, Professor Emeritus of Law, University of Pittsburgh School of LawModerator: Hon. Jennifer Perkins, Arizona Court of Appeals, Division One