FedSoc Forums

On October 31, 2022, the U.S. Supreme Court heard Students for Fair Admissions Inc. v. President & Fellows of Harvard College.In perhaps the most anticipated case of this term, the court considers a challenge to the use of racially preferential undergraduate student admissions practices at Harvard University and the University of North Carolina.Our experts broke down the oral argument on the same day, October 31, 2022.Featuring:--Prof. Amanda Shanor, Assistant Professor of Legal Studies & Business Ethics, The Wharton School--Devon Westhill, President and General Counsel, Center for Equal Opportunity--Moderator: Curt Levey, President, Committee for Justice

The use of presidential emergency powers has raised controversy under administrations of both parties. President Trump’s attempt to transfer funds to build his border wall, the CDC’s eviction moratorium and OSHA vaccine mandate, Title 42 border expulsions, and President Biden’s student loan forgiveness plan have all raised questions of overreach. This panel explored the pros and cons of executive emergency powers and whether or not there should be tighter constraints on their use. Featuring: Daniel J. Dew, Legal Policy Director, Pacific Legal Foundation Elizabeth Goitein, Senior Director, Liberty & National Security Program, Brennan Center for Justice at New York University Law School Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University Moderator: Ilya Shapiro, Senior Fellow and Director of Constitutional Studies, Manhattan Institute

Tornado Cash is an open source, decentralized cryptocurrency tumbler that was introduced in 2019. The service allows users to mix identifiable Ethereum cryptocurrency funds with others, thus obscuring the trail back to the funds original source. On August 8, 2022, the Treasury’s Office of Foreign Assets Control (OFAC) sanctioned Tornado Cash, making it illegal for United States citizens, residents, and companies to receive or send money through the service. OFAC claims that Tornado cash is responsible for laundering more than $7 billion in virtual currencies, including money believed to be stolen by North Korea and criminal groups. As opposed to sanctioning people, organizations, or particular addresses associated with rogue regimes, OFAC has sanctioned the code of Tornado Cash itself, causing critics to claim that OFAC has exceeded its statutory authority . Join our experts as they discuss OFAC’s blacklisting of Tornado Cash, potential litigation from opponents, and the broader implications for financial privacy, national security, and free speech. Featuring: Paul Brigner, Head of U.S. Policy and Strategic Advocacy, Electric Coin Company. Michael Mosier, General Counsel, Espresso Systems Kevin Werbach, Professor of Legal Studies and Business Ethics at the Wharton School, University of Pennsylvania Moderator: J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University

Each month, a panel of experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this program are included below.Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (October 31) – Whether institutions of higher education can use race as a factor in admissions; and whether Harvard University is violating Title VI of the Civil Rights Act by purportedly penalizing Asian American applicants. Students for Fair Admissions, Inc. v. University of North Carolina (October 31) – Whether institutions of higher education can use race as a factor in admissions; and whether a university can reject race-neutral admissions without proving that such action would damage the student body or standard of education.Securities and Exchange Comm’n v. Cochran (November 7) – Whether a federal district has jurisdiction to hear a suit in which the respondent in an SEC administrative proceeding seeks to enjoin that proceeding based on an alleged constitutional defect regarding the removal of administrative law judges.Axon Enterprise, Inc. v. Federal Trade Comm’n (November 7) – Whether Congress stripped federal district courts of jurisdiction over constitutional challenges to the FTC by granting the courts of appeals jurisdiction over FTC cease-and-desist orders.Haaland v. Brackeen (November 9) – Equal protection clause; whether the Indian Child Welfare Act of 1978 violates the anti commandeering doctrine of the 10th amendment.Featuring:Jennifer Weddle, Shareholder, Greenberg TraurigMargaret A. Little, Senior Litigation Counsel, New Civil Liberties AllianceAlison Somin, Legal Fellow, Center for the Separation of Powers, Pacific Legal FoundationElyse Dorsey, Partner, Kirkland & Ellis LLPModerator: Amy Howe, Howe on the Court

What did the American Founders mean when they declared religious liberty to be an “inherent,” “natural” and “inalienable” right? Does the right to religious liberty provide religious exemptions from generally applicable laws? What is wrong with a state establishment of religion? In Religious Liberty and the American Founding, Vincent Phillip Muñoz addresses these questions and others, offering a novel interpretation of Founders’ philosophy and constitutionalism of religious liberty. Drawing on early state constitutions, declarations of religious freedom, Founding-era debates, and the First Amendment’s drafting record, the book documents and articulates the Founders’ understanding of religious liberty as an inalienable natural right, uncovers what we can and cannot determine about the original meaning of the First Amendment’s Religion Clauses, and constructs a natural rights jurisprudence of religious liberty, exploring and explaining how the Founders’ principles would adjudicate First Amendment church-state issues. Contrary to what many might assume, Muñoz contends that adherence to the Founders would lead neither to consistently conservative nor consistently liberal results, but rather to a novel church-state jurisprudence that, in most cases, would return authority from the judiciary to the American people. Join us for a conversation of Professor Muñoz’s new book, with Professor Muñoz himself and moderated by Michael McConnell, the director of Stanford Law School’s Constitutional Law Center. Featuring:--Vincent Phillip Muñoz , Tocqueville Associate Professor Department of Political Science and Concurrent Associate Professor of Law, University of Notre Dame Law School--Moderator: Michael McConnell, Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School; Senior Fellow at the Hoover Institution

In National Pork Producers Council v. Ross, the Supreme Court will address the dormant commerce clause in the context of a California law regarding the housing of farm animals. Specifically, the Court will decide "whether allegations that a state law has dramatic economic effects largely outside of the state and requires pervasive changes to an integrated nationwide industry state a violation of the dormant commerce clause..." Oral arguments took place on October 11. That afternoon, the Manhattan Institute's Ilya Shapiro joined us to analyze the arguments and examine the issues underlying the case. Featuring: Ilya Shapiro, Senior Fellow and Director of Constitutional Studies, Manhattan Institute

The Supreme Court is considering a lawsuit between rock and roll photographer Lynn Goldsmith and the Andy Warhol Foundation regarding Warhol’s works based on Goldsmith’s photo of the musician Prince. The fair use doctrine excuses from liability certain unlicensed uses of copyrighted works. The question before the Court in Warhol v. Goldsmith is whether Warhol’s creation of a series of paintings copied from the photo, and the licensure of those paintings to periodicals, constitutes a fair use. Underlying the case are core intellectual property questions about the nature and scope of the fair use doctrine. Following oral arguments on October 12, Zvi Rosen, who filed an amicus brief in the case in support of the respondent (Goldsmith), joined us to break down the case. Featuring: Zvi Rosen, Assistant Professor, Southern Illinois University School of Law

Russia’s invasion of Ukraine shocked the world – and directed renewed attention to the global energy system. Suddenly, the topic of energy security rose to the forefront as consumers across the globe began to feel the impact of the conflict when filling their gas tanks and paying their electricity bills. As Europe struggles to disentangle itself from dependence upon Russian energy sources, the United States and others have directed renewed focus toward their supply chains for both hydrocarbon fuels and renewable power generation. Our panel of energy experts will discuss these recent events and consider the legal and policy levers available to the United States and its allies to enhance their energy security.Featuring: --Prof. James Coleman, Robert G. Storey Distinguished Faculty Fellow and Professor of Law, Southern Methodist University Dedman School of Law--George Fibbe, Partner, Baker Botts, Former Deputy General Counsel, Department of Energy--Moderator: Daniel G. West, Vice President, SCF Partners

Religious employers are exempt under §§ 702(a) and 703(e)(1), 42 U.S.C.2000e—1(a) and 2000e—2(e)(1), when sued under Title VII of the Civil Rights Act of 1964, as amended. However questions can still arise when Religious employers undertake actions that would allegedly be problematic under Title VII for non-religious employers. What is the scope of the exemption? What is the definition of religion? What is the definition of a religious employer able to invoke the exemption? Additionally, is the exemption waived if the employer is a recipient of federal financial assistance? How does the exemption in Title VII compare with other defenses available to the employer such as the ministerial exception (Church Autonomy Theory), Religious Freedom Restoration Act, and the First Amendment’s free-speech and free-exercise clauses? What if the religious employer is sued in a similar claim under a state or municipal human rights act?Experts Sharon Gustafson, Jennifer Goldstein, and Carl Esbeck will discuss some of these questions in this webinar on the extent of exemptions extended to religious employers under Title VII. Featuring:--Carl H. Esbeck, R. B. Price Professor of Law Emeritus, University of Missouri--Sharon Fast Gustafson, Principal, Sharon Fast Gustafson, Attorney at Law, PLC--Jennifer Goldstein, Associate General Counsel, Equal Employment Opportunity Commission

One of the longest-standing environmental law challenges is how to define the scope of waters regulated under the Clean Water Act known as “waters of the United States” (WOTUS). After decades of regulatory uncertainty, the Supreme Court has again taken up a case that may provide clarity. On October 3rd, the Court will hear oral argument in Sackett v. EPA, the first case of this new term and the second time the case will be reviewed by the high court. Perhaps this time the Court will definitively determine what is a WOTUS. Will the Court definitively determine what is a WOTUS? Join us for a discussion on this important case with Damien Schiff (arguing for petitioners), Tony Francois (represented petitioners in the Ninth Circuit), and William Snape (Director of the American University Washington College of Law’s Program on Environment and Energy Law). The panel will be moderated by Hunton Andrews Kurth partner Matt Leopold, who served previously as EPA general counsel and assisted in drafting the 2020 Navigable Waters Protection Rule defining WOTUS. Featuring: Tony Francois, Senior Attorney, Pacific Legal Foundation Damien Schiff, Senior Attorney, Pacific Legal Foundation Prof. William Snape, Director of Program on Environmental and Energy Law, Assistant Dean of Adjunct Faculty Affairs, and Fellow in Environmental Law, American University Washington College of Law Moderator: Matt Leopold, Partner, Hunton Andrews Kurth --- To register, click the link above.