FedSoc Forums

On May 23, 2022, the U.S. Supreme Court decided Morgan v. Sundance. In a rare 9-0 decision, the Court vacated and remanded the judgment of the U.S. Court of the Appeals for the Eighth Circuit, holding that federal courts may not adopt an arbitration-specific rule conditioning a finding of waiver of the right to arbitrate on a showing of prejudice to the other party. Though this had been a relatively common analysis, the Court rejected it, cabining any concept that there is a “policy favoring arbitration.” The Court reinterpreted that to mean only that federal courts may not invent special, arbitration-preferring procedural rules. “[A] court must hold a party to its arbitration contract just as the court would to any other kind.” The Court went on to say that “a court may not devise novel rules to favor arbitration over litigation.” But the Court also left open the role of state law and what rules can apply, including waiver, forfeiture, estoppel, laches, or procedural timeliness.Justice Kagan delivered the opinion of the Court.Please join our legal experts to discuss the case, the legal issues involved, and the implications for these parties and other litigation parties going forward.Featuring:Erika Birg, Partner, Nelson Mullins Riley & Scarborough LLPRichard D. Faulkner, FCIArb., Arbitrator, Attorney & Former Professor of ADR Law

This webinar will explore issues raised by the raft of state and federal initiatives on Critical Race Theory and related topics. Issues will include the scope of state authority over the content of education, with special attention to differences between K-12 and public universities. Varying features of state-level CRT bills will be discussed, as well as the characterization of their content from supporters and detractors. On the state level, state education standards, "book banning", and legislation pertaining to curriculum transparency, “action civics,” and “diversity statements” will be discussed. Moves to control educational content at the federal level through grantmaking will also be covered. Featuring:--Stanley Kurtz, Senior Fellow, Ethics and Public Policy Center

On April 28, 2022, The U.S. Supreme Court decided Cummings v. Premier Rehab Keller. The case involved the availability of emotional damages for discrimination on the basis of disability and, more generally, the scope of recoverable damages for private actions under Spending Clause statutes. After the respondent, Premier Rehab, declined to provide a sign language interpreter at Jane Cummings’ physical therapy sessions, Cummings sued the provider in federal court. Cummings claimed disability discrimination in violation of the Rehabilitation Act of 1973 and the Affordable Care Act. A trial court found that the only injuries allegedly caused by Premier were emotional in nature and dismissed the complaint, ruling that emotional damages are not recoverable under either statute. The Fifth Circuit affirmed.In a 6-3 decision, the Court held that emotional damages are not recoverable in a private action under either the Rehabilitation Act of 1973 or the Affordable Care Act. The majority opinion was penned by Chief Justice Roberts. Justice Breyer wrote a dissenting opinion, joined by Justices Kagan and Sotomayor.Please join our legal expert to discuss the case, the legal issues involved, and the implications for disabilities law going forward. Featuring:--Curt Levey, President, Committee for Justice

In February of 2019, then General Counsel of the Department of Transportation (DOT), Steven Bradbury, issued a memo later dubbed the "Bradbury Memo" that addressed concerns about civil enforcement abuse at the agency. Parts of the memo were subsequently made into binding DOT rules. DOT asserted that these rules were designed to protect the due process rights of those who were the subject of DOT enforcement actions, including a requirement that the agency disclose all exculpatory evidence to those targeted by civil enforcement and the prohibition of “fishing expedition” investigations without sufficient evidence to support a violation.On April 2, 2021, DOT rescinded these rules without the opportunity for public comment. Thereafter Polyweave Packaging inc., a company that had been issued a civil penalty order by DOT over alleged regulatory violations, filed suit against DOT claiming the agency violated its due process rights by revoking the Bradbury Memo rules.The U.S. District Court for the Western District of Kentucky ruled in favor of DOT, the case has been appealed to the Sixth Circuit Court of Appeals and oral arguments were on May 5, 2022. Please join this litigation update of Polyweave Packaging v. Buttigieg as our experts discuss the case, the legal issues involved, and the implications for administrative rulemaking and due process.Featuring:Hon. Steven Bradbury, Attorney; Former General Counsel, Department of TransportationSheng Li, Litigation Counsel, New Civil Liberties AllianceModerator: Hon. Beth Williams, Board Member, U.S. Privacy and Civil Liberties Oversight Board; former Assistant Attorney General, U.S. Department of Justice---To register, click the link above

The United States is – perhaps now more than ever before – a global energy powerhouse. From oil and gas production to the expansion of new energy technologies, the United States has made gains in achieving long-heralded calls for energy independence and energy security, while also reducing environmental impacts associated with energy production, generation, transportation, and use. Many are calling for even more accelerated environmental progress, particularly on the climate front. While rapidly changing geopolitical dynamics – in Europe and elsewhere – are placing the United States’ energy sector and its capabilities to meet global energy needs at the forefront, a host of federal and state environmental regulatory regimes continue to pose substantial hurdles to energy-related goals and priorities. Energy pipelines, export facilities, oil and gas production, mining projects, transmission systems, and a host of other energy projects must navigate a labyrinth of regulatory reviews and approvals – from NEPA to the Clean Water Act to the Endangered Species Act and beyond. This panel of distinguished legal and policy experts will debate the goals and priorities of U.S. energy and environmental policy, administrative law dynamics affecting the energy sector, the role of climate policy and energy technologies, and the implications of these factors for our Nation’s national security in light of the war in Ukraine and other recent geopolitical events.Featuring:--Tristan Abbey, President of Comarus Analytics LLC--Eric Grant, Partner, Hicks Thomas LLP--Julia Olson, Executive Director at Our Children's Trust; Chief Legal Counsel for plaintiffs in Juliana v. U.S.--Moderator: Hon. Ryan Nelson, Judge, United States Court of Appeals, Ninth Circuit

As the Supreme Court prepares to hear two cases this fall that challenge race preferential admissions policies at Harvard University and the University of North Carolina, questions have arisen about how colleges typically use race preferences and whether such use is fair and lawful. This webinar will address how and when race is commonly used in college admissions, whether colleges and universities are generally following the existing law, and what if any safeguards colleges use to ensure that line admissions officers use race to further only legally permissible goals. The panelists will also discuss what some find the surprising fact that Asian American applicants are more likely to be displaced by race-preferential admissions than white students and whether this practice is fair. Finally, the presenters may also address the fairness of other non-academic factors widely used in admissions, such as preferences for legacies, recruited athletes, or the children of large donors. Featuring: Art Coleman, Managing Partner and Co-Founder, EducationCounsel Cory Liu, Partner, Ashcroft Law Firm Moderator: Alison Somin, Legal Fellow, Center for the Separation of Powers, Pacific Legal Foundation --- To register, click the link above.

As the cryptocurrency industry grows, state and federal governments are considering how that industry should be regulated. The President has directed the Secretary of the Treasury to report soon on the issues involved. A draft bill that would regulate stablecoins has been released in the U.S. Senate. Meanwhile, states are competing with one another to adopt regulatory laws that may attract cryptocurrency firms to their welcoming, but taxing, arms striving for economic growth.Will regulation be designed to avoid discouraging innovation in a highly creative environment? Fears have been expressed that unregulated cryptocurrency could theoretically present systemic risk, and consumers may need to be protected--particularly in light of the recent collapse of the Luna cryptocurrency and its related Terra stablecoin. Some believe that regulation may be an opportunity to include those presently unserved by the banking system. Complicating this already complicated picture may be rivalry among multiple federal agencies, including the banking regulators, the Securities and Exchange Commission, the Commodities Futures Trading Commission, and the Federal Trade Commission, each of which may make a case for potential authority over aspects of the cryptocurrency industry. Our panel of experts will address these timely and controversial questions.Featuring:--Douglas Elliott, Partner, Oliver Wyaman--Michael Piwowar, Executive Director, Milken Institute Center for Financial Markets--Dawn Stump, Former Commissioner, U.S. Commodity Futures Trading Commission--Thomas Vartanian, Executive Director, Financial Technology & Cybersecurity Center--Moderator: Paul N. Watkins, Managing Director, Patomak Global Partners Related:Central Bank Digital Currency--Efficient Innovation or the End of the Private Banking System? ---To register, click the link above.

A Hollywood depiction of the lives of fishermen tells a real life story about how Executive Branch overreach damages American families. Hear from two practitioners challenging the administrative state on these very regulations depicted in “Coda” and learn why telling clients’ stories is critical to reform. Featuring:--Eric Bolinder, Managing Policy Counsel, Americans for Prosperity Foundation; Counsel, Cause of Action Institute--John Vecchione, Senior Litigation Counsel, New Civil Liberties Alliance--Moderator: Eileen O'Connor, Founder, Law Office of Eileen J. O'Connor PLLC

Central Bank Digital Currencies (CBDC) are the subject of a global debate. In one version, individuals and businesses would hold deposits directly with the central bank. Critics point out that the Federal Reserve would then control how these deposits are used, allocating credit to private-sector borrowers and to government spending, arguing that CBDCs would eviscerate the private banking industry and create government surveillance of all financial transactions in the accounts. An alternate version is that CBDCs take the form of a tokenized dollars, distributed through the banking system and operating in parallel with paper currency and bank accounts. Supporters say this could yield lower transaction costs and more rapid settlement of payments, and could strengthen the international role of the U.S. dollar.Featuring:--Bert Ely, Principal, Ely & Company, Inc.--Chris Giancarlo, Senior Counsel, Willkie Digital Works LLP; Former Chairman, US Commodity Futures Trading Commission--Greg Baer, President & Chief Executive Officer, Bank Policy Institute--Moderator: Alex J. Pollock, Senior Fellow, the Mises InstituteRelated:The Government’s Arms Around Cryptocurrency: Hug or Stranglehold?---To register, click the link above.

On October 21, 2021, the Commodity Futures Trading Commission announced a nearly $200 million whistleblower award, the largest in history. The award was related to more than $3 billion in sanctions by the CFTC and foreign regulators. The award, so large that it emptied the Commodity Futures Trading Commission's fund for whistleblower awards, was criticized as "relating to an action by a foreign futures authority to address harm outside the United States." Join us as we speak with David Kovel, attorney for the whistleblower and managing partner of Kirby McInerney LLP, as he discusses his role in this record-shattering award, the challenges he faced, and the public policy questions we face. Featuring: --David Kovel, Managing Partner, Kirby McInerney LLP--Moderator: Prof. Gary Kalbaugh, Special Professor of Law, Maurice A. Dean School of Law --- To register, click the link above.