FedSoc Forums

On January 20, 2022, the U.S. Supreme Court decided Hemphill v. New York. In an 8-1 decision, the Court reversed and remanded the judgment of the Court of Appeals of New York, holding that the trial court’s admission—over Hemphill’s objection—of the plea allocution transcript of an unavailable witness violated Hemphill’s Sixth Amendment right to confront the witnesses against him. Justice Sotomayor delivered the opinion of the Court. Justice Alito filed a concurring opinion, in which Justice Kavanaugh joined. Justice Thomas filed a dissenting opinion.Please join our legal expert to discuss the case, the legal issues involved, and the implications going forward. Featuring:--Mike Hurst, Partner, Phelps Dunbar LLP and former United States Attorney, Southern District of Mississippi

In Thompson v. Clark, the plaintiff sought to bring a civil suit claiming he was the victim of a wrongful seizure after police allegedly entered his apartment without a warrant based on unsubstantiated allegations of child abuse. Thompson was charged with resisting arrest amid the warrantless raid, but prosecutors subsequently elected to drop this criminal case. The question that then arose was whether this result, though short of a formal exoneration, was sufficient to meet the requirement that there be a favorable conclusion of the criminal case against Thompson before he could pursue his civil suit. In this discussion, attorneys for amici on both sides will explore which justices got it right and the implications of this ruling in future cases for prosecutors, defendants, and civil litigants. Background Thompson v. Clark was decided on April 4 with the Supreme Court holding Larry Thompson’s showing that his criminal prosecution ended without a conviction satisfies the requirement to demonstrate a favorable termination of a criminal prosecution in a Fourth Amendment claim under Section 1983 for malicious prosecution. The majority rejected the dissenting view that an affirmative indication of innocence should be required. Justice Kavanaugh delivered the 6-3 opinion of the Court. Justice Alito filed a dissenting opinion, in which Justices Thomas and Gorsuch joined. Featuring: Vincent Stark, Bureau Chief, Legal Affairs Unit, Albany County District Attorney's Office Marie Miller, Attorney, Institute for Justice Moderator: Marc Levin, Chief Policy Counsel, Council on Criminal Justice and Senior Advisor, Right on Crime

Last fall, Deputy Attorney General Lisa Monaco announced significant changes to Department of Justice policies on corporate criminal enforcement, including the use of monitors, review of prior misconduct, and cooperation. As Monaco stated, "This is a start -- and not the end -- of this administration's actions to better combat corporate crime." These changes and the Administration's formation of a Corporate Crime Advisory Group signal a shift in DOJ's commitment to ferreting out corporate crimes and more rigorous enforcement activities. The U.S. Securities and Exchange Commission (SEC) has announced its own intention to conduct faster investigations, bring bigger cases, and to seek harsher penalties. In his first speech on enforcement, SEC Chairman Gary Gensler quoted the agency's first Chair, Joseph Kennedy, to summarize his own agenda: "The Commission will make war without quarter on any who sells securities by fraud or misrepresentation." Chairman of the Commodity Futures Trading Commission (CFTC), Rostin Behnam, has also requested that Congress expand the CFTC's enforcement powers and professed the agency's readiness to serve as the "primary cop on the beat" for cryptocurrency markets.Former DOJ prosecutor Luke Cass and Britt Biles, who held former senior legal roles at the SEC, the White House, and the U.S. Small Business Administration will explain these policy shifts and discuss the risks for corporate America under this new era, additional priority enforcement areas for the Administration, and what these new policies mean for the future of corporate compliance.Featuring:--Luke Cass, Partner, Womble Bond Dickinson--Britt Biles, Partner, Womble Bond Dickinson--Moderator: Nicholas Marr, Assistant Director, Practice Groups, The Federalist Society

This panel will focus on the pros and cons of zoning, its relation to environmental justice, its detrimental (or beneficial) impacts on minorities, and its consistency (or inconsistency) with property rights. Importantly, the discussion will engage with the scope of modern zoning and what, if anything, should be done to alter, increase, or decrease the government's zoning power. Given the rise of environmental justice in administrative policy and academic debate, this event presents a timely discussion of environmental justice's application to debates over zoning policy in the United States. Criticisms of zoning are on the rise from both the right and left. Critics focus on the ignoble racial history of zoning and its detrimental impacts on the housing market and property values. Defenders instead look to the community stability provided by zoning and the separation of industrial from residential property uses. This panel will present varying views from across the intellectual spectrum featuring both criticisms and defenses of zoning from the right and left. Featuring:Prof. Nicole Stelle Garnett, John P. Murphy Foundation Professor of Law, University of Notre DameRandall O'Toole, Blogger, The AntiplannerRichard Rothstein, Distinguished Fellow of the Economic Policy Institute and a Senior Fellow (emeritus) at the Thurgood Marshall Institute of the NAACP Legal Defense FundProf. Christopher Serkin, Elisabeth H. and Granville S. Ridley Jr. Chair in Law and Professor of Management at the Owen Graduate School of ManagementModerator: Adam Griffin, Law Clerk, U.S. District Courts

On March 31, 2022, the U.S. Supreme Court decided Badgerow v. Walters. In an 8-1 decision, the Court reversed and remanded the judgment of the U.S. Court of the Appeals for the Fifth Circuit, holding that Vaden’s “look-through” approach to determining federal jurisdiction does not apply to requests to confirm or vacate arbitral awards under Sections 9 and 10 of the FAA. Justice Kagan delivered the opinion of the Court. Justice Breyer filed a dissenting opinion.Please join our legal experts to discuss the case, the legal issues involved, and the implications going forward.Featuring:--Bradley Hubbard, Senior Associate and Member, Appellate and Constitutional Law Practice -Group, Gibson, Dunn & Crutcher --Elizabeth Kiernan, Associate and Member, Appellate and Constitutional Law Practice Group, Gibson, Dunn & Crutcher

On September 16, 2011, President Obama signed the American Invents Act (AIA) into law. The first major overhaul of the U.S. patent system since the 1952 Patents Act, the AIA received overwhelming bipartisan support in both chambers when enacted. But, with the recent ten-year anniversary of the AIA, a new director poised to take the helm at the USPTO, and Congress ramping up debate on reforms to the AIA, is now the time for a reexamination? Our speakers will consider the role of the PTAB in resolving patent disputes and the legality of the exercise of significant discretionary authority by the USPTO Director to implement policy outside the authority granted the director under the AIA. Featuring: Joseph Matal, partner in the Intellectual Property Practice Group in the Washington, D.C. office of Haynes and Boone, LLP Paul Brian Taylor, who served over 20 years as Counsel and Chief Counsel for the House Judiciary Committee's Subcommittee on the Constitution and Civil Justice. He also served as Senior Counsel at the House Committee on Oversight. Moderator: Hon. Bob Goodlatte, Former Congressman, United States House of Representatives

On April 25, 2022, the U.S. Supreme Court will hear oral argument in Kennedy v. Bremerton School District.Bremerton School District in Washington state removed Coach Joe Kennedy from his job as a public high school football coach after kneeling in brief, quiet prayer on the field after football games. Coach Kennedy filed suit alleging that the school district’s ban on “demonstrative religious activity” violated his First Amendment rights under the Free Speech and Free Exercise Clauses.In 2019, on appeal of the denial of a preliminary injunction, the U.S. Supreme Court declined the petition for review, allowing further factual development. Justice Alito, joined by Justices Thomas, Gorsuch, and Kavanaugh, issued a statement respecting the denial of certiorari, writing that the “Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future.”This year, the Supreme Court granted cert on two questions concerning the interplay of the Free Speech, Free Exercise, and Establishment Clauses:Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection.Whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise Clauses, the Establishment Clause nevertheless compels public schools to prohibit it.We will break down the argument on the same day, April 25, 2022.Featuring:--Stephanie Taub, Senior Counsel, First LibertyNote: Coach Kennedy is represented by Kirkland & Ellis and First Liberty Institute.

On March 4, 2022, the U.S. Supreme Court decided United States v. Tsarnaev. In a 6-3 decision, the Court reversed the judgment of the U.S. Court of the Appeals for the First Circuit, holding that the court improperly vacated Dzhokhar Tsarnaev's capital sentences. The Court held that the judge's conduct of voir dire conformed to its precedents and reversed the First Circuit's holding that the judge had violated a rule established by that circuit under its supervisor power. The Court held that courts of appeals have no power to circumvent or supplement legal standards established in Supreme Court precedents.The Court also held that the judge was within his authority to exclude from the penalty trial hearsay evidence of Tsarnaev's brother's involvement in an unrelated murder. The Court rejected the argument that the Eighth Amendment requires admission of all mitigating evidence no matter how dubious or how weakly mitigating.Justice Thomas delivered the opinion of the court, in which Chief Justice Roberts and Justices Alito, Gorsuch, Kavanaugh, and Barrett joined. Barrett filed a concurring opinion, in which Gorsuch joined. Justice Breyer filed a dissenting opinion, in which Justices Sotomayor and Kagan joined.Please join our legal expert to discuss the case, the legal issues involved, and the implications going forward.Featuring:--Kent Scheidegger, Legal Director, Criminal Justice Legal Foundation

In the modern era, U.S. Supreme Court justices have been cited for what some critics characterize as “controversial” statements, sometimes relating to actual or potential matters before the Court. In some instances, these critiques have been accompanied by calls for recusal in specific cases. More recently, critics have turned to the statements not only of the justices themselves, but of the spouse of one particular justice. In light of these recent developments, what are the free speech considerations for justices and their family members? Although there is no formal code of judicial conduct applicable to spouses or even the justices of the Supreme Court, what are the ethical considerations of these actions? Does Congress have authority to impose an ethical code on this co-equal branch of government, particularly at the level of the Supreme Court?Featuring:--Prof. Rebecca Roiphe, Trustee Professor of Law and Co-Dean for Faculty Scholarship, New York Law School--Prof. Thomas D. Morgan, Oppenheim Professor Emeritus of Antitrust and Trade Regulation Law, George Washington University Law School--Prof. Michael I. Krauss, Professor Emeritus of Law, Antonin Scalia Law School, George Mason University--Moderator: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society

A war is raging in Europe. Russia invaded Ukraine on February 24, 2022. Arguing that Ukraine was controlled by nationalists and Nazis, Russia sought to seize major cities including the capitol, Kyiv, and trigger a regime change. After failures to achieve these objectives, Russia now appears to be regrouping its forces to target Ukraine’s eastern region. Russia’s aggression has resulted in significant civilian deaths, the alleged commission of war crimes, and the displacement of millions of Ukrainians. The invasion has also unified the West, with Germany pledging to increase military spending, broad sanctions against Russian leadership and industry, and discussions in Sweden and Finland about joining NATO. Our experts will review events to date, what we can expect from the Kremlin, the Biden administration’s policy, and what comes next. Please join us for this timely conversation.Featuring:--Michael Allen, Managing Director, Beacon Global Strategies; Former Special Assistant to the President and Senior Director for Counter-proliferation Strategy, National Security Council; Author, Blinking Red Light: Crisis and Compromise in American Intelligence after 9/11--Prof. Angela Stent, Director, Center for Eurasian, Russian and East European Studies; Professor of Government and Foreign Service, Georgetown University--Moderator: Matthew Heiman, General Counsel & Corporate Secretary, Waystar Health; Senior Fellow and Director of Planning, National Security Institute