FedSoc Forums

On January 19, 2022, the United States Supreme Court will hear an appeal by the Federal Elections Commission (FEC) from a successful challenge to campaign finance restrictions brought by Sen. Ted Cruz. The action centers on a provision of the Bipartisan Campaign Reform Act (BCRA) of 2002, otherwise known as McCain-Feingold, that restricts candidates’ ability to use campaign donations received after the election to pay back personal loans made to their campaign. Pursuant to BCRA, the case was heard by a 3-judge district court panel in Washington, D.C. and, after the court struck down the limitation, the FEC appealed directly to the Supreme Court, which set it for oral argument. The case offers an opportunity for the Court to clarify and/or refine its campaign finance jurisprudence, including reviewing the real-world effect of such restrictions on political speech, the distinction devised in Buckley v. Valeo between expenditures and contributions, and the various levels of scrutiny for each.The webinar will review the traditional free speech issues in the case (including the extent of any risk of corruption or its appearance presented by a candidate's loan to his or her own campaign), as well as practical concerns about the effect these limitations might have on campaigns -- including on the kinds of candidates who will be able to run for office.Featuring:Donald A. Daugherty, Jr., Senior Litigator, Institute for Free SpeechHarmeet Dhillon, Founding Partner, Dhillon Law Group Inc.---To register, click the link above.

In recent years, many companies have required consumers and employees to agree to individually arbitrate any disputes that might arise, eliminating aggregate dispute resolution devices like class actions. In response, plaintiffs’ lawyers have begun filing masses of individual arbitration demands on behalf of employees and consumers against companies like Intuit, Uber, and American Express. The demands place companies on the hook for millions of dollars in arbitration fees, and companies have begun resisting payment and asking to return to court for aggregate dispute resolution, or to create aggregate arbitration procedures. Is this just deserts for corporations or an abuse of the system by plaintiffs’ lawyers? What about the claimants: does mass arbitration deliver for them? Our speakers will explore these and other questions in this lively and timely event.Featuring:Daniel Fisher, Chartered Financial Analyst, Walden Consultants, LLCMaria Glover, Professor of Law, Georgetown University Law CenterModerator: Brian Fitzpatrick, Milton R. Underwood Chair in Free Enterprise, Vanderbilt University Law School

Title IX of the Education Amendments of 1972 supplemented Title VI of the Civil Rights Act of 1964 to include, in addition to barring discrimination on the ground of race, color, or national origin, sex as a protected class in federally funded education programs or activities. The purpose of enacting Title IX was to ensure that everyone, regardless of sex, would enjoy a discrimination-free educational experience.In the years since their enactment, observers have accused colleges and universities of violating Titles VI and IX in various ways. Many Title IX concerns have involved single-sex, female-only programs, scholarships, awards, fellowships, camps, clubs, etc. Others have involved single-sex, male-only programs. And recently, programs or scholarships for BIPOC-only or people of color have invoked Title VI concerns. One such observer of these potential civil rights violations is professor emeritus of economics at the University of Michigan, Mark Perry. Over the last three years, Professor Perry has identified more than 1,200 Title IX and Title VI alleged violations and has filed complaints with the Department of Education’s Office for Civil Rights (OCR) against nearly 400 colleges and universities which have resulted in nearly 200 federal investigations and more than 100 resolutions, mostly in his favor.However, after years of this work, Professor Perry announced recently that he has noticed what he describes as a “significant departure from past practices” in what OCR now requires of Title VI and Title IX complaints. Please join us for an update from Professor Perry on his civil rights advocacy and what he views as “troubling signs” at the Biden-Cardona-Lhamon OCR for a discrimination-free educational experience for all.Featuring: -- Mark Perry, Senior Fellow, American Enterprise Institute-- Moderator: Devon Westhill, President and General Counsel, Center for Equal Opportunity

The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero is a new book exploring the life and legacy of a towering but sometimes forgotten jurist. Harlan, who served over 30 years on America's highest court, earned a reputation for being a champion of civil liberties -- notably, he was the lone dissenter in the Civil Rights Cases and Plessy v. Ferguson. Author Peter Canellos joins us to discuss his new book and Justice Harlan's legacy. Featuring: Prof. Josh Blackman, Professor of Law, South Texas College of Law HoustonPeter S. Canellos, Managing Editor, PoliticoModerator: Hon. Victor Wolski, Senior Judge, U.S. Court of Federal Claims---This Zoom event is open to public registration at the link above.

The Federalist Society's Criminal Law and Procedure and Environmental Law and Property Rights Practice Groups bring you a roundtable discussion with leading Fourth Amendment scholars and litigators reviewing the major Fourth Amendment decisions from the 2020-2021 term and previewing the future of the Fourth Amendment at the High Court. What is the fate of Katz, the third-party doctrine, and the exigent-circumstances exception to the warrant requirement? What is the best method of interpreting the Amendment and will we see a revival of its original meaning? Four Fourth Amendment experts review:Caniglia v. Strom, a unanimous opinion written by Justice Thomas rejecting the warrantless search of a home under the “community caretaking exception.”Lange v. Caniglia, an opinion written by Justice Kagan rejecting a categorical exception to the warrant requirement for a fleeing misdemeanant.Torres v. Madrid, a 5-3 decision by Chief Justice Roberts with a resounding dissent by Justice Gorsuch, debating what constitutes a "seizure"--is mere touch sufficient or must an officer take actual possession?Bovat v. Vermont, Justice Gorsuch, joined by Justices Kagan and Sotomayor, dissenting from the denial of certiorari in a case involving the “knock and talk” exception to the warrant requirement.The last term was a busy one for the Fourth Amendment and no doubt many questions remain in this important area of constitutional law. Join the nation's leading scholars and litigators as they discuss the most recent developments in Fourth Amendment law and preview the Amendment's future at the High Court. Featuring: Professor Jeffrey Bellin, Mills E. Godwin, Jr., Professor of Law and Robert E. and Elizabeth S. Scott Research Professor at William & Mary Law School. Professor Laura Donohue, Anne Fleming Research Professor; Professor of Law at Georgetown Law. Robert Frommer, Senior Attorney, Institute for Justice. James K. Vines, Partner, King & Spalding LLP Moderator: Adam Griffin, Law Clerk, U.S. District Courts; former Constitutional Law Fellow, Institute for Justice

The Supreme Court recently issued its decisions in two federal vaccine mandate cases. Several states and interest groups sought emergency relief on regulations issued by the Occupational Safety and Health Administration as well as the Centers for Medicare and Medicaid Services. The OSHA rule required large employers to require vaccination or regular testing of their employees. CMS required vaccination of staff at health care facilities participating in Medicare or Medicaid programs. The Court granted a stay of the OSHA rule pending merits review in the Sixth Circuit, but stayed an injunction of the CMS rule allowing it to go into effect. But federal agencies are not the only actors setting vaccine policy. Effective January 15th, the D.C. government will require restaurants and other businesses to check customer vaccine status. Meanwhile Florida has taken a different approach, and has barred businesses from checking employee or customer vaccine status. This panel will review the decisions and also consider the appropriate role for the various levels of government authority in setting vaccine policy, as well as competing interests of private businesses, employees, and consumers. Featuring:Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason UniversityDorit Reiss, Professor of Law and the James Edgar Hervey '50 Chair of Litigation, UC Hastings Law Ryan Dean Newman, General Counsel, Governor Ron DeSantis David Dewhirst, Solicitor General, MontanaModerator: Kate Todd, Managing Partner, Ellis George Cipollone ---To register, click the link above.

Join us for the fourth episode of the Federalist Society's Supreme Court Show: A Seat at the Sitting. Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. During the first two weeks of January, the Justices will hear eight oral arguments on cases including the First Amendment – both the speech and religion clauses, immigration, tax law, and Medicaid, and more.This episode will also feature discussion of the OSHA vaccine mandate oral argument scheduled for January 7.Gallardo v. Marstiller – reimbursement under the Federal Medicaid Act for tort recovery (Jan. 10)Johnson v. Arteaga-Martinez – immigration (Jan. 11)Garland v. Gonzalez – immigration (Jan. 11)Boechler, P.C. v. Commissioner of Internal Revenue – tax law (Jan. 12)Shurtleff v. Boston – First Amendment – speech and religion (Jan. 18)Cassirer v. Thyssen-Bornemisza Collection Foundation – Foreign Sovereign Immunities Act and choice of law (Jan. 18)Federal Election Commission v. Ted Cruz for Senate – federal campaign contribution limits and the Free Speech Clause (Jan. 19)Concepcion v. United States – First Step Act (Jan. 19)Featuring:-- Prof. Suzanna Sherry, Herman O. Loewenstein Chair in Law Emerita, Vanderbilt Law School -- Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason Univeristy-- Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law-- Sarah M. Harris, Partner, Williams & Connelly-- Moderator: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society

The Clean Water Act authorizes the Environmental Protection Agency and U.S. Army to regulate discharges to “navigable waters,” defined in the statute as “waters of the United States, including the territorial seas.” The agency regulations further defining these terms have engendered controversy and litigation for decades. Since 2015, the agencies have modified their Navigable Waters regulations three times, and dozens of federal lawsuits have challenged the various versions. Meanwhile, the validity of these regulations have been the key issue in several enforcement cases. On December 7, 2021, the agencies proposed yet a fourth revision in six years to the regulatory definition of Navigable Waters. This teleforum will update listeners on the key pending cases that may have an ultimate effect on the agency regulations, and provide an overview of the proposed new regulation. Featuring: Charles Yates, attorney in Pacific Legal Foundation’s environmental practice group, where he litigates to defend private property rights and uphold the structural protections guaranteed by the Constitution’s separation of powers. Tony Francois, who is experienced in Water and Real Property Law, Land Use and Zoning, Environmental Regulation, Natural Resources Development, Agricultural Law, and Constitutional Law. He has represented homeowners, builders, farmers and ranchers, trade associations, and water districts in administrative, civil, and criminal proceedings before state and federal administrative agencies and state and federal trial and appellate courts.

This webinar will host a debate over the pending amendments to Federal Rule of Evidence 702, which governs the admissibility of expert testimony. In August 2021, the federal judiciary’s Advisory Committee on Evidence Rules published proposed amendments to Rule 702 to include within the text of the rule language directly stating that the proponent of expert testimony must establish each of Rule 702’s elements by a preponderance of the evidence. Currently, Rule 702 does not explicitly include a preponderance standard, but merely cross-references the preponderance standard included under another evidentiary rule. A year’s worth of research into federal cases analyzing the current Rule 702 reveals that some courts apply a preponderance standard while others apply a more relaxed policy favoring admissibility.The Advisory Committee will host a public hearing on January 21, 2022, and those wishing to testify are asked to reserve a spot 30 days in advance. The Committee is also accepting public comments on the proposed amendment until February 16, 2022.The webinar discussion will be moderated by Leah Lorber, Assistant General Counsel of Dispute Resolution and Prevention at GSK. Participants will include Lee Mickus, a Partner at Evans, Fears & Schuttert, who has written and spoken extensively in support of Rule 702 reforms; David Wool, a Partner at the Wagstaff Law Firm who has litigated Rule 702 and Daubert issues extensively and questioned the need for the proposed amendment; and Katie Jackson, an Associate at Shook, Hardy & Bacon and Fellow with Lawyers for Civil Justice who has conducted research regarding the courts’ application of Rule 702.Here is a link to a webpage with several Rule 702 resources for those wishing to file a comment, testify at the hearing, or simply learn more about the proposed amendments. Featuring: Kateland Jackson, Associate at Shook, Hardy & Bacon LLP in Washington, D.C.Leah Lorber, Assistant General Counsel of Dispute Resolution and Prevention at GSK.Lee S. Mickus, Partner, Evans Fears & Shuttert LLPDavid Wool, Partner, Wagstaff Law Firm

Late in 2020, several pharmaceutical companies developed vaccines for Covid-19 that received FDA approval, first for emergency use and then for general use. Next came the question of whether the federal or state governments should mandate vaccination or leave that decision to individuals. The states have generally deferred to the federal government, and Congress punted punted the question to President Joe Biden. At first, he tried to persuade the public, and numerous people were vaccinated. In September 2021, however, the President changed course, expressing dissatisfaction with the rate of vaccination. Among other things, he ordered the Occupational Safety and Health Administration (OSHA) to promulgate an Emergency Temporary Standard (ETS) requiring all employees at companies with 100 or more employees to be vaccinated or receive weekly negative test results to remain at the workplace. Numerous parties challenged the OSHA Vaccination Mandate. The U.S. Court of Appeals for the Fifth Circuit stayed the effect of the ETS, and OSHA agreed not to enforce it for the time being. All related cases have now been transferred to the Sixth Circuit, and the federal government has asked that court to dissolve the stay. Featuring: -- Paul Larkin, who is the John, Barbara, and Victoria Rumpel Senior Legal Research Fellow in the Meese Center for Legal and Judicial Studies. Larkin works on criminal justice policy, drug policy, and regulatory policy. -- Larry Stine, a Senior Principal in the firm of Wimberly, Lawson, Steckel, Schneider & Stine P.C., and an AV rated attorney, who enjoys a diverse practice in which he covers a broad range of labor and employment matters. Larry is the former Region IV Counsel for OSHA in the Office of the Solicitor for the U.S. Department of Labor. He is nationally known for his expertise in Occupational Safety and Health -- Moderator: R. Pepper Crutcher, General Counsel to the Mississippi Manufacturers Association. Pepper Crutcher advises and advocates for a wide range of Southeast U.S., private sector employers. As the leader of the firm's Affordable Care Act practice, Pepper also helps employers, insurers, brokers, administrators and providers achieve ACA compliance and appeal ACA assessments. Labor negotiation and arbitration, OSHA, work site immigration enforcement, and intellectual property protection also are in Pepper's portfolio.