Federalist Society Practice Groups Podcasts

On June 27, the European Commission issued the long awaited opinion in its competition case against Google. The Commission held that Google had abused its dominant position as an Internet search engine by promoting its own comparison shopping service in search results and demoting those of competitors. In addition to imposing a fine of €2.42 billion ($2.7 billion) – the largest fine the E.U. has ever levied in an abuse of dominance case – the Commission ordered Google to correct the unlawful conduct within 90 days or face penalty payments up to 5% of the company’s average daily worldwide turnover. This conduct component of the remedy potentially places the company under Commission oversight for years to come. In addition, Google is likely to face related civil actions in individual Member States brought by competitors – aided by the new E.U. Directive on Antitrust Damages Actions – alleging that their business has been hurt by Google’s search practices. -- The Commission’s view of the case is in stark contrast to that of U.S. antitrust enforcers who, after thoroughly investigating much the same conduct, elected to take no action. What does the decision mean for the future of antitrust enforcement on both sides of the Atlantic? Does it suggest a move toward more aggressive enforcement in area of single firm conduct, particular in the tech sector? Is the Commission’s approach a new one or does it reflect the re-emergence of “essential facilities” theories? Are U.S. and European antitrust enforcers now headed in different directions generally or is this case an outlier? Will the E.U.'s actions embolden other countries around the world? -- Featuring: James C. Cooper, Associate Professor of Law and Director, Program on Economics & Privacy, Antonin Scalia Law School, George Mason University; Jürgen Schindler, Partner, Allen & Overy (Belgium) LLP; and Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal and Economic Public Policy Studies. Moderator: John Delacourt, Vice President, Legal Affairs and Global Operations, Plasma Protein Therapeutics Association.

Threats to international peace and security include the proliferation of weapons of mass destruction, rogue nations, and international terrorism. In Striking Power, Professor Jeremy Rabkin and Professor John Yoo argue that the United States must respond to these challenges to its national security and to world stability by embracing new military technologies such as drones, autonomous robots, and cyber weapons. These weapons can provide more precise, less destructive means to coerce opponents to stop WMD proliferation, clamp down on terrorism, or end humanitarian disasters. Efforts to constrain new military technologies are not only doomed, Rabkin and Yoo argue, but dangerous. Most weapons in themselves are not good or evil; their morality turns on the motives and purposes for the war itself. These new weapons can send a strong message without death or severe personal injury, and as a result can make war less, rather than more, destructive. -- Vince Vitkowsky moderated a discussion with the authors of Striking Power about these issues and others. -- Featuring: Prof. Jeremy Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University and Prof. John Yoo, Emanuel S. Heller Professor of Law, Co-Faculty Director, Korea Law Center. Moderator: Vincent J. Vitkowsky, Partner, Seiger Gfeller Laurie LLP.

On Friday, September 15 Judge Harry Leinenweber of the Northern District of Illinois granted a preliminary injunction against the federal government’s enforcement of a new Justice Department requirement tied to federal funding. The new Byrne Justice Assistant Grants require sanctuary cities that want federal funding to cooperate with federal immigration officials and notify them before illegal immigrants are going to be released from jail. Dr. John Eastman of Chapman University will join us to discuss the significance of the ruling and the future of the litigation. -- Featuring: Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law

In 1977 in Abood v. Detroit Board of Education, the Supreme Court ruled that public employees, including school teachers, could legally be required to pay a fee if they refuse to join a public-sector union. According to the Detroit Board of Education, the fee was necessary to off-set the costs the union incurred while bargaining on behalf of union and non-union members alike. -- A similar case came to the Supreme Court in 2014, but the Supreme Court did not answer the primary question of Abood, instead ruling that the public employees in question were not actually public employees. Last year, the Supreme Court was left in deadlock in a similar case on the same issue after Justice Scalia’s passing. -- Janus v. AFSCME, brought by an employee of the Illinois Department of Healthcare and Family Services who does not believe he should be legally obliged to join a union, is pending cert in the Supreme Court. William Messenger, Staff Attorney at the National Right to Work Foundation, joined us to discuss the probability of Janus being heard at the Court and what that could mean for the future of public-sector employees and unions. -- Featuring: William L. Messenger, Staff Attorney, National Right to Work Legal Defense and Education Foundation, Inc.

Some antitrust lawyers often say the federal government’s decisions about which mergers to challenge, which monopolists to rein in, and which price-fixers to send to jail are relatively consistent regardless of who occupies the White House. But has federal antitrust enforcement really been entirely apolitical, based on economics, and divorced from other issues such as trade, job creation, and national security? Should it be? A panel of distinguished practitioners and former top government officials from both parties discussed these issues in our Teleforum, which was especially timely given calls by Senate Democrats for increased antitrust enforcement as part of “A Better Deal” and the increasing use of competition law by foreign governments against U.S. companies. -- Featuring: Jon Leibowitz, Partner, Davis Polk & Wardwell LLP, and Former Chair, Federal Trade Commission; William E. Kovacic, Global Competition Professor of Law and Policy & Director, Competition Law Center, The George Washington University Law School, and Former Chair, Federal Trade Commission; Seth Bloom, President & Founder, Bloom Strategic Counsel PLLC, and Former General Counsel, U.S. Senate Judiciary Committee Antitrust Subcommittee; and Tad Lipsky, Former Senior Federal Trade Commission, U.S. Justice Department Antitrust Division Official, and Retired Partner, Latham & Watkins. Moderator: Richard M. Steuer, Senior Counsel, Mayer Brown LLP, and Former Chair, American Bar Association Antitrust Section.

Major American corporations are pressuring their outside law firms to meet diversity goals both firm-wide and in the legal teams assigned to the company’s work. For example, Facebook announced this year that the law firm teams working on its matters must consist of at least 33 percent women and minorities. This pressure has resulted in the widespread use of race and gender preferences in hiring, promotion, and work assignment decisions by America’s premier law firms. Are these preferences legal under Title VII of the 1964 Civil Rights Act and 42 U.S.C. § 1981? Are they good policy? Curt Levey, a constitutional law attorney who has worked on several affirmative action cases – including the University of Michigan cases (Grutter and Gratz) – joined us to analyze the arguments on both sides of these questions. -- Featuring: Curt Levey, President, The Committee for Justice and Legal Affairs Fellow, FreedomWorks

From Martin Shkreli to the Epipen, decisions about pharmaceutical pricing and distribution have been very much in the news of late. Much of the discussion centers on whether or not it is immoral to charge high prices. The question remains, however, about whether those business practices raise antitrust concerns. Can a high price in and of itself violate antitrust laws? What about policies that limit the channels through which a particular product is distributed? Professor Michael Carrier of Rutgers Law School analyzed these questions, noting the arguments both for and against a finding of antitrust liability, as well as discussing the particular circumstances that have raised a red flag from an antitrust perspective in some of these recent cases. -- Featuring: Prof. Michael A. Carrier, Distinguished Professor of Law, Rutgers Law School

Recent developments in US patent law, particularly the Americans Invents Act (AIA) and the Supreme Court’s jurisprudence on patent-eligible subject matter, have raised questions of whether, and to what extent, the Constitutional directive to promote technological innovation has been undermined or frustrated. The panel discussed whether the U.S. is shifting from a view of patents as private property, to one of public rights, and, if so, whether concepts from antitrust law will begin to color, if not dominate, patent enforcement jurisprudence. The practical implications of a public rights view of patents and the imposition of antitrust issues on the enforcement of patent rights were discussed as well. -- Featuring: Mr. Philip Johnson, Senior Vice President, Intellectual Property Strategy & Policy, Johnson & Johnson (ret).; Prof. Kristen Osenga, Professor of Law, University of Richmond School of Law; and Mr. Robert G. Sterne, Director, Sterne Kessler Goldstein Fox. Moderator: Mr. Howard J. Klein, Attorney, Klein O'Neill & Singh LLP.

On Thursday, August 31, Judge Mazzant of the Eastern District of Texas invalidated the Department of Labor’s Overtime Rule, which would have increased the minimum salary level for overtime-exempt employees from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). Maury Baskin and Tammy McCutchen of Littler Mendelson joined us to discuss the decision and its significance. -- Featuring: Maury Baskin, Shareholder, Littler Mendelson, PC and Tammy D. McCutchen, Shareholder, Littler Mendelson, PC.

Nation-states have long fought wars for control of oil. In a novel development, American states are now fighting a war over control of oil—not with one state attempting to take oil from another, but with some states attempting to deny its use to other states. In 2015, New York’s Attorney General, Eric Schneiderman, began an investigation of ExxonMobil. Then, at a news conference held in New York City on March 29, 2016, Schneiderman said that he and a group of other attorneys general were looking at “creative legal theories” to bring about “the beginning of the end of our addiction to fossil fuel.” The group is comprised of seventeen attorneys general, representing fifteen states, the District of Columbia, and one territory. Opposing these attorneys general from mostly “blue states” are attorneys general from twenty-seven mostly “red states.” Professor Baker joined us to discuss his article: "Warning to Corporate Counsel: If State AGs Can Do This to ExxonMobil, How Safe Is Your Company?" -- Featuring: Prof. John S. Baker, Jr., Ph.D., Visiting Professor, Georgetown University Law Center & Professor Emeritus, Louisiana State University Law Center.

Since the summer of 2014, ISIS has been waging a blitz through Iraq's Nineveh province, murdering and displacing Iraqi Christians and others. The European Union, Britain, and the U.S. have labeled the campaign to eradicate Christianity from Iraq as genocide. However many in the West, even Christians, remain unaware of the scale of this persecution, and even fewer know what can be done about it. The Persecution and Genocide of Christians in the Middle East focuses on persecuted Christians, but its analysis applies equally to the other victims. In the United States, military and diplomatic responses are contemplated and sometimes undertaken. But what about the legal system? Are there things we can or should be trying? That question animates this book as it explores various facets of religious persecution. -- Featuring: Prof. Ronald J. Rychlak, Co-Editor & Contributor, The Persecution and Genocide of Christians in the Middle East: Prevention, Prohibition, & Prosecution, Professor of Law, Jamie L. Whitten Chair of Law and Government, and Faculty Athletics Representative, University of Mississippi School of Law and Nina Shea, Director, Center for Religious Freedom, Hudson Institute, Former Commissioner on the U.S. Commission on International Religious Freedom.

According to the Fourth Amendment, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” But how does that provision apply to the vast troves of information that Americans and businesses increasingly collect, send, receive, and store? -- On June 5, 2017, the Supreme Court granted certiorari in Carpenter v. United States to resolve the question of whether the Fourth Amendment prohibits warrantless gathering of historical cellular phone records that include location information, also known as historical cell-site location information (CSLI). Judge Raymond M. Kethledge wrote for a panel of the Sixth Circuit that “although the content of personal communications is private, the information necessary to get those communications from point A to point B is not.” Historical CSLI, Judge Kethledge wrote, “fall[s] on the unprotected side of [the] line” because it is routing information used to “facilitate personal communications, rather than part of the content of those communications themselves.” Thus, the government does not need a warrant to obtain the information. -- The doctrine applied by the Sixth Circuit is called the third-party doctrine. Although an older form of the third-party doctrine was articulated in Ex Parte Jackson (1878), which distinguished between the addressing information for postal mail and its contents, the contemporary third-party doctrine traces its roots to the “reasonable expectation of privacy” test articulated in Katz v. United States(1967). Its modern form is most closely associated with two of Katz’s progeny, United States v. Miller (1976) and Smith v. Maryland (1979). In those cases, the Supreme Court applied Katz and concluded that the information at issue (bank records and information collected by a pen register device) was not entitled to Fourth Amendment protection. -- Featuring: Jim Harper, Vice President, Competitive Enterprise Institute and Orin S. Kerr, Fred C. Stevenson Research Professor of Law, The George Washington University Law School.

The smartphone patent wars have caused a great deal of litigation and consternation. As global patent litigation has accelerated, an international arms race characterized by competing alliances and massive portfolio acquisitions ensued. One recurring claim was "hold-up": certain patent owners, having given assurances that they would license their essential technologies on reasonable and nondiscriminatory (RAND) terms, sought to enjoin smartphone makers from practicing industry standards. Charged with protecting consumers, antitrust enforcers experienced pressure to do something. -- The FTC and other competition agencies responded aggressively, clamping down on perceived efforts by owners of RAND-encumbered SEPs to hold-up standard implementers. They happened upon the rule that such patentees violate antitrust law if they try to enjoin a “willing licensee”—essentially a “no-injunction rule.” While that approach has intuitive appeal, is it consistent with core antitrust principles? Does the no-injunction properly consider whether the relevant conduct harms competition? Have the U.S. Federal Trade Commission's actions emboldened foreign competition agencies to act aggressively? These and other questions were addressed. -- Featuring: Hon. Maureen K. Ohlhausen, Acting Chairman, Federal Trade Commission and Mr. Alex Okuliar, Partner, Orrick, Herrington & Sutcliffe LLP.

This call highlighted recent trends in how the courts have considered benefit-cost analysis when reviewing regulations under various statutes. Our experts examined the pros and cons of greater judicial review of regulatory analysis and the effect of judicial review on agency behavior. Professor Emily Hammond, Professor of Law at The George Washington University Law School, and Eugene Scalia, Partner at Gibson, Dunn & Crutcher LLP, joined us to discuss these important topics. -- Featuring: Emily Hammond, Professor of Law, The George Washington University Law School and Eugene Scalia, Partner, Gibson, Dunn & Crutcher LLP.

Since 1923, the American Law Institute has exercised more influence on judge-made common law than any other private institution. The ALI’s most influential work has come in the form of periodic publications known as Restatements of the Law. These descriptions of existing law are relied on and trusted by judges, lawyers, legal scholars, and law students for thoughtfully objective analysis. In 2009, ALI published the first volume of “Restatement of the Law Third, Torts: Liability for Physical and Emotional Harm.” For the first time in the institute’s history, its restatement went beyond reviewing existing law and recommended fundamental change: an unprecedented expansion of landowners’ duty of care to all visitors, including unwanted trespassers. This restatement was lauded by the trial bar and sent shockwaves through corporate legal circles. Although ALI has as much right as other interest groups to advocate for changes in the law, is it still entitled to special deference from judges? Justice Antonin Scalia raised concerns in a 2015 opinion. The authors of ALI restatements, he observed, have “over time . . . abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be.” Victor Schwartz, Partner at Shook Hardy & Bacon, joined us for a discussion on the American Law Institute's evolving position on civil liability reform. -- Featuring: Victor E. Schwartz, Partner, Shook, Hardy & Bacon LLP.