Federalist Society Practice Groups Podcasts

Mr. Kirk will discuss the successful challenge brought by the leaders of the Virginia General Assembly to Governor Terry McAuliffe’s attempt to repeal Virginia’s constitutional prohibition against felon voting by Executive Order. The Executive Order purported to exercise the Governor's clemency power to restore political rights (including the rights to vote and to sit on juries) to over 200,000 convicted felons. Mr. Kirk will focus in particular on issues that could arise in connection with other states’ prohibitions against felon voting, including the argument that such provisions discriminate on the basis of race. -- Featuring: Michael Kirk, Partner, Cooper & Kirk PLLC.

On Tuesday, November 1, the Supreme Court heard oral argument on the case State Farm Fire and Casualty Co. v. U.S. ex rel. Rigsby. The defendant, Cori Rigsby, violated the seal requirement of the False Claims Act (FCA) by disclosing her complaint against State Farm before the defendant was served. Although Rigsby won her original case against State Farm under the FCA, the U.S. Court of Appeals immediately dismissed the case due to the procedural violation. The question the Supreme Court must answer is what standards should be used to determine whether a claim made under the False Claims Act should be dismissed because the complaining party violated the seal requirement? -- Featuring: Cory Andrews, Senior Litigation Counsel, Washington Legal Foundation.

In 2014, the Students for Fair Admissions ("SFFA"), a membership organization comprised of students, parents, and concerned citizens, sued both Harvard University and the University of North Carolina at Chapel Hill for racial discrimination in the admissions process. SFFA alleged that the universities were capping the number of Asian Americans they admit and using racial classifications to engage in discrimination. After a brief stay pending resolution of Fisher v. University of Texas, both cases are now moving forward. This call will provide a litigation update on these and other cases. -- Featuring: Mr. William Consovoy, the lead attorney for SFFA, Partner, Consovoy McCarthy PLLC.

Recent opinions from the Supreme Court and policy debates within the halls of Washington have placed a renewed focus on the amount of judicial deference administrative agencies receive when interpreting statues. Kent Barnett of the University of Georgia Law School and Christopher Walker of Ohio State’s Moritz College of Law have authored a law review article entitled Chevron in the Circuit Courts that empirically examines the effect of so-called Chevron, and its weaker cousin Skidmore, deference on cases heard by the federal intermediate appellate courts. Their article features circuit and agency-specific data on when and where Chevron really matters. Stephen Vaden will moderate a discussion with the papers' authors in a teleforum that should be of interest to both administrative law practitioners and those engaged in the debate over the size and role of the administrative state. -- Featuring: Prof. Kent Barnett, Associate Professor of Law, University of Georgia Law School and Prof. Christopher Walker, Associate Professor of Law, Ohio State University, Michael E. Moritz College of Law. Moderator: Stephen Vaden, Associate, Jones Day.

On September 30, the Office of Management and Budget (OMB) proposed a new rule on the nation’s racial categorizations, titled “Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity.” This rule would apply to federal programs throughout the federal government. -- Two proposed changes stand out: the first would create a new ethnic group by bringing together people who originated in the North Africa and the Middle East (MENA), and the second would eliminate a question on race for Hispanics, effectively making “Hispanics” their racial identifier. OMB calls this a “limited revision,” but the changes would impact many areas including congressional redistricting and affirmative action programs. Currently Hispanics mark two boxes, an ethnic one for Hispanic, a second one for race. Thus over 50 percent of Hispanics (29 million in the 2010 census) are categorized as white. Since Hispanics account for 75 percent of the growth of whites today, preventing them from being identified as white in government statistics would have real and important effects. -- Featuring: Mr. Roger Clegg, President & General Counsel, Center for Equal Opportunity and Mr. Mike Gonzalez, Senior Fellow, The Heritage Foundation.

After years of litigation, the bitterly fought and highly publicized smartphone patent war between two of the biggest players in the industry, Apple and Samsung, finally reached the U.S. Supreme Court. While Apple has already won the patent infringement case, the Supreme Court addressed the complicated question of how to determine damages based on a design patent in a product with thousands of other patents covering it as well. Is the statutory language clear and controlling? Are profits from the entire value of the phone the right measure? Or something less? Do design patents even have any economic value at all in a technically complex product? Is the design of a smartphone more like the design of an entire car, or just a cup holder? Our speakers will discuss the oral argument, their views on the merits of the case, as well as the important policy questions related to the economic value of design patents. -- Featuring: Ms. Rachel W. Apter, Senior Associate, Orrick and Prof. Mark D. Janis, Robert A Lucas Chair of Law; Director, Center for Intellectual Property Research, Maurer School of Law, Indiana University, Election Lawyer Center.

On October 6, 2016, the Federal Trade Commission released the long-awaited results of its 6(b) study on patent assertion entities (PAEs). The study provides detailed information about the litigation and licensing activities by the approximately twenty companies the FTC ordered to submit data. The study does more than just describe this data, though. Given that PAEs' function in the innovation industries, the FTC also proposed a number of legislative and judicial recommendations concerning how patents are asserted against alleged infringers. Thus, the FTC's PAE study is an important part of the policy debates about patents, patent licensing, patent litigation, and the impact these have on the innovation economy. In this Teleforum, the panelists discussed the study findings and their reactions to the study and its policy proposals. -- Featuring: Prof. Jorge L. Contreras, Associate Professor, S.J. Quinney College of Law, University of Utah; Prof. Kristen Osenga, Professor of Law, University of Richmond School of Law; and Ms. Laurie Self, Vice President and Counsel of Government Affairs, Qualcomm Incorporated. Moderator: Prof. Adam Mossoff, Professor of Law and Co-Director of Academic Programs and Senior Scholar of CPIP, Antonin Scalia Law School, George Mason University.

Recent legal developments ranging from Supreme Court decisions to administrative actions have raised significant issues about the balance between religious liberties and prohibitions against discrimination. To what extent must an individual’s right to religious freedom yield to the state’s interest in protecting individuals against discrimination? Does the Free Exercise Clause extend beyond one’s home or church? -- The U.S. Commission on Civil Rights recently issued a report that appears to tilt in favor of nondiscrimination over religious liberty. What does this portend for the future of religious liberty? -- Featuring: Hon. Peter N. Kirsanow, , Commissioner, U.S. Commission on Civil Rights.

The growing role of the administrative agencies in American government is mirrored by a growing role of administrative law in legal education. The trend is exemplified by many law schools' introduction of "Legislation and Regulation" (or "Leg-Reg") as a first-year course. -- But as the administrative stats and administrative law grow and change, how should the curriculum change? -- To discuss this, the Administrative Law Section is pleased to host a teleforum with three leading administrative law scholars: Prof. Dan Farber of the University of California-Berkeley Law, Prof. Kristin Hickman of the University of Minnesota Law School, and Jim Tozzi, former regulatory official of the United States Office of Management and Budget and Director of Multinational Business Services at the Center for Regulatory Effectiveness. -- The discussion will be moderated by Adam White, a Research Fellow at Stanford's Hoover Institution and an adjunct professor at George Mason University's Antonin Scalia Law School. -- Featuring: Prof. Dan Farber, Sho Sato Professor of Law, Co-Director and Center for Law, Energy & Environment, California-Berkeley Law; Prof. Kristin Hickman, Distinguished McKnight University Professor, Harlan Albert Rogers Professor in Law, University of Minnesota Law School and Associate Director, Corporate Institute; and Jim Tozzi, Former Regulatory Official of the United States Office of Management and Budget and Director of Multinational Business Services at the Center for Regulatory Effectiveness. Moderator: Adam White, Research Fellow, The Hoover Institution.

On Tuesday, October 11, the Supreme Court will hear oral arguments in Pena-Rodriguez v. Colorado. This case involves the constitutionality of a Colorado rule that bars a defendant from introducing evidence that a juror was racially biased. The justices will consider whether applying a no-impeachment rule to block evidence in this context violates the Sixth Amendment right to an impartial jury. -- Featuring: John C. Richter, Partner, King & Spalding.

On Wednesday, October 5, the Supreme Court heard argument in Salman v. U.S. on what constitutes a personal benefit in insider trading. The Court will consider the Ninth Circuit’s holding in this matter that a personal benefit can be established by the fact that a tippee shared a close family relationship. The Second Circuit previously held in United States v. Newman that a personal benefit to an insider necessary to establish insider trading under Dirks v. SEC requires proof of “an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature.” -- Featuring: Todd F. Braunstein, Global Head of Legal Investigations, Willis Towers Watson.

On Wednesday, September 28, the First Circuit Court of Appeals decided Rideout v. Gardner, the first federal appellate ruling regarding restrictions on "ballot selfies,” or photographs of one’s own ballot. The court ruled that New Hampshire's prohibition does not survive intermediate First Amendment scrutiny. Steve Klein of the Pillar of Law Institute, who is lead counsel in a similar case in Michigan, discussed the ruling’s implications for political speech relating to polling places and the status of ballot selfie challenges nationwide. -- Featuring: Mr. Stephen R. Klein, Attorney, Pillar of Law Institute.

On Tuesday, September 27, the D.C. Circuit Court of Appeals heard en banc West Virginia v. Environmental Protection Agency, the case that will determine the fate of President Obama’s Clean Power Plan. If enacted, the Clean Power Plan would set a national limit for carbon emissions, and require each state to reduce its own output and meet state-specific standards. In February, the Supreme Court voted 5-4 to stay the Clean Power regulations while the case was pending in the D.C. Court. Twenty-four states, and various energy producers, have joined the suit against the federal government. Does the EPA have the authority to regulate a state’s carbon emissions under the Clean Air Act? Elbert Lin, the Solicitor General of West Virginia, will once again join us to discuss the oral arguments in this very important case. -- Featuring: Mr. Elbert Lin, Solicitor General, State of West Virginia.

After one year of Joint Comprehensive Plan of Action assessments and critiques, have American security interests been damaged? Is Iranian gamesmanship ephemeral, or durably threatening? Critics point to evasions of the JCPOA like the easing of economic sanctions and the un-reviewed arms deals and contracts with Russia to say that the “deal” has only served as cover for Iranian nuclear infractions. Is the U.S. Congress empowered to demand a better deal, even after a year of performance and European reliance on a return to the status quo ante for financial re-engagement with Iran? Are there historic precedents for resetting the terms? In light of coming sunset clauses that may see Iran at near zero break-out time, what leverage potential does NATO possess, and do any “snap back” sanctions represent real restraining power? -- Featuring: Mark Dubowitz, Executive Director, Foundation for Defense of Democracies (FDD) and Peter Harrell, Adjunct Senior Fellow, Center for a New American Security.

Six years after its enactment, Obamacare remains one of the most controversial, divisive, and enduring political issues in America. In this much-anticipated follow-up to his critically acclaimed Unprecedented: The Constitutional Challenge to Obamacare (2013), Professor Blackman argues that, to implement the law, President Obama has broken promises about cancelled insurance policies, exceeded the traditional bounds of executive power, and infringed on religious liberty. At the same time, he writes that conservative opponents have stopped at nothing to unravel Obamacare, including a three-week government shutdown, four Supreme Court cases, and fifty repeal votes. Author Joshua Blackman and Michigan Law Professor Nicholas Bagley joined us to discuss the book and the saga of Obamacare. -- Featuring: Prof. Josh Blackman, Author, Unraveled: Obamacare, Religious Liberty, & Executive Power, Associate Professor of Law, Houston College of Law and Prof. Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School.