Federalist Society Practice Groups Podcasts

On June 13, 2016, the Supreme Court decided Halo Electronics v. Pulse Electronics and a consolidated case, Stryker Corp. v. Zimmer. In each of these patent infringement cases, a jury had found the accused infringer liable for infringing the patent, and having done so willfully. In the Halo case, the district court declined to award enhanced damages and the Federal Circuit affirmed. In the Stryker case, the district court awarded enhanced damages, but the Federal Circuit vacated that award. The Supreme Court took the cases to determine whether the Federal Circuit’s two-part test for enhanced damages was consistent with 35 U.S.C. § 284. -- Chief Justice Roberts delivered the opinion of the court, vacating the Federal Circuit’s judgments in both cases because the appellate court’s test for enhanced damages did not permit the district court to exercise the discretion afforded by § 284. The Federal Circuit’s test, adopted in In re Seagate Technology, required first that a patent owner must prove “that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent” and second, that the risk of infringement “was either known or so obvious that it should have been known to the accused infringer.” Both prongs of the test must be shown by clear and convincing evidence. In its opinion, the Supreme Court notes that the Seagate test properly reflects that enhanced damages are available only in egregious cases; however, the test is far too rigid to reflect the level of discretion afforded to the district courts. -- Featuring: Prof. Kristen Osenga, Professor of Law, University of Richmond School of Law.

On June 13 the United States Supreme Court issued its opinion in Puerto Rico v. Franklin California Tax-Free Trust, finding that Chapter 9 of the federal Bankruptcy code preempts Puerto Rico’s Recovery Act. The decision prevents Puerto Rico from adopting a settlement plan for its debt through its own legislation and requires it to depend on Congress for a solution. Our experts discussed the opinion and its implications. -- Featuring: Prof. G. Marcus Cole, William F. Baxter-Visa International Professor of Law, Stanford Law School and Prof. David Skeel, S. Samuel Arsht Professor of Corporate Law, University of Pennsylvania Law School.

On June 9, the Supreme Court issued its decision on Williams v. Pennsylvania, a case which confronted whether or not a state supreme court justice had violated the Due Process Clause when he refused to recuse himself from a capital punishment case. The justice made the initial decision to seek the death penalty and had also defended the decision on appeal while in his office as prosecutor before his appointment to the bench. The Court ruled in favor of the plaintiff, asserting that the refusal to recuse was a violation of the Due Process Clause of the 14th Amendment. -- Featuring: John J. Park, Jr., Of Counsel, Strickland Brockington Lewis LLP.

Are federal prosecutors abusing their enforcement powers in the civil and criminal context? The news is increasingly filled with examples of the government taking advantage of vague statutory language and applying powerful prosecutorial tools to questionable ends. On May 25, 2016, the House Subcommittee on Oversight of the Ways & Means Committee held a hearing criticizing the Department of Justice and the IRS practice of seizing the bank accounts of small businesses for allegedly “structuring” cash deposits in violation of the Bank Secrecy Act (originally passed to combat money laundering and terrorism finance) where there was no intent to violate the law and no underlying criminal activity. One witness included a Maryland farmer whose $60,000 bank account from farmers’ market proceeds was seized, and who was further punished for speaking to the press about his case. Pending before the Eleventh Circuit is United States v. Clay, a case in which some 200 FBI agents raided a Florida health care company over an accounting dispute stemming from the interpretation of an allegedly vague Florida Medicaid regulatory provision. That raid resulted in the prosecution, conviction, and sentencing of the company’s top executives. Our experts discussed these cases, as well as other recent controversies involving prosecutorial discretion, civil asset forfeiture, and the criminal law. -- Featuring: Robert Everett Johnson, Attorney, Institute for Justice and Paul D. Kamenar, Washington, D.C. Attorney and Senior Fellow, Administrative Conference of the United States.

On Monday, May 31 the United States Supreme Court issued an 8-0 opinion in U.S. Army Corps of Engineers v. Hawkes Company. The U.S. Army Corps of Engineers, and Pacific Legal Foundation, representing Hawkes Company, squared off regarding the Corps’ decision that Hawkes Company could not use its property for peat farming without first spending hundreds of thousands of dollars in pursuit of a federal wetlands permit under the Environmental Protection Agency’s “Waters of the United States” (WOTUS) rule. The Court agreed with Pacific Legal Foundation that that decision, called a Jurisdictional Determination, is judicially reviewable under the Administrative Procedure Act. -- Featuring: Mark Miller, Managing Attorney, Atlantic Center, Pacific Legal Foundation.

In the aftermath of the San Bernadino terrorist attack, the Federal Bureau of Investigations sought the assistance of Apple in its investigation. An Apple phone used by one of the terrorists included a function, which the FBI wanted Apple to defeat, that would automatically delete all stored information after ten failed hacking attempts. Defeating the function would have required Apple employees to write code, which Apple contended amounted to compelled speech. Privacy issues were also asserted, but countered, at least in part, by the fact that the user of the phone was deceased, and the phone was actually owned by a local government. After the FBI used other sources to get the information it sought, Apple moved against the FBI to disclose exactly whether and how it had bypassed the delete function. Our experts discussed this interesting matter and next steps. -- Featuring: Prof. Justin (Gus) Hurwitz, Assistant Professor of Law, Nebraska College of Law and Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland and National Security Law Program, George Mason University School of Law and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee.

Should the United States Cede Control of the Internet? On Tuesday, May 24, the United States Senate Committee on Commerce, Science, and Transportation, will hold a hearing titled “Examining the Multistakeholder Plan for Transitioning the Internet Assigned Number Authority.” The hearing will examine the proposed transition of oversight of the Internet Assigned Numbers Authority (IANA), a department of the Internet Corporation for Assigned Names and Numbers (ICANN) that allocates Internet IP addresses and domain names, to the global multistakeholder community. Our experts discussed the implications of the proposed transition. -- Featuring: John M.R. Kneuer, President and Founder, JKC Consulting LLC and Seinor Partner, Fairfax Media Partners and Shane Tews, Visiting Fellow, Center for Internet, Communications, and Technology Policy, American Enterprise Institute.

The Supreme Court issued its 7-1 ruling in Foster v. Chatman on May 23, reversing the Supreme Court of Georgia and remanding the case. Foster was convicted of murder and sentenced to death three decades ago by an all-white jury. The prosecutor struck all of the black jurors and had plans to do so before the voir dire began. The prosecution presented several race-neutral reasons for striking the jurors, and the Georgia courts ruled against the Batson claim. Foster later gained access to the prosecution's jury-selection notes that showed some racial pretext and used them for a renewed Batson claim. The Georgia courts rejected the claim as barred by state res judicata. Chief Justice Roberts wrote for the majority of the court finding that the court did still have jurisdiction and impermissible racial pretext was apparent for at least two of the state's peremptory strikes. Justice Thomas wrote a firm dissent where he doubted the court's jurisdiction. This Teleforum discussed the ramifications of this decision on the future of Batson deference, res judicata, and how this case might affect capital appeals pending throughout the nation. -- Featuring: Prof. Joseph L. Hoffmann, Harry Pratter Professor of Law and Director for Strategic Projects, Indiana University Maurer School of Law.

Unconventional oil and gas production (or "fracking") has generated new wealth, new jobs, and new sources of energy for many Americans. But fracking has also generated local congestion and pollution problems, and some believe that it creates significant risks for state fresh water supplies or global climate change. In many states, localities opposed to fracking are trying to ban the practice or impose long moratoriums on it within municipal limits, notwithstanding statewide political support for fracking. The tensions between state-level energy policies and local restrictions raise legal questions about when statewide energy regulations should preempt local efforts to restrict fracking using local powers over land use. Earlier this month, the Colorado Supreme Court handed down two new and important preemption decisions, City of Fort Collins v. Colorado Oil & Gas Association, and Longmont v. Colorado Oil & Gas Association. Our experts discussed both cases, their significance in Colorado, and their implications for fracking and preemption law elsewhere in the United States. -- Featuring: Prof. Eric R. Claeys, Professor of Law, George Mason University School of Law and Prof. Hannah Wiseman, Attorneys' Title Professor, Florida State University College of Law.

On Thursday, May 12, a United States District Court Judge upheld a constitutional challenge to the Affordable Care Act by finding that the monies for two programs that reimburse insurance companies for providing health coverage at lower costs to low-income consumers and provide tax credits to help these consumers afford their premiums were never appropriated by Congress, and that the programs were thus unconstitutional. Judge Rosemary M. Collyer stayed her decision pending appeal. Our expert discussed the opinion as well as its outlook on appeal. -- Featuring: Prof. Josh Blackman, Assistant Professor of Law, South Texas College of Law.

On Friday, May 13, the Department of Education and the Department of Justice jointly released new guidance outlining how educators are to interpret Title IX of the Education Amendments of 1972; specifically in the context of transgender students. Under Title IX, schools that receive federal money must not discriminate on the basis of a student’s sex. Friday’s new guidance directs that educators are to consider a student’s sex to mean the gender with which that student self-identifies, not the gender on their birth certificate. Key implications of the guidance are that students will participate in sex-segregated activities and use bathroom facilities according to self-identification, regardless of what school records or identification documents indicate. Our expert discussed the implications of the new guidance. -- Featuring: M. Edward Whelan, President, Ethics and Public Policy Center.

In a 6-2 decision issued on Monday, May 16, the United States Supreme Court vacated and remanded Spokeo, Inc. v. Robins for re-argument in the Ninth Circuit Court of Appeals. Thomas Robins filed a suit under the Fair Credit Reporting Act against Spokeo, a company that operates a “people search engine,” for publishing incorrect information about him, information that he claimed harmed his employment prospects by falsely making him appear overqualified for the types of employment he was seeking at the time. The Supreme Court rejected the Ninth Circuit’s analysis finding that Mr. Robins had standing to sue, and instructed the Ninth Circuit to consider the question again. Spokeo raises big questions about big data, class action litigation, and the legitimacy of certain statutorily authorized private rights of action. Our expert offered his analysis of the opinion, the case’s prospects going forward, and its potential broader impact on the law. -- Featuring: Hon. Alan C. Raul, Partner, Sidley Austin LLP.

On Monday, May 16, the United States Supreme Court issued a per curium opinion resolving, for the time being, Zubik v. Burwell, the contraceptive mandate case. The decision is causing no small amount of confusion. Who won, and who lost? What is required of the plaintiffs in the case? What are the next steps in the litigation? Our expert answered these and other questions. -- Featuring: Roger Severino, Director, DeVos Center for Religion and Civil Society, The Heritage Foundation.

On his second day in office, President Obama declared that closing the Guantanamo Bay detention facility would be among the top priorities of his Administration. Over seven years later, as we near the end of the President's second term, both that goal and the prison remain. The panelists analyzed the chances that President Obama will close Guantanamo Bay and the issues with which a future administration must wrestle, if he does not. -- Featuring: Steven A. Engel, Partner, Dechert LLP and Karen Greenberg, Director of the Center on National Security, Fordham Law School.

Several state attorneys general have banded together to investigate what ExxonMobil did and did not know about global warming over the past decades. A subpoena issued by the attorney general of the U.S. Virgin Islands seeks Exxon records dating back to 1977, including communications with some 90 private organizations and dozens of private individuals. Other subpoenas have been issued to private organizations. Our panel of experts discussed the merits of the investigation, how widely it might range, and its implications. -- Featuring: Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center; Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates; and Hon. Scott Pruitt, Attorney General, State of Oklahoma.