Federalist Society Practice Groups Podcasts

In July 2017, Students for Fair Admissions, a non-profit membership organization comprised of over 21,000 students, parents, and others, filed a lawsuit in Texas state court against the University of Texas at Austin. The organization alleges that UT’s racial preferences in admissions violate the Texas Constitution and a Texas statute. In particular, the Texas Constitution provides that: “Equality under the law shall not be denied or abridged because of sex, race, color, creed, or national origin.” This Equal Rights Amendment was purportedly enacted by the people of Texas to provide more expansive protection against discrimination than the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. -- Edward Blum, the president of Students for Fair Admissions, joined us to discuss the use of race-based preferences in the admissions process and the organization’s new lawsuit against the University of Texas at Austin. -- Featuring: Edward Blum, Visiting Fellow, American Enterprise Institute, President, Students for Fair Admissions, President, Project on Fair Representation. -- Please visit the Students for Fair Admissions website for more information on this subject.

Recent headlines make clear the threat posed by cyber criminals, especially those that deploy so-called ransomware. Although federal law enforcement has urged victims to report cyber incidents and generally recommends that victims not give in to a ransom demand unless all other options are exhausted, a recent report by IBM Security found that 70 percent of businesses infected have paid ransom. -- The ransomware epidemic highlights a potential asymmetry of interests between cybercrime victims and law enforcement. The chief concern of a victim of a ransomware attack may be to regain access to business data and systems, even if paying the ransom funds the perpetrator and potentially leads to further attacks. Meanwhile, law enforcement has only a limited ability to assist a victim in incident response. How can cybercrime victims and law enforcement better work together to better protect victim interests and better advance law enforcement's work? -- Featuring: Prof. Howard W. Cox, Adjunct Professor, George Washington University and Steven Chabinsky, Global Data, Privacy, and Cybersecurity Practice Chair, White & Case LLP.

Technology is having a significant impact on how financial services are being delivered. The rise of non-bank financial firms using the internet as a means of distribution is calling into question the divide between state and federal regulation and the definition of what a “bank” is. The Office of the Comptroller of the Currency has responded by offering a new banking charter for non-depository fintech firms, while the states have filed law suits to prevent what they see as an illegal overreach by the OCC into their jurisdiction. How fintech firms are regulated, and by whom, could have a significant impact on how innovative, accessible, and inclusive financial services are in the future. -- Featuring: Brian Knight, Senior Research Fellow, Financial Markets Working Group, Mercatus Center, George Mason University and John W. Ryan, President and Chief Executive Officer, Conference of State Bank Supervisors. Moderator: Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association.

On April 8, 2016, the Department of Labor (DOL) published the Fiduciary Rule, which greatly expanded the universe of entities and persons that DOL deems to be fiduciaries with respect to retirement plans under the Employment Retirement Income Security Act of 1974 and with respect to Individual Retirement Accounts under the Internal Revenue Code. The Rule was originally scheduled to become applicable on April 10, 2017. However, in February of 2017, President Trump issued a memorandum directing DOL to reexamine the Rule to consider whether it would reduce access to investment services or increase litigation. Two months later, shortly before the April deadline, DOL extended the applicability date of some of the Rule’s requirements until June 7, 2017 and others until January 1, 2018. Then, in July of this year, DOL invited public comments on possible changes to the Rule and on whether the January 1 deadlines should be extended further. In the meantime, litigation has been waged over the Fiduciary Rule’s legality. -- Jason Mendro, Partner at Gibson Dunn, discussed the past, present, and future status of the Fiduciary Rule. -- Featuring: Jason Mendro, Partner, Gibson, Dunn & Crutcher.

On Wednesday, the Department of Labor published a Request for Information seeking comments from the public on the Obama Administration’s 2016 changes to the overtime exemption regulations which would have required payment of overtime to any employee earning less than $913 per week ($47,476 annualized). That regulation was enjoined by the Eastern District of Texas just days before it was to go into effect. Tammy McCutchen, who was Wage and Hour Division Administrator in 2004 when DOL last changed the rules and is a member of the legal team challenging the 2016 regulations, will discuss the RFI, the litigation and the interplay between them. -- Featuring: Tammy D. McCutchen , Shareholder, Littler Mendelson, PC.

Jae Lee lived in the United States as a legal permanent resident since 1982. In 2009, he was arrested for possession of ecstasy and intent to distribute. Lee’s counsel advised him to accept a guilty plea because of the compelling case against him, assuring Lee that in doing so he would not face deportation. However, because he plead guilty to an aggravated felony, Lee was set for deportation under the Immigration and Nationality Act. Lee appealed, claiming he had ineffective counsel under the two-pronged Strickland Standard: whether counsel was ineffective and if the counsel’s actions affected the outcome of the case. Had he known he could be deported, Lee argued, he would have gone to trial. -- On June 23, the Supreme Court ruled 6-2 in favor of Lee. Laura Howell and Brian R. Frazelle, both authors of amicus briefs in this case, joined us to discuss the ruling and its implications. -- Featuring: Brian R. Frazelle, Appellate Counsel, Constitutional Accountability Center and Laura Howell, Assistant Attorney General, Alabama Attorney General's Office.

In recent years, the United Nations’ International Telecommunication Union has become an arena where governments promote rival visions of the future of the organization and, more importantly, how the Internet itself should be governed. These debates reflect a growing tension around a foundational question: to what extent can and should nation-states act to manage the flow of information within their sovereign territory? As the Internet’s importance as a driver for global economic and social growth has grown over the past decade, so too has the interest of some governments to secure for themselves a larger role in regulating the technical, economic, and policy aspects of its management. -- Governments are driven by a range of objectives as they consider the future of the Internet, including access and uptake, competition policy, privacy and security, and, in some cases, regime stability. Will it be possible to accommodate some governments’ desire for a more robust role and still maintain essential democratic principles such as the free flow of information between people around the world, universal human rights, and the core belief that has driven the Internet’s exponential growth over the past decade: that users, companies, and civil society – not governments – ought to control the Internet’s future? What are the political, economic, and geopolitical factors driving Internet regulation and policies? Umair Javed moderated a discussion with Will Hudson of Google, Sally Wentworth of the Internet Society, and Patricia Paoletta of Harris, Wiltshire & Grannis to explain recent activities at the UN to influence global Internet policy. -- Featuring: Will Hudson, Senior Advisor for International Policy, Google Inc.; Patricia J. Paoletta, Partner, Harris, Wiltshire & Grannis LLP; and Sally Wentworth, Vice President of Global Policy Development, Internet Society. Moderator: Umair Javed, Associate, Wiley Rein LLP.

For decades, the DOJ’s civil rights enforcement policies regarding lending, school discipline, and criminal justice have been premised on the belief that relaxing standards and otherwise reducing the frequency of adverse outcomes will reduce percentage racial differences in rates of experiencing those outcomes. Exactly the opposite is the case. Generally reducing any adverse outcome tends to increase, not decrease, percentage racial differences in rates of experiencing those outcomes. This Teleforum discussed whether the Sessions DOJ will be able to understand the statistical issues and, if so, how such understanding should affect civil rights enforcement policies. Click here to access materials referenced in this Podcast. Click here for Jim's website. -- Featuring: James P. Scanlan, Attorney at Law and Moderator: Roger B. Clegg, President and General Counsel, Center for Equal Opportunity.

Eighteen days after the Supreme Court granted certiorari in Trump v. International Refugee Assistance Project and stay applications were granted in part, on July 14, 2017, Judge Watson of the District Court of Hawaii ruled that grandparents, grandchildren, aunts, uncles, and other relatives of people could not be prevented from entering the country as they qualified as persons with a “bona fide relationship” under the Supreme Court ruling. -- On July 19, 2017, the Supreme Court upheld parts of the District Court order. Ilya Somin and Josh Blackman joined us again to discuss developments in the litigation of Executive Order 13780. -- Featuring: Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law, Houston and Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University.

With a change in administration, businesses and consumers alike are searching the tea leaves for indications about how new policy setters will analyze market power, mergers and acquisitions. Will economic analysis play a greater or lesser role? Will the conventional distinctions between horizontal and vertical mergers persist? How will consumer interest be weighed? On the international front, is foreign countries’ use of competition laws to influence or judge American businesses on the rise and, if so, to what effect? -- Featuring: Hon. Joshua D. Wright, Professor of Law, Antonin Scalia Law School, George Mason University.

July 26th will mark the 26th anniversary of the Americans with Disabilities Act. Enacted in 1990 to prohibit discrimination of the disabled and provide disability access to public accommodations nationwide, it has also been used throughout the years as the basis for thousands of lawsuits across the country. These lawsuits can sometimes result in financial windfalls for trial attorneys with little to no impact on improving access for the disabled community. Arizona Attorney General Mark Brnovich discussed the strategies his office has employed to ensure this important law is used properly. -- Featuring: Hon. Mark Brnovich, Arizona Attorney General.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) is up for reauthorization in 2017. An earlier version of the program was instituted after 9/11 by President George W. Bush. In 2007, Congress adopted the Protect America Act and one year later passed the FISA Amendments Act, which included Section 702. Section 702 allows the government to target for surveillance non-U.S. citizens “reasonably believed to be located outside the United States to acquire foreign intelligence information.” The authorization does not extend to non-citizens outside the country to gain information on citizens or permanent residents believed to be residing in the United States. -- While proponents of the law argue it is necessary for national security, critics claim that U.S. citizens are too often incidentally swept into surveillance due to the nature of the “targeting procedures” employed by intelligence agencies, and therefore reforms are needed to protect their privacy. Our experts discussed reauthorization, what it would mean if Congress chose not to act, and what kinds of reforms are under consideration. -- Featuring: Adam Klein, Senior Fellow, Center for a New American Security and Kate Martin, Senior Fellow, Center for American Progress. Moderator: Karen Lugo, Founder, Libertas-West Project.

The taking of private property for development projects has caused controversy in many nations, where it has often been used to benefit powerful interests at the expense of the general public. In their recent book, Eminent Domain: A Comparative Perspective (Cambridge University Press), editors Ilya Somin, Iljoong Kim, and Hojun Lee use a common framework to analyze the law and economics of eminent domain around the world. They show that seemingly disparate nations face a common set of problems in seeking to regulate the condemnation of private property by the state. They include the tendency to forcibly displace the poor and politically weak for the benefit of those with greater influence, disputes over compensation, and resort to condemnation in cases where it destroys more economic value than it creates. With contributions from leading scholars in the fields of property law and economics, the book offers a comparative perspective and considers a wide range of possible solutions to these problems. Professor Richard Epstein and Professor Ilya Somin joined us to discuss this interesting book. -- Featuring: Professor Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law and Professor Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University.

A number of regulatory advocates assert that Title II of the Communications Act, enforced by the Federal Communications Commission, is the only way to protect net neutrality. Research by Roslyn Layton, PhD, who has studied net neutrality in 50 countries, suggests otherwise. Moreover, a layered model using existing antitrust and consumer protection laws enforced by the Federal Trade Commission, Department of Justice, and State Attorneys General may well provide more effective and less costly regulation. Alex Okuliar, formerly an advisor to FTC Commissioner (now Acting Chairman) Ohlhausen, interviewed Roslyn Layton about her research on these issues and the layered model of enforcement. -- Featuring: Roslyn Layton, Visiting Fellow, American Enterprise Institute and Moderator: Alex Okuliar, Partner, Orrick, Herrington & Sutcliffe LLPAlexander Okuliar Partner, Orrick, Herrington & Sutcliffe LLP.

On March 24, 2016 the DOL’s Office of Labor-Management Standards (OLMS) issued the so-called “persuader rule” that would greatly inhibit the ability of businesses to rely on labor experts and the ability of employers to obtain legal advice in responding to union organizing campaigns. For nearly 50 years the DOL has recognized that advice, including legal advice, is excluded from reporting under federal labor law. The new persuader rule would have forced lawyers and law firms that counsel a business on most labor relations matters to disclose not only their work with that client, but also all fees and arrangements for all clients for all labor-relations services. Several lawsuits were filed challenging this rule on statutory and First Amendment grounds. On June 27, 2016, a district court in Texas issued a preliminary injunction enjoining DOL from implementing the new rule. The district court then made that preliminary injunction permanent in November 2016, and DOL has appealed to the Fifth Circuit. While DOL’s appeal is pending, on June 12 DOL issued a proposal to rescind the rule. -- Christopher C. Murray, a shareholder at Ogletree Deakins, represents some of the business groups in the Texas litigation who sued to stop the “persuader rule” from taking effect. He provided an update on the current state of play with regard to the litigation and proposed rulemaking. -- Featuring: Christopher C. Murray, Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C. and Moderator: Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center.