Federalist Society Practice Groups Podcasts

On March 19th, the Supreme Court virtually eliminated the ability of copyright owners to stop the importation of versions of their products intended for foreign markets. This holding has potentially broad implications in an era where U.S. copyright owners increasingly rely on global markets to commercialize America's publications and creative products. -- In a 6-to-3 decision, the court held for Supap Kirtsaeng, a Cornell student from Thailand who made nearly a million dollars re-selling cheap international student versions of textbooks meant for sale in Thailand. Wiley, the publisher, produced the books abroad for sale to poor students in Thailand. The publisher argued that Kirtsaeng infringed copyright by making unauthorized imports of the books. -- Publishers and content owners of all kinds have long engaged in this kind of market segmentation. It allows them to sell their products at the right price and at the best time, expanding their markets to countries other than the United States. They had long relied on an interpretation of the Copyright Act that provided for a broad importation right. -- The Court held that copyright's first sale doctrine trumps the importation right. The question now is what happens next? Can and should copyright owners press for new, clearer legislation to restore the importation right? Will copyright owners be driven to new methods of distribution -- e.g., more sales of digital books? How will this holding affect access to knowledge in less wealthy countries? What are the implications of the the majority opinion's broad statements about copyright's purpose?? -- Featuring: Mr. Allan R. Adler, General Counsel & Vice President, Government Affairs, Association of American Publishers; and Prof. Christopher Newman, George Mason University School of Law; Prof. Kristen J. Osenga, University of Richmond School of Law; Mr. Ben Sheffner, Vice President, Legal Affairs, Motion Picture Association of America; and Moderator: Prof. Mark F. Schultz, Co-Director of Academic Programs and Senior Scholar of the Center for the Protection of Intellectual Property and Professor of Law, Southern Illinois University School of Law. Introduction by Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Scientific information is essential for making sound public policy decisions, particularly those related to health, safety and the environment. Yet the acrimony surrounding many decisions, with accusations of “politicized science” and “junk science,” hinders informed discussion and achievement of policy goals. Recent reports from the Bipartisan Policy Center, the National Academy of Sciences, and the Keystone Group have offered recommendations for improving the use of science for public policy, and the Administrative Conference of the United States is currently developing recommendations for steps agencies could take to improve their procedures for incorporating science inputs in regulatory decisions. On this previously recorded conference call, our experts explore the most significant challenges facing how science is used to inform public policy and what can be done to overcome them.? -- Featuring: Prof. E. Donald Elliott, Professor (Adjunct) of Law, Yale Law School; Mr. David Goldston, Director, Government Affairs Program, Natural Resources Defense Council; Prof. Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law; Professorial Lecturer in Law, The George Washington University Law School; and Moderator: Prof. Susan E. Dudley, Director of the Regulatory Studies Center and Research Professor of Public Policy and Public Administration, The Trachtenberg School of Public Policy and Public Administration, The George Washington University. Introduction by Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Although possession and distribution of marijuana is still a violation of international treaties and the federal Controlled Substances Act, 18 states plus the District of Columbia have legalized the use of medical marijuana. On November 6th, Washington and Colorado went a step further when voters in those states passed referenda legalizing the possession and use of marijuana by adults for recreational purposes with state regulation of sales, although a similar referendum was narrowly defeated in Oregon. Washington will allow those at least 21 years old to buy as much as one ounce (28 grams) of marijuana from a licensed retailer. Colorado's measure allows possession of an ounce, and permits growing as many as six plants in private, secure areas. The Department of Justice has not publicly declared how it will respond to these developments, only stating that it is still studying the issue. From the standpoint of federalism, is this a good or a bad development? How should the federal government respond to these state initiatives? Should the federal government prosecute those who buy and sell marijuana when such activity is legal under state law? Would it be fair (and consistent with equal protection) for the federal government to prosecute those who possess and sell marijuana in states that have not passed marijuana-legalization laws, but not to do so in states that have? On this previously recorded conference, Georgetown Law Prof. Randy Barnett (who argued before the Supreme Court in Gonzales v. Raich case that Congress lacked the authority to criminalize the production of home-grown marijuana for personal medical use) and McGregor “Greg” Scott (former United States Attorney for the Eastern District of California and District Attorney of Shasta County California) engage in a lively debate on these issues and answer questions from callers.? -- Featuring: Prof. Randy Barnett, Georgetown University Law Center; Mr. McGregor Scott, Orrick, Herrington & Sutcliffe LLP; and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

On Monday, April 15, the Supreme Court heard oral argument in a patents case, Association for Molecular Pathology v. Myriad Genetics, Inc, concerning whether human genes can be patented. Myriad Genetics, which identified two sections of the genetic code that might indicate higher risk for certain types of cancer, obtained patents on the "isolated" or removed versions of these two genes on the basis that Myriad invented a new chemical in the process of identifying and removing these genes from the body. The challengers claim that Myriad Genetics has created nothing new, but rather the process is an examination of a substance found in nature whose attributes remain unchanged. What will the Court’s decision hold for a field where thousands of gene patents have already been secured? Do such patents inhibit or promote further such discoveries, or is the evidence clear? On this previously recorded conference call, our expert, who attended the oral argument, discusses and provides his thoughts on the case and answers questions from callers.? -- Featuring: Prof. Gregory Dolin, Associate Professor and Co-Director, Center for Medicine and Law, University of Baltimore School of Law and Moderator: Mr. Christian Corrigan, Director of Publications, The Federalist Society

On this previously recorded conference call, Prof. J.W. Verret discusses three interrelated dimensions of the Supreme Court case Amgen v. Connecticut, which held that shareholder class actions under the 10(b)-5 anti-fraud rule do not need to establish that alleged misstatements are material to use the fraud on the market presumption (which allows them to meet the reliance requirement in those actions) in obtaining class certification. -- On one level this case appeared to be a victory for the plaintiff's bar. Since nearly all securities class actions either settle or are dismissed, a heightened pleading standard to obtain class certification could have significantly limited the settlement value of these suits. -- On a second dimension, some of the Justices joining the opinion signaled their willingness to abandon the fraud on the market presumption, and its underlying assumption of market efficiency, altogether. The fraud on the market presumption assumes that all publicly available information is incorporated into stock price, and therefore essentially obviates the need for thousands of class action plaintiffs to demonstrate their reliance on particular fraudulent information and instead allows them to merely demonstrate their reliance on the stock's price. In that sense, this opinion may portend a future and major victory for the defense bar. -- Yet on a third dimension, if the Court begins to relax the efficient markets assumption which underlies judicial doctrine in 10(b)-5 and the securities laws themselves, this may have unintended consequences for cost-benefit analysis in disclosure rule making by the Commission and for adjudication of other elements of 10(b)-5.? -- Featuring: Prof. J.W. Verret, George Mason University School of Law and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

On April 17, 2013, the Supreme Court decided Kiobel v. Royal Dutch Petroleum Co., holding that the Alien Tort Statute does not have extraterritorial reach. This halts the recent trend of parties being hauled into United States courts for alleged torts that occurred in another country with no connection to the United States. This teleforum discusses the implications of this landmark decision.? -- Featuring: Prof. Chimène Keitner, University of California Hastings College of the Law; Prof. Julian G. Ku, Professor of Law and Faculty Director of International Programs, Hofstra University Maurice A. Deane School of Law; and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Leaks seem to be ubiquitous these days. Within the past several years, government employees have revealed details about a number of classified military and intelligence matters, including the following: a Pakistani doctor who is said to have helped the CIA track down Osama bin Laden in Pakistan; the government’s purported process for selecting targets for drone strikes, including President Obama’s personal participation in the decisions; and the alleged role of the United States and Israel in developing malware designed to disable the Iranian regime’s nuclear weapons program. -- What are the government’s options for preventing or sanctioning these sorts of leaks? And what are the constitutional constraints on these efforts to safeguard classified information? May the government prosecute alleged leakers under the Espionage Act, a World War I era statute designed to protect against spies working for foreign governments? May it prosecute newspapers, bloggers, and others who publish leaked documents? Even if the Espionage Act applies to leaks on its face, do the First Amendment and other constitutional guarantees nevertheless prohibit the government from punishing employees who leak documents and media outlets who publish them? Should Congress amend the Espionage Act to better address leaks? Or should it scrap the statute and craft entirely new legislation that is specifically geared to the problem?? -- Featuring: Prof. Nathan A. Sales, George Mason University School of Law; Mr. Ben Wizner, Director, Speech, Privacy & Technology Project, American Civil Liberties Union; and Moderator: Mr. Christian Corrigan, Director of Publications, The Federalist Society

All U.S. jurisdictions (except DC) prohibit anyone not a lawyer from owning an equity interest in a law firm. Proponents of the prohibition have argued that it is an element of legal professionalism and serves the interests of lawyers' clients. Great Britain and Australia have recently abandoned this prohibition, arguing that clients may be better served by well-financed practice organizations that can acquire technology and other resources for efficient practice. Both countries have substituted regulation of practice entities' behavior for limitations on who their owners may be. -- This Teleforum explores whether any changes now should be made in the U.S. approach. Our panelists have been prominent in the current debate about this issue.? -- Featuring: Mr. Francis J. Menton, Jr., Partner, Willkie Farr & Gallagher LLP?; Prof. Thomas D. Morgan, Oppenheim Professor of Antitrust and Trade Regulation Law, George Washington University Law School?; Mr. John E. Thies, President, Illinois State Bar Association, and Shareholder, Webber & Thies, P.C.; and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Are some large firms, financial or otherwise, getting a free pass from prosecution because of their size and scope of operations? How about their responsible officers? Recent congressional hearings have raised concerns that this may indeed be the case. Is it ever appropriate for agencies and prosecutors to consider the size of a business when contemplating enforcement actions? Some would say that the prosecution of the accounting firm Arthur Andersen in 2002 (subsequently overturned by the Supreme Court) put the firm out of business, putting thousands of employees on the unemployment lines and further concentrating the accounting industry. Others contend that the problem with prosecuting large firms alone justifies limiting the size of firms. Is it enough for justice and deterrence sake to be able to take enforcement actions against culpable individuals without prosecuting the whole company? -- On this previously held conference call, these and other questions are discussed by two people with direct experience with these issues. As a member of the Securities and Exchange Commission from July 2002 through August 2008, Paul Atkins had to face these questions from the enforcement side. Former Deputy White House Counsel Timothy Flanigan served as Senior Vice President and Deputy General Counsel for Tyco International after the leadership of the firm was subject to prosecution for alleged significant misdeeds. Flanigan is credited with a leading role in the efforts to restore the credibility of the firm, allowing it to continue as an ongoing enterprise. -- Featuring: Hon. Paul S. Atkins, Chief Executive, Patomak Global Partners, and former Commissioner, U.S. Securities & Exchange Commission; Hon. Timothy E. Flanigan, Partner, McGuireWoods LLP, and former Deputy White House Counsel; and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Because the surviving Boston bomber, Dzhokhar Tsarnaev, is a U.S. citizen, trial before a military commission is not available under the Military Commissions Act. Indefinite detention as an enemy combatant was an option, but that appears to have been taken off the table by the Obama Administration. So the question is the extent and value of Miranda-free interrogation. Was Mr. Tsarnaev read his Miranda rights prematurely? And what should or could the FBI and the rest of the intelligence community have done in advance of the attack, if anything, to monitor or surveil the deceased suspect, Tamerlan Tsarnaev, in view of the request from Russia and the the elder Tsarnaev brother’s 2012 return trip? -- Featuring: Mr. Andrew C. McCarthy, Executive Director, Philadelphia Freedom Center and Contributing Editor, National Review and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

On August 30, 2011, with the then-one Republican member dissenting, the National Labor Relations Board promulgated a rule that would require for the first time that all private employers in the country post a notice advising employees in detail of their statutory rights to unionize and engage in union activities. Employers who fail to post the notice would be guilty of a new, Board-created unfair labor practice, could lose the protection of the National Labor Relations Act’s six-month statute of limitations, and could have that failure be considered as evidence against them in cases involving other unfair labor practices. The posting requirement is not yet effective, due to litigation brought against the Board challenging its authority to promulgate this rule. In a case brought by the National Association of Manufacturers, the National Right to Work Legal Defense Foundation, and others, the United States District Court for the District of Columbia held that the Board has the authority to require all employers to post the notice. It struck down the penalty provisions insofar as they would be blanket rules, but permitted the Board to apply them on a case-by-case basis. However, soon thereafter, in a case brought by the U.S. Chamber of Commerce, the United States District Court for the District of South Carolina held that the Board lacked statutory authority to promulgate the notice-posting rule. Both district court decisions have been appealed. The D.C. Circuit enjoined enforcement of the rule pending its decision, and heard argument on September 11, 2012. The Fourth Circuit heard oral argument on March 19, 2013 in the Board's appeal from the South Carolina district court’s decision. Maury Baskin of Venable LLP, who argued for the D.C. plaintiffs, and SEIU Associate General Counsel Walter Kamiat discuss the issues and give their assessment of the arguments in the two courts of appeals. -- Featuring: Mr. Maurice Baskin, Partner, Venable LLP; Mr. Walter Kamiat, Associate General Counsel, Service Employees International Union; and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

On Friday, April 19, the Office of Management and Budget quietly released its draft 2013 Report to Congress on the Benefits and Costs of Regulations, covering all regulatory activity through the end of fiscal year 2012. By the administration’s own estimates, the rules it issued in FY2012 imposed more costs on the economy than all the rules issued during the entire first terms of Presidents Bush and Clinton, combined. On this previously held conference call, the speakers critically examine the report and the manner in which it was produced and answer questions from callers. -- Featuring: Mr. Randall E. Davis, Stuntz, Davis & Staffier, P.C.?; Prof. Susan E. Dudley, Director of the Regulatory Studies Center and Research Professor of Public Policy and Public Administration, The Trachtenberg School of Public Policy and Public Administration, The George Washington University; and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

“Al-Qaeda in the United States,” a unique and previously unreleased work of The Henry Jackson Society, constitutes the most in-depth analysis of al-Qaeda (AQ) terrorism in the United States to date. At over 700 pages, the publication provides a comprehensive analysis of all those convicted of AQ and AQ-inspired terrorism in U.S. courts since 1997, or who committed suicide attacks on U.S. soil. -- As well as profiles of all those who committed such offences, the report contains a statistical breakdown and analysis of key trends, including nationality, age, occupation, percentage of religious converts, education levels, type of charge, the role of each individual offender, connections to terrorist networks, whether terrorist training was undertaken, place of residence, whether the individual had combat experience, and more. -- In the report’s foreword, former CIA Director General Michael Hayden writes “A study of this scale, of this ambition and of this meticulousness has never before been attempted in the United States and its findings will allow those responsible for our security and our liberty to make judgments based on fact rather than on hyperbole, fear or prejudice.” -- The report’s co-authors, Robin Simcox and Emily Dyer, both of the Henry Jackson Society, and National Review Contributing Editor Andrew C. McCarthy discuss the report and answer questions from the audience. -- Featuring: Ms. Emily Dyer, Research Fellow, Henry Jackson Society; Mr. Robin Simcox, Research Fellow, Henry Jackson Society; Commentary by: Mr. Andrew C. McCarthy, Executive Director, Philadelphia Freedom Center; and Moderator: Mr. David C.F. Ray, Associate Director of Practice Groups, The Federalist Society

Conventional wisdom for the past 50 or so years argues that American and world population growth spell doom for the human race, the world economy, the availability of food stocks and other critical natural resources, the environment and even the Earth itself. In “What to Expect When No One is Expecting”, author Jonathan Last asserts that these underlying assumptions are incorrect. He assesses the consequences of the notable and persistent decreases in population growth, or even a failure of population maintenance, and suggests that they are even more alarming. On this previously recorded live conference call, author Jonathan Last is interviewed by National Review’s Ramesh Ponnuru about his book, and answer questions from the audience. -- Speakers: Mr. Jonathan Last, Senior Writer, The Weekly Standard; Mr. Ramesh Ponnuru, Senior Editor, National Review; and Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Protecting against cyberattacks requires a unique public-private partnership. Many of the government's best resources are in the U.S. Military and the National Security Agency, both of which are constrained in their operations within the United States. Should these organizations play a role in protecting the domestic critical infrastructure from cyberattacks? -- Our experts weigh in on this installment of our Cybersecurity Teleforum Series. -- Featuring: Mr. Steven G. Bradbury, Partner, Dechert LLP, and former head of the Office of Legal Counsel, U.S. Department of Justice?; Mr. Joel F. Brenner, Principal, Joel Brenner LLC, former National Counterintelligence Executive, and former Inspector General and Senior Counsel, National Security Agency?; Ms. Michelle Richardson, Legislative Counsel, American Civil Liberties Union?; Commentary and Questions by: Ms. Ellen Nakashima, National Security Reporter, The Washington Post; and Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society