Federalist Society Practice Groups Podcasts

Since 1995, a small evangelical church, Bronx Household of Faith, has been in court challenging the policy of the New York City public schools that prohibits religious groups from conducting worship services in the vacant buildings during nonschool hours, while allowing other community groups to meet for any purpose "pertaining to the welfare of the community." The case pits the First Amendment rights of religious groups against New York City's concerns that use of a school building for a worship service would violate the Establishment Clause. During the 2010-11 school year, community groups and individuals used New York City's 1,200 school buildings schools for approximately 120,000 events. No other major school district in the nation has a similar policy banning worship services. -- Bronx Household of Faith won an injunction in federal district court in 2001, which ruled that the NYC policy violated the Freedom of Speech Clause. In 2011, the Second Circuit overturned the injunction on a 2-1 vote, ruling that NYC's concerns about possible Establishment Clause violations justified the policy. The Supreme Court denied cert on December 5, 2011. -- Bronx Household returned to court, and asked for a new injunction based on the Free Exercise Clause and the Establishment Clause. J udge Loretta Preska issued a new injunction in February 2012. New York City appealed to the Second Circuit, which heard oral arguments on November 19, 2012. This case presents a classic clash between religious groups seeking to use public buildings on the same terms and conditions as other community groups, and New York City's view of the Establishment Clause, which it asserts requires it to exclude religious groups in order to show that the schools are neutral towards religion. Debating this case are Jordan Lorence, Senior Counsel for Alliance Defending Freedom, who has represented Bronx Household of Faith in this case since the beginning of the lawsuit, and Professor Alan E. Brownstein of UC-Davis Law School, a noted scholar on church-state legal issues. -- Featuring: Prof. Alan E. Brownstein, University of California Davis School of Law; Mr. Jordan Lorence, Senior Counsel & Senior Vice President, Office of Strategic Initiatives, Alliance Defence Foundation; and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

This case involves an epic clash between two federal statutes enacted many decades ago. On one side is the Federal Arbitration Act, which requires that arbitration agreements be enforced according to their terms. On the other side is the National Labor Relations Act, which protects the right of employees to engage in protected concerted activity. The clash is over mandatory arbitration agreements that waive the right of employees to file class or collective actions under federal or state employment laws. The U.S. Supreme Court has repeatedly upheld these waivers in arbitration agreements under the Federal Arbitration Act. However, the National Labor Relations Board held in D.R. Horton that requiring such a waiver in a mandatory arbitration agreement is an unfair labor practice because it restricts the right of employees to engage in concerted activity affecting their working conditions. In so holding, the NLRB rejected the contrary opinion of its former General Counsel. The employer in that case appealed to the Fifth Circuit, which held oral argument on February 5, 2013. Meanwhile, numerous other federal and state courts around the country have rejected the D.R. Horton reasoning in litigation involving the enforceability of class waivers in arbitration agreements. -- Our experts offered their perspectives on the oral arguments and on the merits of the case, and answered questions. -- Featuring: Mr. Ron Chapman, Jr., Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.; Hon. Ronald Meisburg, Partner, Proskauer Rose LLP; former Member and General Counsel, National Labor Relations Board; Moderator: Mr. William J. Emanuel, Shareholder, Littler Mendelson; and Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

In American Express Co. v. Italian Colors Restaurant, the Supreme Court considered an important question regarding the enforceability of arbitration agreements that contain class action waivers. In 2011, the Court held in AT&T Mobility LLC v. Concepcion that state law purporting to invalidate class action waivers in arbitration agreements is preempted by the Federal Arbitration Act. In Italian Colors, however, which involves a Sherman Act class action brought by retailers against American Express for alleged tying violations relating to its credit card agreements, the Second Circuit held that the “federal substantive law of arbitrability” invalidated the class action waiver provision in American Express’s arbitration agreements with merchants that accept its credit cards. The court of appeals reasoned that the class action waiver provision was invalid under federal law because it would “effectively preclude any action seeking to vindicate the statutory rights asserted by” the plaintiff class, given the prohibitive expense of trying to prove an antitrust claim on an individual basis. The Second Circuit concluded that Concepcion was inapposite, because there had been no showing there that “the practical effect of the enforcement would be to preclude [the plaintiff class’s] ability to vindicate their statutory rights.” The Supreme Court will now decide whether its Concepcion decision really did vindicate the ability of business defendants to enforce class action waivers in arbitration agreements, or instead whether plaintiffs can escape such provisions whenever they can show that individual litigation of federal claims would be prohibitively expensive. -- Our expert, Thomas G. Hungar of Gibson, Dunn & Crutcher, attended the oral argument and then provided his analysis of the merits of the case and the possible outcomes in light of the oral arguments. -- Featuring: Mr. Thomas G. Hungar, Partner, Gibson Dunn & Crutcher LLP and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

On Tuesday, February 19, the U.S. Supreme Court heard oral argument in Bowman v. Monsanto, an extremely important case about the scope of patent licensing rights and their important role in the biotech industry. Nominally, the case is about whether Monsanto can impose a single-use restriction on purchases of its patented genetically modified soybean seed. Bowman, who reused Monsanto's patented seed in violation of express license terms prohibiting him from doing this, says “no” because the seed, unlike patented technologies in the mechanical or high-tech fields, is necessarily “self-replicating.” Monsanto maintains that without the ability to impose the types of use restrictions that patent-owners have legally done since the early 19th century, it cannot recoup its substantial R&D investments in these valuable and life-enhancing products of the biotech revolution. The implications of this case go far beyond genetically modified seeds and the green revolution, as patented isolated DNA, microorganisms, and cell lines used in medical treatments are all “self-replicating.” This case raises fundamental questions about the scope of patent protection over forms of life and how the patent system functions in securing the new innovation that has made the green and biotech revolutions—and the wonders of modern life—possible. -- Featuring: Prof. Adam Mossoff, Professor of Law, George Mason University School of Law?; Mr. Douglas T. Nelson, Executive Vice President, General Counsel and Secretary, CropLife America; and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The controversy over the HHS contraceptive mandate has generated over 50 lawsuits, on behalf of more than 160 different plaintiffs. Most of the litigation on behalf of non-profit entities (universities, hospitals, etc.) has been on hold, awaiting the administration's planned issuance of a new final rule with an "accommodation" for non-profits with religious objections. Litigation on behalf of for-profit businesses and their owners, however, is moving through the courts of appeals, with several courts hearing arguments in May and June. To date, the for-profit businesses have won 17 preliminary injunctions, and been denied relief in 6 cases. -- Mark Rienzi, who is Senior Counsel at the Becket Fund for Religious Liberty and an associate professor at the Catholic University of America's Columbus School of Law, discussed the current status of the cases during this teleforum. Our Religious Liberties Practice Group Chairman, William L. Saunders, introduced Prof. Rienzi and provided his commentary to Professor Rienzi’s remarks. -- Featuring: Prof. Mark L. Rienzi, The Catholic University of America Columbus School of Law and Senior Counsel, Becket Fund for Religious Liberty; Introduction and Commentary: Mr. William L. “Bill” Saunders, Senior Vice President and Senior Counsel, Americans United for Life and Chairman, Religious Liberties Practice Group; and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

With the enormous growth in Internet retail sales, U.S. policymakers are considering the Marketplace Fairness Act, a bill sponsored by Senator Mike Enzi (WY) that would authorize states to require remote sellers to collect state sales tax. The U.S. Supreme Court ruled in 1992 (Quill Corp. v. North Dakota) that states could not require remote sellers to collect and remit sales and use taxes in states where they have no “nexus,” but the Court also said that Congress could grant such power to the states. The issue has split conservative groups, with some arguing that the Quill decision rightly employed the dormant commerce clause to prohibit states from requiring remote sellers to collect, and other conservatives arguing that the Quill decision simply referred the issue to Congress and that Congress should act to prevent federal policy from picking winners and losers in the marketplace. Last month in a non-binding test vote, the Senate voted 75 to 24 in support of Sen. Enzi’s Marketplace Fairness Act. If enacted, Sen. Enzi’s bill would require participating states to implement a system for tax collection, either by adopting minimum simplification requirements or being a Member State of the Streamlined Sales and Use TaxAgreement. On this previously recorded live conference call, Paul Misener, Amazon.com’s VP for Global Public Policy, and Joseph Henchman, VP for Legal and State Projects at the Tax Foundation, discuss whether Congress should act, and if so, how. -- Featuring: Mr. Joseph Henchman, Vice President of Legal & State Project, Tax Foundation; Mr. Paul Misener, Vice President for Global Public Policy, Amazon.com; and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

An increase in Federal executive branch regulatory activity – whether through executive order, formal or informal administrative agency action – has been noted by many across the country. In launching the Executive Branch Review Project, the Practice Groups of the Federalist Society seek to prompt a national debate about whether there has been an uptick in such regulatory activity, and, if so, with what consequence. The project will provide objective resources that identify major government activity, and will provide a forum for debate and discussion about whether such regulation constitutes a form of legal and regulatory overreach. The first component of this project is a new blog dedicated to highlighting action or inaction by the executive branch, http://www.executivebranchproject.com/. -- To kickoff this new endeavor, U.S. Senator Michael S. Lee (Utah) and Federalist Society founder and Vice Chairman David M. McIntosh discussed the project and provided their perspectives on the use of executive power. -- Featuring: Hon. Michael S. Lee, United States Senate, Utah; Hon. David M. McIntosh, Partner, Mayer Brown LLP and Vice Chairman, The Federalist Society; and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

On Wednesday, February 27, the U.S. Supreme Court heard oral arguments in Shelby County v. Holder. At stake is the possible survival of Section V of the Voting Rights Act. Some have argued that the use of race-conscious districting to maximize safe black legislative seats – built into the enforcement of the Voting Rights Act – has been a brake on minority political aspirations. Others have argued that Section V is overcome by events, based on election participation data forty years old. Still others argue that Section V has been vital in leveling the playing field of electoral politics. On this previously recorded conference call, our experts attended the oral argument and reported to listeners in this special "Courthouse Steps" edition of Teleforum. -- Featuring: Hon. Abigail Thernstrom, Adjunct Scholar, American Enterprise Institute; Hon. Hans A. von Spakovsky, Senior Legal Fellow and Manager, Civil Justice Reform Initiative, The Heritage Foundation; and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

In Noel Canning v. NLRB, the U.S. Court of Appeals for the D.C. Circuit held that the President's 2012 recess appointments to the National Labor Relations Board were unconstitutional, which means the Board lacks a quorum to conduct business. The President made these appointments during an intra-session recess shorter than three days, a move no previous President had tried. But the court's reasoning in Noel Canning extended beyond these unusual circumstances. Taking an orginalist approach to the Recess Appointments Clause, the court held that the President cannot make recess appointments during intra-session recesses at all, but only during the recess that occurs between the end of one session of Congress and the beginning of the next. The court held further that the President cannot fill a vacancy with a recess appointment unless the vacancy arises during that same recess. This reasoning calls into question the validity of virtually every recess appointment in modern history. The government has not yet decided whether to appeal the D.C. Circuit's decision, and the NLRB has stated that it will continue to conduct business as usual. Meanwhile, the Noel Canning decision is being invoked to challenge NLRB decisions in dozens of other cases around the country. On this previously recorded conference call held in February, the speakers discuss the Noel Canning case itself, whether the Board can continue to function without Supreme Court resolution of the validity of the recess appointments, and what the decision means for current and past recess appointments to other agencies. -- Featuring: John P. Elwood, Partner, Vinson & Elkins LLP; Hon. Howard M. Radzely, Boeing, Inc.; Moderator: Mrs. Rachel L. Brand, Chief Counsel for Regulatory Litigation, National Chamber Litigation Center, U.S. Chamber of Commerce; and Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

On this previously recorded live conference call, Mr. Timothy Bishop, a partner at Mayer Brown and co-author of the leading treatise, Supreme Court Practice, discusses Georgia-Pacific West v. Northwest Environmental Defense Center, argued before the Supreme Court on December 3rd. The case focuses on 1) whether Clean Water Act regulation of logger-used forest roads should be via industrial “point source” permit or “best management practice” rules and 2) whether the Court accepts how the NEDC circumvented the CWA’s jurisdictional limits on court challenges of implementing regulations. In oral arguments, Mr. Bishop represented Georgia-Pacific West and numerous forestry companies. -- Featuring: Mr. Timothy S. Bishop, Partner, Mayer Brown and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Starting in late 2009, the Environmental Protection Agency began issuing a series of four rules designed to regulate greenhouse gas (“GHG”) emissions from the national economy, including both cars (mobile sources) and factories and other stationary sources. The costs and implications of these rules are enormous and some have argued enormously increase EPA’s powers, particularly because virtually all economic activities involve the combustion of fuel, releasing GHGs. A collection of States, businesses, and public interest groups challenged the GHG rules, and those challenges were consolidated for review by the D.C. Circuit. The panel in the case held that they were constrained to reject the challenges, largely on the basis of Massachusetts v. EPA, in which the Supreme Court in 2007 held that GHGs were “air pollutants” within the meaning of the Clean Air Act but otherwise remanded EPA’s denial of a rulemaking petition concerning GHG emissions from cars. Recently, the full D.C. Circuit also denied en banc review, over two dissents penned by Judges Brown and Kavanaugh. Judge Brown called for the Supreme Court to recognize that Massachusetts v. EPA should be reconsidered with an eye to reversal, with Judge Kavanaugh arguing that EPA’s odd manner of interpreting the Clean Air Act in its GHG rules expanded the agency’s sphere of authority and raised serious separation of powers questions. Our panelists consider the litigation and its future course on this previously recorded conference call.? -- Featuring: Mr. Jeffrey B. Clark, Partner, Kirkland & Ellis LLP; Mr. Sean H. Donahue, Partner and Attorney, Donahue & Goldberg, LLP?; Moderator: Mr. Marlo Lewis, Jr., Senior Fellow, Center for Energy and Environment, Competitive Enterprise Institute; and Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Federal convict Conrad Lord Black argued at National Review Online last fall in "Blind Justice" that America's system of broad prosecutorial discretion routinely undermines defendants’ constitutional rights -- largely through a criminal justice system that's designed in acquiescence to this discretion by those who fear being seen as "soft on crime.” The system's defenders respond that criminal defendants enjoy numerous and generous constitutional protections (some at the expense of a textual constitutional reading), and that prosecutorial discretion -- though perhaps subject to discrete, if infamous, abuse -- is overwhelmingly used properly against the legitimately guilty. With the rise of debates over the role of the federal government in criminal law, these divergent views will be debated thoughtfully by our expert panelists on this previously recorded conference call. -- Featuring: Conrad Lord Black, Financier, Historian, and Commentator??; Prof. William G. Otis, Adjunct Professor of Law, Georgetown University Law Center; Prof. Ellen S. Podgor, Gary R. Trombley Family White-Collar Crime Research Professor and Professor of Law, Stetson University College of Law; and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Tombstone, Arizona, calls itself “the town too tough to die," but it’s gone to court to challenge the federal government’s restriction on access to nearby national forest land that the city claims bars it from repairing necessary water supply lines. Without repairing these lines—damaged by recent storms—the city claims it faces the threat of destruction by fire during the state’s long, hot summers. In its lawsuit, which has received national attention, Tombstone claims that the Tenth Amendment prohibits the federal government from using its power over national forest land in ways that would threaten destruction of cities and infringe on ordinary state powers. The Ninth Circuit Court of Appeals ruled against the city in December, but it refused to answer whether "the Tenth Amendment constrains the Forest Service’s authority to regulate Tombstone’s activities under the Property Clause.” The Goldwater Institute’s Nick Dranias, who represents the City, and Professor Peter Appel of the University of Georgia School of Law discuss the case on this previously recorded conference call. -- Featuring: Prof. Peter Appel, Alex W. Smith Professor of Law, University of Georgia School of Law; Mr. Nick Dranias, Director, Center for Constitutional Government, Goldwater Institute; and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

On February 26, 2013, the U.S. Supreme Court heard oral argument in the case of Maryland v. King. On this previously recorded live conference call, our expert attended oral argument and provides a report to our listeners. In the state of Maryland, a rape and assault case rendered identifiable DNA material, but it did not match any existing samples in the DNA database. Alonzo King was subsequently arrested in an unrelated matter and, under Maryland’s DNA Collection Act, a DNA sample was collected from him and analyzed. King’s DNA sample matched the sample from the unrelated rape and assault case. The Court will decide whether this DNA sample can be used in his prosecution for that rape and assault. -- Featuring: Mr. John P. Elwood, Partner, Vinson & Elkins LLP and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

President Obama has proposed, and Congress is currently debating, various gun control measures in reaction to the tragic events in Newtown. Is the President's emphasis on gun control misplaced or is gun control the most appropriate response to this situation? Would the measures being debated be effective? Are there any constitutional impediments to those proposals? In this previously recorded conference call, our speakers debate these and other issues related to the aftermath of Newtown. -- Featuring: Mr. Jonathan E. Lowy, Director, Legal Action Project, Brady Center to Prevent Gun Violence; Mr. John G. Malcolm, Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation; and Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society