Federalist Society Practice Groups Podcasts

Since Chevron v. Natural Resource Council, 467 U.S. 837 (1984), the Supreme Court has said that it will generally give deference to the interpretations of federal agencies when addressing ambiguities in a statute. Such deference gives the agency an intrinsic advantage over private litigants when a dispute arises. In City of Arlington v. FCC, the Court has been asked to decide whether, contrary to the decisions of at least two other circuits, a court should apply Chevron to review an agency's determination of its own jurisdiction. Our expert attended oral argument and discusses the case on this previously recorded conference call.?? -- Featuring: Ms. Karen Harned?, Executive Director, National Federation of Independent Business Legal Center?

Computer hacking is a large and growing problem, with no signs of abating as the world continues to modernize. Static defenses like firewalls and encryption are helpful but not foolproof. Experts seem to disagree as to whether the Computer Fraud and Abuse Act of 1996 permits a hacked individual or entity to “hack back,” that is, go on the offense and attack the attacking computer. The Department of Justice has taken the position that hacking back itself violates the law, while some notable experts assert that hacking back in self defense is permissible. On this previously recorded conference call, our experts discuss the legal limits and answer questions from callers. -- Featuring: Hon. Stewart A. Baker?, Steptoe & Johnson LLP and former Assistant U.S. Secretary for Policy, U.S. Department of Homeland Security?; Mr. Prof. Orin S. Kerr, The George Washington University Law School??; and Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

On January 4, 2012, President Barack Obama announced recess appointments of three members of the National Labor Relations Board: Richard F. Griffin, Jr., former General Counsel of the Operating Engineers union, Sharon Brook, former labor staffer for Senator Edward ("Ted") Kennedy and assistant to Secretary of Labor Hilda Solís, and former Republican Senate staffer Terrence F. Flynn, who has since resigned. These appointments are controversial because the United States Senate was, by its own rules, not in recess at the time, conducting pro forma sessions every three days. Several appeals from Board decisions by panels that included recess appointees have been filed by various parties challenging the recess appointments as unconstitutional. An appeal filed in the Seventh Circuit by nonunion workers represented by National Right to Work Legal Defense Foundation Staff Attorney Glenn M. Taubman was the first of those cases to be argued in a U. S. Court of Appeals, on November 30, 2012. An appeal filed in the D.C. Circuit by an employer was argued by Jones Day partner Noel J. Francisco on December 5, 2012. On this previously recorded conference call, Messrs. Taubman and Francisco report on the oral arguments in their cases, discuss the legal theories for and against the recess appointments, and answer questions. -- Featuring: Mr. Noel J. Francisco, Partner, Jones Day; Mr. Glenn M. Taubman, National Right to Work Legal Defense Foundation; and Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society, as the moderator.

Recent legislation passed by the State of Utah has demanded that the federal government extinguish title to certain public lands that the federal government currently holds. The State of Utah claims that the federal government promised (at statehood when the federal government obtained the lands) that the federal ownership would be of limited duration and that the bulk of those lands would be timely disposed of by the federal government into private ownership or otherwise returned to the State. This White Paper provides a legal overview of these claims. Prof. Donald Kochan discusses the ideas presented in his paper joined by critical commenter Mr. David Garbett on this previously recorded conference call. -- Featuring: Prof. Donald J. Kochan,? Professor of Law, Chapman University School of Law; Mr. David Garbett??, Staff Attorney, Southern Utah Wilderness Alliance; and Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society, as the moderator.

Given the breaking news, George Mason Law School Professor Todd Zywicki, Chapman University School of Law Professor John Eastman, and Mr. Noel Francisco, a Jones Day Partner who argued the case in the D.C. Circuit Court, will discuss today’s? ?D.C. Circuit Court of Appeals decision in the Noel Canning v. NLRB case, in which a unanimous three judge panel held the recess appointments to the National Labor Relations Board unconstitutional. CFPB Director Richard Cordray was appointed at the same time by the President using the same recess appointment authority. -- Professor Todd Zywicki will also discuss his recently published article, "Policy-Based Evidence-Making at the Consumer Financial Protection Bureau." In the article, he first describes the mortgage rules very recently adopted by the Consumer Financial Protection Bureau (CFPB). He goes on to question whether the rationale for the new rules is supported by factual evidence. Finding they are not, he calls for greater oversight of the CFPB.? -- Featuring: Dr. John C. Eastman?, Chapman University School of Law??; Mr. Noel J. Francisco??, Jones Day??; Prof. Todd J. Zywicki?, George Mason University School of Law?; and Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society, as the moderator.

Today, people read almost daily reports about the "broken patent system" in newspaper articles, blogs and at social media websites. Is this true? On the one hand, the high-tech and biotech industries seem awash in patent litigation, and Congress, regulatory agencies, and courts are considering adopting a variety of reform measures. On the other hand, patents are securing property rights in technological innovation once imagined only as science fiction -- tablet computers, smart phones, genetic testing for cancer, personalized medical treatments for debilitating diseases, and many others -- and these technological marvels are now a commonplace feature of our lives. -- To discuss these two conflicting stories about whether the patent system promotes or hampers innovation, we hosted two distinguished jurists: Paul Michel, former Chief Judge of the Court of Appeals for the Federal Circuit, and Judge Richard Posner of the Court of Appeals for the Seventh Circuit. Both judges have unparalleled depth in knowledge about patent policy and the working details of the patent system. This Teleforum brings them together for the first time to discuss their respective views on whether the patent system today is properly securing property rights in new innovation. -- Featuring: Hon. Paul R. Michel, United States Court of Appeals, Federal Circuit (ret.); Hon. Richard A. Posner, United States Court of Appeals, Seventh Circuit; and Moderator: Prof. Adam Mossoff, George Mason University School of Law. Introduction by: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society.

Although pure software patents are only a couple decades old, they have become the focus of a heated innovation policy debate. On the one hand, new technological innovation once imagined only as science fiction is now a commonplace feature of our lives -- tablet computers, smart phones, wireless telecommunication, cloud computing, and streaming television, movies and songs, to name just a few of our modern marvels. On the other hand, the high-tech industry seems awash in patent litigation, especially in the "smart phone war" between Apple, Samsung, Google, Microsoft, and other high-tech firms. As a result of this extensive litigation, commentators in newspaper articles, in blogs, and at conferences now complain about the "problem of software patents." Conventional wisdom seems to be quickly gelling around the proposition that software patents are a problem that demands a solution from Congress or the courts. The speakers on this previously recorded conference call discuss whether software patents advance development of new technological innovation or hinder this vital innovation. The panelists represent all viewpoints on this topic, and bring their extensive academic, legal and industry experiences to bear on this increasingly important issue in the innovation policy debates today. -- Featuring: Prof. Adam Mossoff, George Mason University School of Law; Prof. David Olson, Boston College Law School; Mr. Robert R. Sachs, Partner, Fenwick & West LLP; and Moderator: Prof. Mark Schultz, Southern Illinois University School of Law.

In early October, the Supreme Court heard oral argument in Arkansas Game and Fish v. United States. Can the temporary flooding of private property, caused by release of water from a river-regulating dam to relieve pressure on the dam or to aid in downstream water management, be a taking of private property for public use which therefore requires just compensation? This novel question was addressed in the oral argument, and will be answered by the Court when it renders its opinion. Professor Steven Eagle attended the oral argument and gave his report in this special "Courthouse Steps" edition of Teleforum. Featuring: Prof. Steven J. Eagle, George Mason University School of Law.

On March 21, 2012, the unanimous Supreme Court handed down its decision in Sackett v. EPA, a case involving landowners who graded a lot in a residential development to build a home. They were issued an administrative compliance order under the Clean Water Act by the EPA, stating that the lot was a wetland, and requiring them to restore the lot to its original condition or risk daily fines. The Court held that the landowners had the right the challenge the compliance order in court even though the EPA argued that it was not a final agency action and therefore not subject to review. In a strongly worded concurrence, Justice Alito added: "the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA's tune." What are the implications of the decision? Does the Court’s language indicate anything about the balance of power between the federal government’s administrative agencies and the people? What, if anything, is the significance of the Court’s unanimity? Our experts discuss these and other issues on this previously recorded conference call. -- Featuring: Prof. Richard Frank, California Environmental Law and Policy Center, UC Davis School of Law and Mr. Damien Schiff, Counsel for the Petitioners, Pacific Legal Foundation.

On August 1 of this year, the Department of Health and Human Services mandate went into effect. The mandate, issued under the authority of the Affordable Care Act, requires employers to provide their employees with free coverage for all FDA-approved contraceptives and sterilization methods. While the mandate includes a "religious employer" exemption--which is essentially limited to houses of worship--many employers who do not qualify for the exemption have filed suit in courts across the nation, claiming that the mandate violates their First Amendment rights, as well as their rights under federal statutory law. Who are these employers who say their consciences do not allow them to cover the mandated drugs? What arguments have they raised? How have the courts ruled thus far? Hasn't the government promised to accommodate these employers? On this previously recorded conference call, Mr. Duncan discusses the legal issues at stake and provides a litigation update. -- Featuring: Mr. Kyle Duncan, General Counsel, The Becket Fund for Religious Liberty.

On October 29, 2012, the Supreme Court heard an important national security case that will answer a crucial question of standing. The case, Clapper v. Amnesty International, asks whether individuals and organizations that believe that their international communications will be monitored by the U.S. government have standing to challenge the government's surveillance in cases where the plaintiffs are unable to present direct evidence that the United States has acquired or will imminently acquire their communications. The case arises in the context of Section 702 of the FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008 (FAA), which permits the "targeting of [non-United States] persons reasonably believed to be located outside the United States" to acquire "foreign intelligence information." Attorneys, journalists, and various organizations brought this action facially challenging the law under the First and Fourth Amendments and Article III of the Constitution. They claim standing because the FAA’s new procedures have forced them to take costly measures to protect the confidentiality of their international communications. Accordingly, they argue the government's surveillance of international communications both has caused them present injury and will likely cause them future harm. The Second Circuit Court of Appeals held that plaintiffs had standing to pursue their claims, and the U.S. Government appealed. In May, the Supreme Court granted certiorari to decide the matter. On this previously recorded conference call, our experts discuss the case and answer questions from callers. -- Featuring: Hon. Benjamin A. Powell, Wilmer Cutler Pickering Hale and Dorr LLP and Prof. Stephen I. Vladeck, American University Washington College of Law.

Innovation and entrepreneurship are integral to America’s economic strength, and the U.S. patent system has been critical to nurturing the innovation economy. With its foundation in Article One, Section 8 of the Constitution, the U.S. patent system has been the strongest in the world. In recent years, some critics, including Judge Richard Posner, have argued that the patent system has led to excessive patenting, too much litigation, and unwarranted costs for consumers. Patent defenders have responded that with every spike in innovation comes a corresponding increase in the number of patent suits, and efforts to weaken patent rights will inevitably lead to less innovation. With the passage of the America Invents Act -- the broadest overhaul of the patent system in 50 years America -- many people believed that the dispute over patent rights would recede. However, with a string of high profile patent infringement suits in the smartphone industry -- and a new effort to roll back patent rights at the International Trade Commission certain patents held by so-called "non-practicing entities" (NPEs) -- the debate over intellectual property has grown more intense. Would reduced patent rights diminish U.S. competitiveness and depress innovation? In a diversified economy, should NPEs have fewer patent rights than those that manufacture their inventions? Will innovation continue apace even if patent protections are scaled back? -- Featuring: Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law and Prof. Adam Mossoff, Professor of Law, George Mason University School of Law.

Fisher v. University of Texas is being heralded as the blockbuster case of this year’s U.S. Supreme Court term. It was argued on Wednesday, October 10, 2012, just as an unprecedented number of scholars have published work directly or indirectly calling into question some of the basic assumptions of affirmative action policies. Is the Supreme Court poised to make fundamental changes to affirmative action in higher education, revisiting either Bakke (1978) or Grutter and Gratz (2003)? Does Fisher have the markings of a landmark U.S. Supreme Court case? Professor Gail Heriot attended the session and provides an overview of the case and the oral argument in this special "Courthouse Steps" edition of Teleforum. Featuring: Prof. Gail Heriot, University of San Diego School of Law and Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society, as the moderator.

Over the last thirty years, the number of federal criminal laws has increased by one-third. This expansion, combined with the fact that many of these laws are broadly written and lack traditional criminal mens rea requirements, has given rise to a debate about "over-criminalization." The federal government's raids of Gibson Guitar factories intensified the debate, drew national attention to the issue, and prompted calls for reform. Critics of these developments argue that they are inconsistent with federalism principles, undermine individual liberty, and threaten our nation’s prosperity by providing another major way for the federal government to regulate the private sector. Skeptics dispute various aspects of these criticisms and argue that much of modern federal criminal law provides essential tools for maintaining order, protecting consumers, and reining in fraud. Has over-criminalization had an impact on our economy? What reforms could Congress consider? How does the public perceive these issues and proposals for reform? On this previously recorded conference, the experts explore these questions and share the results of a nationwide public opinion survey. Featuring: Mr. Whit Ayres, North Star Opinion Research; Hon. George J. Terwilliger III, White & Case LLP; and Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society.

With several weeks' time to reflect on the U.S. Supreme Court's health care case, Professor Randy Barnett participated in a Teleforum on July 17 to discuss the commerce clause, tax power and Medicaid decisions, and their implications. Featuring: Prof. Randy E. Barnett, Georgetown University Law Center and Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society, as the moderator.