Federalist Society Practice Groups Podcasts

The U.S. Supreme Court decided the case United States v. Alvarez during its most recent term. In this podcast, First Amendment experts Eugene Volokh and Erik Jaffe dissected the case and took questions from the audience. Featuring: Mr. Erik S. Jaffe of Erik S. Jaffe, P.C.; Prof. Eugene Volokh of UCLA School of Law; and Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society, as the moderator.

One of the major issues under the Dodd-Frank Act is required credit risk retention on securitized mortgages, or "skin in the game," unless the mortgages in the securitized pool are "QRM" ("qualified residential mortgages"). QRM must be defined by financial regulation, a task which has proved highly controversial. Will mortgage finance markets perform better if parties selling mortgages have skin in the game? What are the problems, unintended consequences, and costs of such a requirement--perhaps cutting off credit for some potential borrowers? Which parties or transactions should be exempt? Should it be a requirement at all, as opposed to an alternative parties can structure as they so choose? Are there any helpful examples from other countries or credit markets? This issue becomes even more complicated when the interplay between the QRM rule and other requirements in the Dodd-Frank Act - the Qualified Mortgage rule and the lower HOEPA thresholds - and the CFPB’s and HUD’s views on disparate impact are considered. On this previously recorded conference call, the panel of experts discuss the panoply of new rules and their potential impact on the U.S. mortgage market. Featuring: Mr. Michael Calhoun, Center for Responsible Lending; Ms. Anne C. Canfield, Canfield & Associates, Inc.; Mr. Bert Ely, Ely & Company, Inc.; Mr. Alex J. Pollock, American Enterprise Institute; and Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society, as the moderator.

The Foreign Intelligence Surveillance Act (FISA) has featured prominently in contemporary debates over the prosecution of the war against jihadist extremists. Originally passed in 1976 as a reaction to Watergate abuses of presidential national security authority, FISA established the Foreign Intelligence Surveillance Court (FISC) and procedures for obtaining ex parte court authorization and warrants to conduct electronic and later physical surveillance or searches of persons and groups found to be agents of a foreign power, including designated foreign terrorist organizations. FISA warrants play a key role in the interceptions of telephone, email, and internet communications of Al Qaeda and other terrorist foes of the United States. But controversy has surrounded attempts through the USA-PATRIOT Act and other legislation to refine and update the law governing FISA. Are FISA warrants necessary in all instances and circumstances, or do there remain areas outside the domestic surveillance law that are more properly governed by war making power and the Executive Branch's authority under Article II of the Constitution? What is the appropriate mix of court oversight and judicial interposition to balance the need for effective counterterrorism with protection of constitutional rights - and just who is entitled to claim those rights? Finally, who has standing to challenge the surveillance warrants requirements of FISA (see Clapper v. Amnesty International USA)? Our experts provide their thoughts on these issues and answer questions from callers on this previously recorded conference call. -- Featuring: Mr. Alexander Abdo, ACLU's National Security Project; Hon. Kenneth L. Wainstein, Cadwalader, Wickersham & Taft LLP; and Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society, as the moderator.

With the completion of the U.S. Supreme Court’s term, there has been a great deal of discussion about "judicial activism." Some commentators have asserted that the failure to overturn the Patient Protection and Affordable Care Act is an act of "judicial restraint." Other commentators assert that the Court failed to demonstrate a fidelity to the Constitution as it performed its legitimate, recognized role of judicial review. Does the definition of "judicial activism" depend upon one’s perspective? Can "judicial activism" be reconciled with the Court’s recognized role of judicial review? Is there a more apt term? Our experts discuss these issues and answer questions from callers on this previously recorded conference call. -- Featuring: Dr. John C. Eastman, Chapman University School of Law; Prof. Ilya Somin, George Mason University School of Law; and Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society, as the moderator.

The U.S. Supreme Court recently handed down its decision in the highly anticipated immigration case, Arizona v. U.S. The Court’s decision was split, striking down some sections of Arizona’s law, but upholding others. On this previously recorded conference call, our experts provide information on the future of immigration law enforcement and the division of authority between the Federal and state governments. -- Featuring: Dr. John C. Eastman, Chapman University School of Law and Prof. Margaret D. Stock, Lane Powell PC.

The Responsible Corporate Officer or Park doctrine allows corporate officers to be held criminally liable for violations of the Food, Drug, and Cosmetic Act without evidence of individual culpability based on a showing that their positions within the corporation gave them responsibility and authority to prevent or correct violations. The government has suggested that it will increasingly use this theory to pursue executives at pharmaceutical and medical-device firms. But critics say that such prosecutions, which may result in prison sentences and long-term exclusion of convicted executives from participation in Medicare and Medicaid, reflect government overreaching. In this previously recorded conference call, two experts discuss the legal rationale for the doctrine, its current use in law enforcement, and its future. -- Featuring: Mr. Gerald Masoudi, Covington & Burling LLP; Mr. Rick Blumberg, Office of Chief Counsel, Food and Drug Administration; and Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society, as the moderator.

With the passage of Dodd-Frank, Congress and the administration are proudly announcing the end of "Too Big To Fail." But has it really ended? Will the Dodd-Frank tools work in a crisis? Would a revised bankruptcy code actually work better, providing more transparency and greater certainty to creditors? And is the rest of the world only paying lip service to the concept as we watch the Europeans bail out their banks without the slightest degree of hesitation? Our experts provide their thoughts on these and other issues on this previously recorded conference call. Featuring: Mr. Randall D. Guynn, Davis Polk & Wardwell LLP; Mr. David J. Schraa, Institute of International Finance; Prof. David A. Skeel, University of Pennsylvania Law School; and Mr. John L. Douglas, Davis Polk & Wardwell LLP, as the moderator.

In his new book, The Upside-Down Constitution, Michael Greve asserts that America’s Constitution has been inverted, allowing all levels of government to be exploited by interest group efforts to wield influence and leverage power. He argues that we have lost our way when it comes to the structural constitution, and that having done so will lead to more government, more spending, and less liberty. In addition to his critique, Mr. Greve discusses how to return to sound federalism and answers questions from callers on this previously recorded conference call. Featuring: Dr. Michael S. Greve, American Enterprise Institute; Prof. Michael B. Rappaport, University of San Diego School of Law; and Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society, as the moderator.

In Design for Liberty, Professor Richard Epstein examines the growth of government at all levels and the corresponding distrust of government by its citizens. As a solution for bloated and indiscriminate government, he advocates for predictable laws written precisely enough to limit discretion (too often exercised arbitrarily) by regulators, coupled with reinvigorated property rights to strengthen the rule of law in America. Professor Epstein provides his thoughts on these issues and answers questions from callers on this previously recorded conference call. Featuring: Prof. Richard A. Epstein, New York University School of Law and Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society, as the moderator.

The techniques of directional drilling and hydraulic fracturing for oil and natural gas have been around for generations. Over the past ten years, however, the techniques have been combined for use in hard ("tight") rock formations that contain significant amounts of hydrocarbons. The combination of these techniques in tight shale formations has unleashed a flood of natural gas and oil, changing America’s, and the world’s, energy landscape. Traditionally, most regulation of oil and gas drilling has been done at the state level. Increasingly, however, the Federal government has become involved in this regulation and there have been calls for additional Federal regulatory involvement. State governmental agencies generally believe they are fully capable of regulating oil and gas drilling and have superior expertise to that of the Federal government. Supporters of Federal governmental involvement believe, however, that uniform drilling, fracing, air aggregation and other regulatory provisions are more protective of the environmental and are preferable to a plethora of state laws. Our speakers discuss these and other issues on this previously recorded conference call. Featuring: Mr. Jason Hutt, Partner, Bracewell & Giuliani LLP; Mr. Scott Perry, Deputy Secretary, Pennsylvania Department of Environmental Protection; Mr. Craig Segall, Associate Attorney, Sierra Club Environmental Law Program; Moderator: Mr. Joel Burcat, Partner, Saul Ewing LLP

In her concurrence in United States v. Jones, Justice Sotomayor wrote that it "may be necessary" for the Court to abandon its long-standing rule that an individual has no reasonable expectation of privacy under the Katz test in information voluntarily disclosed to third parties or to the general public. Justice Sotomayor argued that such a rule was "ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is . . . disentitled to Fourth Amendment protection." -- Should the longstanding Katz standard concerning information disclosed to third-parties be re-evaluated, either from a statutory or constitutional perspective? Alternatively, would Justice Sotomayor's proposed re-evaluation of this standard represent a huge boon for criminals who seek to keep their online conduct hidden from detection by law enforcement? Our experts discuss these and other issues on this previously recorded conference call. Featuring: Prof. Orin S. Kerr of The George Washington University Law School; Mr. Jamil N. Jaffer, Senior Counsel for the House Permanent Select Committee on Intelligence; and Mr. Dean Reuter, Vice President & Director of Practice Groups at The Federalist Society, as the moderator.

In June 2012 the United States Supreme Court announced its decision in Knox v. Service Employees International Union, reversing the Ninth Circuit 7-2. The case concerned a union special assessment for a "Political Fight Back Fund" that nonmember California state employees were required to pay as a condition of employment. The Court held 5-4, in a majority opinion written by Justice Samuel Alito, that "when a public sector union imposes a special assessment or dues increase, the union must provide [a notice of the purpose of the assessment or increase] and may not exact any funds from nonmembers without their affirmative consent." The Court also held that the union could not constitutionally charge the nonmembers for its expenses opposing ballot questions even if they "may be said to have an effect on present and future contracts between public-sector workers and their employers." Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, concurred in the judgment, but agreed only that "[w]hen a public-sector union imposes a special assessment intended to fund solely political lobbying efforts, the First Amendment requires that the union provide nonmembers an opportunity to opt out of the contribution of funds." Justices Stephen Breyer and Elena Kagan dissented. Our experts discussed the ramifications of the case. Featuring: Mr. Dominic Parella of Hogan Lovells LLP and Mr. W. James Young of the National Right to Work Legal Defense Foundation.

NFIB v Sebelius, the health care case, has been decided by the U.S. Supreme Court. The Court has determined that the individual mandate exceeds the Commerce Clause power of Congress, but can be upheld under the taxing power. The Medicaid expansion provision was upheld, but the Court ruled that Congress could not take back Medicaid funds from states that decide to not participate in the expansion. Join us as David Rivkin, the litigator who began this important case by filing the lawsuit in federal district court on behalf of numerous states and the NFIB, explains the decision and the dissents.

One year ago last month, Texas passed a much-talked-about "loser pays”"bill. In certain cases, the law requires the losing party to pay the costs of the winning party. Theoretically, a loser pays law is thought to reduce litigation, as the plaintiff in a law suit now has something at stake--if he does not prevail, he must, under certain conditions, pay the costs of the defendant. In this previously recorded podcast, our experts discussed the Texas law, its breadth, its conditions for applicability, and its effect on lawsuits in Texas. Featuring Prof. Ronen Avraham of the University of Texas School of Law, Mr. E. Lee Parsley of E. Lee Parsley, P.C., Mr. Walter Olson of Cato Institute, and Judge Dennis Jacobs of the U.S. Court of Appeals for the Second Circuit as the moderator.

The Cyber Intelligence Sharing and Protection Act (CISPA) is currently under consideration in Congress. What are its strengths and weaknesses? Are there legitimate privacy concerns? Will CISPA suffer the same fate as the Stop Online Piracy Act, or is it fundamentally different? These and other questions are discussed by our experts on this previously recorded conference call. Featuring The Honorable Stewart A. Baker of Steptoe & Johnson LLP and Mr. Ryan Radia of the Competitive Enterprise Institute.