Federalist Society Practice Groups Podcasts

JP Morgan famously reported losses of $2B last quarter, prompting a great deal of discussion about the proper role of regulators in the financial services sector. The Volcker Rule, being promulgated under Dodd-Frank, would limit proprietary trading by certain institutions. How easily can industry players and regulators define "proprietary trading," especially as opposed to legitimate hedging and other risk shifting? Further, will the Volcker Rule single out the U.S. financial services industry by prohibiting activities still permitted by foreign competitors and, if so, with what result? These and other questions are discussed by our experts on this previously recorded conference call. Featuring Prof. Michael S. Barr of the University of Michigan Law School and Prof. Jonathan R. Macey of Yale Law School.

The Department of Health and Human Services attracted a great deal of attention when it issued regulations to ensure that women receive preventative health care coverage at no additional out-of-pocket cost. The regulation would require employers, with an exception for certain religious organizations, to provide to employees preventive care, including domestic violence screening and breast-feeding support, but also including contraception, some of which acts as an abortifacient. Critics argued that the exceptions were too narrowly drawn, failing to exclude parochial schools, hospitals, soup kitchens, religious membership organizations, etc., and had no accommodation for self-insured employers who might have a conscience objection. A promised revision to the regulation to require the health insurance companies themselves to bear the costs of the benefit did not satisfy all critics. Join us as our experts debate these and other issues, including all the latest developments. Featuring Prof. Mark Rienzi of The Catholic University of America Columbus School of Law and Prof. Adam Winkler of UCLA School of Law.

Benefit-Cost Analysis (BCA) has been embraced by every President since Richard Nixon as a general purpose tool for evaluating the merits of administrative decisions, even while it has been assigned a subordinate role -- or no role at all -- in the statutory frameworks for making those decisions. One consequence is that we have a voluminous record of BCA performance in the executive branch, but only a handful of cases in which it has played an important role in judicial review of rules. Now, amid widespread claims that federal regulation is contributing to America’s continuing economic troubles, BCA is getting more attention. As practiced, does it give an accurate picture of the economic consequences of regulatory actions? Should we rely on it or require it, more than we do, to guide administrative discretion? On this previously recorded conference call, our two experts discuss the state of the art and current BCA controversies in energy and environmental regulation, and in financial regulation. Featuring Dr. Sharon Brown-Hruska of National Economic Research Associates, Inc. and Mr. Brian Mannix of Buckland Mill Associates.

No federal law directly addresses employment discrimination against people with criminal backgrounds. Yet, since 1987, the Equal Employment Opportunity Commission (EEOC) has maintained that, with some exceptions, an employer's policy or practice of excluding individuals from employment on the basis of criminal arrest and conviction records is unlawful under Title VII as disparate impact discrimination. The EEOC maintains that because statistics show that African-American and Hispanic males are arrested and convicted at rates disproportionate to their numbers in the population, background checks work to their special disadvantage to limit their employment. This year the EEOC issued its first guidance in over 20 years, making use of background checks more onerous. It was approved shortly after the EEOC announced a record $3.13M settlement with Pepsi Beverages over the racially disparate impact of its criminal background checks policy. On this previously recorded conference call, our experts discuss the EEOC's new guidance and its recent enforcement actions. Featuring Mr. Maurice Emsellem of the National Employment Law Project and Ms. Dominique Ludvigson of the U.S. Commission on Civil Rights.

As the election season accelerates, our panel of experts discussed the impact of Citizens United, the much talked about campaign finance case decided by the U.S. Supreme Court. What has the decision meant for overall campaign fundraising? Who is giving, in what amounts, and to whom? Are there clear winners and losers? Listen to the analysis of our experts on these and other questions. Featuring Mr. Joseph M. Birkenstock of Caplin & Drysdale and Prof. Bradley A. Smith of Capital University Law School.

Since the Supreme Court's 2002 decision in Republican Party of Minnesota v. White, judicial candidates have had the freedom to discuss their views on "disputed legal or political issues." Many questions remain after the decision, however, about states' ability to restrict the speech of judicial candidates and their supporters. For example, should judges and judicial candidates have the right to announce their party affiliation and appear at party functions? To endorse other candidates? To raise campaign funds personally? And where is the line between an acceptable statement that announces one's views and unacceptable statement that implicitly promises a result in a case the judge might decide in the future? When do a judge's campaign statements -- even if constitutionally protected -- trigger the judge's obligation to recuse? What is the effect of Caperton v. A.T. Massey Coal Co., decided by the Supreme Court in 2009, in which the Court held that independent expenditures by a judicial candidate's supporters can sometimes require the judge to recuse in a case involving those supporters? Featuring Mr. James Bopp, Jr., of Bopp, Coleson, and Bostrom and the James Madison Center for Free Speech and Prof. Michael R. Dimino, Sr., of Widener University School of Law.

Many observers argue that the corporate income tax is in need of fundamental reform. Is its worldwide scope damaging the ability of the U.S. to compete in foreign markets and retain the headquarters of large, successful multinational firms? Is the corporate tax rate is too high, anti-growth, or too complex? Or are businesses merely paying their fair share, or perhaps not enough? Proponents of reform assert that it could aid investment in the United States, the compensation of U.S. workers, and the overall pace of economic growth in tough economic times. On this previously recorded conference call, the speakers discuss these and other issues and answer questions from the callers. Featuring Mr. Seth Hanlon of the Center for American Progress and Dr. Douglas Holtz-Eakin of the American Action Forum.

Fisher v. University of Texas comes before the Court 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 more fundamental changes to affirmative action in higher education than it did in either Bakke (1978) or Grutter and Gratz (2003)? Does Fisher have the markings of a landmark U.S. Supreme Court case? Professor Richard Sander of UCLA provides an overview of this research and discusses its implications for Fisher on this previously recorded conference call.

Richard Brookhiser's book examines the life of America's fourth President, James Madison, including his role in advising Thomas Jefferson, his relationships with various Founding Fathers, including George Washington, John Adams, Thomas Jefferson, and Alexander Hamilton. Featuring Mr. Richard Brookhiser, Author of James Madison and Columnist for American History and National Review Magazines, and Mr. James A. Haynes of the Federalist Society's Professional Responsibility & Legal Education Practice Group Executive Committee and Baltimore Lawyers Chapter.

The recent shooting of Trayvon Martin in Sanford, Florida has sparked a national debate over "Stand Your Ground" laws, which give citizens broader leeway to use lethal force when they reasonably believe that someone intends to inflict serious bodily harm or commit homicide. On this previously recorded conference call, the speakers will attempt to cut through the heated and often misinformed rhetoric about these laws to address such questions as whether they are necessary, whether they deter crime, and proposed reforms. After providing their opening remarks, the speakers answer questions from the callers. Featuring Dr. John R. Lott Jr., Author of More Guns, Less Crime and Debacle: Obama's War on Jobs and Growth ans Prof. Gregory O'Meara of Marquette University Law School.

The Fifth Amendment of the U.S. Constitution states that in federal criminal cases, "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury." Critics argue that the grand jury system today has strayed from it's original role as the voice of the community protecting individuals from wrongful indictments and prosecutions. On this previously recorded conference call, the speakers discuss the goals of the grand jury system, whether or not those goals are being met, and various proposed reforms on both the state and federal level. After providing their opening remarks, the speakers answer questions from the callers. Featuring Mr. Gerald Lefcourt of Gerald B. Lefcourt, PC; Mr. McGregor Scott of Orrick, Herrington & Sutcliffe LLP; and Mr. Thomas Sullivan of Jenner & Block LLP.

Last year, using a drone missile strike, the U.S. killed Anwar al-Awlaki. Questions were raised about the legal and constititional authority to target a U.S. citizen abroad. In recent remarks delivered by Attorney General Eric Holder, the administration offered its most detailed legal defense to date. Our experts recently discussed this legal rationale, and the future of targeting U.S. citizens. Featuring Prof. Michael W. Lewis of Ohio Northern University Pettit College of Law and Prof. Stephen I. Vladeck of American University Washington College of Law.

When Alexander Hamilton spoke of the Electoral College, he said: "[If] the manner of it be not perfect, it is at least excellent." Today, some are more doubtful, to say the least. The New York Times editorial board calls the system a "quadrennial ritual born in the economics and politics of slavery and the quill-pen era." Some Americans want to move to a direct national election so badly that they have created an effort to do exactly that, but without a constitutional amendment. The National Popular Vote effort asks state legislatures to award their electors to the winner of the national popular vote. If states holding a majority of electors comply, then the presidential election will operate as a national direct election. This panel will discuss presidential election from several perspectives: Is the Electoral College an antiquated institution or is it an essential element of America’s republican democracy? If the Electoral College needs to be replaced with a direct election system, is NPV an appropriate route to change? Or does its interstate compact constitute an end-run around the constitutional amendment process? Featuring Prof. George C. Edwards III of Texas A&M University; Mr. Trent England of The Freedom Foundation; Dr. John R. Koza, author of Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote; and Ms. Tara Ross, author of Enlightened Democracy: The Case for the Electoral College.

The Supreme Court recently clarified the rights of defendants in criminal cases to effective assistance of counsel during plea negotiations in two closely related decisions, Lafler v. Cooper and Missouri v. Frye. In two other decisions earlier this Term, Maples v. Thomas and Martinez v. Ryan, the Supreme Court ruled on federal court review of state criminal convictions when counsel has been ineffective or abandoned a client in the post-conviction appeals process. All four cases will significantly affect criminal defendants' access to counsel at the front end of the criminal process, during plea bargaining, as well as the back end, during state collateral appeals. After discussing the Court's decisions in these cases, the speakers will take questions from the callers. Featuring Mr. George Kendall of Squire Sanders and Mr. Dean Mazzone of the Massachusetts Attorney General's Office.

The Keystone Pipeline is designed to transport petroleum products from Northeast Alberta, Canada, to as far away as the Gulf Coast of Texas. Proponents argue that the pipeline is essential to lower the cost of petroleum products and increase America’s energy independence. Opponents assert that the process used to "mine" the sand oils in Canada is not environmentally friendly, and that the pipeline itself presents environmental hazards that have not been completely taken into account. As Canada’s oil production and exports increased, President Obama postponed a decision that would have permitted construction of the pipeline extension. Our experts will discuss the merits of the pipeline from differing perspectives. Featuring Mr. Daniel Simmons of the Institute for Energy Research and Prof. Mark Squillace of the University of Colorado Law School.