Federalist Society Practice Groups Podcasts

The decennial census has again produced the decennial redistricting litigation -- not least in Texas, whose attempts to draw districts for the 2012 elections have engulfed two three-judge district courts, the Department of Justice, and the Supreme Court. The Texas litigation has been complicated by what some see as the conflicting demands of Sections 2 and 5 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments to the Constitution. In Perry v. Perez, the Supreme Court vacated the interim maps a lower court drew and gave that court instructions on how navigate the legal tangle. That may have expedited the resolution of Texas's election conundrum but by no means resolved the broader issues involved. Join us for a Federalist Society Teleforum on Perry v. Perez, the Voting Rights Act, and other developments in election regulation. Featuring: Prof. Justin Levitt of Loyola Law School Los Angeles and Mr. Ilya Shapiro of the Cato Institute.

On Wednesday, March 28, the U.S. Supreme Court concluded oral arguments in Florida v. HHS, better known as the Obamacare case. The federal courts below split on the constitutionality of the health care reform act. Wednesday's arguments focused on severability and the Medicaid coercion argument. Professor Randy Barnett reported from the Courthouse steps on exactly what transpired. Assuming, arguendo, that the Court finds some part of the Act unconstitutional, will it sever that part and preserve the balance of the statute, or will the entire statute fall? Will Wednesday's severability argument reveal anything about how the Court, or any individual justice, might rule on constitutionality? Does the design of the Act unconstitutionally coerce states by adding to the Medicaid rolls? Professor Barnett discussed these and other questions in this special Teleforum call.

On Tuesday, March 27, the U.S. Supreme Court continued hearing oral arguments in Florida v. HHS, better known as the Obamacare case. The federal courts below split on the constitutionality of the health care reform act. Tuesday's arguments focused on the constitutionality of the individual mandate. Professor Randy Barnett, who attended Tuesday's oral arguments, reported from the Courthouse steps on exactly what transpired. Which justices seemed most dubious about the individual mandate, and which seemed most inclined to support Congress’ assertion of power? What were the major points of contention? Did the advocates for the government propound a judicially-administrable limiting principle on Congress’ power? Professor Barnett discussed these and other questions in this special Teleforum call.

On Monday, March 26, the U.S. Supreme Court heard oral arguments in Florida v. HHS, perhaps better known as the Affordable Care Act case or the Obamacare case. The federal courts below split on the constitutionality of the health care reform act. Monday's arguments focused on the Anti-Injunction Act, and whether and to what extent it might control the outcome of the case. Professor Randy Barnett attended Monday's oral arguments and reported from the Courthouse steps on exactly what transpired. What was the focus of the inquiry of the various justices? Who asked the most pointed questions? What is expected in Tuesday's oral argument focusing on the constitutionality of the individual mandate? Professor Barnett discussed these and other questions in this special Teleforum call.

AT&T v. Concepción is one of the most controversial Supreme Court decisions in many years. Most of the discussion to date has centered on its implications for the future of class action litigation. This panel, however, will examine its implications for the future of arbitration. In particular, our experts will examine the Court's interpretation of the preemptive force of the Federal Arbitration Act and what it means for other state attempts to regulate arbitration. Featuring Prof. Hiro Aragaki of Loyola Law School Los Angeles; Dr. Michael S. Greve of the American Enterprise Institute; Prof. Christopher R. Drahozal of The University of Kansas School of Law; Prof. Peter B. "Bo" Rutledge of the University of Georgia School of Law; and Prof. Brian T. Fitzpatrick of Vanderbilt University Law School as the moderator.

Recently, President Obama recess-appointed three new members to the National Labor Relations Board, and a new chief of the Consumer Financial Protection Bureau created by the Dodd-Frank bill. In making the appointments, the President bypassed the usual approval process for the nominations in the Senate, claiming authority to make recess appointments. Commentators and academics differ in their opinions about the constitutionality of the President's appointments during the Senate's pro forma sessions. After describing just what transpired, our expert panelists offered their views and took questions from the audience. Featuring: The Honorable Charles J. Cooper of Cooper & Kirk, PLLC; Prof. Michael B. Rappaport of the University of San Diego School of Law; Prof. Peter M. Shane of The Ohio State University Moritz College of Law; and Prof. William R. Yeomans of American University Washington College of Law.

On January 9, 2012, the Supreme Court heard oral argument in Sackett v. EPA. The case involves two landowners who graded a lot in a residential subdivision to build a home and were issued an administrative compliance order by the EPA stating that the graded lot was a wetland requiring them to either restore the lot to its original condition or risk civil fines for each day of non-compliance. Do the petitioners have a right to seek judicial review of an EPA compliance order prior to the EPA's official enforcement of that order in court and does the compliance order deprive the landowners of due process of law? On this previously recorded conference call, Mr. Damien Schiff of the Pacific Legal Foundation discusses these and other issues and answers questions from the callers.

The Compact Clause of the Constitution provides that "[n]o State shall, without the Consent of Congress... enter into any Agreement or Compact with another State, or with a foreign Power." The Supreme Court requires congressional consent only for interstate compacts that attempt to enhance "states power quoad [relative to] the federal government" opening the door to approximately 200 interstate compacts. On this previously recorded conference call, the speakers discuss states’ rights, the issues that arise from interstate compacts, and their impact on federal programs. Featuring Dr. Michael Greve of the American Enterprise Institute and Mr. Nick Dranias of the Center for Constitutional Government at the Goldwater Institute.

On December 2, the U.S. House of Representatives passed the Regulatory Accountability Act of 2011 (H.R. 3010) which would amend the Administrative Procedure Act (APA) and create new federal rulemaking requirements. How might this legislation affect the rulemaking requirements of existing executive orders and more broadly the federal rulemaking process? On this previously recorded conference call, the experts provide their analysis of the Act and it's impact on the federal rulemaking process after which they provide answers to questions from callers. Featuring The Honorable C. Boyden Gray of Boyden Gray & Associates and Prof. Ronald M. Levin of Washington University School of Law.

In March 2011, the Second Circuit Court of Appeals issued summary judgment in Harmon v. Markus, a challenge to New York's rent stabilization law by Mr. John Harmon, whose townhouse has been occupied for years by tenants paying rent equal to about 60% of market value. The Second Circuit ruled that "government regulation of the rental relationship does not constitute a physical taking" in light of the Supreme Court precedent, and that Mr. Harmon was therefore not entitled to just compensation. The Supreme Court has asked New York City and the tenants to file a response to the certiorari petition filed by Mr. Harmon. On this previously recorded conference call, Prof. Richard Epstein provides analysis of the case and rent control statutes as they relate to the Takings Clause and answers questions from the callers.

On January 18, 2012, the Supreme Court upheld Congress’s power under the Patent and Copyright Clause to grant copyrights to foreign authors for their works that had been in the public domain in the United States, often for decades. Congress had granted these copyrights as part of the enabling legislation pursuant to the 1994 round of the GATT agreements, according to which the U.S. was arguably required to grant copyrights to foreign authors if the authors’ works were still in copyright in their home countries. -- Our IP experts will discuss the case and whether the Patent and Copyright Clause of the Constitution should allow granting copyrights to existing, public domain works, and more generally, what limitations the IP Clause and the First Amendment place on Congress when it passes IP laws. They will also discuss how the challenged law in Golanaffects incentives to create and distribute inventive and artistic works, and what type of future IP laws Congress might pass given the license granted it by the Court in this case. Featuring Prof. Adam Mossoff of George Mason University School of Law; Prof. Christopher Newman of George Mason University School of Law; Prof. David Olson of Boston College Law School; and Mr. Dean A. Reuter, Vice President & Director of Practice Groups at The Federalist Society, as the moderator.

With a recently appointed director, the new Consumer Financial Protection Bureau (CFPB), created by the Dodd-Frank Act, will swing into action. Among other issues, the speakers will discuss the structure, authority and potential effectiveness of the new bureau and will take questions from callers. How might the CFPB fulfill its goals of preventing the next financial crisis and protecting consumers? Will consumers and a struggling economic recovery benefit from its actions? Featuring Hon. Wayne Abernathy of the American Bankers Association; Ms. Jo Ann Barefoot of Treliant Risk Advisors; Prof. Arthur Wilmarth of The George Washington University Law School; Prof. Todd Zywicki of George Mason University School of Law; and Mr. Dean A. Reuter, Vice President & Director of Practice Groups at The Federalist Society, as the moderator.

Cy Pres, a doctrine borrowed from the law of trusts, has in recent years been adopted by courts in litigation to distribute class action funds to purposes or recipients other than those presented by the original class action plaintiffs. This once rare, now increasingly common practice, has come under fire for lacking a foundation in applicable law and representing a wholly discretionary exercise of judicial power. Theodore H. Frank, of the Center for Class Action Fairness, discussed the history and practice of this little-known and less-well-understood power of class action courts. Attorney Patrick J. Perotti, of the class action law firm Dworken & Bernstein and "Ohio Lawyers Give Back," presented the case for the use of this practice in class actions. Margaret A. Little, Director of the Federalist Society's Pro Bono Center, moderated. After their remarks, the speakers took questions from the callers.

Nicholas Wapshott's book examines the vastly divergent economic philosophies of John Maynard Keynes and Friedrich von Hayek. Messrs. Keynes and Hayek studied the normal course of the capitalist business cycle, especially after World War I, but reached radically different opinions about the role governments should play in regulating and ameliorating the effects of the business cycle. These two gentlemen, two of the most influential economic thinkers of the 20th Century, participated in on-going debates about the respective merits of their own philosophies and the demerits of the other's philosophies. Mr. Wapshott examines these debates and expounds on them in this podcast. Featuring Mr. Nicholas Wapshott, Author of Keynes vs. Hayek: The Clash that Defined Modern Economics, and Mr. James A. Haynes of the Professional Responsibility & Legal Education Practice Group Executive Committee and the Baltimore Lawyers Chapter.

In U.S. v. Jones, the government attached a GPS device to a vehicle of a criminal suspect to monitor the vehicle's movement. What effect will the Supreme Court’s ruling have on warrantless searches, warrant-based searches, the right to privacy, and the Fourth Amendment? How helpful is the Court’s opinion for law enforcement and defendants? On this previously recorded conference call, the experts provide their analysis of the case and answer questions from the callers. Featuring Prof. Orin S. Kerr of The George Washington University Law School; Mr. Peter Thomson of Fowler Rodriguez Valdes-Fauli; and Mr. Dean A. Reuter, Vice President & Director of Practice Groups of The Federalist Society, as the moderator.