Federalist Society Practice Groups Podcasts

In recent decades, there has been much study and debate in the criminal justice community regarding capital punishment and its continued use in most jurisdictions in the United States. Some argue that years of litigation and growing cost have contributed to a new fragility in support for the death penalty and point to polling that reflects decreased enthusiasm for it. Others assert the November 2016 election results at the State and Federal levels demonstrate capital punishment continues to be firmly backed by the public and will remain in place indefinitely. -- Professor Carol Steiker of Harvard Law School, author of the recently released, Courting Death - The Supreme Court and Capital Punishment and Professor William Otis, Adjunct Professor of Law for Georgetown University Law Center and former federal prosecutor, joined us for an insightful look at this important topic. -- Featuring: Professor William G. Otis, Adjunct Professor of Law, Georgetown University Law Center and Professor Carol Steiker, Henry J. Friendly Professor of Law, Harvard Law School.

In recent years, our nation’s college campuses have been portrayed as awash in a violent crime wave—and university leaders, professors, and students as indifferent to female sexual assault victims in their midst. In their recently published book, The Campus Rape Frenzy: The Attack on Due Process at America's Universities, authors Professor KC Johnson and Stuart Taylor examine these assertions in detail. The book presents evidence to the contrary and argues that these claims do not have any bearing in reality. -- New York Law School Professor Nadine Strossen joined us to moderate an illuminating discussion with the authors. -- Featuring: Professor KC Johnson, Professor of History at Brooklyn College and the CUNY Graduate Center and Stuart Taylor, Washington writer, lawyer, and National Journal contributing editor. Moderator: Professor Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School.

Since the Obama administration abstained from the United Nations Security Council vote on Resolution 2334 that condemns Israeli settlements in the West Bank and Jerusalem, there has been much speculation as to the force, effect, and consequence of this Resolution. There are many concerns, including that this United Nations declaration may enable boycotts of Israel and that the Palestinian government might attempt to utilize the pronouncement to bring Israel before the International Criminal Court. President Trump’s has stated that he intends to alter or blunt the instrument. What will be the effect of this United Nations censure, and what are the options available to President Trump? -- Featuring: Prof. Bernard Avishai, Adjunct Professor of Business, Hebrew University of Jerusalem, Visiting Professor of Government, Dartmouth College and Prof. Orde Kittrie, Senior Fellow, Foundation for Defense of Democracies, Professor of Law, Sandra Day O'Connor College of Law, Arizona State University. Prof. Eugene Kontovorich, Professor of Law, Northwestern Pritzker School of Law .

Ziglar v. Abbasi is the result of over a decade of remands and appeals. The case was originally filed by the Center for Constitutional Rights on behalf of incarcerated Muslim, South Asian, and Arab non-citizens who were targeted after 9/11 by law enforcement as “terrorism suspects.” The defendants in the case, high level officials in the Bush administration, such as Attorney General John Ashcroft and FBI director Robert Mueller, and low level detention officials, filed a motion to dismiss which was rejected by the in the District Court. -- In 2009, the Supreme Court decided in Ashcroft v. Iqbal that government officials were not liable for discriminatory actions of their subordinates without evidence they directly ordered the actions. Meanwhile, five of the petitioners in Ziglar settled with the government, and the case was remanded to the District Court and amended. In 2010, the District Court granted a new motion of dismissal, but only for the high level officials. This dismissal was reversed by the Second Circuit and then the government petitioned the Supreme Court for review. -- Professor Jamil Jaffer joined us to discuss the oral argument of this case, which was held on January 18. -- Featuring: Prof. Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland and National Security Law Program, Antonin Scalia Law School and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee.

Reframing Financial Regulation: Enhancing Stability and Protecting Consumers, edited by Hester Peirce and Benjamin Klutsey, brings together a diverse set of authors to provide alternative ways to regulate different aspects of the financial system. The chapters embody approaches that rely less on centralized, top-down regulations and more on market discipline and oversight. The recently published book, which reflects a wide variety of viewpoints and approaches, seeks to initiate a lively conversation about how a thoughtfully regulated, market-based financial system can facilitate risk sharing, efficiently provide access to capital, and enable households to save for the future. Senior Research Fellow and the Director of the Financial Markets Working Group at the Mercatus Center at George Mason University, Hester Peirce, joined us to discuss this new book. -- Featuring: Hester Pierce, Senior Research Fellow and the Director of the Financial Markets Working Group at the Mercatus Center.

Members of the Federalist Society’s Financial Services & E-Commerce Practice Group Executive Committee will provide an update on recent important activity at the Consumer Financial Protection Bureau (CFPB). The discussion will cover a multitude of topics including Fair Lending Priorities in 2017, a new proposed CFPB arbitration rule, CFPB restitution fines imposed on Equifax Inc. and TransUnion Inc., the CFPB's recently released 2016 Annual Employee Survey, the CFPB's Diversity and Inclusion Strategic Plan for 2016-2020, the role of emotion in consumer protection law, and the potential impact of the new Administration on the Bureau. -- Featuring: Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association and Julius L. Loeser, Of Counsel, Winston & Strawn LLP.

In the summer of 2015, the Federalist Society lost a great friend with the passing of Professor Michael W. Lewis. Professor Lewis was a veteran, a scholar, and a loving father and husband. His specialties were in the areas of the law of armed conflict and International Humanitarian Law. Last year, the Mike Lewis Memorial Teleforum focused on the U.S. Department of Defense Law of War Manual. This year, our experts will discuss the White House Report on the Use of Force. -- In December 2016, the Obama Administration released a comprehensive report on the "legal and policy frameworks" governing the use of military force. The report sets forth the Obama Administration's view of the domestic and international legal bases for military operations against terrorist groups; the law of armed conflict and targeting in those operations; detention; civilian casualties; interrogation; and other related issues. This Podcast analyzed the document's description of the applicable law, but also considered why the Obama Administration chose to release this unusual document at this point and what effect (if any) it will have on policy and practice going forward. -- Featuring: Mr. Steven G. Bradbury, Partner, Dechert LLP; Mr. Phillip Carter, Senior Fellow & Director of the Military, Veterans, and Society Program, Center for a New American Security; and Adam Klein, Senior Fellow, Center for a New American Security.

Can the government police speech it thinks is offensive, even when members of the group the government seeks to protect disclaim any offense? Section 2(a) of the Lanham Act allows the government to deny trademark registration to "disparaging" speech. On Wednesday, January 18, the Supreme Court will hear oral argument in Lee v. Tam, a case challenging the constitutionality of this statute. -- In Lee, an Asian-American rock band called “The Slants” was denied trademark registration after the Patent and Trademark Office found the trademark disparaging to Asians. A panel of the U.S. Court of Appeals for the Federal Circuit affirmed the decision. But the en banc Federal Circuit—without being asked—decided to vacate that decision and consider whether § 2(a) violates the First Amendment. The full Federal Circuit ultimately reversed the panel decision. The federal government then asked the Supreme Court to weigh in. -- Is the Court likely to affirm the Federal Circuit decision striking down the disparagement clause as violative of the First Amendment? And what will be the implications if it does? Megan Brown and Dwayne Sam of Wiley Rein LLP attended the oral arguments and offered their impressions and predictions during this Courthouse Steps Teleforum conference call. -- Featuring: Ms. Megan L. Brown, Partner, Wiley Rein LLP and Mr. Dwayne D. Sam, Associate, Wiley Rein LLP.

In a unanimous decision, the Supreme Court upheld the U.S. Court of Appeals ruling in favor of the respondent. The respondent, Cori Rigsby, violated the seal requirement of the False Claims Act (FCA) by disclosing her complaint against State Farm, regarding allegedly fraudulent actions taken post-Katrina, before the defendant was served. State Farm argued that the case should have been immediately dismissed due to the procedural violation. The question at hand was whether a claim made under the FCA should be dismissed because the complaining party violated the seal requirement. -- Mr. Lawrence Ebner, founder of Capital Appellate Advocacy, author of multiple pieces on the case, and Counsel of Record on the DRI Amicus Brief in support of the petitioner, joined us to discuss the decision and its implications for the future. -- Featuring: Mr. Lawrence Ebner, Founder, Capital Appellate Advocacy.

The Federalist Society will host a one hour Teleforum to discuss the recent Supreme Court decision in Samsung v. Apple--a rare Supreme Court design patent case regarding the shape of the face and grid of icons in Apple's iPhones. Trevor Copeland of Brinks Gilson & Lione, Austin and Art Gollwitzer of Michael Best, Chicago will engage over the specific statutory and policy issues in the decision. Prof. Ryan Holte of SIU School of Law will moderate. -- Featuring: Mr. Trevor Copeland, Shareholder, Brinks Gilson & Lione and Mr. Art Gollwitzer, Partner, Michael Best & Friedrich LLP. Moderator: Prof. Ryan Holte, Assistant Professor of Law, SIU School of Law.

In recent years, the Supreme Court appears to have taken a greater interest in "business" issues. Does this reflect a change in the Court's orientation, or is it the natural outcome of the appellate process? Is the Court "pro-business"? If so, in what ways do the Court's decisions support business interests and what does that mean for the law and the American public? Business and the Roberts Court provides the first critical analysis of the Court's business-related jurisprudence. Author and Editor Jonathan Adler joined us along with two chapter authors, Brian Fitzpatrick and Richard Lazarus, to discuss their contributions to this important volume. -- Featuring: Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law; Director, Center for Business Law and Regulation, Case Western Reserve University School of Law; Prof. Brian T. Fitzpatrick , Professor of Law, Vanderbilt University Law School; and Prof. Richard J. Lazarus, Howard and Katherine Aibel Professor of Law, Harvard Law School.

Credit-card companies charge a transaction fee, and merchants often pass that cost onto consumers by raising prices across the board. Some merchants, however, would like to charge more only to credit customers. Ten states prohibit merchants from charging such "swipe fees," and the states argue that this is classic economic regulation. The merchants counter that the states permit them to offer a cash discount equivalent in value to a credit surcharge, and therefore claim that the swipe-fee bans merely prohibit truthful speech, in violation of the First Amendment. The Second and Fifth Circuits have sided with the states, but the Eleventh Circuit struck down Florida's law on First Amendment grounds. The Supreme Court heard argument on Tuesday, January 10 in the case from New York, Expressions Hair Design v. Schneiderman. -- Mr. Jesse Panuccio, a partner and appellate lawyer at Foley & Lardner LLP, joined us to discuss the argument and the case. He is counsel of record on an amicus brief filed in support of the merchants' position and on behalf of a group of state-based, free-market think tanks. -- Featuring: Mr. Jesse Panuccio, Partner, Foley & Lardner LLP.

In late October the Supreme Court accepted a petition from the School Board of Gloucester County, Virginia seeking to overturn a lower court’s order that a 17-year-old transgender student, born female but identifying as male, be allowed to use the boys’ restroom during senior year of high school. The Department of Education’s interpretation of Title IX and 34 C.F.R. § 106.33, reflects that public schools must “generally treat transgender students consistent with their gender identity.” The Court will consider this interpretation and hear argument on whether courts should extend deference to unpublished “guidance” letters issued by the U.S. Department of Justice and the U.S. Department of Education. Kyle Duncan, attorney for the School Board of Gloucester County, recently filed the Board’s Supreme Court brief and joined us to discuss this important case. -- Featuring: Kyle Duncan, Partner, Schaerr Duncan LLP.

In 1957, an article in the Stanford Law Review asked the question: can counties and cities pass right to work ordinances under the Taft-Hartley Amendments to the National Labor Relations Act? The law explicitly allowed states to prohibit "agency-shop" contracts, but did not clearly address subdivisions of states. This question of federal preemption was addressed by courts only three times in more than fifty years. In that time, twenty-six states have passed statewide right to work laws. But recently, Hardin County in Kentucky passed, and the federal Court of Appeals for the Sixth Circuit upheld, a local right-to-work ordinance. Consequently, this sleeper issue may be hugely important in "purple" states across the country.Our panel of labor law and federalism experts talked about the law and politics of local right to work laws. -- Featuring: Mr. Andrew R. Kloster, Attorney, Washington, DC; Mr. James Sherk, Research Fellow in Labor Economics, The Heritage Foundation; and Prof. Ariana R. Levinson, Professor of Law, University of Louisville Brandeis School of Law. Moderator: Mr. Raymond J. LaJeunesse Jr., Vice President & Legal Director, National Right to Work Legal Defense Foundation.

President-elect Trump has made counterterrorism a focal point of his administration. The disciplined use of metadata, surveillance, intelligence collection, and information sharing is vital to counterterrorism efforts. Drawing on his former experience as a prosecutor, judge, and the second United States Secretary of Homeland Security, the Hon. Michael Chertoff offered guidance on how these tools can be used most effectively to protect against security challenges such as crowd-sourced terrorism and hostile nation states. -- Featuring: Hon. Michael Chertoff, Senior Of Counsel, Covington & Burling LLP and Executive Chairman and Co-Founder, The Chertoff Group.