In Sackett, the Court clarified one of the longest-standing environmental law challenges: defining “waters of the United States.” The Court unanimously rejected the “significant nexus” test for jurisdiction and adopted the “relatively permanent waters” test from the plurality decision in the 2006 case, Rapanos v. United States. Also in Sackett, a 5-4 majority narrowed the definition of adjacent wetlands significantly.Listen to a recording of this panel as they discuss the Court’s decision, how it might impact the Biden EPA’s recently adopted regulation, and the future of the Clean Water Act. Featuring:--Moderator: Hon. Thomas Griffith, Fmr. Judge, US Court of Appeals, DC Circuit; Special Counsel, Hunton Andrews Kurth --Deidre Duncan, Partner & Environmental Practice Group Leader, Hunton Andrews Kurth--Tom Ward, Vice President for Litigation, National Association of Home Builders--Sambhav Sankar, Senior Vice President of Programs, EarthjusticeProfessor William W. Buzbee, Director, Environmental Law & Policy Program, Georgetown Law

Courthouse Steps Decision: Sackett v. Environmental Protection Agency

*This series was formerly known as Teleforums. FedSoc Forums is a virtual discussion series dedicated to providing expert analysis and intellectual commentary on today’s most pressing legal and policy issues. Produced by The Federalist Society’s Practice Groups, FedSoc Forum strives to create balanced conversations in various formats, such as monologues, debates, or panel discussions. In addition to regular episodes, FedSoc Forum features special content covering specific topics in the legal world, such as:Courthouse Steps: A series of rapid response discussions breaking down all the latest SCOTUS cases after oral argument or final decisionA Seat at the Sitting: A monthly series that runs during the Court’s term featuring a panel of constitutional experts discussing the Supreme Court’s upcoming docket sitting by sittingLitigation Update: A series that provides the latest updates in important ongoing cases from all levels of governmentThe Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

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Politics

The Biden Administration recently proposed new regulatory guidelines that would permit agencies to impose price controls on products based on inventions derived from upstream federally funded research. The new regulations would affect such price controls by expanding the “march-in” power of the Bayh-Dole Act.In addition to its core function allowing universities and other contractors to retain ownership of inventions created with federal funds, this law authorizes, under very specific circumstances, the funding agency (e.g., the National Institutes of Health (NIH) or the Department of Energy) to grant licenses, without authorization of the patent owner, to any inventions made with funding provided by the agency. The proposed new guidelines would add the price of the end-product derived from those early-stage inventions to the list of specific circumstances.Since its enactment in 1980, the march-in power of the Bayh-Dole Act has never been used. When asked about using the price of the end product as one of the circumstances, the law’s namesake Senators, Birch Bayh and Bob Dole, stated the text of their law did not authorize price-based march-in. Importantly, the NIH has rejected numerous petitions over the past several decades to use the march-in power to lower the prices of patented drugs or medical devices. Proponents of the new regulatory guidelines, however, argue that the statute does authorize an agency to consider price as a march-in trigger and the Biden Administration argues that march-in is a key tool to lower drug prices. This panel discussed the regulatory proposal for price controls under the Bayh-Dole Act and other vehicles (e.g., the IRA and reasonable/reference pricing clauses in licenses or collaborative research agreements), whether they represent regulatory overreach by the Executive Branch, and whether it is wise policy to implement price controls on drugs and other products or services in the U.S. innovation economy.

Is the National Institute of Standards and Technology’s New Proposal on March-in a Price-Control Vehicle?

For several weeks, much media attention has focused on reports of flags flown outside the primary residence and vacation home of Supreme Court Justice Samuel Alito. Several publications assert that the flags are associated with support for the &ldquo;Stop the Steal&rdquo; movement, Christian nationalism, and/or the January 6 attack on the U.S. Capitol. These reports have led some reporters and lawmakers to question the impartiality of Justice Alito in cases involving former President Trump, and/or January 6 defendants. Justice Alito has issued statements directly addressing these reports and has not recused himself from any cases. On this topic, the Chief Justice declined a request for a meeting from two Democratic U.S. Senators, stating, in part, that "the format proposed - a meeting with leaders of only one party who have expressed an interest in matters currently pending before the Court - simply underscores that participating in such a meeting would be inadvisable." Is this latest media coverage and Congressional interest part of a growing trend to target certain members of the Court? Is the legitimacy of the Court itself being called into question? This program addresses the contentions made against Justice Alito and the broader implications for journalism, professional ethics, separation of powers, and future respect for the Supreme Court as an essential American institution. Featuring:  Dan Mclaughlin, Senior Writer, National Review Online  Allyson Newton Ho, Partner &amp; Co-Chair, Constitutional and Apellate Law Practice Group, Gibson, Dunn &amp; Crutcher LLP

A Conversation about Supreme Court Ethics and Journalistic Integrity

On October 30, 2023, President Biden signed the most far-reaching presidential action in AI, Executive Order 14,110, Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. The EO directs dozens of federal agencies to take over 100 discrete actions to implement it over eight distinct policy areas. The EO received significant attention and a broad range of responses from the regulated public and congressional policymakers. Moreover, the States have grown highly active in regulating AI. This panel will discuss the consequences of the EO on the federal executive branch, the federal legislative process, States, and the tech industry as well as independent federal agency AI regulatory action with an eye toward the opportunities and challenges to come.Featuring:Johnathan Smith, Vice President and Legal Director, MacArthur Justice CenterHon. Keith Sonderling, Commissioner, Equal Employment Opportunity CommissionerAdam Thierer, Senior Fellow, R Street Institute(Moderator) Prof. Aram A. Gavoor, Associate Dean for Academic Affairs and Professorial Lecturer in Law, The George Washington University Law School

AI Policy Roundup

Since Dobbs v. Jackson Women’s Health Organization, state courts and legislatures have grappled with its legal and policy implications, especially as they pertain to abortion and IVF. In LePage v. Center for Reproductive Medicine, for example, the Alabama Supreme Court held that frozen embryos should be regarded as “children” for the purposes of Alabama’s Wrongful Death of a Minor Act. And in Planned Parenthood v. Mayes, the Arizona Supreme Court upheld an 1864 law that bans all abortions in the state except those deemed necessary to save the life of the mother.These recent rulings have been highly criticized by commentators on both sides of the aisle, and they raise important questions about the legal status of IVF and abortion in the wake of Dobbs v. Jackson Women’s Health Organization. For example, in both cases, the courts interpreted the law in accordance with textualist principles, and the state legislatures swiftly enacted measures to address the state supreme court decisions afterward. Are these cases therefore examples of the proper allocation of powers, where the judiciary says what the law is, and the legislature is tasked with implementing policy? With the question of abortion being returned to the legislative process post-Dobbs, do these cases invite more thoughtful dialogue about abortion and IVF policy, or do they sow further acrimony? Were these cases rightly decided? Can we articulate a legal standard vis-à-vis abortion and IVF that is both thoughtful and conceptually consistent? In what ways do abortion and IVF interact, both philosophically and legally? Please join us as we discuss these issues and others with some of the leading scholars in this space.Featuring:Prof. I. Glenn Cohen, James A. Attwood and Leslie Williams Professor of Law & Deputy Dean; Faculty Director, Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics; Harvard University Law SchoolProf. O. Carter Snead, Director, de Nicola Center for Ethics and Culture and Professor of Law, University of Notre Dame Law School(Moderator) Jennie Bradley Lichter, Deputy General Counsel, The Catholic University of America

Abortion and IVF post-Dobbs: LePage, Mayes, Etc.

A New York City jury recently convicted former President Donald Trump of 34 criminal counts of falsifying business documents. In New York, it is a misdemeanor to falsify business records with “the intent to defraud,” a crime with a two year statute of limitations. If the falsification is carried out for the purpose of concealing another crime, it is a felony, with an extended statute of limitations.Following the verdict, Bragg pointed to the prosecution’s methodical presentation of “extensive hard evidence” in support of the outcome. Some legal experts agree. Others, however, have criticized the DA’s case and predict it will be overturned on appeal for any of several reasons. These include questions about Judge Merchan's impartiality, the prosecution’s legal theory, the evidence allowed and not allowed at trial, and the jury instructions. One much-discussed question, for example, is that Manhattan District Attorney Bragg’s case charged Trump with a felony records violation, but he did not specify until his closing argument what other crime(s) the records violations were designed to conceal. Moreover Judge Merchan's jury instructions told the jury that they need not agree on that question, but instead that they only had to agree that the violations were designed to conceal a crime. Was this correct as a matter of statutory and constitutional law? In addition, there are questions about whether some of the conduct alleged actually constituted a crime, for either statutory or constitutional reasons. There are also important questions about the propriety and prudence of bringing charges of this type against a former President of the opposite party from that of the other actors in the system. Finally, there are many important questions about what happens next.Join us for an expert discussion of this historic case and its wide-ranging legal and prudential implications.Featuring: Sarah Isgur, Senior Editor, The DispatchProf. William G. Otis, Adjunct Professor of Law, Georgetown Law

Courthouse Steps Decision: Sackett v. Environmental Protection Agency

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