FedSoc Forums

The United States, a constitutional republic, employs a decentralized election regulation system with decision making authority over policies and procedures spread among local, state and federal authorities.  The Constitution provides some authority to Congress over elections but state and local authorities oversee the conduct and details of elections.  For example, the U.S. Constitution sets out an “election day”: the first Tuesday after November 1.  Because the Constitution proscribes terms for federal offices, i.e. four years for the President, six years for Senators and two years for Representatives, federal elections are required at least every two years.  

Our system leaves the details of the election administration to the individual states.  Those details include the specifics of election day rules such as the time for opening and closing polling places, absentee ballot procedures (including emergency absentee balloting), early voting, registering to vote, and the regulation and prosecution of election irregularities and election crimes.  Accordingly, election procedures can vary widely from state to state and even, in some cases, within a state if local jurisdictions develop their own idiosyncratic policies and procedures.  

This panel will discuss the roles played by federal, state and local governments in elections as defined by the U.S. Constitutions, whether and how those roles have evolved in recent decades, and whether and how those roles could change in certain circumstances, including the COVID-19 era. 

Featuring:
-- Mr. Erik S. Jaffe, Partner, Schaerr | Jaffe LLP
-- Hon. Matthew S. Petersen, Partner, Holtzman Vogel Josefiak Torchinsky PLLC

In the current scholarship surrounding law enforcement issues, there are two diverging sides in which some advocate for major reform and others advocate for a continuation of the status quo across major police departments in the United States. Standing in the middle of this debate is a substantial player: police unions. The push for major reform in police departments sometimes collides with powerful police unions, who argue that Qualified Immunity and other policies that protect police officers should be maintained. Like many other unions in other fields, police unions often will fight to defend its members through advocacy of certain reforms, while opposing or ignoring other reforms. Catherine Fisk and L. Song Richardson argued in a law review article that police unions in several cities “have challenged police chiefs brought in to enact reforms that they consider threatening to officer safety or economic interests, or that they believe weaken public safety.” They claim union-negotiated procedural rights for police officers sometimes make reform more difficult. Many advocate that these rights for police officers must be continued due to the high demand for police officers and their willingness to put their lives on the line. Moving forward in the debate surrounding police reform, a multitude of perspectives will have to be considered in order to bring about any piece of major reform, if needed at all, to ensure that police departments do not face shortages, collective bargaining standoffs, and other labor issues.

Featuring:
-- Larry H. James, Managing Partner, Crabbe, Brown & James LLP
-- Prof. Daniel DiSalvo, Professor and Chair of Political Science, The City College of New York

On June 30, the Supreme Court released its decision in United States Patent and Trademark Office v. Booking.com B.V.. In an 8-1 decision, the Court upheld the ruling of the lower court, which found that “Booking.com” is not a generic term and is thus eligible for trademark protection. Justice Ginsburg wrote the majority opinion of the Court; in that opinion, Justice Ginsburg first noted that a website styled “generic.com” does not qualify for federal trademark protection if the term has meaning to consumers, but because “Booking.com” does not necessarily signify to consumers an online hotel reservation service, it is therefore not a generic term and qualifies for protection. Justice Sotomayor authored a concurring opinion, and Justice Breyer dissented. Our expert will discuss the decision and its implications.
Featuring:
Mr. Zvi Rosen, Visiting Scholar and Professorial Lecturer in Law, George Washington University School of Law

This call is open to the public, please dial 888-752-3232 at 2:00 p.m. ET to access the call.

A sustained effort by activist investors to align corporate policy and investing with a progressive policy agenda could be shortchanging the retirement savings of millions of Americans. Data shows that investments tied to perceived environmental, social, and governance principles, or ESG, generally offer lower yields than the S&P 500 benchmark, but activists are pushing to use trillions of dollars in pension and retirement plans to discriminate against various industries. The trend could have profound implications for public and private pensions programs and other retirement savings plans. ESG investing might also pose a challenge to the fiduciary responsibility of asset management professionals to act in the best financials interests of the people they serve, a bedrock concept in financial planning.
The U.S. Department of Labor is preparing to ensure ESG investing does not undermine protections enshrined in the Employee Retirement Income Security Act (ERISA). A proposed rule would codify in law that asset managers must uphold their fiduciary responsibility when considering ESG investment decisions. The rule states: “It is unlawful for a fiduciary to sacrifice return or accept additional risk to promote a public policy, political, or any other nonpecuniary goal.” A comment period ends on July 30.
At this teleforum George Mason University Antonin Scalia Law School Professor JW Verret will discuss the Labor Department’s proposed rules and the implications for retirement security. Verret serves on the Investor Advisory Committee of the Securities and Exchange Commission, where he advises the Chairman of the SEC on legal and policy reform.
Featuring:
Prof. J.W. Verret, Associate Professor of Law, Antonin Scalia Law School, George Mason University


This call is open to the public - please dial 888-752-3232 to access the call.

This teleforum will focus on patent subject matter eligibility issues highlighted by the COVID-19 pandemic, particularly as they relate to patentability of medical diagnostic tests. The panel will provide a brief review of Section 101 case law, particularly the recent line of subject matter eligibility cases from the Supreme Court stemming from Alice Corp. v. CLS Bank and Mayo Collaborative Services v. Prometheus Laboratories, and will analyze the impact of these Supreme Court cases on innovation and investment in medical diagnostic technology. The panel will comment on the lessons to be learned from the COVID-19 pandemic, and provide recommendations for administrative and legislative actions that would assure the continuation of US leadership in medical diagnostics.

Featuring:
-- Prof. Paul R. Gugliuzza, Professor of Law, Temple University Beasley School of Law
-- Hon. David J. Kappos, Partner, Cravath Swaine & Moore LLP
-- Prof. David O. Taylor, Robert G. Storey Distinguished Faculty Fellow, Associate Professor of Law, Co-Director, Tsai Center for Law, Science and Innovation
-- Moderator: Mr. Andrew F. Halaby, Partner, Snell & Wilmer

Employers are increasingly being faced with difficult issues with respect to COVID-19, including challenging labor and employment issues. Various federal and state statutes present compliance issues for employers, particularly given the recent enactment of the First Families Act and the CARES Act at the federal level. Existing federal statutes such as the National Labor Relations Act and Title VII of the Civil Rights Act also present labor and employment law challenges for employers. This three-part teleforum series will review federal and state labor and employment issues and options for employers to consider. Federalist Society Labor and Employment Executive Committee member, G. Roger King will be the speaker for this first teleforum. Mr. King is Senior Labor and Employment Counsel for the HR Policy Association and previously a Partner at the Jones Day law firm.

Featuring:
-- G. Roger King, Senior Labor and Employment Counsel, HR Policy Association

As the United States faces the spread of COVID-19, officials in many jurisdictions have ordered the closure of "non-essential" or "non-life-sustaining" businesses. These shut-down orders have differed, including in their treatment of gun dealers, with officials in several jurisdictions ordering gun dealers to cease operations. Do these closures unduly burden the public's ability to acquire firearms for self-defense during an emergency, raising serious questions under the Second Amendment? What about heightened background-check requirements that operate in tandem with gun store closures as a categorical bar to firearm purchases? In addition, some officials have made public statements suggesting hostility toward the firearms trade, and some closure orders appear to single out gun-related businesses for disfavored treatment, leaving open, for example, marijuana dispensaries and liquor stores.

As jurisdictions continue to respond to the COVID-19 pandemic, many are poised to issue similar business closure orders and will face the decision whether those closures should apply to gun-related businesses. This teleforum call will address the potential Second Amendment implications of these exercises of emergency executive power.

Featuring:

Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law Houston

Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC


This call is open to the public - please dial 888-752-3232 to access the call.

On June 25, Justice Alito, writing for a five justice majority of the Supreme Court, issued the opinion in Department of Homeland Security v. Thuraissigiam, which is the Court's first Suspension Clause case in over a decade. The decision not only has implications for the way Suspension Clause questions will be decided in the future, but also for the immigration context in particular, given that the case involved the ability of an unlawful alien to access habeas proceedings upon his detention. The implications of the decision and its effect going forward will be the focus of this teleforum.

Featuring:
-- O.H. Skinner, Arizona Solicitor General

The U.S. Department of Justice recently announced indictments of Venezuelan strongman Nicolas Maduro and several of his regime allies for drug trafficking and money laundering. This Teleforum will address the unique legal and political challenges involved in prosecuting a foreign dictator and will feature former Assistant Secretary of State for Western Hemisphere Affairs, Roger F. Noriega, and Professor Manuel A. Gomez, Professor of Law and Associate Dean for Graduate Studies and Global Engagement at Florida International University.

Featuring:
-- Professor Manuel A. Gomez, Professor of Law and Associate Dean for Graduate Studies and Global Engagement at Florida International University
-- Hon. Roger F. Noriega, Visiting Fellow, American Enterprise Institute, and former Assistant Secretary of State for Western Hemisphere Affairs
-- Moderator: Harout Jack Samra, Associate, DLA Piper

On July 9, the Supreme Court released its decision in McGirt v. Oklahoma. By a vote of 5-4, the judgment of the Oklahoma Court of Criminal Appeals was reversed. Justice Gorsuch's majority opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. The Chief Justice dissented, joined by Justices Alito and Kavanaugh, and by Justice Thomas except as to footnote 9. Justice Thomas also filed a dissent. Our group of experts joins us to discuss the decisions and implications moving forward.
Featuring:
A.J. Ferate, Of Counsel, Spencer Fane LLP
Andy Lester, Partner, Spencer Fane LLP
Prof. Taiawagi “Tai” Helton, W. DeVier Pierson Professor of Law, University of Oklahoma College of Law


This call is open to the public - please dial 888-752-3232 to access the call.