FedSoc Forums

On March 23, 2020, the Supreme Court, by a vote of 6-3, held that the Due Process Clause does not require states to adopt a specific insanity defense to criminal liability. In an opinion written by Justice Kagan, the Court reaffirmed its 1968 plurality opinion in Powell v. Texas, 392 U. S. 514, declaring that criminal responsibility "is animated by complex and ever-changing ideas that are best left to the States to evaluate and reevaluate over time." The Court explained that the relationship between mental illness and criminal liability, in particular, is an ongoing dialogue between the law and psychology, and the Due Process Clause does not require that dialogue be frozen in "a rigid constitutional mold." GianCarlo Canaparo will discuss the opinion, its implications, and the dissent written by Justice Breyer.
Featuring:
GianCarlo Canaparo, Legal Fellow, The Meese Center for Legal and Judicial Studies, The Heritage Foundation

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The University of California and other institutions in California now require academic job applicants to complete a "contribution to diversity" statement. In some programs, an applicant without a high scoring diversity statement will be rejected without any consideration of the rest of his or her application. Are these statements a benign effort to ensure that professors are competent to teach diverse students, or a modern manifestation of the odious anti-communist loyalty oaths of the 1950s and a tool for racial and sex discrimination? And is the use of these statements compatible with the First Amendment, the Equal Protection Clause, and California's Proposition 209?

Featuring:
-- Daniel Ortner, Attorney, Pacific Legal Foundation

Cities and counties recently have been playing a more prominent role in initiating large-scale litigation against corporate defendants, claiming damages to themselves and their residents based on a variety of alleged harms. The massive litigation stemming from the opioid epidemic—in which over 2,000 cities and counties across the country have brought suit against pharmaceutical companies—is only the most prominent example. Municipalities have also lately brought suits asserting a range of alleged environmental harms, including from climate change, as well as alleged harms arising from data-privacy breaches. As illustrated by these areas, these cases often concern widespread harms that are the subject of heavy media attention.

This teleforum will explore the impact of this surge in municipal litigation, which is raising concerns in a number of quarters, including among state leaders. Among other concerns, statewide officials have begun to question the efficacy of piecemeal litigation of matters of statewide concern. These lawsuits also evidence the expansion of other harmful litigation trends, such as the use of contingency-fee agreements that incentivize plaintiffs’ counsel but reduce recoveries for victims. The teleforum will address these concerns, as well as the reforms that states might enact to reduce the incidence and impact of municipal litigation.

Featuring:
-- Dave Yost, Attorney General of Ohio
-- Jonathan Skrmetti, Chief Deputy Attorney General of Tennessee
-- Elbert Lin, Partner and Co-chair, Issues and Appeals, Hunton Andrews Kurth

Congress faces a March 15 deadline to renew the statutory authority for several key provisions of the Foreign Intelligence Surveillance Act (FISA). This decision point comes at a time of heightened scrutiny, given the recent Department of Justice Inspector General report addressing the FBI's use of FISA while investigating the 2016 presidential election and a Foreign Intelligence Surveillance Court of Review order expressing "serious concerns about the accuracy and completeness" of the FBI's FISA applications in that case. The panel will discuss the mechanics of FISA, the recent controversy, and issues for Congress to consider as it determines whether and how to renew these key FISA provisions.

Featuring:
-- Gregory T. Nojeim, Senior Counsel & Director of Freedom, Security and Technology Project, Center for Democracy & Technology
-- Kenneth L. Wainstein, Partner, Davis Polk & Wardwell LLP
-- Moderator: Daniel G. West, Associate, SCF Partners

On February 25, the Supreme Court heard oral arguments in the case of United States v. Sineneng-Smith. At issue is "whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional." Brian Fish joins us to discuss oral arguments and their implications.
Featuring:
Brian M. Fish, Special Assistant, United States Attorney, Baltimore, Maryland

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Is rational basis review the appropriate approach consistent with constitutional text, history, and good public policy, or is it an abdication of judicial responsibility?
Advocates for greater judicial engagement argue that courts have a constitutional obligation to apply meaningful judicial review to infringement of unenumerated “nonfundamental” rights. Judicial abdication of that responsibility, they argue, permits special interests to interfere with competition, innovation, and economic liberty.
Defenders of rational basis review maintain that judges are ill-equipped to second-guess the policy judgments of elected lawmakers, and that absent a clear violation of a constitutional protection, such determinations are better left to that branch of government subject to democratic accountability.
Ted Frank of Hamilton Lincoln Law Institute and Clark Neily of The Cato Institute will debate the merits of judicial engagement and rational basis review.
Featuring:
Ted Frank, Director, Center for Class Action Fairness, Hamiliton Lincoln Law Institute
Clark Neily, Vice President for Criminal Justice, Cato Institute
Moderator: Hon. Paul B. Matey, Judge, United States Court of Appeals, Third Circuit


Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

In the case of Hernandez v. Mesa, by a vote of 5-4, the judgment of the U.S. Court of Appeals for the Fifth Circuit was affirmed. Per Justice Alito's opinion for the Court: "We are asked in this case to extend Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), and create a damages remedy for a cross-border shooting. As we have made clear in many prior cases, however, the Constitution’s separation of powers requires us to exercise caution before extending Bivens to a new 'context,' and a claim based on a cross-border shooting arises in a context that is markedly new. Unlike any previously recognized Bivens claim, a cross-border shooting claim has foreign relations and national security implications. In addition, Congress has been notably hesitant to create claims based on allegedly tortious conduct abroad. Because of the distinctive characteristics of cross-border shooting claims, we refuse to extend Bivens into this new field.... In sum, this case features multiple factors that counsel hesitation about extending Bivens, but they can all be condensed to one concern––respect for the separation of powers." Justice Alito's majority opinion was joined by the Chief Justice and Justices Thomas, Gorsuch, and Kavanaugh. Justice Thomas filed a concurring opinion, joined by Justice Gorsuch. Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan. Peter Thomson joins us to discuss this decision and its implications.
Featuring:
Peter M. Thomson, Member, Stone Pigman Walther Wittmann L.L.C.

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

This teleforum addresses the March 4, 2020, Supreme Court oral argument in consolidated cases June Medical Services v. Russo and Russo v. June Medical Services (formerly June Medical Services v. Gee and Gee v. June Medical Services), which involve the constitutionality of Louisiana's law requiring physicians who perform abortions to have admitting privileges at a local hospital and whether abortion providers can be presumed to have third-party standing to challenge health and safety regulations, such as Louisiana's admitting privileges law, on behalf of their patients.
This teleforum features Steven Aden, Chief Legal Officer & General Counsel at Americans United for Life, which filed an amicus brief on behalf of 207 members of Congress in support of the respondent in June Medical Services v. Russo. Mr. Aden was formerly co-counsel to the Louisiana Department of Health in June Medical v. Russo.
Featuring:
Steven Aden, Chief Legal Officer & General Counsel, Americans United for Life


Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.