FedSoc Forums

In December 2019, the United States House of Representatives voted to impeach President Donald Trump. This is the third impeachment of a sitting U.S. President after Johnson and Clinton. John Malcolm and John Yoo discuss the ongoing Senate trial, the debate over witnesses, comparisons to previous Senate trials, and more.

Featuring:
-- John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
-- Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law

In Rodgers v. Bryant, the 8th Circuit Court of Appeals upheld a statewide injunction of an anti-loitering statute. A notable dissent traced equitable jurisdiction from common-law England through to the current day, concluding that broad universal injunctions are only available in representative lawsuits like class actions and when relief for the plaintiff necessarily requires providing relief to others (as with public nuisances). Professor Samuel Bray, a leading scholar on remedies, described it as “the most detailed and learned decision yet on the history of equity and the scope of injunctions (on either side of this debate that has been running since 2016). The dissenting opinion should be required reading for anyone interested in national or universal injunctions." Anthony Sanders, Director of the Institute for Justice’s Center for Judicial Engagement, joins us to discuss the case, the decision, and its implications.

Featuring,
-- Anthony Sanders, Director, Center for Judicial Engagement, Institute for Justice

Amazon Web Services, Inc. (Amazon) has claimed in a lawsuit in the United States Court of Federal Claims that unlawful intervention by President Donald Trump deprived it of a $10 billion decade-long contract with the Department of Defense (DoD) for a cloud computing system known as the Joint Enterprise Defense Infrastucture (JEDI). Long considered the favorite, Amazon nevertheless lost the award to Microsoft Corp. in a competitive bidding process that Amazon claims was arbitrary and capricious and tainted by President Trump’s open feud with Amazon company founder Jeffrey Bezos.

Dan Kelly, Alexander Major and Franklin Turner, nationally recognized commentators and practitioners in the federal bid protest arena, will unpack what we know about Amazon’s case, and discuss the possible grounds, laws and regulations governing mandates for competitive contracting by federal agencies.

Featuring:
-- Alexander Major, Partner and Co-Leader of Government Contracts & Export Controls Practice Group, McCarter & English LLP
-- Franklin Turner, Partner and Co-Leader of Government Contracts & Export Controls Practice Group, McCarter & English LLP
-- Moderator: Daniel Kelly, Partner, Government Contracts & Export Controls Practice Group, McCarter & English LLP

This teleforum addresses the January 22 Supreme Court argument in Espinoza v. Montana Department of Revenue. The question in this case is whether it violates the Free Exercise Clause for a state supreme court to invalidate a school choice program, merely because that program includes religious options, pursuant to that state’s Blaine Amendment. The Institute for Justice represents the Plaintiffs in the case.

Featuring:
-- Erica Smith, Senior Attorney, Institute for Justice

Bridget Anne Kelly and William Baroni were convicted of wire fraud, federal program fraud and conspiracy for orchestrating lane closures on the George Washington Bridge in September, 2013, as an elaborate punishment to the mayor of Fort Lee, New Jersey for refusing to endorse Governor Chris Christie for re-election. In Bridget Anne Kelly v. United States, the latest in a series of political corruption cases to reach the Supreme Court, the justices will consider whether these acts can amount to defrauding the government.
Steve Klein, a partner at Barr & Klein PLLC and a member of the Free Speech & Election Law Executive Committee, will discuss the implications of the case and give his thoughts on oral argument.
Featuring:
Mr. Steve Klein, Partner, Barr & Klein PLLC

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 will focus on the sundry problems with so-called "Brand X deference," whose name derives from the 2005 Supreme Court decision in National Cable & Telecom. Assoc. v. Brand X Internet Services. The judicial deference holding in the case was that federal agencies may issue new regulations that supersede previous interpretations of the relevant statute made by federal courts of appeals (unless that prior federal-court interpretation purported to be the only permissible interpretation of the statute). Hence, even if a federal circuit court of appeals has previously interpreted a statute, if an agency with jurisdiction subsequently issues a new regulation interpreting that statute differently, the federal court in a future case must defer (i.e., give Chevron deference) to the agency’s new interpretation of the statute.
This month the U.S. Supreme Court will consider whether or not to take up a case that could do for Brand X deference what Kisor v. Wilkie did for Auer deference. That is, the Court could radically reduce the scope of Brand X’s application and/or clarify that Brand X deference only applies when a prior federal court did not use traditional tools of statutory analysis in interpreting the statutory provision at issue. Or, the Court could go even further and do away with Brand X deference altogether, as then-Judge Gorsuch called for when he was serving on the Tenth Circuit.
Join us for this timely discussion of Baldwin v. U.S. (cert pending).
Featuring:
Mark Chenoweth, Executive Director & General Counsel, New Civil Liberties Alliance
Moderator: Robert T. Carney, Senior Counsel, Caplin & Drysdale

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.

Multidistrict litigation has been the subject of much controversy in recent years. Defendants lament the pressure to settle claims that they believe frequently lack merit and the inefficiencies of modern multidistrict litigation. In her recent book, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation, Professor Elizabeth Chamblee Burch marshals a wide array of empirical data to suggest that a systematic lack of checks and balances may disadvantage plaintiffs in multidistrict litigation as well. Rather than faithfully representing them, she asserts that plaintiffs’ lawyers may sell them out in backroom settlements that compensate lawyers handsomely, pay plaintiffs little, and deny them the justice they seek. Please join Professor Elizabeth Chamblee Burch and Douglas Smith for a discussion of this important book.

Featuring:
-- Prof. Elizabeth Chamblee Burch, Fuller E. Callaway Chair of Law, University of Georgia School of Law and author of Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation (Cambridge University Press 2019)
-- Douglas Smith, Partner, Kirkland & Ellis LLP

Heard about the “Race to 5G”? Wonder who are the U.S.’ leading rivals, and when and where the “race” is happening? This teleforum will provide answers and cover how outcomes from the World Radiocommunication Conference (WRC) affect the United States’ spectrum goals and priorities, including Wi-Fi, innovative satellite services, science research, and weather forecasting. Join us for this timely and important discussion with Ambassador Grace Koh, who led the U.S. Delegation to the recently concluded World Radiocommunication Conference, to examine how WRC outcomes position the U.S. in the Race to 5G. Tom Sullivan and Doug Kinkoph will also participate in this discussion, moderated by Patricia Paoletta (Harris, Wiltshire & Grannis LLP).

Featuring:
-- Doug Kinkoph, Associate Administrator, Office of Telecommunications and Information Applications, performing the non-exclusive functions and duties of the Assistant Secretary of Commerce for Communications and Information, National Telecommunications and Information Administration, Department of Commerce
-- Amb. Grace Koh, U.S. Representative and Head of Delegation to the International Telecommunication Union (ITU) World Radiocommunication Conference 2019
-- Thomas Sullivan, Chief, International Bureau, Federal Communications Commission
-- Moderator: Patricia Paoletta, Partner, Harris, Wiltshire & Grannis LLP

At issue in the case of Holguin-Hernandez v. United States is whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence. Daniel Guarnera joined us to discuss the case as presented at oral argument before the Supreme Court on December 10, 2019.
Featuring:
Daniel Guarnera, Associate, Kellogg, Hansen, Todd, Figel & Frederick

The case of Hernandez v. Mesa arises from a 2010 confrontation on the U.S.-Mexican border in which U.S. Border Patrol agent Jesus Mesa shot and killed Sergio Hernandez, a teenage Mexican national. Although the FBI apparently cleared Mesa of wrongdoing, and Hernandez was not standing on American soil at the time he was shot, the Hernandez family filed suit against Mesa and the federal government based on the Supreme Court's decision in Bivens v. Six Unknown Named Agents, which held that a federal agent can be found liable in damages under the Fourth Amendment for committing an unconstitutional search and seizure.
The central issue now before the Supreme Court is whether the Hernandez family can recover damages in a Bivens action for the killing of their son in violation of the Fourth and Fifth Amendments when there is no other available remedy under federal law. Peter Thomson joined us to discuss the oral argument and offered predictions on the outcome of the case as well as its greater implications.
Featuring:
Peter M. Thomson, Special Counsel, Stone Pigman Walther Wittmann LLC