FedSoc Forums

On May 20, 2019, the U.S. Supreme Court issued a 5-4 ruling in the case of Herrera v. Wyoming. In Herrera, the Court encountered the question of whether a portion of an 1868 treaty between the Crow, a Native American tribe which today resides on Montana reservation land, and the United States, is enforceable. In the treaty, the Crow were promised, in exchange for the tribe’s territory in Montana and Wyoming, “the right to hunt on the unoccupied lands of the United States so long as game may be found thereon…and peace subsists…on the borders of the hunting districts.” The State of Wyoming, in prosecution of Crow tribal member Clayvin Herrera, argued that the Tenth Circuit decision in Repsis precluded the argument of Mr. Herrera that the treaty’s hunting rights provision remains valid. In defense, Mr. Herrera argued that the Supreme Court decision in Minnesota v. Mille Lacs repudiated Repsis and the 1896 Supreme Court decision in Ward v. Race Horse.
Justice Sotomayor, writing for Justices Ginsburg, Breyer, Kagan, and Gorsuch issued an opinion in favor of Mr. Herrera, and remanded for further proceedings.
Join this teleforum to hear a reaction to the Herrera decision from A.J. Ferate with the Oklahoma City office of Spencer Fane. Mr. Ferate, a tribal law and appellate practitioner, represented Oklahoma oil and gas producers as amicus in the Carpenter v. Murphy case currently before the U.S. Supreme Court. He also serves as a member of the Executive Board of the Federalist Society's Environmental Law and Property Rights Practice Group.
Featuring:
A.J. Ferate, Of Counsel, Spencer Fane LLP


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.

The Occupational Safety and Health Administration (OSHA) continues to make headlines in both the regulatory and enforcement arenas - and this is expected to continue over the next several months. This teleforum will review the major recent developments at OSHA and discuss what to expect from OSHA in 2019 and beyond.
Featuring:
Bradford T. Hammock, Shareholder and Co-Chair, Workplace Safety & Health (OSHA/MSHA) Practice Group, Littler Mendelson P.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.

One of the final acts of former Bureau of Consumer Financial Protection (CFPB) Director Richard Cordray before he left to run for Governor of Ohio in 2017 was the issuance of a comprehensive rule governing payday loans, auto title loans, and other small dollar loans. The centerpiece of the rule would have imposed a new "Ability to Repay" (ATR) underwriting standard on providers of these small dollar products for extensions of credit to repeat borrowers. The Rule was scheduled to go into effect in August 2019. In January of this year, however, new CFPB Director Kathy Kraninger announced a Notice of Proposed Rulemaking that would rescind the ATR requirement. This teleforum discusses the logic of the 2017 Rule and the reasons for the CFPB's reconsideration this year.
Featuring:
Prof. Todd Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School at George Mason University
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 Biestek v. Berryhill, the Supreme Court held that agencies can rely on an expert witness’s opinion even when that witness refuses to provide the underlying data for her opinion. On one hand, the Court’s holding that an agency’s decision can be supported by “substantial evidence” without the underlying data’s disclosure in some, but not all, cases seems to recognize the inherent difficulty in stating categorical rules for a broad standard of review that applies to varied agency adjudications. On the other hand, the Supreme Court outlawed the same practice in judicial proceedings in Daubert v. Merrell Dow Pharmaceuticals, a decision widely credited with ending the use of "junk science" in judicial proceedings. Does the Court’s opinion in Biestek legitimate, and even to invite, the use of “junk science” in agency proceedings? The panel will discuss the Court’s decision in Biestek and its implications for agency adjudication and judicial review.
Featuring:
Prof. Kent Barnett, J. Alton Hosch Associate Professor of Law, University of Georgia School of Law
Prof. Richard J. Pierce, Jr., Lyle T. Alverson Professor of Law, The George Washington University Law School

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 Franchise Tax Board of California v. Hyatt, the Supreme Court has overturned a 40-year-old precedent in a case that changes the relationship between the states in our federalist structure of government. Indiana Solicitor General Fisher was counsel of record for an amicus brief of 44 states asking the Court to overturn Nevada v. Hall. In the Franchise Tax Board case, California believed that Gilbert Hyatt had evaded California taxes by falsely claiming to have moved to Nevada before he did. The California officials entered Nevada and Hyatt alleges that they committed fraud and other torts against him while in Nevada. He sued those California officials in Nevada’s courts and won almost a half billion dollar award (although that was later reduced to about a hundred thousand dollars). But is it proper for one state to sit in judgment on the official actions of officers of other states? Nevada v. Hall allowed this, but the Supreme Court has now decided that states are constitutionally required to give other states’ official acts sovereign immunity even when it occurs within the "host" state’s borders. Solicitor General Fisher will explain why and implications for this case to the future of the law.
Featuring:
Hon. Thomas Fisher, Solicitor general, Indiana
Mr. Devin Watkins, Competitive Enterprise Institute

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.

Kenneth L. Marcus, the Assistant Secretary of Education for Civil Rights at the Department of Education, joins us to discuss the progress that has been made in the administration's first two years, as well as offer a look forward at some of the pressing matters that face the department inn the next few years.

Recently, members of the United States Senate and United States House of Representatives have introduced the "Loan Shark Prevention Act," which imposes a nationwide 15% interest rate ceiling on all consumer credit products, from credit cards to payday loans. They also propose to empower the United States Post Office to engage in the practice of consumer retail banking. This Teleforum examines the economics of interest-rate ceilings on consumer credit and the historical experience with such proposals as well as discussing the proposal to create a Post Office bank.

Featuring:
Wayne Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association
Todd Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School

New York City issues permits allowing authorized persons to register guns to keep at home for self-protection, but the city’s law makes it a crime to remove registered firearms from that home for any reason except to transport them to one of seven city-approved firing ranges. New York City’s law does not allow taking a gun outside the home in any condition, even if it is unloaded in a car truck, and even if the owner merely wants to take the gun to another home. The Supreme Court held in two landmark decisions, in District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), that the Second Amendment is a fundamental right held by individual American citizens. But both of those cases involved citizens who wanted a single handgun in their house for home protection, leaving myriad questions for future cases. The U.S. Court of Appeals for the Second Circuit upheld New York City’s law, claiming that the court was applying intermediate scrutiny. In this case, the Supreme Court will now decide whether the Second Amendment extends outside the home, and whether the Big Apple’s law must be struck down as unconstitutional. The law is also being challenged as violations of the Dormant Commerce Clause and the right to interstate travel.
The case is New York State Rifle & Pistol Association v. City of New York, No. 18-280 in the Supreme Court of the United States.

Featuring:
Kenneth Klukowski, General Counsel, American Civil Rights Union and Senior Counsel, First Liberty Institute

It is currently a federal crime, under the Bald and Golden Eagle Protection Act, for many Native Americans to possess eagle feathers for religious use. Congress authorized the Department of the Interior (the Department) to permit an exception for eagle feather use for “the religious purposes of Indian tribes” in 1962, yet more than 50 years later the Department’s regulations exclude millions of sincere Native American religious believers. And even Native Americans who are protected (because they are enrolled members of federally recognized tribes) are forced to rely on the “Morton Policy”—an informal memorandum that could be rescinded at any time. Although Native Americans have relied on the Morton Policy for more than 40 years, the Department has never promulgated it as a rule.
In 2014, the Fifth Circuit held that the Department had failed to justify its ban on religious feather possession as required by the Religious Freedom Restoration Act (RFRA). The Department is now considering a Petition for Rulemaking, which proposes to 1) broaden the Morton Policy to include all sincere religious believers who use protected feathers in their religious exercise—as both the Constitution and RFRA require; 2) officially promulgate this policy as a formal rule rather than rely on informal guidance, ending decades of legal limbo for those who worship with feathers; and, 3) empower Native American tribes to help combat the illegal commercialization of federally protected feathers. Join Joe Davis as he addresses the proposed rulemaking and its relationship to evolving First Amendment jurisprudence.
Featuring:
Joe Davis, Counsel, Becket Fund for Religious Liberty


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.

Over the last few years, taxi companies in several cities have brought lawsuits claiming that legalizing ride-share services such as Uber and Lyft violates the Takings Clause of the Fifth Amendment, because it expropriates their supposed property right to a monopoly of the taxi business. Courts have so far rejected these arguments. But they raise broader issues about the nature of property rights, and what kinds of government actions qualify as a taking. Confusion about these matters goes well beyond this specific set of cases. Could treating government-created monopoly privileges as property rights imperil valuable innovations and reforms in many parts of the economy?
Featuring:
Prof. Ilya Somin, Professor of Law, George Mason University

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.