FedSoc Forums

This teleforum will investigate the potential impact of the pending decision in the FTC's controversial Section 5 lawsuit against Qualcomm, brought days before the change in administration two years ago, with the incoming acting chair writing an unusual and biting dissent. Among other things, the FTC is seeking to permanently enjoin Qualcomm from engaging in certain industry-wide patent licensing practices, which the FTC alleges impair competition in violation of the antitrust laws. However, it has been argued that the FTC’s novel theory fails to meet the burden of proof by showing actual evidence of harm, as clarified recently by the US Supreme Court in Ohio v. American Express Co. The consequences of FTC's legal theory, if upheld by the court, could reach well-beyond patent licensing arrangements. Indeed, some experts fear that changes to Qualcomm's business model will undermine U.S. national security interests and cede American leadership in the 5G race to a foreign adversary—the same concerns echoed last year by the Committee on Foreign Investment in the United States (CFIUS) when it recommended that the President permanently prohibit Broadcom from acquiring Qualcomm.
Featuring:
Olivier Blanchard, Senior Analyst, Futurum Research
Geoffrey A. Manne, President and Founder, International Center for Law & Economics

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.

Poland holds a position of economic, strategic, and political importance in Europe. While some former Eastern bloc countries look to Poland as a model of autonomy, the Western European establishment is sending clear messages that Poland may not enjoy the benefits of European Union membership while thwarting EU governance. At the same time, Eurosceptics in Western Europe and Great Britain also look to Poland’s independence as an inspiration when Brexit has proven difficult to attain.
Poland’s expressions of political will through Law and Justice Party court restructuring have triggered an unprecedented invocation of Article 7 by the European Commission and the European Court of Justice mandated that Poland reverse the court reforms.
Warsaw will be the site of an imminent summit to address wide-ranging security issues. Originally considered a platform for considering the threats emanating from Iran, the United States has recently characterized the summit as a discussion of cybersecurity, terrorism, extremism, and anti-missile security.
Germany and France just concluded a “friendship treaty” that is understood to implicitly warn countries like Poland and Hungary that too much “nationalism” is a threat to the common goals of European member states.
Is Poland becoming too autocratic and did court restructuring fundamentally threaten European notions of rule of law? How does the United States maintain a close relationship with this valued ally while balancing NATO and European allegiances?
Featuring:
Prof. Jakub Grygiel, Associate Professor, Catholic University of America
Moderator: Dr. James Jay Carafano, Vice President, Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, and the E. W. Richardson Fellow, The Heritage Foundation
(Prof. Andrzej Bryk, Professor, Jagiellonian University, Poland, was unable to join in this teleforum.)

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.

On January 30, 2017, President Trump signed Executive Order 13771 titled, “Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs.” In this order, President Trump supplemented the longstanding framework for White House regulatory oversight. In addition to the Office of Information and Regulatory Affairs’ framework for cost-benefit analysis, E.O. 13771 set general requirements for agencies to rescind two new rules for every new one, and it directed agencies not to increase the overall costs that they impose on society — an approach known more generally as “regulatory budgets.”
After two years, how has this new framework fared? To discuss it, the Federalist Society’s Administrative Law Practice Group is pleased to host a teleforum with Jeffrey Harris, who served as OIRA’s Associate Administrator during the implementation of E.O. 13771 and Adam White, Director of the Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State.
Featuring:
Jeffrey Harris, Partner, Consovoy McCarthy Park
Adam White, Assistant Professor and Director of the Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State, and Research Fellow at the Hoover Institution

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. 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 International Criminal Police Organization – officially ICPO-INTERPOL, and commonly known simply as Interpol – plays an important role in international law enforcement, and its publications are often used in U.S. immigration and asylum cases. But neither Interpol nor its publications, including its famous Red Notice, are well understood. This can lead attorneys to fail to challenge Department of Homeland Security (DHS) assertions about Interpol that damage the interests of their clients, and cause judges to defer uncritically to Interpol publications in their decisions. Moreover, some argue that Interpol is increasingly being abused – being used for political purposes – by authoritarian regimes, and these abusive Red Notices have long-lasting effects outside the courtroom, as well as in it. The more the U.S. legal profession knows about Interpol, the more it will be able to prevent and combat this abusive politicization of law enforcement, and prevent it from affecting the U.S. legal system.
Featuring:
Theodore R. Bromund, Ph.D., Senior Research Fellow in Anglo-American Relations, Margaret Thatcher Center for Freedom, The Heritage Foundation
Thomas Firestone, Partner, Baker & McKenzie LLP
Moderator: Adam R. Pearlman, Former Associate Deputy General Counsel, Department of Defense


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.

What is the effect of encryption on government/law enforcement access to digital evidence? Default device encryption inhibits government’s ability to obtain access to electronic data even in circumstances that satisfy Fourth Amendment warrant requirements. Lawmakers and policymakers have struggled over whether this lack of access a bad thing. How do we balance our collective security interests in allowing law enforcement to access the contents of electronic devices and our individual privacy rights in securing our data against illegal and/or unreasonable access?
Featuring:
Jamil Jaffer, Founder and Director, National Security Law & Policy Program
Greg Brower, Shareholder, Brownstein Hyatt Farber Shrek
Kenn Kern, Assistant District Attorney, New York county District Attorney's Office
Moderator: Hon. Michele Christiansen Forster, Associate Presiding Judge, Utah Court of Appeals
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on the 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.

There has been much in the news lately concerning the President's use of emergency power to shift budgeted funds from one purpose to another, namely, construction of a barrier along the southern border of the U.S. Does the President have inherent constitutional authority to declare an emergency and move the funds? Has Congress otherwise given the President statutory authority to do so, and, if so, has that authority been granted constitutionally? These and other questions will be debated on our Teleforum conference call.
Featuring:
Professor John C. Yoo, Emanuel Heller Professor of Law and Director of the Korea Law Center, the California Constitution Center, and Public Law and Policy Program, University of California at Berkeley School of Law
David A. French, Senior Fellow, National Review Institute, and Senior Writer, National Review

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 recent elimination of network neutrality rules by the FCC and re-emphasis on a lighter touch free market approach to the telecom sector came with a promise that antitrust enforcement by the DOJ and FCC would serve as a backstop to mitigate the risk of potentially harmful discriminatory conduct and to promote continued efficiency gains in the sector. Does a recent wave of telecom mergers and acquisitions raise questions about the nature and extent of antitrust enforcement needed to assure dynamism without undercutting innovation in the sector? Our panelists will discuss lessons learned from this recent enforcement activity and the future of competition enforcement, with particular commentary on Tribune/Sinclair, Disney/Fox, and AT&T/Time Warner.
Featuring:
George Ford, Ph.D., Chief Economist, The Phoenix Center For Advanced Legal &. Economic Public Policy Studies
Alex Okuliar, Partner, Orrick Herrington & Sutcliffe LLP
Chip Pickering, CEO, INCOMPAS

On Jan. 14 the Supreme Court denied the cert petition in State National Bank of Big Spring v. Mnuchin, No. 18-307, which challenged the structure of the Consumer Financial Protection Bureau. At issue was the validity of two key CFPB features—a single director whom the President could remove only for cause, and funding that was independent of congressional appropriations. The bank had been joined in its challenge by the Competitive Enterprise Institute, which coordinated the lawsuit, and the 60 Plus Association. When the case was first filed in 2012, eleven states joined it in a broad challenge to Dodd Frank. After the plaintiffs were dismissed by the district court for lack of standing, the bank’s case was reinstated in a D.C. Circuit decision written by then-circuit judge Kavanaugh—a fact which likely led to his recusal from consideration of the cert petition.
Featuring:
Sam Kazman, General Counsel, Competitive Enterprise Institute


Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on the 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 inclusion of the citizenship question on the 2020 census remains both uncertain and controversial. On January 15, Judge Jesse M. Furman of the United States District Court in Manhattan issued an opinion blocking the Commerce Department from including a citizenship question. The opinion states that Secretary Ross violated the Administrative Procedure Act (APA) in various ways, including making an “arbitrary” and “capricious” decision to include the citizenship question. The opinion also posits that Secretary Ross violated the APA by failing to justify departures from past policies and practices, and failing to notify Congress of census subjects three years in advance. Judge Furman further believed that Secretary Ross' reasoning for including the citizenship question was "pretextual." However, he did not find that the plaintiffs carried their burden of proof showing that Ross' decision was pretext for impermissible discrimination.
Solicitor General Noel Francisco said on January 22 that the Department of Justice plans to file a petition for writ of certiorari before judgment with a proposal for expedited briefing to allow for oral argument and decision by the end of June, so the census questions can be printed on time. Francisco believes the issue is of such "imperative public importance" that it justifies altering the normal procedure of the Supreme Court to wait until the federal appeals court has had a chance to opine on the case. John Baker joins us to discuss the Solicitor General’s petition, and the likely future of the citizenship question.
Featuring:
Dr. John S. Baker, Jr., Visiting Professor, Georgetown Law



Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on the 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 Supreme Court will hear reargument in Knick v. Township of Scott, Pennsylvania on January 16, 2019, to decide whether a property owner can bring a regulatory takings claim in federal court. Since the 1985 Williamson County v. Hamilton Bank decision, property owners have been able to file claims against local government for takings only in state court. And once there, any decision is res judicata to any subsequent federal action. This makes property rights claims the only constitutional right that cannot be vindicated in federal court.
Mrs. Rose Mary Knick owns roughly 40 acres in rural Scott Township in Pennsylvania. At the behest of some local activists the township passed an ordinance that allows members of the public to trespass across her property to visit some large stones that the activists claim are colonial-era gravestones. Mrs. Knick has no legal way to stop this invasion of her property – short of suing for a taking. When she tried to sue in state court she was rebuffed because she hadn’t yet been fined for not allowing the trespass. When she next tried to sue in federal court for a taking, she was again rebuffed, this time because of Williamson County.
The Supreme Court first heard oral argument on October 3, 2018, before an eight-Justice Court. The primary question is whether Williamson County should be overturned. The October argument focused mainly on the nature of a claim for a taking without just compensation. Now, with a full complement of nine Justices, the Court has asked for rehearing. This time the Court requested that the argument be directed to whether a local government becomes liable for a taking when the government actually invades or otherwise destroys the use and value of the property or whether there is no constitutional violation until after a state court denies compensation.
Featuring:
James S. Burling, Vice President for Litigation, Pacific Legal Foundation

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.