FedSoc Forums

Last month, the Trump administration announced completion of a U.S.-Canada-Mexico-Agreement, intended to supersede the 1993 North American Free Trade Agreement. Can the new agreement be approved before the new Congress takes office in January? Would a Democrat controlled House of Representatives endorse the new agreement? If the new agreement is not approved by Congress, what can the president do on his own to force changes in NAFTA? How will Washington trade disputes affect relations with Mexico and Canada?
Featuring:
Amb. Antonio Garza, Counsel, White & Case, and former U.S. ambassador to Mexico
Andy Keiser, Principal, Navigators Global, and former chief of staff to House Intelligence Committee
Prof. Timothy Meyer, Professor of Law, Vanderbilt Law School, and expert on foreign relations law and trade law
Moderator: Prof. Jeremy Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University

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In his new book, The Once and Future Worker, Manhattan Institute scholar Oren Cass challenges our basic assumptions about what prosperity means and where it comes from. The nation’s economic consensus has long regarded the economy as a “pie” to be grown and divided amongst consumers, but rather than produce a rising tide that lifts all ships, this “economic piety” has led to decades of stagnant wages, a labor-force exodus, too many unstable families, and crumbling communities. The fault doesn’t all lie with the Left or the Right, but with a centrist economic model that abandoned the interests of workers, who provide the foundation for a prosperous society. Cass explains where we went wrong and how reorienting public policy around the interests of workers rather than consumers flips the national debate on its head―or, rather, returns it to its feet—with implications for the environment and organized labor, trade and immigration, education and the safety net, and proposals like “free college” or a “universal basic income."
Featuring:
Oren Cass, Senior Fellow, Manhattan Institute
Adam J. White, Research Fellow, Hoover Institution


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In June 2018, the Supreme Court in Janus v. AFSCME held it unconstitutional under the First Amendment for the government to compel public employees to pay union dues or fees without their prior consent. This triggered a wave of litigation to enforce the seminal decision and eliminate state and union resistance to it. Among other things, there are cases pending that seek to recover union fees unlawfully seized from employees in the past, as well as cases that seek to strike down restrictions on when employees can exercise their Janus rights in the future. These and other cases, and the issues at stake in post-Janus litigation, will be surveyed by the attorney who briefed and argued Janus in the Supreme Court.
Featuring:
William L. Messenger, Staff Attorney, National Right to Work Legal Defense Foundation

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 scope of the Clean Water Act is a notoriously difficult question. Attention has largely focused on the extent to which the Act reaches wetlands, arroyos, ponds, and other surface features that have only slight connections to traditional navigable waters. Three recent decisions from the federal courts of appeals, however, augur an expansion of the controversy. The Fourth and Ninth Circuit Courts of Appeals have ruled that the Act applies to at least some forms of groundwater pollution, whereas the Sixth Circuit has ruled that it doesn’t.
This Federalist Society Teleforum will address the arguments pro and con for construing the Clean Water Act to directly regulate groundwater pollution, as well as the larger policy concerns raised by increased federal involvement in an area of traditional state and local competence.
Featuring:
Damien M. Schiff, Senior Attorney, Pacific Legal Foundation

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 issue at hand in Jam v. International Finance Corp. is whether the International Organizations Immunities Act (IOIA), which gives international organizations the “same immunity” as sovereigns have from suits, confers the same type of immunity as those foreign governments have under the Foreign Sovereign Immunities Act (FISA). The lawsuit began when farmers and fishermen in India were affected economically by the development of a coal-plant in India, by the International Finance Corporation (IFC), which is housed in D.C. and seeks to give aid and support to struggling communities in developing countries around the world. When the petitioners failed at the district and appellate court levels, they appealed up to the Supreme Court, who agreed to take the case while Justice Kennedy was still on the Court. Associate Justice Kavanaugh will sit out on the oral arguments and decision, as he was on the D.C. Circuit when this case was originally heard before that court.
Edwin D. Williamson will address the concerns at stake here, including the involvement of U.S. courts in international human rights issues (including environmental).
Featuring:
Edwin D. Williamson, Retired Partner, Sullivan & Cromwell

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.

John Sturgeon has been in litigation with the National Park Service for a decade, including two trips to the Supreme Court, over whether he can use his hovercraft to travel on Alaska’s Nation River through the Yukon-Charley Rivers National Preserve. While Park Service regulations bar the use of hovercraft within the National Park system, Sturgeon argues that a special statute applicable only in Alaska excludes navigable rivers like the Nation from the Service’s regulations. The Supreme Court is reviewing the Ninth Circuit’s most recent decision in the case, which holds that the Park Service can use the implied reserved water rights doctrine of Winters v. U.S., to regulate activities on navigable rivers in and around National Parks, even though the federal government transferred ownership of the bed and bank of those rivers to the applicable state upon statehood. Because it is not limited to Alaska, The Ninth Circuit’s holding opens up a wide opportunity for the federal government to regulate private activity on state owned rivers running through or even near Wilderness Areas and National Parks and Forests across the country.
Featuring:
Tony Francois, Senior Attorney, Pacific Legal Foundation

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.

A few weeks ago, the Trump Administration initiated the process to withdraw from the 144 year old Universal Postal Union (UPU) because UPU agreements provide that the Postal Service must deliver inbound postal packages for rates that are substantially less than it charges domestic mailers for similar services. U.S. critics of the UPU rate scheme argue that it gives foreign online merchants an unfair advantage over U.S. merchants in the area of shipping costs. Today the biggest beneficiary is China, whose merchants are the biggest source of international e-commerce goods flowing into the U.S. Since the U.S. has never formally approved the current UPU Convention, the Trump Administration has decided to require the Postal Service introduce new rates for delivery of inbound packages as soon as practical, and no later than January 1, 2020, to eliminate this preference for foreign mailers. In addition, to fix this and other problems with the UPU permanently, the Trump Administration has decided to withdraw from the UPU unless satisfactory arrangements can be negotiated. However, if the U.S. withdraws from the UPU, the Postal Service may possibly lose access to UPU operational systems that facilitate international mail services and be forced to conclude new deals with foreign posts. Some critics contend that this is further evidence of the Trump Administration’s drift away from international law frameworks. Our experts will discuss the history of the UPU, the mechanics of withdrawal, and the policy issues related to staying or going.
Featuring:
James I. Campbell Jr., Lawyer and Consultant on Issues Relating to International Postal Policy
Patrick Hedren, Vice President for Labor, Legal and Regulatory Policy, National Association of Manufacturers
Moderator: Matthew R. A. Heiman, Senior Fellow and Associate Director, Global Security at the National Security Institute, George Mason University’s Antonin Scalia Law School

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.

Home-sharing, a centuries-old American tradition of homeowners allowing visitors to stay in their homes rather than in hotels, has been made more efficient by online platforms like Airbnb and Homeaway that enable homeowners and travelers to connect better than ever before. In addition to helping homeowners earn money to pay their mortgages and giving consumers greater choices at lower prices, home-sharing represents an important way for property owners to exercise their basic right to choose whether to let someone stay in their home — a right the Supreme Court has called “one of the most essential sticks in the bundle of rights that are commonly characterized as property.”
However cities nationwide are cracking down on home-sharing, thus violating fundamental constitutional rights, imposing arbitrary searches on homeowners and guests, discriminating against non-residents, subjecting homeowners to astronomical fines, and penalizing responsible home-sharers in order to eliminate the problem of a few bad actors.
Christina Sandefur, who is often involved in litigation protecting the rights of responsible home-sharers nationwide, will survey some of the most egregious home-sharing regulations; explain how these restrictions, while aimed at the use of property, actually infringe upon other constitutional rights; and propose an alternative way that cities can address legitimate nuisance concerns without depriving Americans of fundamental freedoms.
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 case of Frank v. Gaos presents the question of whether and in what circumstances courts can approve class action settlements that send all or part of the settlement to charity rather than to class members. The payments to charity are known as “cy pres” payments—French for “next best.” The idea is that, if, for some reason, it is not practical to send the money to class members—usually because the money is not sufficient to send more than a few cents or dollars to each class member—the next best thing is to send it to a charity that can serve class members indirectly.
Ted Frank runs an organization that objects to class action settlements he deems problematic. He objected to a settlement in a privacy lawsuit against Google on the ground that all the money that did not go to attorneys’ fees and other transaction costs (some several million dollars) was going to charity. Class members got nothing besides changes to Google’s privacy disclosures. Frank says that cy pres should never be counted when the court assesses whether a settlement is fair. But, if it is counted, courts should always try to distribute money to class members before ever resorting to cy pres. Mr. Frank also takes issues with the charities that received the money in the Google case.
The class action lawyers and Google say cy pres has been used for decades and there is nothing wrong with it when it is impractical to distribute the money (the class here comprises 140 million people); the charity will indirectly serve the class’s interests, and there is no conflict of interest on the part of the judge or lawyers in selecting the charities. The issues of Frank v. Gaos as related in oral arguments are further discussed in this teleforum.
Featuring:
Prof. Brian T. Fitzpatrick, Professor of Law, Vanderbilt University Law School

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.

What is the purpose of class actions? To provide compensation to class members? Or to provide compensation for attorneys? The Seventh Circuit has taken a skeptical view of settlements that provide fees for counsel but no meaningful benefit for the class. But there is a circuit split on the question, with the Ninth Circuit approving settlements that maximize attorney fees at the expense of the class, while funneling the class’s compensation to organizations already supported by defendant contributions.
The U.S. Supreme Court granted cert in Frank v. Gaos to consider whether and in what circumstances cy pres is permitted in class action settlements.
Class counsel brought a putative class action against Google alleging Stored Communications Act violations entitling over 100 million class members to $1000/violation statutory damages. Before a motion to dismiss could be decided, the parties settled. Class counsel would receive over $2.1 million (over $1000/hour for every lawyer who worked on the case) and the class would receive nothing. The parties justified this settlement because of a provision providing for cy pres donations: about $5 million to five organizations that would use the money on Internet-related issues. At the fairness hearing, class member Ted Frank objected that the settlement unfairly benefited class counsel at the expense of the class, and objected that the cy pres money was going to organizations affiliated with Google or class counsel, such as Chicago-Kent Law School, the alma mater of one of the attorneys. The district court stated the cy pres did not pass the “smell test,” but approved the settlement under Ninth Circuit precedent, and the Ninth Circuit affirmed.
Ted Frank, litigation director at the Competitive Enterprise Institute, argues that a settlement where attorneys receive millions and the class receives nothing by definition fails the Rule 23(e) requirement that settlements be “fair, reasonable, and adequate.” A bright line rule on “fairness” requiring that attorney fees be proportional to the direct recovery to the class would provide guidance to lower courts, align counsels’ incentives with the class they represent, and reduce the incentive to bring low-value class actions that function as a mechanism to extract fees.
The New Jersey Civil Justice Institute filed an amicus brief in the case. Alida Kass, president and chief counsel, will discuss the questions at issue in Frank v. Gaos. The argument is scheduled for October 31.
Featuring:
Alida Kass, President and Chief Counsel, New Jersey Civil Justice Institute

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.