FedSoc Forums

Should climate change responsibility be assessed in the courts or by the elected policymaking branches? This past week, a federal district court answered that question. Several municipalities in multiple states filed lawsuits against energy companies claiming those entities are liable for billions in damages for climate change based on theories of public nuisance. On June 25, 2018, federal Judge William Alsup of the U.S. District Court for the Northern District of California issued the first major ruling in one of these cases, dismissing one such lawsuit brought by the cities of Oakland and San Francisco against BP, Chevron, ConocoPhillips, Exxon Mobil, Royal Dutch Shell, and others.
The ruling is likely to have an impact on similar pending lawsuits and undoubtedly sets precedent regarding whether and how the courts can be accessed to bring climate change-associated liability claims. In its order, the court acknowledges the reality of climate change and its impacts, but it underscored that “This issue is not over science.” Indeed, the opinion focuses on the proper role of the courts in a system of separated powers in the face of a theory of liability that the court called “breathtaking” in scope. The opinion analyzes the proper, limited application of the public nuisance doctrine and cautions that these types of lawsuits may actually “interfere with reaching a worldwide consensus” on how to address climate change. This Teleforum will discuss what it takes to establish a public nuisance claim, the proper role of the courts in deciding hot button policy issues, other government branch prerogatives, imposing retroactive liability, extraterritorial application of law, and the jusiticiability of claims that may impact foreign policy.
Featuring:
Prof. Donald Kochan, Parker S. Kennedy Professor in Law and Associate Dean for Research & Faculty Development, Chapman University School of Law


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.

On Tuesday, June 19th, 2018, the Supreme Court handed down two decisions in Lozman v. Riviera Beach, and Chavez-Mendez v. United States.
In Lozman, the Court vacated the appelate court's ruling and remanded. In a majority opinion authored by Justice Kennedy, the Court held probable cause did not necessarily defeat a First Amendment retaliatory arrest claim. Justice Thomas wrote the lone dissent.
In Chavez-Mendez, the Court decided 5-3 that because the lower court judge had a reasoned basis for his decision, the judge's explanation for reducing Chavez-Meza's sentence under 18 U.S.C. section 358(c)(2) was permissible.
Matthew Wilkins joins us to discuss the decisions and their implications
Featuring:
Matthew Wilkins, Law Clerk, United States District Court of the District of Columbia
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.

Last month, Bloomberg News revealed a leaked memorandum from the Department of Energy purporting to be part of a larger order out of DOE invoking the Federal Power Act and Defense Production Act to “save” economically endangered nuclear and coal plants on the basis of fuel security and resilience. This rumored DOE Order would keep certain nuclear and coal units running pending analyses by the national energy labs evaluating the resilience and economic integrity of the nation’s electric grid. Critics argue that this is an legally overreaching effort to bailout nuclear and coal units that are being buffeted by market forces that makes these generation units uneconomic. Defenders of potential DOE action retort that the markets are distorted by subsidies, price manipulations and regulatory interventions that preordain the failure of baseload electric units, and that the security and resilience of the nation’s electric supply is being jeopardized because of the regulatory mismanagement of resources. Our Teleforum participants will discuss possible DOE action, and what it means for the nation’s energy policy.
Featuring:
Hon. Mark W. Menezes, Under Secretary of Energy, United States Department of Energy
Stephen Moore, Distinguished Visiting Fellow, Project for Economic Growth, Institute for Economic Freedom and Opportunity
Moderator: Raymond L. Gifford, Partner, Management Committee Member, Wilkinson Barker Knauer, LLP

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 U.S. Supreme Court's docket included three cases this term on the legal limits of redistricting. All three cases have now been disposed of by the Court. Our expert analyzes the three cases together, and discusses the future of redistricting in the states and at the Court.
Featuring:
Hans A. von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, The Heritage 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.

Trump v. Hawaii is the latest iteration of Hawaii’s challenge to President Trump’s Executive Order suspending immigrant and nonimmigrant entry into the country by citizens of specific countries. While the original order banned entry of citizens from seven majority Muslim countries, it was superseded by the current order which affects citizens from other countries as well, such as Chad, North Korea and Venezuela. On June 26, the Supreme Court ruled 5-4 affirming the constitutionality of the order. Steve Giaier and Carl Esbeck join us to discuss the importance of this decision.
Featuring:
Prof. Carl H. Esbeck, R.B. Price Professor Emeritus of Law/ Isabelle Wade & Paul C. Ly, University of Missouri School of Law
Steven Giaier, General Counsel, House Committee on Homeland Security

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 Dormant Commerce Clause of the Constitution prohibits states from imposing excessive burdens on interstate commerce without congressional approval. Consistent with this doctrine, in 1967, the Supreme Court held that a state cannot require an out-of-state seller with no physical presence in that state to collect and revoke taxes for goods sold or shipped into the state. The Court affirmed this holding in 1992 and 2015. However, in 2015, Justice Kennedy wrote a concurring opinion asking whether the Court should continue following precedent in light of additional dormant Commerce Clause cases and the recent significant technological and social changes that affect interstate commerce.
In 2016, the South Dakota Legislature passed a law requiring sellers of “tangible personal property” who do not have a physical presence in the state to remit sales tax according to the same procedures as sellers who do have a physical presence. The act limited the obligation to sellers with gross revenue from sales in South Dakota over $100,000, or 200 or more separate transactions, within one year.
The legislation's stated purpose was to help the state maintain revenue in the face of growing internet sales and a decrease in sales tax collections.
Following the passage of the law, South Dakota sued many retailers who failed to comply. The state courts of South Dakota ruled for the retailers, considering themselves “duty bound to follow” the previous Supreme Court rulings. On June 21, the Supreme Court ruled in favor of South Dakota in a 5-4 decision authored by Justice Kennedy.
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 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.

NIFLA is a religiously-affiliated pro-life pregnancy clinic that sought to enjoin the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency (FACT) Act on constitutional grounds. The Act requires licensed clinics to provide information on publicly funded reproductive health services, including contraception and abortion, and unlicensed clinics to inform patients of their license status. NIFLA claims the Act violates its First Amendment rights to free speech and the free exercise of religion. The District Court denied an injunction, and the Ninth Circuit affirmed the lower court’s decision. On June 26, the Court ruled in a 5-4 decision that NIFLA is likely to succeed on their claim that the FACT Act violates the First Amendment.
Featuring:
Prof. Michael Moreland, University Professor of Law and Religion & Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy, Villanova University Charles Widger School of Law


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.

In 2010, 17 states and the federal government sued three major credit card companies, American Express, Visa, and MasterCard, for unreasonably restraining trade in violation of the Sherman Act. The Petitioners argued the credit card companies had used anti-steering provisions to impermissibly suppress free market competition. Unlike American Express, Visa and Mastercard decided to rescind their anti-steering provisions and not proceed to trial. American Express went on to lose on the district court level but achieved a reversal in the Second Circuit.
Today, June 25th, the Supreme Court affirmed the Second Circuit’s ruling in a 5-4 opinion authored by Justice Clarence Thomas. Justice Thomas was joined by Justices Gorsuch, Kennedy, Alito, and Chief Justice Roberts.
Oramel Skinner joins us to discuss the Court’s ruling and its implications.
Featuring:
Oramel Skinner, Chief of Government Accountability & Special Litigation Unit, Arizona Attorney General's Office.
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.

In Lucia v. SEC, the SEC fined the petitioner Raymond J. Lucia $300,000 and barred him from working as an investment advisor for anti-fraud violations of the anti-fraud provisions of the Investment Advisers Act. The petitioner requested SEC review, arguing that the administrative proceedings were invalid, as the administrative law judge (ALJ) who decided his case was unconstitutionally appointed. ALJs are appointed by SEC staff in a manner that Lucia claimed violated the Appointments Clause under Article II, Section 2, Clause 2 of the Constitution. When the SEC ruled against Lucia, he appealed to the D.C. Circuit which denied the petition for review by a divided court, issuing a new decision affirming the SEC's decision as required under D.C. Circuit Rule 35(d).
In a 7-2 decision, the Supreme Court ruled in favor of the petitioner. Join us as our experts discuss this important ruling.
Featuring:
Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties Alliance
Dr. John C. Eastman, Henry Salvatori Professor of Law and Community Service and Director, Center for Constitutional Jurisprudence, Dale E. Fowler School of Law, Chapman University

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.

One might expect that by now the Legislative and Executive Branches would have worked out some understood and accepted protocols for balancing the interests of the Legislative Branch in satisfying its oversight obligations, and of the Executive Branch in enforcing the laws (and investigating their possible violation) without disruptive interference. However, year after year, Congress seeks information the Executive refuses to provide. During the last Administration, Congress seemed powerless to enforce its determination to get to the bottom of DOJ’s Fast & Furious, IRS’s Tea Party targeting, and other apparent agency scandals. Now, some suppose that it is the Department of Justice’s ongoing investigation into the last Administration’s conduct during the 2016 election season that is preventing it from providing, at least for now, all the information Congress requests on that subject. News reports of this conflict between two co-equal branches of government saturate newspapers, the airwaves, and the internet. Most focus on Congress’s right to and need for the information, without acknowledging legitimate reasons the Administration might have for withholding it or delaying its production.
This teleforum offers a balanced representation of the competing interests. Morton Rosenberg, retired Congressional Research Service Senior Legal Analyst and author of When Congress Comes Calling: A Study on the Principles, Practices, and Pragmatics of Legislative Inquiry, explains the history of and authority for Congressional demands for information from Executive Branch agencies. Washington attorney William Moschella, a former Congressional Staff Counsel who later became President George W. Bush’s Assistant Attorney General for the Office of Legislative Affairs - the office responsible for DOJ’s responses to Congressional inquiries - offers insight into the considerations accompanying such responses.
Featuring:
William Moschella, Shareholder, Brownstein Hyatt Farber Schreck, LLP
Morton Rosenberg, Fellow, The Constitution Project at the Project On Government Oversight
Moderator: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC
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.