FedSoc Forums

On May 3, 2018, President Trump signed an executive order establishing a White House Faith and Opportunity Initiative and amending an existing executive order setting forth fundamental principles and policymaking criteria regarding partnerships the federal government forms with faith-based and community organizations to serve people in need. In his executive order, President Trump struck provisions of this earlier executive order that required religious providers to refer social service beneficiaries to an alternative provider if the beneficiary objects to the religious character of the organization, and also required that written notice be given to beneficiaries regarding such protections. Stanley Carlson-Thies and Melissa Rogers will provide background on the work of previous administrations on these issues and analysis of President Trump's executive order.
Featuring:
Melissa Rogers, Nonresident Senior Fellow, Governance Studies, The Brookings Institution
Stanley Carlson-Thies, Founder & Senior Director, Institutional Religious Freedom Alliance

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 May 21, the Supreme Court decided Epic Systems v. Lewis; a consolidated case with Ernst & Young, LLP, et al. v. Morris, et al. and NLRB v. Murphy Oil USA, Inc., et al. affirming the enforceability of Class Action Waivers contained within arbitration agreements governed by the Federal Arbitration Act (“FAA”) against employees covered by the National Labor Relations Act (“NLRA”). These two federal statutes had been on a collision course for some time: the FAA mandates enforcement of arbitration agreements according to their terms, including terms that specify with whom parties choose to arbitrate their disputes; the NLRA protects non-supervisory employees’ rights to engage in certain concerted activities. Christopher Murray of Ogletree, Deakins joins us to discuss this important 5-4 decision.
Featuring:
Christopher C. Murray, Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

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 May 13, the Wall Street Journal published an op-ed by Steve Calabresi, co-founder of the Federalist Society and Professor of Law at Northwestern School of Law, discussing the legality of special counsel Robert Mueller’s investigation into Russian interference in the 2016 election. Prof. Calabresi will join us to discuss his thoughts on the ongoing investigation.
Featuring:
Prof. Steven G. Calabresi, Clayton J. and Henry R. Barber Professor of Law, Northwestern 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 April 30, the Supreme Court granted cert in Frank v. Gaos, an appeal of a Ninth Circuit decision affirming a District Court cy pres class action settlement. The petitioner claims that because the class action members received no direct relief, the award does not support class certification and violates Rule 23 of the Federal Rules of Civil Procedure requiring a settlement binding class members to be “fair, reasonable, and adequate.” Ted Frank, petitioner in the case and member of the Federalist Society Litigation Practice Group, will join us to discuss this important case.
Featuring:
Theodore H. Frank, Director of Litigation, Competitive Enterprise 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.

When Congress directs the Patent Office to resolve “any” patent claims a petitioner challenges, must the Patent Office resolve every challenged claim or does the Director have the discretion to only resolve some of the claims? And if the Director chooses to only resolve some claims, is that decision entitled to any Chevron deference? Those questions took center stage in SAS v. Iancu, resulting in a rare 5-4 decision in an intellectual property case.
Writing for the majority, Justice Gorsuch found that “[i]n this context, as in so many others, any means every.” If Congress wanted to allow the Patent Office to select certain claims for inter partes review, it could have done so. Inter partes review was created as part of the 2011 Leahy-Smith America Invents Act, creating a litigation-like proceeding before the Patent Office where a petitioner can ask the Patent Office to reexamine one or more issued patent claims. If the Patent Office finds a question of patentability as to at least one challenged patent claim, it institutes inter partes review. Until now, the Patent Office interpreted the statute as allowing it to review some claims but decline to review others. A decision not to review claims is not judicially appealable, but a final decision on patentability in an IPR proceeding estops the petitioner from challenging validity in later district court litigation. Under the new regime, the Patent Office will be forced to review all challenged patent claims and issue a final written decision. This will change strategies for patent litigations. This will also create more work for the Patent Office, a point Justice Breyer emphasized in his dissent, arguing for “respect [for the] leeway which Congress intended the agencies to have.”
This teleforum discusses both the statutory interpretation and Chevron deference issues raised by this case, as well as the practical implications for inter partes review proceedings before the Patent Office.
Featuring:
Mr. Matthew J. Dowd, Founder, Dowd PLLC
Mr. Brian Pandya, Partner, Wiley Rein 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.

On Monday, May 14, 2018, the Supreme Court decision came down in Murphy v. National Collegiate Athletic Association, No. 16-476, and New Jersey Thoroughbred Horsemen’s Association, Inc. v. National Collegiate Athletic Association, No. 16-477, its first anti-commandeering cases in years. As explained and affirmed by the Court in New York v. United States and Printz v. United States, under the anti-commandeering principle, Congress lacks the power to regulate state governments’ regulation. At issue is whether a federal law—the Professional and Amateur Sports Protection Act of 1992 (PASPA)—may constitutionally bar the State of New Jersey from repealing existing state law that prohibits sports wagering to the extent the law applies at casinos and racetracks. Petitioners contended that PASPA is an unconstitutional attempt by Congress to dictate state law. Respondents argued that PASPA does not bar New Jersey from repealing existing law but merely preempts the State from affirmatively authorizing sports wagering. They contended that the alleged “repeal” is in reality an attempt by New Jersey to selectively authorize sports wagering, which is lawfully preempted by PASPA.
The 6-3 decision, with Justice Alito writing for the majority, and its implications are discussed by our expert, Mr. Elbert Lin.
Featuring:
Mr. Elbert Lin, Partner, Hunton Andrews Kurth 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.

Early this year, a Ninth Circuit panel issued a split decision in an Idaho case that pits interests protected by the First Amendment against property rights and privacy interests. More specifically, as the panel majority noted, the appeal “highlights the tension between journalists’ claimed First Amendment right to engage in undercover investigations and the state’s effort to protect privacy and property rights in the agricultural industry.”
In ALDF v. Wasden, 878 F.3d 1184 (9th Cir. Jan. 4, 2018), the panel considered constitutional objections to a new Idaho statute that makes it a crime to engage in “interference with agricultural production.” A number of states with substantial agribusiness operations have enacted or considered enacting similar statutes, which some opponents call “ag-gag” laws.
The Idaho law was passed in 2014, after an animal rights group posted a “disturbing,” “secretly-filmed exposé of the operation of an Idaho dairy farm” on the Internet. Animal rights organizations filed suit in federal district court, challenging several provisions of the statute. After the court granted summary judgment to the plaintiffs, the Idaho attorney general appealed.
As relevant here, the Idaho statute defines the crime of “interference with agricultural production” to include (and thus to prohibit) four categories of knowing conduct:
(1) knowingly making misrepresentations to enter an “agricultural production facility”;
(2) knowingly making misrepresentations to obtain records of an agricultural production facility;
(3) knowingly making misrepresentations to obtain employment with an agricultural production facility, coupled with the intent to cause economic or other injury to the owners, the facility, and other persons and things; and
(4) knowingly entering an agricultural production facility that is not open to the public and making audio or video recordings of the facility’s operations without the owner’s consent and without any judicial or statutory authorization.
The panel unanimously upheld the second and third prohibitions, and unanimously struck down the fourth prohibition. But the panel divided 2-1 over whether the first prohibition (on knowingly making a misrepresentation to enter an agricultural production facility) is constitutional. The majority (Judge M. Margaret McKeown, joined by Judge Richard C. Tallman) held that the prohibition violates the First Amendment. Judge Carlos T. Bea, who dissented in part and concurred in part, would have upheld the prohibition. Among other things, he disagreed with the majority’s reading of United States v. Alvarez, 567 U.S 709 (2012), an important recent case in which the Supreme Court struck down the federal Stolen Valor Act, which criminalized false claims about the receipt of military decorations or medals.
Professor Eugene Volokh will discuss and evaluate the separate opinions in the case and their analyses of the statutory provisions at issue, noting possible implications for litigators as well as for legislators who may be considering similar legislative proposals.
Featuring:
Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
Moderator: Andrew R. Varcoe, Partner, Boyden Gray & Associates 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.

Join us in a discussion with our experts, Professor Brian Fitzpatrick and Professor Stephen Ware, as we review The Case for Political Appointment of Judges, a new white paper from Professor Fitzpatrick which argues that political appointment is the best way to select state judges. This paper is a part of a series of papers commissioned by the Federalist Society on the leading methods of state judicial selection. The first paper in the series made the case for partisan judicial elections, and a future paper will make the case for commission-based appointment (the Missouri plan).

Featuring:
Prof. Brian T. Fitzpatrick, Professor of Law, Vanderbilt University Law School
Prof. Stephen J. Ware, Professor of Law, University of Kansas School of Law

On April 24, Jesner v. Arab Bank was decided 5-4 in favor of the respondent.
The petitioners in this case were surviving victims or families affected by a series of terrorist attacks that occurred over a 10-year period along the Gaza Strip and West Bank of Israel. Arab Bank knowingly accepted donations, paid suicide bombers' families, and maintained accounts for the terrorists who committed these acts. Arab Bank holds a small division in the United States, which it uses for money transfers. Petitioners claimed that since Arab Bank has connection to the United States they could sue the corporation for damages in U.S. federal court under the 1789 Alien Tort Act.
Prof. Samuel Estreicher and Prof. William Casto join us to discuss the decision.
Featuring:
Prof. William R. Casto, Paul Whitfield Horn Professor, Texas Tech University School of Law
Prof. Samuel Estreicher, Dwight D. Opperman Professor of Law Director, Center for Labor and Employment Law Co-Director, Institute of Judicial Administration, New York 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.

Robert McCoy was charged with the murder of three of his family members in Bossier City, Louisiana. The state brought capital charges against him, but McCoy maintained his innocence – claiming he was not even in the state at the time of the murders – and demanded a jury trial. But in light of the evidence against him, McCoy’s lawyer thought the best trial strategy would be to admit guilt to the jury and hope for leniency in sentencing. McCoy adamantly opposed this plan, but his lawyer pursued it anyway and told the jury that McCoy was guilty. The jury returned three murder convictions and sentenced McCoy to death.
The Supreme Court has just issued a decision holding, 6-3, that it was unconstitutional for McCoy’s lawyer to admit guilt to the jury over McCoy’s express objection. The Court noted that whether to admit guilt is not a strategic question about how to achieve a client’s objectives, but a fundamental question about what a client’s objectives actually are. Therefore, the Sixth Amendment guarantees that the defendant, not his lawyer, has the final say on this question, and that McCoy must receive a new trial in which his attorney will defend his professed innocence and put the state to its burden of proof.