FedSoc Forums

In this Teleforum, Prof. Ely of Vanderbilt Law, Prof. Presser of Northwestern, and our Professional Responsibilities Practice Group Chair Jack Park will join us to discuss Prof. Rotunda’s newest book, John Marshall and the Cases that United the States of America. Professor Ronald Rotunda is well known in the Federalist Society community. He passed away unexpectedly March 14, 2018. He was also an active member of the Federalist Society leadership, serving on the Executive Committee of the Professional Responsibilities Practice Group for over a decade and participating in the National Lawyers Convention, CLE Teleforum calls, and podcasts.
Featuring:

Prof. James W. Ely Jr., Milton R. Underwood Professor of Law Emeritus; Professor of History Emeritus; Lecturer in Law, Vanderbilt Law School
Prof. Stephen B. Presser, Raoul Berger Professor of Law Emeritus, Professor of Business Law Emeritus, Kellogg School of Management, Northwestern University Pritzker School of Law
Moderator: John J. Park, Jr., Chair, Professional Responsibility & Legal Education Practice Group


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 Clean Water Act’s geographic scope has demanded much attention recently, with high profile efforts by EPA to rewrite the prior administration’s regulations defining “navigable waters” and the Supreme Court issuing a decision this January holding that suits challenging this definition must be filed in federal district rather than circuit courts.
The Clean Water Act also presents important questions of operational scope: its operative terms prohibit discharges of pollutants from point sources to navigable waters without a federal permit. However, section 404(f) of the Act lists several categories of actions which are neither prohibited nor require permits from the Army Corps, including normal farming, ranching and forestry practices, maintenance of existing structures, and construction and maintenance of stock ponds and irrigation ditches, along with several others. While the text of the statute indicates broad exemptions for these categories of activities, agency regulations and practice significantly narrow them.
This teleforum examines three recent Clean Water Act enforcement actions involving the scope of the 404(f) exemptions for farming, stock ponds, and maintenance of rip rap bank protection structures.
Featuring:
Peter Prows, Attorney, Briscoe Ivester & Bazel
Tyler Welti, Attorney, Venable, LLP
Jonathan Wood, Attorney, Pacific Legal Foundation
Moderator: 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.

On March 6, 2018, the U.S Department of Labor's (DOL) Wage and Hour Division announced its new Payroll Audit Independent Determination (PAID) program. A six-month pilot program, PAID allows employers to proactively address potential wage and hour underpayments under the Fair Labor Standards Act (FLSA) by seeking early resolution of potential wage and hour violations. Karen Harned, Executive Director of the NFIB Small Business Legal Center, will provide an overview of the program and discuss the benefits and possible pitfalls of participation by employers.

Featuring:
Karen Harned, Executive Director, National Federation of Independent Business Small Business Legal Center


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.

As member states of the European Union have adopted laws and programs to curtail inflammatory and hateful expression, American observers have considered the efficacy of these measures. European judicial rulings now address the balancing of rights at stake in the cases that require social media censorship and the application of these laws is under scrutiny. There is also the fundamental debate as engaged in European communities as to what groups or individuals are the subjects of these speech-restrictive efforts. In essence, are these policies actually functioning as a normative and legal “Heckler’s Veto”? What results are evident in societal trends and governmental impulses to further curtail speech that a subject considers offensive?
Featuring:
Lucinda Creighton, CEO, Vulcan Consulting Ltd
Paul Coleman, Executive Director, ADF International
Soeren Kern, Distinguished Senior Fellow, Gatestone Institute
Moderator: Karen Lugo, Founder, Libertas-West Project

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.

Recently, Justices of the Supreme Court have called the Court’s deference jurisprudence into significant question. Then Judge Gorsuch, separately concurring in his own panel decision for the Tenth Circuit in Gutierrez-Brizuela v. Lynch, questioned the wisdom of Chevron deference, cataloguing multiple concerns with the doctrine. Justice Thomas has repeatedly called for the Court to reconsider its deference to agency interpretations of their own regulations under Auer v. Robbins. And a petition for writ of certiorari has been pending for well over a year in DuPont v. Smiley, which questions the continuing viability of Skidmore deference. Reconsideration of these doctrines could have a substantial effect on Clean Water Act jurisprudence. EPA and the Army Corps of Engineers have adopted extensive regulations interpreting the Act’s many technical provisions. Each agency has then published a wide variety of guidance documents, such as the Army Corps’ library of Regulatory Guidance Letters and Regional Supplements to the 1987 Wetland Delineation Manual, and EPA’s 2008 Post-Rapanos Guidance.
This teleforum provides an overview of current thinking about deference doctrines on the Supreme Court, the role of deference in the enforcement of the Clean Water Act, and the implications of abandoning judicial deference to agencies for the implementation of the Act.
Featuring:
Professor Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Director of the Center for Business Law & Regulation, Case Western Reserve University School of Law
Timothy Bishop, Partner, Mayer Brown 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.

For over a decade, shareholder activism has been on the rise, affecting an increasing number of publicly-traded companies. Essentially a re-brand of the 1980s-era “corporate raiders,” today’s activists are primarily institutional shareholders that seek to profit by forcing change at companies – whether by seeking board seats, pursuing managerial purges, or effectuating transactions for short-term gain. Shareholder activism is a battle for corporate control, accomplished largely through proxy fights and publicity campaigns. This Teleforum provides an overview of the shareholder activism landscape, strategies and counter strategies to protect against activist tactics, and will assess the prospect for legal reforms intended to stem the flow of activist campaigns.
Featuring:
Jason Levine, Litigation Partner, Vinson & Elkins LLP
Lawrence Elbaum, Co-head of Shareholder Activism Practice, Vinson & Elkins 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.

Agencies formally adjudicate a massive number of federal cases with administrative law judges. This delegation of judicial power is justified by the alleged lack of time and expertise of federal courts as compared to agencies. In this essay, Professor Michael Rappaport argues that ALJs should be replaced with Article III administrative judges that have expertise in a subject (such as health, science, or economics) rather than one agency.
This teleforum will address numerous issues surrounding the proposed reform, including the practicality of adding so many Article III judges, the constitutional problems with the current system of formal agency adjudication, and the benefits of subject matter expertise.
Featuring:
Professor Michael B. Rappaport, Hugh and Hazel Darling Foundation Professor of Law; Director, Center for the Study of Constitutional Originalism, University of San Diego School of Law
Moderator: Professor Jennifer L. Mascott, Assistant Professor of Law, 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.

When we think of constitutional law, we invariably think of the United States Supreme Court and the federal court system. Yet much of our constitutional law is not made at the federal level. In 51 Imperfect Solutions, U.S. Court of Appeals Judge Jeffrey S. Sutton argues that American Constitutional Law should account for the role of the state courts and state constitutions, together with the federal courts and the federal constitution, in protecting individual liberties. The book tells four stories that arise in four different areas of constitutional law: equal protection; criminal procedure; privacy; and free speech and free exercise of religion. Traditional accounts of these bedrock debates about the relationship of the individual to the state focus on decisions of the United States Supreme Court. But these explanations tell just part of the story. The book corrects this omission by looking at each issue--and some others as well--through the lens of many constitutions, not one constitution; of many courts, not one court; and of all American judges, not federal or state judges. Taken together, the stories reveal a remarkably complex, nuanced, ever-changing federalist system, one that ought to make lawyers and litigants pause before reflexively assuming that the United States Supreme Court alone has all of the answers to the most vexing constitutional questions. If there is a central conviction of the book, it's that an underappreciation of state constitutional law has hurt state and federal law and has undermined the appropriate balance between state and federal courts in protecting individual liberty. In trying to correct this imbalance, the book also offers several ideas for reform. Author Judge Sutton of the Sixth Circuit will join Georgetown Law Professor Randy Barnett and Judge Pryor of the Eleventh Circuit to discuss his new book.
Featuring:
Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center
Hon. William H. Pryor, Jr., U.S. Court of Appeals, Eleventh Circuit
Hon. Jeffrey S. Sutton, U.S. Court of Appeals, Sixth Circuit

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.

Animal Science Products, a U.S. company, sued Hebei Welcome Pharmaceutical Co., a Chinese company, for violating U.S. antitrust laws by coordinating prices and artificially decreasing supply. Hebei moved to dismiss the case, stating that they were acting according to Chinese law. The district court denied the dismissal, and the jury trial found in favor of Animal Science Products, ordering Hebei to pay them $147 million in damages.
Hebei appealed, and the circuit court reversed the district court's denial to dismiss. The circuit court reasoned that the district court had erred in not deferring to the Chinese government's interpretations of its laws, as the Chinese government had appeared in court to defend Hebei's actions.
John Shu will join us to discuss his perceptions of the oral argument in this important case.
Featuring:
John Shu, Attorney and Legal Commentator

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.

Under what circumstances may patents be revoked or modified? What process is due? The questions animating Oil States Energy Services v. Greene’s Energy Group have been answered. The Supreme Court Opinion that came down today 7-2 affirms the constitutionality of the jurisdiction of the Patent Trial & Appeal Board, a non-Article III forum without a jury.
Featuring:
Prof. Adam Mossoff, Founder, Director of Academic Programs & Senior Scholar, Center for the Protection of Intellectual Property and Professor of Law, Antonin Scalia Law School, George Mason University
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.