FedSoc Forums

Rodney Class was arrested in May of 2013 when he violated federal law for possession of three firearms on the United States Capitol Grounds. Class pleaded guilty in the district court, but then later appealed his case to the US Court of Appeals for the D.C. Circuit on constitutional grounds. The D.C. Circuit court held that he was guilty because of his guilty plea on the district court level and ruled that his previous plea barred him from appealing his guilt on constitutional grounds at the appellate level.
In a 6-3 opinion, the Supreme Court of the United States reversed the decision of the D.C. Circuit. Justice Breyer wrote in the majority opinion that a guilty plea does not in fact bar a defendant from raising appeals based on constitutional grounds. Justice Alito authored a dissent, joined by Justices Clarence Thomas and Anthony Kennedy, which criticized the majority for reaching a decision that has no clear basis in the Constitution.
Will Haun joins us to discuss the decision and its potential implications.
Featuring:
Will Haun, Attorney, Shearman & Sterling LLP

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Most states have laws that prohibit electioneering within polling places on election day, and the Supreme Court has upheld buffer zones that extend this prohibition to areas immediately surrounding polling places. But Minnesota law goes beyond electioneering and prohibits wearing “a political badge, political button, or other political insignia . . . at or about the polling place[.]” This includes Gadsden flag t-shirts, buttons demanding to be asked for voter identification, or apparel referencing an organization such as the AFL-CIO. In Minnesota Voters Alliance v. Mansky, the Court will rule whether the law is facially overbroad under the First Amendment.
Featuring:
Mr. Stephen Klein, Attorney, Pillar of Law Institute

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The Stored Communications Act of 1986 authorizes federal, state, and local law enforcement officers to obtain subpoenas, orders, or warrants that permit them to seize emails. However, the storage of such data in the “cloud” of remote servers, many of them overseas, presents difficult questions Congress did not anticipate years before global internet access became commonplace. The main question in United States v. Microsoft is whether a warrant served on the tech giant’s U.S. offices requires it to turn over emails of a suspected drug trafficker that happen to be stored in Ireland.
Because federal law is presumed not to apply outside the United States, the case presents the question whether the relevant conduct occurs domestically—whether the Act’s focus is the disclosure of electronic records available to the U.S. company, or whether its focus is the compelled retrieval of the data stored abroad. It is an increasingly important issue at a time when many leading email providers may store an email in one location and its attachments in another location entirely. Due to the potentially vast implications, more than 30 amicus briefs have been filed by several governments, members of Congress, numerous tech firms, privacy advocates, and law-enforcement officials.
John Elwood will attend the oral argument and then join us to discuss his thoughts on the proceedings.
Featuring: John Elwood, Partner, Vinson & Elkins
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Janus v. American Federation of State, County, and Municipal Employees (AFSCME) is scheduled for oral argument in the Supreme Court on February 26. This important case will determine whether it is constitutional for public sector unions to require all employees to pay union fees regardless of their membership under the First Amendment. The ruling in Janus will also clarify whether the Court’s decision in Abood v. Detroit Board of Education to uphold these requirements will remain good law.
Ray J. LaJeunesse of the National Right to Work Legal Defense Foundation joins us to discuss his impressions of oral argument.
Featuring:
Raymond J. LaJeunesse, Jr., Vice President and Legal Director, National Right to Work Legal Defense and Education Foundation, Inc.

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The system for licensing musical works in the U.S. and internationally is fractionalized, complex, regulated, adjudicated, derivative, and lacks sensitivity to market forces. Unlike other works covered by copyright, in which copyright owners and licensees simply make deals to use copyrighted works, the licensing of musical works is governed by complex statutes, consent decrees, rate setting boards, and copyright courts. Payments for the use of musical works varies widely depending on whether the use is of a composition or digital performance, during live events, over terrestrial radio, or on the internet, and depending on whether a music service is interactive. Likewise, the compensation rates for different types of licensing vary widely, and often without direct correspondence to supply and demand. In addition, the model for the production of some music, such as pop, has evolved towards more distributed, team-based production. All of this has resulted in a music licensing market that is in chaos and does not always serve the interests of participants in the market, or the public. In December 2017, the Second Circuit upheld a rejection of the DOJ’s attempt to interpret its consent decree with BMI to prevent fractional licensing of copyrighted works.
Congress has been debating music licensing reform for over five years. Now a coalition of industry participants seem to be coalescing around a number of bills pending in Congress, including the Music Modernization Act (reforming digital mechanical licensing), the Classics Act (providing compensation for pre-1972 recordings played on internet and satellite), and the Allocation for Music Producers Act (providing royalties for producers and engineers). Real changes to the system may finally be upon us. In this teleforum our experts will discuss music licensing, its flaws and features, and suggestions for reform.
Featuring:
Mr. Mitch Glazier, President, Recording Industry Association of America
Prof. Lawrence J. White, Robert Kavesh Professorship in Economics, Leonard N. Stern School of Business, New York University
Moderator, Prof. David Olson, Associate Professor, Boston College Law School

Please consider reading papers on this topic by the experts below.

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Between 2010 and 2013, a team of Wisconsin state officials assembled by the Milwaukee County District Attorney, and later involving the state’s Government Accountability Board, targeted the activities of certain groups who had supported Governor Scott Walker’s policy agenda. The probes seized millions of emails, bank records, hard copy documents, and other materials through a combination of electronic search warrants, subpoenas, and raids that used controversial tactics. Litigation in the Wisconsin state courts froze the John Doe investigations in early 2014. The Wisconsin Supreme Court ultimately terminated the investigations in the summer of 2015. In reaction, the Wisconsin legislature passed sweeping reforms of its campaign finance and criminal laws, eliminating the Government Accountability Board, changing John Doe rules, and fixing secrecy laws so that they restrained the prosecutors, not the targets. But there were new developments eight weeks ago: Wisconsin Attorney General Brad Schimel issued a report following an investigation he initiated when, in September 2016, the British Guardian published approximately 1,400 pages of seized witness emails and draft court filings prepared by the prosecution team. Schimel found that a trove of evidence at the Government Accountability Board offices may have been leaked, and promised to institute contempt proceedings against prosecutors and other state officials. As a result, new individuals have learned that their materials were seized and reviewed during the original investigation. Some existing litigation may be impacted, and new litigation may occur. Find out what’s next.
Featuring:
Mr. Edward D. Greims, Partner, Graves Garrett, LLC

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Janus v. American Federation of State, County, and Municipal Employees is scheduled for oral argument in the Supreme Court on February 26. This important case will determine whether it is constitutional for public sector unions to require all employees to pay union fees regardless of their membership under the First Amendment. The ruling in Janus will also clarify whether the Court’s decision in Abood v. Detroit Board of Education to uphold these requirements will remain good law.
Featuring:
Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute; Editor-In-Chief of the Cato Supreme Court Review
William Messenger, Staff Attorney, National Right to Work Legal Defense Foundation, Inc.

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 little-known case just concluded this week, but it may have big implications for the important national dialogue about conflicts between faith and sexual identity. In Myrick v. Warren, a federal judge ruled that the State of North Carolina violated federal law when it forced a magistrate named Gayle Myrick to resign because of her religious beliefs about marriage. The judge’s ruling comes ahead of the Supreme Court’s decision in Masterpiece Cakeshop v. CCRC. Both Myrick and Masterpiece raise important questions about conscience and LGBT rights. This Teleforum will address Myrick v. Warren and its relationship to the broader issue of LGBT rights and religious liberty.

Featuring:
Stephanie Barclay, Counsel, The Becket Fund for Religious Liberty

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American foreign policy is in a state of upheaval. The rise of Donald Trump and his "America First" platform have created more uncertainty about America's role in the world than at any time in recent decades. From the South China Sea, to the Middle East, to the Baltics and Eastern Europe, the geopolitical challenges to U.S. power and influence seem increasingly severe―and America's responses to those challenges seem increasingly unsure. Questions that once had widely accepted answers are now up for debate. What role should the United States play in the world? Can, and should, America continue to pursue an engaged an assertive strategy in global affairs?
In this book, a leading scholar of grand strategy helps to make sense of the headlines and the upheaval by providing sharp yet nuanced assessments of the most critical issues in American grand strategy today. Hal Brands asks, and answers, such questions as: Has America really blundered aimlessly in the world since the end of the Cold War, or has its grand strategy actually been mostly sensible and effective? Is America in terminal decline, or can it maintain its edge in a harsher and more competitive environment? Did the Obama administration pursue a policy of disastrous retrenchment, or did it execute a shrewd grand strategy focused on maximizing U.S. power for the long term? Does Donald Trump's presidency mean that American internationalism is dead? What type of grand strategy might America pursue in the age of Trump and after? What would happen if the United States radically pulled back from the world, as many leading academics―and, at certain moments, the current president―have advocated? How much military power does America need in the current international environment?
Grappling with these kinds of issues is essential to understanding the state of America's foreign relations today and what path the country might take in the years ahead. Join us to discuss American Grand Strategy in the Age of Trump with author Hal Brands and Lester Munson of the BGR Group.
Featuring:
Hal Brands, Henry A. Kissinger Distinguished Professor, Henry A. Kissinger Center for Global Affairs, John Hopkins School of Advanced International Studies
Lester Munson, Principal, Government Affairs, BGR Group

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This Teleforum addresses whether there is a need to amend Section 101 of the Patent Act, which defines what counts as an invention eligible for receiving patent protection. Between 2010 and 2014, the Supreme Court issued four decisions interpreting and applying Section 101 to business, high-tech, and biotech inventions. In all four cases, the Court held that the patents were invalid for claiming abstract ideas, laws of nature, or facts of nature. Since 2014, federal courts have invalidated many patents in applying the Court’s new rules on patent eligibility. The Patent Office is also rejecting many patent applications. Some people in the innovation industries express concern that the Court’s decisions are vague and provide no objective framework as to whether a claim is patent eligible. Three trade associations, the Intellectual Property Owners Association (IPO), the American Intellectual Property Lawyers Association (AIPLA), and the American Bar Association’s IP Section, have released proposed amendments to Section 101. Others in the innovation industries maintain that the Supreme Court was right to reinvigorate patent eligibility doctrine, tightening up this basic legal standard for obtaining a property right in a new invention or discovery, because too many overbroad and vague patents had been issued in recent years by the Patent Office. These invalid patents, they contend, are clogging the gears of the innovation economy by imposing unnecessary costs on other innovators and consumers. This Teleforum discusses the proposed amendments to the Patent Act, and whether legislative reform of Section 101 is necessary or not.
Featuring:
Mr. Phil Johnson, Founder and Principal, Johnson-IP Strategy & Consulting
Mr. Dana S. Rao, Vice President, Intellectual Property and Litigation, Adobe Systems, Inc.
Mr. Robert Sachs, President, Robert R. Sachs PC
Moderator: Prof. Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason 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.