FedSoc Forums

Leaks of classified or politically sensitive information have become part of the daily news cycle. With them, people like Assange, Snowden, and Manning have become household names. Some believe leakers to be patriots; others consider them traitors. This morally-charged debate has dominated conversations about leaks, often at the expense of analyzing why leakers leak, the tedious procedures and mechanics of investigating leakers, and what the government considers when deciding how appropriately to appropriately respond once a leaker is identified.
This Teleforum will accordingly focus on the motivations of leakers and countermeasures to prevent leaking and identify a leaker after the fact. Our speakers will also discuss government considerations when deciding whether to pursue criminal charges. In addition to the strictly legal considerations, including what might distinguish lawful whistleblowing from potentially criminal conduct, we will discuss resource constraints, procedural challenges, the extent to which political considerations may come into play as to how certain leaks are countered and addressed, as well as whether the government’s response to insider threats has helped or harmed the quest to prevent leaks.
Featuring:
J. Patrick Rowan, Partner, McGuireWoods LLP
Prof. Mark S. Zaid, Adjunct Faculty, Johns Hopkins University
Moderator: Adam Pearlman, Special Advisor to the International and National Security Law 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.

Oral Arguments for Jesner v. Arab Bank were heard on Wednesday, October 11th 2017. The issue at the center of the case is whether the Alien Tort Statute exempts corporations from liability.
The petitioners are 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 claim that since Arab Bank has connection to the United States they can sue the corporation for damages in U.S. federal court under the 1789 Alien Tort Act.
Prof. Samuel Estreicher and Prof. William Casto will join us to discuss the oral argument and the significance of the case.
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.

On May 22, 2017, in TC Heartland LLC v. Kraft Food Group Brands LLC, the Supreme Court overturned a 30 year old Federal Circuit precedent on venue in patent cases, holding that a patent defendant can be sued only in a federal district court in its state of incorporation (its “residence” under 1400(b)) or in a district in which it both committed an act of infringement and has a regular and established place of business. Federal courts last adjudicated the meaning of “regular and established place of business” and the location of commission of an act of infringement almost three decades ago, long before the rise of the modern e-commerce economy and before Congress added offers to sell to the litany of acts that infringe a patent. What have district courts and the federal circuit made of these statutory elements in the past five months, and what questions will courts face in determining the proper venue for patent suits? Joel Ard, a partner at Foster Pepper in Seattle, and Michael Friedland, a partner at Knobbe Martens in Orange County, will give an overview of recent developments in patent venue and offer some predictions of unresolved issues and possible resolutions of them.

Featuring:

Mr. Joel B. Ard, Foster Pepper

Mr. Michael Friedland, Partner, Knobbe Martens

Antonin Scalia was one of the most important, outspoken, and controversial Justices in the past century. His endorsements of originalism, which requires deciding cases as they would have been decided in 1789, and textualism, which limits judges in what they could consider in interpreting text, caused major changes in the way the Supreme Court decides cases. He was a leader in opposing abortion, the right to die, affirmative action, and mandated equality for gays and lesbians, and was for virtually untrammelled gun rights, political expenditures, and the imposition of the death penalty. However, he usually followed where his doctrine would take him, leading him to write many liberal opinions. In The Unexpected Scalia, a close friend of Justice Scalia David Dorsen explains the flawed judicial philosophy of one of the most important Supreme Court Justices of the past century.
Author David Dorsen and former Scalia clerk Michael Ramsey joined us to discuss Mr. Dorsen's newest book.
Featuring:
David M. Dorsen, Of Counsel, Of Counsel, Sedgwick LLP
Michael D. Ramsey, Hugh and Hazel Darling Foundation Professor of Law; Director, International & Comparative Law Programs, University of San Diego School of Law
Moderator: Dean Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law; Professorial Lecturer in Law, The George Washington University Law School

Multiple legal challenges to the Army Corps of Engineers and the Environmental Protection Agency’s controversial rule redefining “waters of the United States” (WOTUS) raise two important questions: (1) is the rule valid and (2) which is the proper venue for challenging such a rule – the federal district courts or the federal courts of appeals. The first question is on hold pending publication of a revised rule mandated by Executive Order. The second question will now be decided by the U.S. Supreme Court.
The Supreme Court has granted review to address the venue question and oral argument is scheduled for October 11, 2017. The issue is important because it is unclear where and when regulated parties can challenge certain types of federal rules interpreting the Clean Water Act. Filing a claim in the wrong court can result in losing the right to challenge the rule at all. Under a plain reading of Act, affected parties have six years to challenge the WOTUS rule or any subsequent rule defining the agency's general jurisdiction under the Act in a federal district court. But under the EPA's reading of the Act, affected parties would have only six months to challenge the rule in a federal court of appeals. Various State, industry, and landowner groups urge the High Court to rely on a plain reading of the Act to maximize the opportunity for the regulated public to challenge rules that define the scope of the Act.
Featuring:
M. Reed Hopper, Senior Attorney, Pacific Legal Foundation

Partisan disputes over the drawing of legislative districts are as old as the Republic itself. In recent years, these disputes have not been limited to the political realm. Ever since the Supreme Court's 1986 opinion in Davis v. Bandemer, litigants have raised challenges in federal courts over partisan gerrymandering. But lower courts have lacked guidance from the Supreme Court and struggled to identify the appropriate standards and evidence to use. In October, the Supreme Court heard Gill v. Whitford, an appeal of a lower court finding that Wisconsin's redistricting of its state legislature was an impermissible partisan gerrymander. What standards should courts apply when determining whether a partisan gerrymander is impermissible? What evidence should courts rely upon? Should courts even consider such challenges at all or leave the matter to the political process?
Featuring:
Prof. Nicholas Stephanopoulos, Professor of Law, Herbert and Marjorie Fried Research Scholar, University of Chicago Law School
Mr. Kevin St. John, Partner, Bell Giftos St. John LLC

On October 4, 2017, the Supreme Court held oral arguments on District of Columbia v. Wesby and Class v. United States. In District of Columbia v. Wesby, law enforcement officers responded to noise complaints of a party going on in a home where the owner was not present. The officers removed partiers from the premises though the partiers thought that their host, a renter, had attained permission for the party. The case seeks to answer two questions: First, whether officers have probable cause to arrest for unlawful entry under D.C. law despite a claim of good-faith entry? Second, whether the law was sufficiently clearly established to justify the denial of immunity to the officers?
In Class v. United States, Rodney Class pled guilty in a district court to possession of three firearms on United States Capitol grounds. He later appealed to the U.S. Court of Appeals for the District of Columbia Circuit on grounds of constitutional error and statutory error but was affirmed as guilty under his original guilty plea. Does a guilty plea waive a defendant’s right to challenge the constitutionality of his conviction? William Haun, an associate of the Antitrust and Litigation Groups at Shearman & Sterling LLP, joined us to discuss the oral arguments and potential impact of the cases.
Featuring:
William J. Haun, Associate, Shearman & Sterling LLP

On Friday, October 6, The Federalist Society hosted a special 90-minute Teleforum to preview the significant cases of the Supreme Court's October 2017 Term. Our experts discussed Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, Christie v. NCAA, Carpenter v. US, Gill v. Whitford, Trump v. Int’l Refugee Assistance Project, Jennings v. Rodriguez, Oil States Energy Services v. Greene’s Energy Group and more.
Featuring:
Dr. John Eastman, Professor, Henry Salvatori Professor of Law and Community Service, Chapman University School of Law
Prof. Richard W. Garnett, Paul J. Schierl/Fort Howard Corporation Professor Concurrent Professor of Political Science, The Law School, University of Notre Dame
Eugene Scalia, Partner, Gibson, Dunn & Crutcher
Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute and Editor-In-Chief, Cato Supreme Court Review
Prof. Louis Michael Seidman, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center

The conclusion of the coming Supreme Court term will see the tenth anniversary of District of Columbia v. Heller, the Court’s landmark opinion confirming that a ban on registering handguns and a requirement to keep guns in the home disassembled or nonfunctional with a trigger lock mechanism violates the Second Amendment. Seven years have passed since the Court held in McDonald v. City of Chicago that the Fourteenth Amendment makes the Second Amendment right to keep and bear arms for the purpose of self-defense applicable to the states. Yet the Court has since remained nearly silent on the subject, as the lower federal courts struggle to answer challenges to laws restricting who may have arms, the type of arms that might be had, and the gun-related activities in which people may engage. Alan Gura, the attorney who argued and won Heller and McDonald, reviewed the courts’ evolving approach to Second Amendment rights, and discussed the prospects for the eventual return of the right to keep and bear arms to One First Street.
Featuring:
Alan Gura, Partner, Gura PLLC

One of the most important doctrines in civil rights litigation is qualified immunity, which holds police officers and other officials immune from suit for constitutional violations unless they act incompetently or knowingly violate the law. This Supreme Court term may mark an important inflection point for the doctrine. In recent years, the Court has aggressively enforced immunity that protects officers from suits, but last term Justice Clarence Thomas called for the doctrine of qualified immunity to be reconsidered. On Wednesday, October 4th, the Supreme Court will hear oral argument in District of Columbia v. Wesby, the latest case that involves this doctrine of qualified immunity. Professor William Baude of the University of Chicago joined us for a Teleforum on the current state of the Supreme Court's qualified immunity jurisprudence and its trajectory in light of Wesby and other cases.
Featuring:
Prof. William Baude, Neubauer Family Assistant Professor of Law, University of Chicago Law School