FedSoc Forums

The Authorization for the Use of Military Force was passed by Congress on September 14, 2001. This authorization is still used today to justify military actions taken by the Trump administration against ISIS and other terrorist organizations around the globe.

On September 15, the Senate rejected Sen. Rand Paul's proposal to amend the Authorization that would have given it an expiration date of 6 months. Sen. Paul and others hoped that the deadline would force Congress to act and pass legislation to redefine executive and congressional war powers. Prof. Robert Turner and Prof. Steve Vladeck joined us to discuss the AUMF and its future.

Featuring:

Prof. Robert F. Turner, Professor, University of Virginia School of Law
Prof. Stephen I. Vladeck, Professor, The University of Texas at Austin School of Law

Employers across the country are anxiously awaiting a ruling from the United States Supreme Court regarding the enforceability of express waivers of an employee’s right to bring or participate in a class or collective action. In three cases set for oral argument on October 2nd – Epic Systems v. Lewis; Ernst & Young, LLP, et al. v. Morris, et al.; and NLRB v. Murphy Oil USA, Inc., et al. – the Supreme Court will decide whether Class Action Waivers contained within arbitration agreements governed by the Federal Arbitration Act (“FAA”) are enforceable against employees covered by the National Labor Relations Act (“NLRA”). These two federal statutes have 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, and the NLRA protects non-supervisory employees’ rights to engage in certain concerted activities.
The National Labor Relations Board (“NLRB”) has taken the position that class action waivers, even when contained within FAA-governed arbitration agreements, are unenforceable because they violate employees’ rights to engage in protected, concerted activity under the NLRA. Two of the lower court decisions, the Seventh Circuit’s Lewis v. Epic Systems, 823 F. 3d 1147 (7th Cir. 2016), and the Ninth Circuit’s Morris v. Ernst & Young, LLP, 834 F.3d 975 (9th Cir. 2016), have adopted the NLRB’s position. In the third case, Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015), the Fifth Circuit rejected the NLRB’s position and held that arbitration agreements, including class action waivers, must be enforced according to their terms under the FAA, notwithstanding the NLRB’s interpretation of the NLRA.
On October 2nd, Edward Berbarie of Littler Mendelson attended the Supreme Court Oral Argument and provided his commentary and insights, including the issues that were focused upon, the questions that were asked and how they were addressed by the parties, and his predictions as to how the Court will rule.
Featuring:
Edward F. Berbarie, Shareholder, Littler Mendelson P.C.

Our panel of three experts in legal and judicial ethics will discuss several recent cases and regulatory developments in the field, with an eye towards translating these developments into practical wisdom about their likely impact on law practice in 2017 and beyond.
The following topics will be discussed:
Unauthorized Practice of Law and Its Growing Implications for Lawyering
We will examine some of the recent developments in UPL and its application to the delivery of legal services. New business structures and services are beginning to test the old legal concepts. And, as some recent cases illustrate, the ABA’s modification of Model Rule 5.5 may now be outdated.
Recent Developments in Attorneys’ Fees
As practice continues to evolve, the ABA, the state bars, and some courts have provided more guidance on lawyer issues relating to attorneys’ fees. In some cases, lawyers are using creative language to protect their rights and in other cases, client protection remains an important interest.
A Sampling of Ethical Pitfalls in the Electronic Age
Many seminars and much advertising tout the virtues of establishing or enhancing a lawyer or a firm's online presence and technical tools. Increasing business, facilitating lawyer-client communications, and better managing litigation are only a few of the benefits that can result. But there is a dark side to the adoption of Electronic Age technology as well. Chief among the dangers is the unauthorized disclosure of client confidences, through inadvertence or third party mischief, but that hardly exhausts the dangers. Recent cases and ethics opinions reveal an array of other difficulties that can arise.
Advertising
As an increasing number of American lawyers handle more matters that touch on more than one state, the rules governing lawyer advertising in various formats have become less and less uniform across state lines. Every state has rules that are based on Part 7 of the Model Rules of Professional Conduct, but almost every state made detailed and widely varying amendments before local adoption. The ABA has begun formal consideration of a proposal developed by the Association of Professional Responsibility Lawyers (APRL) that would greatly simplify the Model Rules provisions, while eliminating most regulations that speak to matters of taste rather misrepresentation or other harms to clients.
Featuring:
Prof. W. William Hodes, Professor Emeritus of Law, Indiana University & President, The William Hodes Law Firm
Prof. John S. Dzienkowski, Professor of Law & Dean John F. Sutton, Jr. Chair in Lawyering and the Legal Process, Texas Law

On August 14, 2017, the Committee on Judicial Conduct and Disability of the Judicial Conference of the United States issued a decision in which, among other things, it affirmed the order of the Sixth Circuit Judicial Council directing a federal judge to undergo a mental health examination and to submit to any treatment or counseling deemed necessary. The Committee found that part of the order to be “warranted and permissible.”
The Constitution establishes the judicial power in Article III and provides, “The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior.” The constitutional remedy for bad behavior is impeachment. In 1980, though, Congress enacted the Judicial Conduct and Disability Act, which provides authority to a special committee to “conduct an investigation as extensive as it considers necessary.” 28 U.S.C § 353(c).
As one commentator has noted, “The investigation ... appears to move into uncharted territory for disciplinary cases.” Does a Circuit Judicial Council have the authority to require a federal judge to submit to psychological testing? If so, what showing is necessary? Simple cantankerousness can’t be enough, but where is the line between being a curmudgeon and being mentally ill? Do the federal courts have a mechanism for figuring that out?
Featuring: Prof. Charles Gardner Geyh, John F. Kimberling Professor of Law, Indiana University Maurer School of Law
Prof. Arthur D. Hellman, Professor of Law; Sally Ann Semenko Endowed Chair, University of Pittsburgh School of Law
Prof. Ronald Rotunda, Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University Dale E. Fowler School of Law

Over the weekend of September 23, the White House announced it is extending and expanding the travel moratorium, which was set to expire, to eight countries. Three nations - Chad, North Korea and Venezuela - were added, while Sudan was taken off the list. The restrictions imposed vary from one country to the next. The White House has indicated that the current iteration of the travel moratorium is not intended to be permanent. Meanwhile, litigation continues on a variety of fronts, now including the Supreme Court, set to hear oral argument on October 10 on a previous iteration of the ban. Will the new restrictions moot the Supreme Court case? How does the addition of new countries effect the constitutionality of the restrictions? These and other questions were addressed in our Teleforum.
Featuring:
Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law, Houston

Threats to international peace and security include the proliferation of weapons of mass destruction, rogue nations, and international terrorism. In Striking Power, Professor Jeremy Rabkin and Professor John Yoo argue that the United States must respond to these challenges to its national security and to world stability by embracing new military technologies such as drones, autonomous robots, and cyber weapons. These weapons can provide more precise, less destructive means to coerce opponents to stop WMD proliferation, clamp down on terrorism, or end humanitarian disasters. Efforts to constrain new military technologies are not only doomed, Rabkin and Yoo argue, but dangerous. Most weapons in themselves are not good or evil; their morality turns on the motives and purposes for the war itself. These new weapons can send a strong message without death or severe personal injury, and as a result can make war less, rather than more, destructive.
Vince Vitkowsky moderated a discussion with the authors of Striking Power about these issues and others.
Featuring:

Prof. Jeremy Rabkin, Professor of Law, Antonin Scalia Law School, George Mason University
Prof. John Yoo, Emanuel S. Heller Professor of Law, Co-Faculty Director, Korea Law Center
Moderator: Vincent J. Vitkowsky, Partner, Seiger Gfeller Laurie LLP

On June 27, the European Commission issued the long awaited opinion in its competition case against Google. The Commission held that Google had abused its dominant position as an Internet search engine by promoting its own comparison shopping service in search results and demoting those of competitors. In addition to imposing a fine of €2.42 billion ($2.7 billion) – the largest fine the E.U. has ever levied in an abuse of dominance case – the Commission ordered Google to correct the unlawful conduct within 90 days or face penalty payments up to 5% of the company’s average daily worldwide turnover. This conduct component of the remedy potentially places the company under Commission oversight for years to come. In addition, Google is likely to face related civil actions in individual Member States brought by competitors – aided by the new E.U. Directive on Antitrust Damages Actions – alleging that their business has been hurt by Google’s search practices. -- The Commission’s view of the case is in stark contrast to that of U.S. antitrust enforcers who, after thoroughly investigating much the same conduct, elected to take no action. What does the decision mean for the future of antitrust enforcement on both sides of the Atlantic? Does it suggest a move toward more aggressive enforcement in area of single firm conduct, particular in the tech sector? Is the Commission’s approach a new one or does it reflect the re-emergence of “essential facilities” theories? Are U.S. and European antitrust enforcers now headed in different directions generally or is this case an outlier? Will the E.U.'s actions embolden other countries around the world? -- Featuring: James C. Cooper, Associate Professor of Law and Director, Program on Economics & Privacy, Antonin Scalia Law School, George Mason University; Jürgen Schindler, Partner, Allen & Overy (Belgium) LLP; and Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal and Economic Public Policy Studies. Moderator: John Delacourt, Vice President, Legal Affairs and Global Operations, Plasma Protein Therapeutics Association.

On Friday, September 15 Judge Harry Leinenweber of the Northern District of Illinois granted a preliminary injunction against the federal government’s enforcement of a new Justice Department requirement tied to federal funding. The new Byrne Justice Assistant Grants require sanctuary cities that want federal funding to cooperate with federal immigration officials and notify them before illegal immigrants are going to be released from jail. Dr. John Eastman of Chapman University will join us to discuss the significance of the ruling and the future of the litigation. -- Featuring: Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law

In 1977 in Abood v. Detroit Board of Education, the Supreme Court ruled that public employees, including school teachers, could legally be required to pay a fee if they refuse to join a public-sector union. According to the Detroit Board of Education, the fee was necessary to off-set the costs the union incurred while bargaining on behalf of union and non-union members alike. -- A similar case came to the Supreme Court in 2014, but the Supreme Court did not answer the primary question of Abood, instead ruling that the public employees in question were not actually public employees. Last year, the Supreme Court was left in deadlock in a similar case on the same issue after Justice Scalia’s passing. -- Janus v. AFSCME, brought by an employee of the Illinois Department of Healthcare and Family Services who does not believe he should be legally obliged to join a union, is pending cert in the Supreme Court. William Messenger, Staff Attorney at the National Right to Work Foundation, joined us to discuss the probability of Janus being heard at the Court and what that could mean for the future of public-sector employees and unions. -- Featuring: William L. Messenger, Staff Attorney, National Right to Work Legal Defense and Education Foundation, Inc.

Some antitrust lawyers often say the federal government’s decisions about which mergers to challenge, which monopolists to rein in, and which price-fixers to send to jail are relatively consistent regardless of who occupies the White House. But has federal antitrust enforcement really been entirely apolitical, based on economics, and divorced from other issues such as trade, job creation, and national security? Should it be? A panel of distinguished practitioners and former top government officials from both parties discussed these issues in our Teleforum, which was especially timely given calls by Senate Democrats for increased antitrust enforcement as part of “A Better Deal” and the increasing use of competition law by foreign governments against U.S. companies. -- Featuring: Jon Leibowitz, Partner, Davis Polk & Wardwell LLP, and Former Chair, Federal Trade Commission; William E. Kovacic, Global Competition Professor of Law and Policy & Director, Competition Law Center, The George Washington University Law School, and Former Chair, Federal Trade Commission; Seth Bloom, President & Founder, Bloom Strategic Counsel PLLC, and Former General Counsel, U.S. Senate Judiciary Committee Antitrust Subcommittee; and Tad Lipsky, Former Senior Federal Trade Commission, U.S. Justice Department Antitrust Division Official, and Retired Partner, Latham & Watkins. Moderator: Richard M. Steuer, Senior Counsel, Mayer Brown LLP, and Former Chair, American Bar Association Antitrust Section.