FedSoc Forums

Major American corporations are pressuring their outside law firms to meet diversity goals both firm-wide and in the legal teams assigned to the company’s work. For example, Facebook announced this year that the law firm teams working on its matters must consist of at least 33 percent women and minorities. This pressure has resulted in the widespread use of race and gender preferences in hiring, promotion, and work assignment decisions by America’s premier law firms. Are these preferences legal under Title VII of the 1964 Civil Rights Act and 42 U.S.C. § 1981? Are they good policy? Curt Levey, a constitutional law attorney who has worked on several affirmative action cases – including the University of Michigan cases (Grutter and Gratz) – joined us to analyze the arguments on both sides of these questions. -- Featuring: Curt Levey, President, The Committee for Justice and Legal Affairs Fellow, FreedomWorks

From Martin Shkreli to the Epipen, decisions about pharmaceutical pricing and distribution have been very much in the news of late. Much of the discussion centers on whether or not it is immoral to charge high prices. The question remains, however, about whether those business practices raise antitrust concerns. Can a high price in and of itself violate antitrust laws? What about policies that limit the channels through which a particular product is distributed? Professor Michael Carrier of Rutgers Law School analyzed these questions, noting the arguments both for and against a finding of antitrust liability, as well as discussing the particular circumstances that have raised a red flag from an antitrust perspective in some of these recent cases. -- Featuring: Prof. Michael A. Carrier, Distinguished Professor of Law, Rutgers Law School

Recent developments in US patent law, particularly the Americans Invents Act (AIA) and the Supreme Court’s jurisprudence on patent-eligible subject matter, have raised questions of whether, and to what extent, the Constitutional directive to promote technological innovation has been undermined or frustrated. The panel discussed whether the U.S. is shifting from a view of patents as private property, to one of public rights, and, if so, whether concepts from antitrust law will begin to color, if not dominate, patent enforcement jurisprudence. The practical implications of a public rights view of patents and the imposition of antitrust issues on the enforcement of patent rights were discussed as well. -- Featuring: Mr. Philip Johnson, Senior Vice President, Intellectual Property Strategy & Policy, Johnson & Johnson (ret).; Prof. Kristen Osenga, Professor of Law, University of Richmond School of Law; and Mr. Robert G. Sterne, Director, Sterne Kessler Goldstein Fox. Moderator: Mr. Howard J. Klein, Attorney, Klein O'Neill & Singh LLP.

On Thursday, August 31, Judge Mazzant of the Eastern District of Texas invalidated the Department of Labor’s Overtime Rule, which would have increased the minimum salary level for overtime-exempt employees from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). Maury Baskin and Tammy McCutchen of Littler Mendelson joined us to discuss the decision and its significance. -- Featuring: Maury Baskin, Shareholder, Littler Mendelson, PC and Tammy D. McCutchen, Shareholder, Littler Mendelson, PC.

Nation-states have long fought wars for control of oil. In a novel development, American states are now fighting a war over control of oil—not with one state attempting to take oil from another, but with some states attempting to deny its use to other states. In 2015, New York’s Attorney General, Eric Schneiderman, began an investigation of ExxonMobil. Then, at a news conference held in New York City on March 29, 2016, Schneiderman said that he and a group of other attorneys general were looking at “creative legal theories” to bring about “the beginning of the end of our addiction to fossil fuel.” The group is comprised of seventeen attorneys general, representing fifteen states, the District of Columbia, and one territory. Opposing these attorneys general from mostly “blue states” are attorneys general from twenty-seven mostly “red states.” Professor Baker joined us to discuss his article: "Warning to Corporate Counsel: If State AGs Can Do This to ExxonMobil, How Safe Is Your Company?" -- Featuring: Prof. John S. Baker, Jr., Ph.D., Visiting Professor, Georgetown University Law Center & Professor Emeritus, Louisiana State University Law Center.

Since the summer of 2014, ISIS has been waging a blitz through Iraq's Nineveh province, murdering and displacing Iraqi Christians and others. The European Union, Britain, and the U.S. have labeled the campaign to eradicate Christianity from Iraq as genocide. However many in the West, even Christians, remain unaware of the scale of this persecution, and even fewer know what can be done about it. The Persecution and Genocide of Christians in the Middle East focuses on persecuted Christians, but its analysis applies equally to the other victims. In the United States, military and diplomatic responses are contemplated and sometimes undertaken. But what about the legal system? Are there things we can or should be trying? That question animates this book as it explores various facets of religious persecution. -- Featuring: Prof. Ronald J. Rychlak, Co-Editor & Contributor, The Persecution and Genocide of Christians in the Middle East: Prevention, Prohibition, & Prosecution, Professor of Law, Jamie L. Whitten Chair of Law and Government, and Faculty Athletics Representative, University of Mississippi School of Law and Nina Shea, Director, Center for Religious Freedom, Hudson Institute, Former Commissioner on the U.S. Commission on International Religious Freedom.

According to the Fourth Amendment, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated[.]” But how does that provision apply to the vast troves of information that Americans and businesses increasingly collect, send, receive, and store? -- On June 5, 2017, the Supreme Court granted certiorari in Carpenter v. United States to resolve the question of whether the Fourth Amendment prohibits warrantless gathering of historical cellular phone records that include location information, also known as historical cell-site location information (CSLI). Judge Raymond M. Kethledge wrote for a panel of the Sixth Circuit that “although the content of personal communications is private, the information necessary to get those communications from point A to point B is not.” Historical CSLI, Judge Kethledge wrote, “fall[s] on the unprotected side of [the] line” because it is routing information used to “facilitate personal communications, rather than part of the content of those communications themselves.” Thus, the government does not need a warrant to obtain the information. -- The doctrine applied by the Sixth Circuit is called the third-party doctrine. Although an older form of the third-party doctrine was articulated in Ex Parte Jackson (1878), which distinguished between the addressing information for postal mail and its contents, the contemporary third-party doctrine traces its roots to the “reasonable expectation of privacy” test articulated in Katz v. United States(1967). Its modern form is most closely associated with two of Katz’s progeny, United States v. Miller (1976) and Smith v. Maryland (1979). In those cases, the Supreme Court applied Katz and concluded that the information at issue (bank records and information collected by a pen register device) was not entitled to Fourth Amendment protection. -- Featuring: Jim Harper, Vice President, Competitive Enterprise Institute and Orin S. Kerr, Fred C. Stevenson Research Professor of Law, The George Washington University Law School.

The smartphone patent wars have caused a great deal of litigation and consternation. As global patent litigation has accelerated, an international arms race characterized by competing alliances and massive portfolio acquisitions ensued. One recurring claim was "hold-up": certain patent owners, having given assurances that they would license their essential technologies on reasonable and nondiscriminatory (RAND) terms, sought to enjoin smartphone makers from practicing industry standards. Charged with protecting consumers, antitrust enforcers experienced pressure to do something. -- The FTC and other competition agencies responded aggressively, clamping down on perceived efforts by owners of RAND-encumbered SEPs to hold-up standard implementers. They happened upon the rule that such patentees violate antitrust law if they try to enjoin a “willing licensee”—essentially a “no-injunction rule.” While that approach has intuitive appeal, is it consistent with core antitrust principles? Does the no-injunction properly consider whether the relevant conduct harms competition? Have the U.S. Federal Trade Commission's actions emboldened foreign competition agencies to act aggressively? These and other questions were addressed. -- Featuring: Hon. Maureen K. Ohlhausen, Acting Chairman, Federal Trade Commission and Mr. Alex Okuliar, Partner, Orrick, Herrington & Sutcliffe LLP.

This call highlighted recent trends in how the courts have considered benefit-cost analysis when reviewing regulations under various statutes. Our experts examined the pros and cons of greater judicial review of regulatory analysis and the effect of judicial review on agency behavior. Professor Emily Hammond, Professor of Law at The George Washington University Law School, and Eugene Scalia, Partner at Gibson, Dunn & Crutcher LLP, joined us to discuss these important topics. -- Featuring: Emily Hammond, Professor of Law, The George Washington University Law School and Eugene Scalia, Partner, Gibson, Dunn & Crutcher LLP.

Since 1923, the American Law Institute has exercised more influence on judge-made common law than any other private institution. The ALI’s most influential work has come in the form of periodic publications known as Restatements of the Law. These descriptions of existing law are relied on and trusted by judges, lawyers, legal scholars, and law students for thoughtfully objective analysis. In 2009, ALI published the first volume of “Restatement of the Law Third, Torts: Liability for Physical and Emotional Harm.” For the first time in the institute’s history, its restatement went beyond reviewing existing law and recommended fundamental change: an unprecedented expansion of landowners’ duty of care to all visitors, including unwanted trespassers. This restatement was lauded by the trial bar and sent shockwaves through corporate legal circles. Although ALI has as much right as other interest groups to advocate for changes in the law, is it still entitled to special deference from judges? Justice Antonin Scalia raised concerns in a 2015 opinion. The authors of ALI restatements, he observed, have “over time . . . abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be.” Victor Schwartz, Partner at Shook Hardy & Bacon, joined us for a discussion on the American Law Institute's evolving position on civil liability reform. -- Featuring: Victor E. Schwartz, Partner, Shook, Hardy & Bacon LLP.