FedSoc Forums

On September 30, the Office of Management and Budget (OMB) proposed a new rule on the nation’s racial categorizations, titled “Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity.” This rule would apply to federal programs throughout the federal government. -- Two proposed changes stand out: the first would create a new ethnic group by bringing together people who originated in the North Africa and the Middle East (MENA), and the second would eliminate a question on race for Hispanics, effectively making “Hispanics” their racial identifier. OMB calls this a “limited revision,” but the changes would impact many areas including congressional redistricting and affirmative action programs. Currently Hispanics mark two boxes, an ethnic one for Hispanic, a second one for race. Thus over 50 percent of Hispanics (29 million in the 2010 census) are categorized as white. Since Hispanics account for 75 percent of the growth of whites today, preventing them from being identified as white in government statistics would have real and important effects. -- Featuring: Mr. Roger Clegg, President & General Counsel, Center for Equal Opportunity and Mr. Mike Gonzalez, Senior Fellow, The Heritage Foundation.

After years of litigation, the bitterly fought and highly publicized smartphone patent war between two of the biggest players in the industry, Apple and Samsung, finally reached the U.S. Supreme Court. While Apple has already won the patent infringement case, the Supreme Court addressed the complicated question of how to determine damages based on a design patent in a product with thousands of other patents covering it as well. Is the statutory language clear and controlling? Are profits from the entire value of the phone the right measure? Or something less? Do design patents even have any economic value at all in a technically complex product? Is the design of a smartphone more like the design of an entire car, or just a cup holder? Our speakers will discuss the oral argument, their views on the merits of the case, as well as the important policy questions related to the economic value of design patents. -- Featuring: Ms. Rachel W. Apter, Senior Associate, Orrick and Prof. Mark D. Janis, Robert A Lucas Chair of Law; Director, Center for Intellectual Property Research, Maurer School of Law, Indiana University, Election Lawyer Center.

On October 6, 2016, the Federal Trade Commission released the long-awaited results of its 6(b) study on patent assertion entities (PAEs). The study provides detailed information about the litigation and licensing activities by the approximately twenty companies the FTC ordered to submit data. The study does more than just describe this data, though. Given that PAEs' function in the innovation industries, the FTC also proposed a number of legislative and judicial recommendations concerning how patents are asserted against alleged infringers. Thus, the FTC's PAE study is an important part of the policy debates about patents, patent licensing, patent litigation, and the impact these have on the innovation economy. In this Teleforum, the panelists discussed the study findings and their reactions to the study and its policy proposals. -- Featuring: Prof. Jorge L. Contreras, Associate Professor, S.J. Quinney College of Law, University of Utah; Prof. Kristen Osenga, Professor of Law, University of Richmond School of Law; and Ms. Laurie Self, Vice President and Counsel of Government Affairs, Qualcomm Incorporated. Moderator: Prof. Adam Mossoff, Professor of Law and Co-Director of Academic Programs and Senior Scholar of CPIP, Antonin Scalia Law School, George Mason University.

On October 6, 2016, the Federal Trade Commission released the long-awaited results of its 6(b) study on patent assertion entities (PAEs). The study provides detailed information about the litigation and licensing activities by the approximately twenty companies the FTC ordered to submit data. The study does more than just describe this data, though. Given that PAEs' function in the innovation industries, the FTC also proposed a number of legislative and judicial recommendations concerning how patents are asserted against alleged infringers. Thus, the FTC's PAE study is an important part of the policy debates about patents, patent licensing, patent litigation, and the impact these have on the innovation economy. In this Teleforum, the panelists discussed the study findings and their reactions to the study and its policy proposals. -- Featuring: Prof. Jorge L. Contreras, Associate Professor, S.J. Quinney College of Law, University of Utah; Prof. Kristen Osenga, Professor of Law, University of Richmond School of Law; and Ms. Laurie Self, Vice President and Counsel of Government Affairs, Qualcomm Incorporated. Moderator: Prof. Adam Mossoff, Professor of Law and Co-Director of Academic Programs and Senior Scholar of CPIP, Antonin Scalia Law School, George Mason University.

Recent legal developments ranging from Supreme Court decisions to administrative actions have raised significant issues about the balance between religious liberties and prohibitions against discrimination. To what extent must an individual’s right to religious freedom yield to the state’s interest in protecting individuals against discrimination? Does the Free Exercise Clause extend beyond one’s home or church? -- The U.S. Commission on Civil Rights recently issued a report that appears to tilt in favor of nondiscrimination over religious liberty. What does this portend for the future of religious liberty? -- Featuring: Hon. Peter N. Kirsanow, , Commissioner, U.S. Commission on Civil Rights.

The growing role of the administrative agencies in American government is mirrored by a growing role of administrative law in legal education. The trend is exemplified by many law schools' introduction of "Legislation and Regulation" (or "Leg-Reg") as a first-year course. -- But as the administrative stats and administrative law grow and change, how should the curriculum change? -- To discuss this, the Administrative Law Section is pleased to host a teleforum with three leading administrative law scholars: Prof. Dan Farber of the University of California-Berkeley Law, Prof. Kristin Hickman of the University of Minnesota Law School, and Jim Tozzi, former regulatory official of the United States Office of Management and Budget and Director of Multinational Business Services at the Center for Regulatory Effectiveness. -- The discussion will be moderated by Adam White, a Research Fellow at Stanford's Hoover Institution and an adjunct professor at George Mason University's Antonin Scalia Law School. -- Featuring: Prof. Dan Farber, Sho Sato Professor of Law, Co-Director and Center for Law, Energy & Environment, California-Berkeley Law; Prof. Kristin Hickman, Distinguished McKnight University Professor, Harlan Albert Rogers Professor in Law, University of Minnesota Law School and Associate Director, Corporate Institute; and Jim Tozzi, Former Regulatory Official of the United States Office of Management and Budget and Director of Multinational Business Services at the Center for Regulatory Effectiveness. Moderator: Adam White, Research Fellow, The Hoover Institution.

On Tuesday, October 11, the Supreme Court will hear oral arguments in Pena-Rodriguez v. Colorado. This case involves the constitutionality of a Colorado rule that bars a defendant from introducing evidence that a juror was racially biased. The justices will consider whether applying a no-impeachment rule to block evidence in this context violates the Sixth Amendment right to an impartial jury. -- Featuring: John C. Richter, Partner, King & Spalding.

On Wednesday, October 5, the Supreme Court heard argument in Salman v. U.S. on what constitutes a personal benefit in insider trading. The Court will consider the Ninth Circuit’s holding in this matter that a personal benefit can be established by the fact that a tippee shared a close family relationship. The Second Circuit previously held in United States v. Newman that a personal benefit to an insider necessary to establish insider trading under Dirks v. SEC requires proof of “an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature.” -- Featuring: Todd F. Braunstein, Global Head of Legal Investigations, Willis Towers Watson.

On Wednesday, September 28, the First Circuit Court of Appeals decided Rideout v. Gardner, the first federal appellate ruling regarding restrictions on "ballot selfies,” or photographs of one’s own ballot. The court ruled that New Hampshire's prohibition does not survive intermediate First Amendment scrutiny. Steve Klein of the Pillar of Law Institute, who is lead counsel in a similar case in Michigan, discussed the ruling’s implications for political speech relating to polling places and the status of ballot selfie challenges nationwide. -- Featuring: Mr. Stephen R. Klein, Attorney, Pillar of Law Institute.

On Tuesday, September 27, the D.C. Circuit Court of Appeals heard en banc West Virginia v. Environmental Protection Agency, the case that will determine the fate of President Obama’s Clean Power Plan. If enacted, the Clean Power Plan would set a national limit for carbon emissions, and require each state to reduce its own output and meet state-specific standards. In February, the Supreme Court voted 5-4 to stay the Clean Power regulations while the case was pending in the D.C. Court. Twenty-four states, and various energy producers, have joined the suit against the federal government. Does the EPA have the authority to regulate a state’s carbon emissions under the Clean Air Act? Elbert Lin, the Solicitor General of West Virginia, will once again join us to discuss the oral arguments in this very important case. -- Featuring: Mr. Elbert Lin, Solicitor General, State of West Virginia.