FedSoc Forums

On Tuesday, September 27, the D.C. Circuit Court of Appeals will hear 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 join us to discuss the arguments as briefed in this highly important case. -- Featuring: Mr. Elbert Lin, Solicitor General, State of West Virginia.

On May 19, 2016, the United States District Court for the Southern District of Texas entered a Memorandum Opinion and Order in which it found that lawyers from the United States Department of Justice violated their duty of candor in the course of their representation and imposed sanctions. The court initially required additional ethics training for all Justice Department attorneys practicing in 26 states for a period of five years. The Court concluded, in part, that “the Justice Department lawyers knew the true facts and misrepresented those facts to the citizens of the 26 Plaintiff States, their lawyers and this Court on multiple occasions.” The Justice Department acknowledged that its attorneys made mistakes and misrepresentations to the court and opposing counsel, but contended that none were intentional, and agreed to some limited sanctions. Since then, the court has stayed its order. -- What are the limits, if any, to Court sanctions for attorney conduct? Here to discuss these issues are Thomas H. Dupree Jr., who formerly served in the Department of Justice, and Richard Painter, whose experience includes service in the White House Counsel’s Office. -- Featuring: Mr. Thomas H. Dupree Jr., Partner, Gibson Dunn and Prof. Richard W. Painter, S. Walter Richey Professor of Corporate Law, University of Minnesota Law School.

The use of eminent domain to condemn property for pipelines has become an increasingly controversial practice. Critics claim that it undermines private property rights and causes environmental damage. Defenders argue it is essential to enable effective exploitation of the nation's energy resources. In recent months, Georgia and South Carolina have passed new legislation limiting pipeline condemnations, an effort backed by a coalition of conservative property rights advocates and left of center environmentalists. Similar reforms have been proposed in many other states. This forum will examine the growing controversy over pipeline takings. -- Featuring: Prof. Alexandra Klass, Distinguished McKnight University Professor, University of Minnesota Law School and Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University.

In April, the mortgage lender PHH Corporation challenged the constitutionality of the Consumer Financial Protection Bureau (CFPB) after being ordered by the CFPB to disgorge $109 million. PHH challenged the bureau’s legitimacy under Article II, and cited Free Enterprise Fund v. Public Company Accounting Oversight Board as relevant precedent, because PCA officers could be removed for cause, and then, only by officers of the SEC. Meanwhile, the CFPB cited Humphrey’s Executor v. United States, in which the Supreme Court upheld the constitutionality of the Federal Trade Commission Act, which allowed the president to remove an FTC commissioner only for cause. Professor Peter Conti-Brown of The Wharton School and Gregory Jacob, partner at O'Melveny & Myers LLP joined us to discuss the CFPB and the constitutionality of other independent agencies like it. -- Featuring: Mr. Peter Conti-Brown, Assistant Professor of Legal Studies and Business Ethics, The Wharton School and Mr. Gregory F. Jacob, Gregory F. Jacob Partner, O'Melveny & Myers LLP.

Mr. Gregory S. Baylor of Alliance Defending Freedom discussed current and future challenges to the religious freedom of faith-based institutions of higher education, with a special focus on the ongoing debate over California Senate Bill 1146. Earlier versions of SB1146 would have significantly curtailed longstanding religious freedom protections in state anti-discrimination law, thereby exposing faith-based schools to liability for discrimination on the basis of religion, sexual orientation, and gender identity in student and employee relations. The bill's prime sponsor recently removed its most controversial provisions, but he indicated that a similar bill may be proposed in the next legislative session. -- Featuring: Mr. Gregory S. Baylor, Senior Counsel & Director of the Center for Religious Schools, Alliance Defending Freedom.

General Michael V. Hayden, former Director of the National Security Agency and the Central Intelligence Agency, and retired United States Air Force four-star general, joined us to discuss his new book, Playing to the Edge: American Intelligence in the Age of Terror, his memoir as a career intelligence officer and leader. Though the book covers the arc of his entire professional life, our Teleforum focuses primarily on the cyber world, which General Hayden describes as “a domain of conflict and cooperation whose importance seems to grow by the hour” couched “in an era of shrinking trust in government and expanding global threats." -- Featuring: General Michael V. Hayden Principal, The Chertoff Group, Former NSA and CIA Director. Moderator: Prof. Jamil N. Jaffer, Adjunct Professor and Director, Homeland and National Security Law Program.

Recent North Carolina, North Dakota, Texas, and Wisconsin court decisions have invalidated voter ID laws under constitutional and Voting Rights Act challenges. How do these recent decisions square with Crawford v. Marion County Election Board, where the United States Supreme Court upheld the Indiana voter ID law in 2008? In this podcast, Maya M. Noronha, an election attorney at BakerHostetler, and Dan Tokaji, a law professor at The Ohio State University, Moritz College of Law, addressed these recent decisions and debated the legality of voter ID laws. -- Featuring: Ms. Maya Noronha, Associate, BakerHostetler and Prof. Daniel P. Tokaji, Moritz College of Law, The Ohio State University.

The Chinese Supreme People’s Court and the Chinese government have denounced the Permanent Court of Arbitration at the Hague’s recent ruling. According to The United Nations Convention on the Law of the Sea (UNCLOS) provisions, island-building activity and territorial claims in the South China Sea violated international and environmental law. Was China bound by this ruling, although China objects to The Hague Arbitration Court’s jurisdiction, and claims that consent was not given? When international law, agreements, and norms are summarily voided by a losing nation, what should be the international legal and political response? Regarding international agreements specifically, does this case provide warnings for signatories to treaties and agreements? Are there lessons for the United States in the consideration of potential reservations, opt-outs, alternate venues, or waivers, and whether they were given proper regard by the Court? -- Featuring: Prof. James Kraska, Howard S. Levie Professor in the Stockton Center for the Study of International Law at the U.S. Naval War College in Newport, Rhode Island and Prof. Julian Ku, Maurice A. Deane Distinguished Professor of Constitutional Law and Faculty Director of International Programs, Hofstra University School of Law.

A “requester pays” amendment to the Federal Rules of Civil Procedure (FRCP) would require that those seeking discovery pay for its costs, moving federal civil litigation away from the current “American rule” that requires all parties to bear their own litigation expenses, including the costs of responding to discovery requests. Supporters of “requester pays” argue that discovery requests can be so broad and costs can be so high that they become a disincentive to defend. Opponents claim that the amendment would make legal proceedings even more expensive for individual litigants, who would be unable to pay for the discovery necessary to make a case against larger and more powerful defendants. Here to discuss this idea are Alex Dahl of Brownstein Hyatt Farber Schreck LLP and Professor Benjamin Spencer of UVA School of Law. -- Featuring: Alexander R. Dahl, Shareholder, Brownstein Hyatt Farber Schreck and Prof. A. Benjamin Spencer, Earle K. Shawe Professor of Law, University of Virginia School of Law.

Everyone is interested in free, fair and open elections. For decades, the country has debated the proper balance between First Amendment speech rights and campaign finance and disclosure laws. In a new book, The Intimidation Game, Kimberley Strassel seeks to show, through first-hand accounts, how this tension can and has been used against free speech and free association, chilling or even silencing political opposition. -- Featuring: Kimberley A. Strassel, Wall Street Journal Editorial Board Member, Author of The Intimidation Game.