FedSoc Forums

On Monday, May 16, the United States Supreme Court issued a per curium opinion resolving, for the time being, Zubik v. Burwell, the contraceptive mandate case. The decision is causing no small amount of confusion. Who won, and who lost? What is required of the plaintiffs in the case? What are the next steps in the litigation? Our expert answered these and other questions. -- Featuring: Roger Severino, Director, DeVos Center for Religion and Civil Society, The Heritage Foundation.

On his second day in office, President Obama declared that closing the Guantanamo Bay detention facility would be among the top priorities of his Administration. Over seven years later, as we near the end of the President's second term, both that goal and the prison remain. The panelists analyzed the chances that President Obama will close Guantanamo Bay and the issues with which a future administration must wrestle, if he does not. -- Featuring: Steven A. Engel, Partner, Dechert LLP and Karen Greenberg, Director of the Center on National Security, Fordham Law School.

Several state attorneys general have banded together to investigate what ExxonMobil did and did not know about global warming over the past decades. A subpoena issued by the attorney general of the U.S. Virgin Islands seeks Exxon records dating back to 1977, including communications with some 90 private organizations and dozens of private individuals. Other subpoenas have been issued to private organizations. Our panel of experts discussed the merits of the investigation, how widely it might range, and its implications. -- Featuring: Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center; Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates; and Hon. Scott Pruitt, Attorney General, State of Oklahoma.

Given the understandable public fear of sexual predators, policies concerning sex offenders have often become politicized. Many critics say these policies have too often swept up consensual conduct and conduct by those as young as 10 years old into the same regulatory framework as the most horrific sexual assaults committed by adults. A growing body of research indicates that placement of youths on public sex offender registries, sometimes for the rest of their lives, can have a serious impact on their ability to secure employment and housing, that of their current and future family members. In 2006, Congress passed the Adam Walsh Act, which threatens states with the withholding of tangentially related federal funds if they do not comply with the federal policy it set forth on public registration of not only adults, but also juveniles, including lifetime registration. Dozens of states have declined to comply with this federal mandate, citing both federalism and cost concerns. On this Teleforum, several experts in the field discussed the impact of current juvenile sex offender registration policies at the federal and state levels as well as proposals for reforms. -- Featuring: Eli Lehrer, President. R Street Institute; Nicole Pittman, Stoneleigh Fellow and Director, Center on Youth Registration Reform, Impact Justice; and Stacie D. Rumenap, President, Stop Child Predators. Moderator: Marc A. Levin, Policy Director, Right on Crime.

On April 6, 2016, the Department of Labor released its much-anticipated “fiduciary” rulemaking, which will greatly expand the universe of entities and persons who will be deemed fiduciaries with respect to retirement plans and accounts. The rulemaking has garnered significant interest from members of Congress, federal and state regulators, FINRA, the financial services industry and investor advocates, among others. Our experts discussed the new rules, and their history and purpose. They also explored several of the key policy issues and controversies associated with the rulemaking. -- Featuring: Jeffrey T. Dinwoodie, Associate, Davis Polk & Wardwell LLP and Hon. Annette L. Nazareth, Partner, Davis Polk & Wardwell LLP.

The American Bar Association (ABA) model rules of conduct have long wrestled with regulating the intersection of discrimination and the law of lawyering. The current model rules forbid discrimination in the practice of law only as a comment to the prohibition on lawyer conduct prejudicial to the administration of justice. After much discussion and pressure, the ABA has proposed expanding the language to become new model rule 8.4 (g). If enacted, this rule would prohibit (in its own right) discrimination or harassment by a lawyer engaged in the practice of law against a list of protected classes, including ethnicity, gender identity, and marital status. Perhaps anticipating a challenge, the new rule's comment states that the new rule does not apply to non-lawyer conduct or activities protected by the first amendment and also exempts times when references to such protected groups and facts are needed to effectively represent a client. However, this new rule would apply to all conduct at primarily firm and legal events, including firm related social events. -- What is discrimination or harassment over socioeconomic status? Since this rule applies to social settings, where is the line to be drawn and what chilling effect might be created? What about free speech and free association? -- Featuring: Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law.

After almost eight years in office, President Obama’s 322 appointments to the federal courts have already begun to make a substantial impact on the law. In this Teleforum, two litigators talked about whether and how these new judges are shaping the law and the judiciary. They focused in particular on the U.S. Courts of Appeals for the D.C. and Ninth Circuits. -- Featuring: Damien Schiff, Principal Attorney, Pacific Legal Foundation and Brett Shumate, Partner, Wiley Rein LLP.

On Wednesday, April 27, the United States Supreme Court heard oral arguments in Robert F. McDonnell v. United States. The Court will review the public corruption convictions of former Virginia Governor Bob McDonnell to determine whether the definition of “official action” as used in the federal bribery statute, Hobbs Act, and honest-services fraud statute is limited to exercising actual governmental power or the threat or pressure to do so. If the definition is not so limited, the Court will also consider whether the Hobbs Act and honest-services fraud statute are unconstitutional—given that such a broad definition could include political activity protected by the First Amendment. Our experts attended the oral arguments and offered a summary and analysis to Federalist Society members. -- Featuring: William J. Haun, Associate, Hunton & Williams LLP and Stephen R. Klein, Attorney, Pillar of Law Institute.

On March 30, Federal district court Judge Rosemary Collyer struck down the Financial Stability Oversight Council’s designation of MetLife as a systemically important financial institution. MetLife v. Financial Stability Oversight Council has readily apparent implications for financial regulation, and many commentators have suggested that it may even have far-reaching effects on the future of the larger administrative state. Our expert discussed the opinion, its outlook on appeal, and its possible impact. -- Featuring: Hon. Peter J. Wallison, Arthur F. Burns Fellow in Financial Policy Studies, American Enterprise Institute.

Bitcoin is dead. Long live Bitcoin. A counterintuitive feature of the groundbreaking cryptocurrency—and there are many—is that both statements may simultaneously be true. The Bitcoin economy is robust and growing, with access to Bitcoin-denominated services expanding and more and more startups and established businesses seeking to capitalize on its popularity. At the same time, the Bitcoin network—literally, the interconnected web of computers that records transactions in Bitcoin’s distributed ledger known as the “blockchain”—is showing the strain of the currency’s success, while disagreements threaten to stymie efforts to expand Bitcoin usage further. -- But even as political disputes threaten disruption of the core Bitcoin blockchain, developers are beginning to introduce a new wave of innovation that has the potential to replace political stalemate with market competition. Alternative blockchains, or “alt-chains,” act as replacements for the Bitcoin network and blockchain that facilitate Bitcoin-based transactions off the core blockchain—in the same way that stocks can be traded on a myriad of competing electric trading networks, apart from primary exchanges like NYSE and NASDAQ. Alt-chains and related technologies may be central to preserving Bitcoin’s key speed and cost advantages over traditional financial networks in the years ahead. -- As in many innovative fields, some of the greatest barriers to alt-chain success are legal and regulatory uncertainty, far more than technological issues. In a recent Federalist Society White Paper, David Rivkin and Andrew Grossman attempt to resolve some of this uncertainty by cataloguing the diversity of potential applications for blockchain alternatives and addressing the issues raised by alt-chains and other blockchain supplements and replacements under federal and state law. They discussed their paper with Federalist Society members on a Teleforum conference call. -- Featuring: Andrew M. Grossman, Partner, Baker & Hostetler LLP and Adjunct Scholar, The Cato Institute and David B. Rivkin, Jr., Partner, Baker & Hostetler LLP.