FedSoc Forums

On November 2, 2015 the United States Supreme Court heard oral arguments in Spokeo v. Robins. Spokeo, a “people search engine,” published inaccurate information about Thomas Robins, who sought to file a class action lawsuit under the Fair Credit Reporting Act. A district court found that Robins lacked standing to bring suit, since the incorrect biographical information published by Spokeo had not caused a concrete harm. In a case that could have potentially far-reaching implications for environmental, civil rights, and other class-action litigation, the Court will decide whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute. -- Featuring: Cory L. Andrews, Senior Litigation Counsel, Washington Legal Foundation.

At a time when some argue that the Rule of Law seems to be deteriorating and with a Presidential election heating up, the question of judicial review has perhaps never been more vital. Yet debate over the best methods of conducting judicial review typically present the law's meaning as either rigid or elastic, inherently given, or subjectively projected. -- By examining proper modes of judicial review within the framework of a proper legal system as a whole—and more specifically, by identifying law’s function and authority—philosopher Tara Smith’s new book, Judicial Review in an Objective Legal System, seeks to break past this false alternative and chart a distinctive course for genuinely objective review that upholds the Rule of Law. -- Featuring: Prof. Tara A Smith, University of Texas and Prof. Gary S. Lawson, Philip S. Beck Professor of Law, Boston University School of Law.

Vanita Gupta, Principal Deputy Assistant Attorney General of the Department of Justice’s Civil Rights Division, delivered an address on criminal justice reform and policing. In announcing her arrival at the Department of Justice, Eric Holder praised Ms. Gupta, saying that “even as she has done trailblazing work as a civil rights lawyer, Vanita is also known as a unifier and consensus builder. She has a knack for bridging differences and building coalitions to drive progress.” This praise has been echoed by sources as diverse as National Rifle Association head David Keene, who told the Washington Post that Ms. Gupta “listens to and works with people from all perspectives to accomplish real good.” -- Featuring: Vanita Gupta, Principal Deputy Assistant Attorney General, Civil Rights Division, United States Department of Justice.

Iran is a highly stressed country, and an overwhelming majority of Iranians detest the regime, according to several polls and surveys (some by the regime). At the moment, thousands of teachers are protesting the arrest of seven leaders of their organization, women's protests are commonplace, and workers are on strike, having failed to be paid for several months. -- From time to time the contempt of the people has erupted into open revolt, most notably in mid-summer, 2009. Yet no Western leader has supported them in any way. Since Western interests would be substantially advanced if Iran were a free country instead of a fanatical anti-Western theocratic dictatorship, is it time for the U.S. to support these people and openly work for democratic regime change in Iran? -- Featuring: Dr. Michael Ledeen, Freedom Scholar, Foundation for Defense of Democracies and David B. Rivkin, Jr., Partner, Baker & Hostetler LLP.

In October of 2015, The Intercept, a website founded by Edward Snowden confidant Glenn Greenwald, unveiled "The Drone Papers," a series of stories based on secret documents provided by a new, anonymous leaker in the U.S. Government. Many in the media hailed the series, calling for congressional investigations and major changes in U.S. policy. -- Adam Klein, Council on Foreign Relations International Affairs Fellow and Visiting Fellow at the Center for a New American Security, discussed "The Drone Papers" -- what they are, what they reveal about U.S. operations, what claims they do and do not support, and the implications for counterterrorism law and policy. -- Featuring: Adam Klein, Visiting Fellow, Center for a New American Security.

On September 15, 2015, Deputy Attorney General Sally Yates issued a much-talked about memo, directing federal prosecutors to focus their efforts on individual corporate wrong-doers, not just corporate entities. Unclear in the minds of many is just how much effort will now be expended on corporate entities vs. individuals. Some assert that prosecution of corporate entities is rarely a good idea, since the punishment negatively effects the shareholders, who were often the victims of the initial wrongdoing. Others note that it can be near impossible to prove what should be a required guilty state of mind in an individual operating within a corporate structure. More complications arise when individuals rely in good faith on legal advice from in-house or outside counsel. -- Featuring: James R. Copland, Director, Center for Legal Policy, Manhattan Institute for Policy Research and Paul J. Larkin, Senior Legal Research Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation. Moderator: John G. Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation.

Can the government police speech it thinks is offensive? The Lanham Act allows the government to deny trademark registration to "disparaging" speech. What does the First Amendment have to say about the government's ability to pick and choose among speech it doesn't like? Two pending appeals court cases will directly address this important question. -- The U.S. Court of Appeals for the Fourth Circuit is scheduled to hear oral argument in Pro-Football, Inc. v. Blackhorse, a case challenging the REDSKINS trademark and, by extension, the constitutionality of § 2(a). -- Meanwhile, in In re Tam, an Asian-American rock band called “The Slants” was denied trademark registration after the Patent and Trademark Office found the trademark disparaging to Asians. A panel of the U.S. Court of Appeals for the Federal Circuit affirmed the decision. But the en banc Federal Circuit—without being asked—decided to vacate that decision and consider whether § 2(a) violates the First Amendment. -- Are we headed for a constitutional showdown over § 2(a) of the Lanham Act? Will the two appellate courts reach opposite decisions and invite Supreme Court review? -- Featuring: Dwayne D. Sam, Associate, Wiley Rein LLP and Ilya Shapiro, Senior Fellow in Constitutional Studies and Editor-In-Chief for Cato Supreme Court Review, Cato Institute.

Protection of intellectual property (IP) rights is indispensable to maintaining a vibrant economy, especially in the digital age as creativity and innovation increasingly take intangible forms. Long before the digital age, however, the U.S. Constitution secured the IP rights of authors and inventors to the fruits of their labors. The essays in The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective explore the foundational underpinnings of intellectual property that informed the Constitution of 1787, and it explains how these concepts informed the further development of IP rights from the First Congress through Reconstruction. The essays address the contributions of important figures such as John Locke, George Washington, James Madison, Thomas Jefferson, Noah Webster, Joseph Story, Daniel Webster, and Abraham Lincoln to the development of IP rights within the context of American constitutionalism. Claims that copyrights and patents are not property at all are in fashion in some quarters. This book’s essays challenge those dubious claims. Unlike other works that offer a strictly pragmatic or utilitarian defense of IP rights, this book seeks to recover the Constitution’s understanding of IP rights as ultimately grounded in the natural rights of authors and inventors. -- Featuring: Seth L. Cooper, Senior Fellow, The Free State Foundation; Randolph J. May, President, The Free State Foundation; and Prof. Mark F. Schultz, Senior Scholar & Co-Director of Academic Programs, Center for the Protection of Intellectual Property, George Mason University School of Law and Associate Professor, Southern Illinois University School of Law.

In a case that could have serious implications about the limits of judicial review, the Supreme Court will be deciding a narrow statutory interpretation question. The initial question is whether FERC has authority to regulate the rules used by operators of wholesale-electricity markets to pay for reductions in electricity consumption and to recoup those payments through adjustments to wholesale rates. But wrapped within that question is how much deference the Supreme Court is willing to give FERC on this matter. -- Featuring: Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC.

On October 2, 2015, the United States Supreme Court denied certiorari in United States v. Newman, a high-profile case dealing with the prosecution of two hedge fund managers for alleged insider trading. The Second Circuit Court of Appeals overturned their convictions, and the Department of Justice urged the Supreme Court to take the case and claimed the Second Circuit’s approach to insider trading would greatly reduce the government’s ability to prosecute insider trading. What is the current state of insider trading law? Will the Supreme Court eventually be forced to intervene and provide clarity? -- Featuring: James M. Burnham, Associate, Jones Day and Peter M. Thomson, Special Counsel, Stone Pigman Walther Wittmann LLC.