FedSoc Forums

Balancing safety and justice is especially challenging in the pretrial context where difficult decisions must be made quickly while evidence is still being gathered. In September 2023, an overhaul of Illinois’ pretrial system went into effect, eliminating the use of cash bail while also expanding the authority of judges to detain defendants without bail. As states and local jurisdictions across the country weigh pretrial policies, what can we learn from the Illinois experience to date? This panel of experts will review preliminary data and specific cases that shed light on this question. The conversation will also consider to what degree experiences have differed in rural and urban areas and examine what adjustments are needed.
Featuring:

Robert Berlin, State’s Attorney, DuPage County, Illinois
Hon. Eugene Doherty, Appellate Court Justice, Illinois Appellate Court for the Fourth District
Dr. David Olson, Professor, Department of Criminal Justice and Criminology & Co-Director, Center for Criminal Justice, Loyola University Chicago
(Moderator) Marc Levin, Chief Policy Counsel, Council on Criminal Justice and Senior Advisor, Right on Crime

Between 2010-2014, the Supreme Court handed down four decisions resulting in the Mayo-Alice two-step test for what counts as an invention or discovery eligible for patent protection. In the ensuing decade, the issue of whether this test is indeterminate, too restrictive, or both, has been vigorously debated by lawyers, judges, and scholars. Recently, Senators Thom Tillis (R-NC) and Christopher Coons (D-DE) introduced the Patent Eligibility Restoration Act (PERA), which would abrogate the Mayo-Alice test among other substantive and procedural reforms to patent eligibility doctrine. This webinar discussed PERA and its implications for the U.S. innovation economy as leader in innovation in the 21st century facing new challenges from global competitors like China.

Congress passed the Antiquities Act in 1906 to protect Native American archaeological sites from looters and vandalism, empowering the President to designate historic landmarks, structures, or objects of scientific interest as national monuments on federal land. However, it also imposed limitations, requiring such designations to cover only "the smallest area compatible with the proper care and management of the objects to be protected." Initially, Presidents designated monuments focused on safeguarding specific landmarks or structures.

Over time, modern Presidents have expanded their authority under the Antiquities Act, interpreting "objects" broadly to include ecosystems. President Obama notably expanded the Act's use, establishing 29 new national monuments. However, this expansion faced pushback, with President Trump reducing the size of certain monuments and lifting usage restrictions. President Biden's subsequent actions, such as expanding the Grand Staircase monument and reinstating fishing bans, further illustrate the contentious nature of presidential monument designations.

All these challenges present interesting questions of statutory interpretation, limits on presidential power, the authority of the judiciary to review Presidential action, and the scope and content of both the major questions doctrine and the nondelegation doctrine.

Please join Adam Griffin, Separation of Powers Attorney at Pacific Legal Foundation, for a litigation update on these exciting cases and the future of presidential power under the Antiquities Act.

Throughout Arizona’s history as a state, the criminal code authorized penalties against any person who performed or procured an abortion for a pregnant woman. In 1971, Planned Parenthood Center of Tucson challenged that law on state and federal constitutional grounds. In early 1973, the state intermediate appellate court upheld the criminal law as constitutional. Shortly thereafter, SCOTUS issued Roe v. Wade recognizing a federal constitutional right to abortion. And the Arizona appellate court then enjoined enforcement of the state’s criminal abortion law.

The Arizona legislature codified numerous abortion-related laws in the ensuing years. One such law, enacted in 2022, adopted a “15-week ban.” Later that same year, SCOTUS issued its opinion in Dobbs v. Jackson Women’s Health Organization, which overturned Roe and concluded that the federal constitution does not support a right to abortion.

Dobbs thus set a collision course for two Arizona laws: the previously enjoined but still on-the-books criminal law from 1973 and the 2022 15-week ban. On April 9, 2024, the Arizona Supreme Court issued its opinion in Planned Parenthood v. Mayes / Hazelrigg, resolving the question of which law currently governs.

Hon. James D. Smith will join us to break down the majority and dissenting opinions.

FTC Chair Khan has sought to implement aggressive and profound changes at the agency from novel approaches on antitrust to groundbreaking rulemakings. But will these efforts have lasting effects?

Former FTC Chairs Tim Muris and Maureen Ohlhausen were joined by Howard Beales, former Director of the Bureau of Consumer Protection at the FTC, to compare these efforts with previous Chair-initiated policy shifts at the agency. Professors Muris and Beales also unveiled their extensive research, published by the Competitive Enterprise Institute, analyzing key differences compared to earlier FTC efforts at promoting change.

This panel discussed: How should a change agent manage the existing career staff? How should relations with Congress and other key stakeholders be managed? How can change best be implemented in the face of a potentially hostile judiciary and other formidable obstacles? What role should institutional norms play in answering these questions?

On April 25th, the Environmental Protection Agency announced a suite of final rules meant to reduce pollution from fossil fuel-fired power plants.
The rule was among four measures targeting coal and natural gas plants that the EPA said would provide “regulatory certainty” to the power industry and encourage them to make investments to transition “to a clean energy economy.” The measures include requirements to reduce toxic wastewater pollutants from coal-fired plants and to safely manage coal ash in unlined storage ponds.
Supporters of the new rule argue that it aligns well with the EPA's statutory authority, the current state of electric markets, and available emissions-reduction technologies. However, opponents contend that it is legally flawed and could jeopardize grid reliability. What legal and policy issues does this rule potentially raise? Does it trigger "major questions" issues? Is the agency relying on unproven technology, potentially violating the statutory requirement that emission standards be based on proven systems? Moreover, does the rule infringe on state prerogatives for regulating existing sources? Join us as we delve into these questions and analyze the legal complexities surrounding this new rule.
Featuring:

Kevin Poloncarz, Partner, Covington & Burling LLP
Justin Schwab, Founder, CGCN Law, PLLC

On April 23, 2024, the FTC voted 3-2 to adopt a final rule banning the use of non-compete agreements nationwide, impacting 30 million workers by the FTC’s own estimates. This near categorical ban on the non-compete agreements is a contrast from a regime in which these agreements had been recognized to have potential procompetitive value and therefore were reviewed for reasonableness. It also marks a departure from the state law in many jurisdictions. Less than 24 hours after the vote, two lawsuits have challenged the rule based on statutory and Constitutional grounds. This breaking news panel discussed the final rule, grounds for statutory and Constitutional challenges, and state AG reactions.

Starbucks Corp. v. McKinney sits at an interesting intersection of Labor and Administrative law. The facts of the case concern Starbucks Corp.'s alleged retaliation against seven Memphis workers for unionization efforts. The employees received disciplinary action and ultimately lost their jobs in the wake of their involvement in a unionization effort. In the following investigation, the NLRB found that there was reasonable cause to believe Starbucks had acted in retaliation against protected unionization efforts. A district court issued a temporary injunction and required the 7 former employees to be reinstated. The Sixth Circuit affirmed on appeal, concluding the NLRB had satisfied its burden in showing there was "reasonable cause" that Starbucks had violated the National Labor Relations Act and thus the NLRB could use its remedial power. Starbucks appealed again and the case was heard by the Supreme Court on April 23, 2023.
The question before the Supreme Court, however, is not the Labor Law question of whether Starbucks violated the NLRA, but an Administrative law one as the case asks what standard the NLRB needed to meet to obtain an injunction under Section 10(j) of the NLRA from a court. Is "reasonable cause" enough or is there a more stringent test a court should use?
Join us as we break down and analyze this interesting case and the Oral Argument in the days following the argument before the Court.
Featuring:

Sheng Li, Litigation Counsel, New Civil Liberties Alliance

In 2021, in Arkansas State Conference NAACP v. Arkansas Board of Apportionment, private litigants sued to challenge the Arkansas state House redistricting map as violating Section 2 of the Voting Rights Act by illegally diluting the vote of racial minorities. In 2022, the U.S. District Court for the Eastern District of Arkansas ruled that Section 2 of the Voting Rights Act does not grant a private right of action. In 2023, the U.S. Court of Appeals for the Eighth Circuit affirmed the district court holding, and in 2024, the Eighth Circuit denied rehearing of the case en banc. In this panel, three voting rights practitioners will provide their analysis of the Voting Rights Act, the Eighth Circuit's decision, and the implications of this decision on redistricting and voting rights cases.
Featuring:

J. Christian Adams, President and General Counsel, Public Interest Legal Foundation
Nicholas Bronni, Solicitor General, The State of Arkansas
Jeffrey Wice, Adjunct Professor of Law, New York Law School & Senior Fellow, New York Census and Redistricting Institute
(Moderator) Maya Noronha, Civil Rights Attorney

On March 5, 2024, U.S. District Court Judge Mark Pittman of the Northern District of Texas entered a declaratory judgment and nationwide injunction against the Minority Business Development Agency, preventing the agency from extending a federally-sponsored racial preference to groups seeking to access capital and government contracts. This case, Nuziard v. MBDA, expands upon last summer's Supreme Court ruling in SFFA v. Harvard, which struck down affirmative action in college admissions. Daniel Lennington of the Wisconsin Institute for Law & Liberty, who litigated the case, discussed the case and its impact on the future of equality.