FedSoc Forums

Controversy has swirled for years over litigation in which a plaintiff sues a friendly government defendant, and the case concludes with a favorable settlement. Critics argue that this practice creates a non-adversarial process that allows aligned litigants and agencies to shape policy and reward political allies outside the normal rulemaking and appropriations procedures. Defenders respond that these settlements generally resolve legitimate claims while conserving judicial resources and taxpayer dollars. The debate intensified during the Obama administration as the practice proliferated, particularly in environmental consent decrees.
The controversy received renewed attention after the district court’s July 13 ruling in Trump v. IRS, concerning the settlement of President Trump's lawsuit against the IRS over the leak of his tax returns. The court concluded that the parties were never genuinely adverse and that there was therefore no Article III case or controversy. Its order went further, however. Reasoning that the suit was brought for an improper purpose, the court imposed sanctions on the plaintiffs and their counsel and directed that the order be transmitted to the bar authorities of senior DOJ officials.
Join us for a discussion of Trump v. IRS, and the broader legal and policy concerns surrounding sue-and-settle litigation.Featuring:

Anne Austin, Senior Advisor, Burke Law Group
Zhonette M. Brown, General Counsel, Senior Litigation Counsel, New Civil Liberties Alliance
Abhishek Kambli, Partner, Holtzman Vogel Baran Torchinsky & Josefiak PLLC
(Moderator) John Shu, Attorney and Legal Commentator

The U.S. Court of Appeals for the Eighth Circuit recently vacated the Federal Communications Commission’s 2023 Digital Discrimination Order, finding the commission exceeded its statutory authority.The dispute centered on the FCC’s implementation of Section 60506 of the Infrastructure Investment and Jobs Act, which directs the commission to prevent “digital discrimination of access” in broadband deployment and service. In carrying out this statutory mandate, the FCC adopted a disparate-impact framework, under which broadband providers and other entities that impact broadband could face liability for policies or practices that disproportionately affect certain communities without regard to discriminatory intent. The Eighth Circuit concluded that Section 60506 does not authorize the FCC’s disparate-impact regime or regulation of entities other than broadband providers.Join us for a litigation update on the decision and its implications for broadband deployment, digital equity initiatives, FCC authority, and future efforts to address alleged discrimination in access to broadband service.Featuring:

Dr. Christopher Ali, Pioneers Chair in Telecommunications, Penn State University
Jennifer B. Dickey, Vice President and Deputy Chief Counsel, U.S. Chamber Litigation Center, U.S. Chamber of Commerce
Daniel H. Kahn, Partner, Wilkinson Barker Knauer, LLP
[Moderator] Matthew Furlow, Counsel, U.S. House Committee on Energy and Commerce

Military law encompasses a wide range of legal disciplines, including criminal law, national security, government contracts, administrative and regulatory law, and more.
Join an experienced panel of current and former Judge Advocates for a practical discussion of the work JAGs perform, the application and accession process, and the long-term trajectory of military legal careers. The panel will compare opportunities across the Active Duty, Reserve, and National Guard components and offer practical guidance for building a successful career as a JAG.
Featuring:

Stephanie Fisher, Senior Appellate Counsel, U.S. Navy
Mark Majors, Deputy General Counsel, National Guard Bureau
Prof. Michael A. Newton, Director, International Legal Studies Program, Vanderbilt Law School
(Moderator) Jesse Burbank, Special Counsel, U.S. Department of Defense


Related Reading by a Panelist: Charging War Crimes: Policy & Prognosis from a Military Perspective

Unlike most nations, the United States eschews centralized control over its system of higher education in favor of a more decentralized “regulatory triad” of accreditation agencies, state licensing authorities, and certification by the U.S. Department of Education to participate in federal student aid programs. To qualify for federal student loans and grants, colleges and universities must be institutionally accredited by an Education Department-recognized accrediting agency. As gatekeepers of federal financial aid, accreditors have great sway over their institutions. President Trump issued an executive order on "Reforming Accreditation to Strengthen Higher Education," and the Education Department recently commenced negotiated rulemaking on new accreditation regulations and intends to publish a final rule by November 1, 2026.
But what is the purpose of accreditation, and how much power do accreditors hold? What is the connection to federal funding, and how are determinations of "academic quality" made? Do the current accreditation processes and recognized agencies meet their aims? What is the role of the Department’s National Advisory Committee for Institutional Quality and Integrity in this process? What can the public expect to see in the Department’s new accreditation regulations? To what extent, if at all, can the Department use its recognition authority over accreditors effectively to address such topics as campus free speech, academic freedom, DEI, and other controversial issues?
Join us for a discussion on the nuts and bolts of accreditation and what the current process means for the state of higher education in America today.

Featuring:


Robert S. Eitel, Co-Founder and President, Defense of Freedom Institute
Jonathan Helwink, Principal, Helwink Legal Group, PLLC
Adam Kissel, Visiting Lecturer in Formal Organizations, Trinity College
(Moderator) Sarah Parshall Perry, Vice President & Senior Legal Fellow, Defending Education

In National Republican Senatorial Committee v. Federal Election Commission, the Supreme Court held 6-3 that the Federal Election Campaign Act’s limits on political parties’ coordinated expenditures with their candidates violate the First Amendment. In overruling Colorado II, the majority emphasized that party-candidate coordination forms the “essence of our Nation’s party system of government.”Join us for a webinar breaking down the decision, the dissent, and what National Republican Senatorial Committee v. Federal Election Commission may mean for campaign-finance law and political parties.
Featuring:

Brett Nolan, Senior Attorney, Institute for Free Speech
Mathura Sridharan, Solicitor General, Ohio

This spring, Virginia joined eighteen other states and DC in the National Popular Vote Interstate Compact, an agreement among participating jurisdictions to award their presidential electors to the winner of the national popular vote once they collectively hold 270 electoral votes. Virginia's thirteen electoral votes bring the compact to 222, leaving it 48 short of the threshold at which it would take effect. Is participation in the compact a legitimate exercise of state power under Article II, Section 2 of the Constitution, or does it require congressional consent under the Compact Clause or even a constitutional amendment under Article V? Join us for a discussion of Virginia’s entry, the constitutional arguments on both sides, and what the compact could mean for the future of the Electoral College.Featuring:

Chad Ennis, Vice President, Honest Elections Project
Michael Williams, Solicitor General, West Virginia
[Moderator] Hon. Allen J. Dickerson, Partner, BakerHostetler; Former Chairman, Federal Election Commission

In Trump v. Slaughter, the Supreme Court held 6-3 that the Federal Trade Commission's (FTC) statutory for-cause removal protection violates the separation of powers, overruling Humphrey's Executor. The Court reasoned that subordinates who exercise the President’s power are subject to removal by him. Thus, because the FTC exercises executive power, its Commissioners must be removable by the President at will.
Yet in Trump v. Cook, the Court, 5-4, denied the government’s request to stay an injunction blocking the removal of Federal Reserve Governor Lisa Cook. The Court held that a president’s asserted “for cause” statutory basis for removing a Federal Reserve governor is judicially reviewable and that Cook was entitled to notice and an opportunity to respond before removal. Writing for the Court, Chief Justice Roberts reasoned that the statute was enacted against the backdrop of the common law, and that any definition of “cause” in this context must reflect the Federal Reserve’s unique historical status and role.
Join us for a webinar breaking down both decisions, the separate opinions, and what they may mean for presidential removal power, independent agencies, the Federal Reserve, and the future of the administrative state.
Featuring:

Erin M. Hawley, Supreme Court & Appellate Litigation Chair, Lex Politica; Of Counsel, Alliance Defending Freedom
Adam White, Laurence H. Silberman Chair in Constitutional Governance and Senior Fellow, American Enterprise Institute; Co-Director, Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State

Third-party litigation funding has grown into a major part of modern civil litigation. Supporters argue it expands access to justice and helps under-resourced plaintiffs challenge powerful defendants. Critics argue it can distort litigation incentives, empower foreign or opaque funders, and undermine attorney-client control of litigation. As state legislatures and Congress consider restrictions and disclosure requirements, how should policymakers balance transparency, donor privacy, access to courts, national security, and attorney ethics? Is third-party litigation funding a threat to the integrity of the civil justice system that conservatives should rein in, or a market mechanism that conservatives should protect as a counterweight to institutional lawfare? Can the foreign-adversary money problem be severed from the broader regulatory question?

Join us for a discussion of these and other issues surrounding the financing of litigation.

Featuring:


Oramel H. Skinner, III, Executive Director, Alliance For Consumers
Gene P. Hamilton, President, America First Legal Foundation
Phil Goldberg, Partner, Shook, Hardy & Bacon, LLP
[Moderator] Jim Wedeking, Counsel, Boyden Gray PLLC

In the consolidated cases Little v. Hecox and West Virginia v. B.P.J., the Supreme Court held that neither Title IX nor the Equal Protection Clause of the Fourteenth Amendment prohibits states or schools from determining sports eligibility based on biological sex. Join us for a Courthouse Steps webinar breaking down the decision, the separate opinions, and what it may mean for Title IX, equal protection doctrine, school athletics, and future litigation over sex-based classifications.
Featuring:

Rachel N. Morrison, Fellow, Ethics and Public Policy Center
Sarah Parshall Perry, Vice President & Senior Legal Fellow, Defending Education

In Trump v. Barbara, the U.S. Supreme Court held that the Fourteenth Amendment's Citizenship Clause guarantees birthright citizenship to children born in the United States, even if their parents are unlawfully or temporarily present in the country, as they are “subject to the jurisdiction” of the United States.Join us for a webinar breaking down the decision and the separate opinions.Featuring:Prof. Kurt T. Lash, E. Claiborne Robins Distinguished Chair in Law, University of Richmond School of LawEric Wessan, Solicitor General, Iowa Office of the Attorney GeneralProf. Ilan Wurman, Professor, University of Minnesota Law School