FedSoc Forums

or the past few Supreme Court terms we have hosted Mark Rienzi, President of the Becket Fund and Professor of Law at Catholic University of America, for a discussion of Religious Liberty at the Court moderated by William Saunders, Professor and Co-director of the Center for Religious Liberty at Catholic University of America. This latest installment looked at the most recent term including the unanimous holding in Groff v. DeJoy and provide a preview of the October term.

Featuring:
--Prof. Mark L. Rienzi, President, Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, Catholic University; Visiting Professor, Harvard Law School
--[Moderator] Prof. William L. Saunders, Professor - Human Rights, Religious Liberty, Bioethics, Catholic University of America

In his new book Our Dear-Bought Liberty: Catholics and Religious Toleration in Early America, Professor Michael D. Breidenbach investigates the way American Catholics fundamentally contributed to the conception of a separation between Church and State in the founding era, overcoming suspicions of loyalties to a foreign power with a conciliatory approach. In this installment in our “Talks with Authors” series, Prof. Breidenbach joined us to discuss his book and the story it tells in a conversation moderated by Prof. William Saunders.

Featuring:
--Prof. Michael D. Breidenbach, Associate Professor of History, Ave Maria University & Senior Affiliate for Legal Humanities, Program for Research on Religion and Urban Civil Society, University of Pennsylvania
--(Moderator) Prof. William Saunders, Professor - Human Rights, Religious Liberty, Bioethics, Catholic University of America

In 2021, both Florida and Texas enacted legislation to limit how social media platforms could limit what users post. The Texas law, challenged in NetChoice v. Paxton found a sympathetic audience in the Fifth Circuit, but the Eleventh Circuit was much more skeptical of the Florida law’s constitutionality in NetChoice v. Moody. In January 2023, the Supreme Court requested the Biden Administration to weigh in on the constitutionality of these laws. The NetChoice duel is likely to be on the calendar for the Court in this next term, with a decision in 2024.
This webinar gathered a panel of experts to discuss the appeals courts vivid differences in approach to issues arising from social media content moderation. The panel will also consider changes in the legal landscape since these petitions were filed, including whether recent Court decisions related to Section 230 of the Communications Decency Act have bearing on the issues raised by NetChoice.

Featuring:
--Ryan Baasch, Chief of the Consumer Protection Division, Texas Office of the Attorney General
--Allison R. Hayward, Independent Analyst
--Jess Miers, Legal Advocacy Counsel, Chamber of Progress
--Moderator: Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity
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Big Data is one of the most important resources in the world, yet the rules for its protection are just beginning to develop. The danger comes into focus by the possibility of a nation-state cyber operation attacking Big Data and having a major detrimental impact on the functioning of another nation-state. Consider, for example, a cyber attack corrupting, stealing, or destroying the records of important financial institutions, causing widespread confusion and panic. Would such an attack warrant a kinetic, lethal response, with bullets and bombs?

This issue implicates the UN Charter, the Law of War, International Humanitarian Law, jus in bello and jus ad bellum, attempts to formulate rules in the Tallinn Manual, conflicting priorities among nations, and pure geopolitics. Professor Paul Stephan of the University of Virginia Law School and John Eisenberg, Former Deputy Counsel to the President and NSC Legal Advisor, joined us to explore the issue.

Mike Lewis was a naval aviator, and then a renowned law professor, widely admired by other scholars and practitioners. He was a great friend of the Federalist Society, appearing at dozens of lawyer and student chapter events, as well as the 2014 National Convention. He was also a member of the Executive Committee of the Society's International & National Security Law Practice Group. Each year, the Practice Group holds a Teleforum in his honor.

Featuring:
--John Eisenberg, Former Assistant to the President and Deputy Counsel to the President, Former NSC Legal Advisor
--Prof. Paul Stephan, John C. Jeffries, Jr., Distinguished Professor of Law, University of Virginia School of Law
--[Moderator] Vince Vitkowsky, Partner, Gfeller Laurie LLP

The Supreme Court is scheduled to hear Harrington v. Purdue Pharma in December 2023. The case presents the issue of the authority of a court to provide a release from liability against non-consenting victims in favor of third parties who are not in bankruptcy.

This case involves releases in favor of the non-debtor Sackler family who owned Purdue Pharma and are accused of fueling the national opioid epidemic. Some say the bankruptcy system provides a more effective and efficient mechanism for resolving mass torts. Others say it is a vast expansion of court power without statutory or Constitutional authority.

Please join us as Professor Anthony Casey and Clifford White debate the merits of the case and discuss what to expect at the Supreme Court.

In the fall 2023 term, the Court is currently set to consider a case of whether a civil rights "tester," someone who collects information as to whether a place of public accommodation is in compliance with laws like the Americans with Disabilities Act (ADA) without an intent actually to visit those places or use those services, has standing to sue such businesses.
At issue is whether "tester" Deborah Laufer, had standing to bring suit against Acheson Hotels. Laufer alleged that the website for a hotel operated by Acheson Hotels had insufficient information to comply with the ADA and accommodate those with disabilities. Acheson Hotels argued that since Ms. Laufer had no intention of visiting the hotel in question, she, therefore, had no standing to sue.
Ms. Laufer lost in district court, which threw out her suit for lack of standing, but the First Circuit reinstated her lawsuit, ruling she did have standing. That prompted an appeal by Acheson Hotels to the Supreme Court, which granted certiorari.
Interestingly, after certiorari was granted, Ms. Laufer dropped her case in district court after an attorney who has represented her in other cases was disciplined by a federal Court located in Maryland. Ms. Laufer's lawyers thus also asked SCOTUS to dismiss the Acheson Hotels case for mootness, given that the district case is no longer live.
Oral argument in Acheson Hotels, LLC v. Laufer is still set for October 4, 2023.
Join us as Karen Harned, who filed an amicus brief in the case, provides a preview of the case and the issues worth tracking in this conversation.

Featuring:

Karen Harned, President, Harned Strategies LLC
(Moderator) Joel Nolette, Associate, Wiley Rein LLP

In Jackson v. Raffensperger, 316 Ga. 383 (2023), the Supreme Court of Georgia struck down the state’s licensing law for lactation care providers. The law, which was the first of its kind in the nation, would have forced hundreds of women out of work. The Court held the law unconstitutional under the Georgia constitution’s due process clause. With this decision, Georgia joined other states such as Texas and Pennsylvania in recently distinguishing the state’s standard of review from the federal standard of review.
Renée Flaherty and Jaimie Cavanaugh, both attorneys with the Institute for Justice, joined us to discuss the case.

Featuring:
--Renée Flaherty, Senior Attorney, Institute for Justice
--[Moderator] Jaimie Cavanaugh, Attorney & Legislative Counsel, Institute for Justice

Efforts to achieve “environmental justice” have been a top priority of the Biden Administration and its Environmental Protection Agency (EPA). As stated in the EPA’s FY 2022-2026 Strategic Plan, “EPA will center its mission on the integration of justice, equity, and civil rights across the nation’s environmental protection enterprise,” (27).

Accordingly, the EPA has invoked Title VI of the Civil Rights Act in some of its environmental emissions investigations even where the situation appears compliant with applicable environmental laws. One such investigation recently occurred in Louisiana where the EPA found “significant evidence” of disparate adverse impacts on Black residents of St. John the Baptist Parish, St. James Parish, and an Industrial Corridor in the area. These disparate impacts were alleged to be the result of poor air quality despite the fact that the EPA had deemed the relevant emissions compliant with applicable laws shortly before opening their civil rights investigation.

In May 2023, the Louisiana Attorney General filed suit against the EPA, arguing that EPA lacked authority to impose disparate-impact based mandates under Title VI and that the agency had unconstitutionally delegated power to special interest groups to direct how EPA conducted investigations. Shortly after the State sought a preliminary injunction, the EPA abruptly abandoned its pending investigations, although it continues to adhere to its Title VI disparate-impact regulations generally. Briefing is ongoing and a hearing has been set for January 9, 2024. Click here to view the complaint.

Drew Ensign served as Special Assistant Solicitor General and Counsel to the State of Louisiana during this matter. In this recorded webinar he delivered a Litigation Update on the case.

Featuring:
--Drew C. Ensign, Owner, Drew C. Ensign PLLC & Special Assistant Solicitor General, State of Louisiana

During President Obama’s second term, the U.S. Education Department began sharing studies indicating that black students were disciplined at higher rates than their white peers. These data were viewed as evidence of racial bias, and, in 2014, the Education and Justice Departments jointly published a resource package to help American schools “…promote fair and effective disciplinary practices that will make schools safe, supportive, and inclusive for all students,” (DOJ).

Supporters applauded these steps from the federal government saying they reduced schools’ racial disparities in disciplinary decisions thereby curtailing the “school-to-prison pipeline.” Critics countered that the guidance misstated federal civil rights law, encouraged racial discrimination in the allocation of school discipline to produce demographic parity, and left classrooms less functional.

The 2014 resource package was ultimately rescinded in 2018 under the Trump Administration, only to be largely restored by the Biden Administration. In May 2023, the Education and Justice Departments published a “Resource on Confronting Racial Discrimination in Student Discipline.”

What is the best path forward for appropriate and meaningful disciplinary decision making in American schools? How will our school children be best served? What does the evidence really show about race and school discipline? Please join us as an expert panel discusses the legal and educational contours of the most recent guidance on race and school discipline.

Featuring:
--Dr. Juan Del Toro, Assistant Professor, Department of Psychology, University of Minnesota
--Max Eden, Research Fellow, American Enterprise Institute (AEI)
--Kristen Harper, Vice President for Public Policy and Engagement, Child Trends
--Dan Morenoff, Executive Director, American Civil Rights Project
--[Moderator] Alison Somin, Legal Fellow, Center for the Separation of Powers, Pacific Legal Foundation

John Malcolm and John Yoo continued their discussion of presidential power with a focus on the Hunter Biden investigations. They will take a look at the probes surrounding Hunter Biden’s business dealings, the role of President Joe Biden, and the competing roles of Congress and the executive branch in the investigations.

Featuring:
--John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation
--Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute; Visiting Fellow, Hoover Institution