FedSoc Forums

John Malcolm and John Yoo examined the indictment of former President Donald Trump in the 2020 election probe in Georgia as he now faces 91 charges across four separate indictments. They will discuss the facts and law of Trump's latest indictment and the intersection between criminal law, presidential elections, and the Constitution.

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

Fairfax County, Virginia’s Thomas Jefferson High School for Science and Technology – commonly known as TJ – is the #1 ranked public high school in the country.

In 2020, the Fairfax County School Board enacted measures intended to increase racial diversity in TJ’s student body. These policies changed the school’s admissions process and drew criticism from some TJ parents, locals, and national observers. The changes included discontinuing the admissions test, allowing race-consciousness, and capping the number of students allowed admission from each of the district’s 23 middle schools. In the end, the new system led to a reduction in the number of Asian-American students admitted to TJ.

In March 2021, Coalition for TJ sued the Fairfax County School Board over the new admissions policies alleging discrimination against applicants of Asian heritage. The U.S. District Court for the Eastern District of Virginia granted Coalition for TJ’s motion for summary judgment in February 2022. Fairfax County School Board then appealed the District Court’s permanent injunction to the Fourth Circuit. The Fourth Circuit stayed the District Court order. The Coalition for TJ filed an emergency stay application to the U.S. Supreme Court but was denied; the case was remanded to the Fourth Circuit and heard in September 2022. In May 2023, the Fourth Circuit reversed the District Court allowing the new admissions plan to be enacted.

Coalition for TJ’s legal representation, Pacific Legal Foundation, is now planning to file a cert petition to the U.S. Supreme Court. In the lead up to filing, Erin Wilcox will join us to discuss the case and offer an update on the latest events.

Featuring:
--Erin Wilcox, Attorney, Pacific Legal Foundation

Environmental, Social, and Corporate Governance (ESG) investing has grown in popularity in recent years. As a result of major investment firms and individual stockholders making ethical and social considerations in their investing, firms and corporations have developed ESG rating matrices to grade publicly traded companies on their commitment to diversity and the fight against climate change.

These ranking systems, however, have raised eyebrows in light of recent news that major tobacco companies are receiving higher ESG scores than the electric car manufacturer, Tesla. Serious questions are being raised about the reliability of these rating systems as tools for investors, and whether a company's focus on diversity and inclusion on its board of directors should be considered an ethical investment, even if its main product is responsible for millions of deaths every year.

Does New York’s “rent stabilization” law violate the federal Constitution? The law, which regulates approximately 1 million apartments in New York City, was enacted more than fifty years ago and remains in effect based on an every-three-year declaration of a housing “emergency.” The law does not merely regulate rent levels. It also limits a property owner’s right to determine who uses an apartment, to convert the property to new uses or to replace the existing building with a new structure, and to occupy the property for use by the owner and his or her family.

A lawsuit filed in 2019, Community Housing Improvement Program v. City of New York, asserted that the New York law—including 2019 amendments that significantly increased the restrictions on property owners— violates due process and affects both physical and regulatory takings of the property that it regulates. The case was first dismissed at the District level. Earlier this year, the United States Court of Appeals for the Second Circuit affirmed the District Court's ruling and found the 2019 amendments compliant with the Fifth Amendment to the U.S. Constitution. The case now moves to the Supreme Court as plaintiffs—armed with 14 amicus briefs—petition the Court to reverse the Second Circuit’s decision.

Rent regulation is not just a New York phenomenon. Other cities across the country have enacted, or are considering, rent regulation legislation. Andrew Pincus, lead counsel for the plaintiffs, discussed the constitutional challenge in the context of the Supreme Court’s evolving property rights jurisprudence.

Featuring:
--Andrew Pincus, Partner, Mayer Brown

In this recorded webinar, John Malcolm and John Yoo revive their discussion of presidential power, prosecution, impeachment, and separation of powers with the prosecution of former President Donald Trump for the events surrounding the January 6, 2021 attack on the U.S. Capitol. They discussed the facts and law of Trump’s indictment, the developments in the Hunter Biden investigations, and the intersection between criminal law, presidential elections, and the Constitution.

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

How far can states use their local economy to put economic pressure on other states to change their policies? In National Pork Producers Council v. Ross (2023), the Supreme Court considered this question, and had a very unusual split 5-4 with Justices Gorsuch, Thomas, Sotomayor, Kagan, and Barrett in the majority. The Court rejected a challenge to a California regulation that prohibited the in-state sale of pork which was previously out-of-state “confined in a cruel manner.”

This panel will discuss the decision and the originalist foundations, if any, of the dormant Commerce Clause jurisprudence. Additionally, even if it properly exists, what is its extent and the impact of the Court’s decision?

Featuring:
--Jack Fitzhenry, Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
--Prof. Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law
--Prof. Michael S. Greve, Professor of Law, Antonin Scalia Law School
--Moderator: Elizabeth Slattery, Senior Legal Fellow, Pacific Legal Foundation

In 1984, Hon. Pauline Newman became the first judge appointed directly to the United States Court of Appeals for the Federal Circuit. Judge Newman has served on that court since, and serves to this day. Reports surfaced in April of this year that Federal Circuit Chief Judge Kimberly Moore had initiated a complaint against Judge Newman under the Judicial Conduct and Disability Act of 1980. On May 10, 2023, Judge Newman filed suit in the United States District Court for the District of Columbia against Chief Judge Moore; two other Federal Circuit judges in their capacities as members of the special committee appointed by Chief Judge Moore to investigate the complaint; and the Judicial Council of the Federal Circuit and its members. Judge Newman's federal lawsuit raises issues not just of judicial conduct (given the underlying complaint) and patent law (which are interesting given Judge Newman's and the court's history as well as what some view as its drift away from innovation-protective jurisprudence), but also separation of powers (since Judge Newman was appointed by the President and confirmed by the Senate), and even age/disability discrimination (Judge Newman is 95 years old). Our panel discussed these and related issues arising from this most-unusual set of circumstances.
Featuring:
--Prof. Paul R. Gugliuzza, Professor of Law, Temple University Beasley School of Law
--Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston
--Prof. Arthur Hellman, Professor Emeritus of Law, University of Pittsburgh School of Law
--Cheryl Stanton, Chief Legal and Government Affairs Officer, BrightStar Care
--Moderator: John J. Park Jr., Of Counsel, Strickland Brockington Lewis LLP

Artificial intelligence (AI) technologies are not new, but they have made rapid advances in recent years and attracted the attention of policymakers and observers from all points on the political spectrum. These advances have intensified concerns about AI’s potential to discriminate against select groups of Americans or to import human bias against particular ideologies.

AI programs like ChatGPT learn from internet content and are liable to present opinions – specifically dominant cultural opinions – as facts. Is it inevitable that these programs will acquire and reproduce the discriminatory ideas or biases we see in humans? Because AI learns by detecting patterns in real world data, are disparate impacts unavoidable in AI systems used for hiring, lending decisions, or bail determinations? If so, how does this compare to the bias of human decision-making unaided by AI?

Increasingly, laws and regulations are being proposed to address these bias concerns. But do we need new laws or are the anti-discrimination laws that already govern human decision-makers sufficient? Please join us as an expert panel discusses these questions and more.

Buettner-Hartsoe v. Baltimore Lutheran High School Association d/b/a Concordia Preparatory School poses a question of whether Title IX applies to schools that do not receive federal financial aid.

Former students of Concordia Preparatory School, a private school, sued Concordia Prep. under Title IX alleging that the school had not adequately addressed complaints of sexual assault and sexual harassment. Concordia Prep. argued the lawsuit should be dismissed because, as a private school that did not receive federal financial assistance, it was not subject to Title IX.

Judge Bennett of the United States District Court for the District of Maryland rejected that argument, instead holding that, because the school received a federal tax exemption as a 501(c)(3) organization, it was therefore subject to Title IX because it is a 501(c)(3) organization, regardless of the fact the school does not otherwise receive direct federal aid, nor any financial aid from the U.S. Department of Education.

Traditionally, independent schools that do not receive federal financial aid have not been considered to be subject to Title IX’s requirements. This decision could substantively expand the number of schools which are interpreted to be subject to Title IX. The case is currently on appeal. Mary Margaret Beecher of Napa Legal Institute, which filed an amicus brief in the case, joined us to discuss the case, the nature of the litigation, and the possible effects of this decision.

Featuring:
--Mary Margaret Beecher, Vice President and Executive Director, Napa Legal Institute
--(Moderator) Amanda Salz, Associate, Morgan, Lewis, & Bockius LLP

The regulatory environment in the United States is often complex. State and federal laws sometimes contradict each other. The transition of the American Presidency from one political party to another can lead to rapid and dramatic changes in the regulatory landscape. Even transfers of power between administrations of the same party or shifting priorities of one administration can cause significant changes in regulation.

This phenomenon of swift changes in regulatory policy is sometimes referred to as regulatory whiplash. In this recorded webinar, an expert panel discussed regulation and regulatory whiplash in the context of civil rights.

Featuring:
--Will Trachman, General Counsel, Mountain States Legal Foundation
--Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University
--[Moderator] Alison Somin, Legal Fellow, Center for the Separation of Powers, Pacific Legal Foundation