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On Tuesday, June 27, 2023, the Supreme Court issued its decision in Mallory v. Norfolk Southern Railway Co. The question before the Court was whether a Pennsylvania law governing out-of-state corporations registered to do business inside the state that purports to confer general personal jurisdiction over the registrant violates the Due Process Clause of the Fourteenth Amendment.

The Court vacated and remanded the case in a 5-4 opinion authored by Justice Gorsuch holding that the law comports with the Due Process Clause as set forth in Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co. (243 U.S. 93). Justice Barrett filed a dissenting opinion.

In this recorded webinar Ashley Keller, John Masslon, and Professor Brian Fitzpatrick discuss the decision.

Featuring:
--Ashley Keller, Partner, Keller Postman
--John Masslon, Senior Litigation Counsel, Washington Legal Foundation
--[Moderator] Brian Fitzpatrick, Milton R. Underwood Chair in Free Enterprise, Vanderbilt University Law School

On March 28, 2023, the Supreme Court handed down its decision in Wilkins v. United States. The case involves a suit by neighbors to quiet title over a road easement that the United States interprets as allowing for public use. The United States argued the claim was jurisdictionally barred by the the Federal Quiet Title Act’s 12-year time limit.

The Court held that the Act’s statute of limitations is a nonjurisdictional claims-processing rule because a procedural requirement is only jurisdictional if Congress clearly states that it is. Justice Clarence Thomas, joined by Chief Justice Roberts and Justice Alito, dissented and would have held the time-bar jurisdictional because it is a waiver of sovereign immunity.

Jeffrey W. McCoy, attorney at the Pacific Legal Foundation, joined us for a courthouse steps decision teleforum moderated by Adam Griffin.

Featuring:
--Jeffrey McCoy, Attorney, Pacific Legal Foundation
--Moderator: Adam Griffin, Law Clerk, US District Courts

On Tuesday, June 27, 2023, the Supreme Court issued its decision in Moore v. Harper. The case concerned the Elections Clause of the U.S. Constitution and “the claim that the Clause vests state legislatures with authority to set rules governing federal elections free from restrictions imposed under state law,” 600 U.S. ___ (2023).

In a 6-3 decision, the Court rejected the “independent state legislature” doctrine recognizing the North Carolina Supreme Court’s authority to review the legislature’s rules for federal elections. Chief Justice Roberts issued the opinion of the Court; Justice Kavanaugh filed a concurring opinion; Justice Thomas filed a dissenting opinion.

In this recorded Teleforum Andrew Grossman discussed the Court’s opinion.

Featuring:
--Andrew Grossman, Partner, Baker & Hostetler LLP

The Infrastructure Investment and Jobs Act, signed into law on November 15, 2021, requires the Federal Communications Commission (FCC), within two years, to promulgate rules to facilitate equal access to broadband internet services and to prevent "digital discrimination of access based on income level, race, ethnicity, color, religion, or national origin." Significantly, the statute also requires that the rules take into account "issues of technical and economic feasibility." The FCC issued a notice of proposed rulemaking on December 22, 2022, and comments and reply comments have now been submitted.

Given the importance of widespread access to broadband services, the "Digital Discrimination" proceeding is one of the most important items on the FCC's agenda. Does the agency have authority to adopt rules that would impose liability on broadband providers based only on a showing of unintentional disparate impact or is evidence of intentional discrimination required? In considering liability, how should the agency take into account claims relating to the technical and economic feasibility of making available access? What impact will the rules have on investment and innovation under various scenarios? What type of process should the Commission employ in considering complaints of digital discrimination?

A panel of experts joined us for a lively discussion of these and other questions as the FCC prepares to adopt final rules in the digital discrimination proceeding.

Featuring:
--Seth L. Cooper, Director of Policy Studies & Senior Fellow, The Free State Foundation
--Harold Feld, Senior Vice President, Public Knowledge
--Clint Odom, Vice President, Strategic Alliances & External Affairs, T-Mobile
--Moderator: Randolph J. May, President, The Free State Foundation

Last year, the Supreme Court issued a landmark decision in West Virginia v. EPA, in which the Court reinvigorated the “Major Questions Doctrine” of administrative law. Given the Federal Trade Commission’s efforts to expand its rulemaking powers under Section 5 of the FTC Act and the likely return of the “net neutrality” fight at the Federal Communications Commission once a third Democratic commissioner is confirmed, this webinar explored how the reinvigorated “Major Questions Doctrine” may impact tech and telecom policy.

Featuring:
--Ian Heath Gershengorn, Partner and Chair, Appellate & Supreme Court Practice, Jenner & Block LLP; Former Acting Solicitor General
--Thomas M. Johnson, Jr., Partner and Chair, Issues & Appeals Practice, Wiley Rein LLP; Former General Counsel, Federal Communications Commission
--Hon. Maureen K. Ohlhausen, Partner and Chair, Antitrust & Competition Practice, Baker Botts LLP; Former Acting Chairman and Commissioner, Federal Trade Commission
--Christopher J. Wright, Partner and Co-Chair, Issues & Appeals Practice, Harris, Wiltshire & Grannis LLP; Former General Counsel, Federal Communications Commission
--Moderator: Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal & Economic Public Policy Studies

On Thursday, June 15, 2023, the Supreme Court issued its decision in Haaland v. Brackeen. The case was primarily concerned with the constitutionality of the Indian Child Welfare Act (ICWA), a federal law enacted in 1978 that governs state-level adoption and foster care cases involving Native American children. Among other provisions, the ICWA gives tribal governments jurisdiction over the adoption of Native American children who reside on a reservation or have certain tribal connections.

In a 7-2 decision, the Court affirmed the Fifth Circuit’s finding that the ICWA is constitutional, rejected petitioners’ Tenth Amendment argument, and found that petitioners lacked the standing required for other challenges made. Justice Barrett delivered the opinion for the Court; Justices Gorsuch and Kavanaugh filed concurring opinions; Justices Thomas and Alito filed dissenting opinions.

In this recorded webinar Jennifer Weddle discussed the Court’s findings.

Featuring:
--Jennifer Weddle, Principal Shareholder & Co-Chair, American Indian Law Practice Group, Greenberg Traurig, LLP

On June 20, Judge Amul Thapar of the Sixth Circuit published "The People's Justice," in which he explores "the human stories behind twelve illustrative cases on which Justice [Clarence] Thomas has ruled."
In this video podcast, Judge Thapar joined the Federalist Society's Dean Reuter to discuss the book and Justice Thomas's legacy.
Featuring:

Hon. Amul R. Thapar, U.S. Court of Appeals for the Sixth Circuit
Moderator: Dean Reuter, Senior Vice President and General Counsel, Federalist Society

Transcript

On Friday, June 23, 2023, the Supreme Court released its decision in United States v. Hansen. At issue in Hansen was whether 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), a federal criminal statute that prohibits encouraging or inducing unlawful immigration for commercial or financial benefit sometimes termed “the encouragement provision,” violates the First Amendment.

Helamen Hansen operated an advising service for undocumented immigrants who wanted to pursue U.S. citizenship. Under the encouragement provision, Hansen was convicted of two counts of encouraging or inducing illegal immigration for financial gain (along with other federal crimes). He challenged those convictions, contending the law is facially overbroad. The Ninth Circuit agreed, vacating his convictions on those counts. The Court heard Oral Argument on March 27, 2023.

In this recorded Post-Decision Courthouse Steps webinar, where we broke down and analyzed the Court’s decision.

Featuring:
--Brian Fish, Special Assistant, United States Attorney, Baltimore, Maryland

In October 2022, President Biden issued an executive order regarding the European Union - U.S. Data Privacy Framework. The Framework allows for data flows between the EU and the U.S., and it was established after the European Court of Justice struck down a prior agreement known as the EU-U.S. Privacy Shield. The executive order addresses U.S. collection of signals intelligence, which has been a source of concern for EU regulators and privacy advocates. The executive order limits signals intelligence collection to defined national security objectives, requires the privacy and civil liberties of all persons be considered regardless of nationality, and the collection must be proportionate. In addition, the executive order calls for a multi-layered review process that will allow individuals to lodge complaints regarding the collection of signals intelligence.

Our experts discussed whether the Framework addresses the concerns of privacy advocates in the EU and the U.S., and they considered the implications of the review process for U.S. intelligence collection. This program also explored whether the EU and U.S. can reach a durable privacy agreement given the tension between EU privacy preferences and U.S. national security needs.

Featuring:
--Max Schrems, Founder, NOYB
--Stewart Baker, Of Counsel, Steptoe & Johnson LLP
--Moderator: Matthew R. A. Heiman, General Counsel & Corporate Secretary, Waystar Health; Senior Fellow and Director of Planning, National Security Institute

If a federal agent violates a citizen’s constitutional rights, does a justiciable cause of action arise? If yes, do federal courts have the power to award damages for constitutional violations? These questions have been considered by the U.S. Supreme Court in cases like Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics (1971) and Egbert v. Boule (2022).

Three state supreme courts have recently issued competing decisions on whether similar separation of powers concerns arise when state courts recognize rights under state constitutions.

Burnett v. Smith, issued on May 5, 2023, was the latest of these three decisions. The case arose after the plaintiff, garbage truck driver Cory Burnett, was pulled over by Iowa Department of Transportation Officer Philip Smith for a cracked windshield. Burnett was eventually arrested by Officer Smith for interference with official acts (Iowa Code §719.1). The charges were ultimately dismissed following a trial. Later, Burnett sued Officer Smith for, among other things, an unreasonable seizure directly under the Iowa Constitution. On appeal, the Supreme Court of Iowa unanimously affirmed the district court’s judgment against Burnett and, in the process, held that courts in Iowa cannot imply remedies directly under the Iowa constitution, overruling Godfrey v. State (898 N.W.2d, 2017).

In alignment with recent federal precedent, the court held that letting plaintiffs bring constitutional claims without the Iowa legislature first authorizing them “undermined the established allocation of responsibility between the legislative and the judicial branches of government.” This holding is at odds with decisions in Michigan (Bauserman v. Unemployment Insurance Agency) and Nevada (Mack v. Williams) where plaintiffs are allowed to sue without a legislative cause of action, provided certain conditions are met.
Are state courts allowed to recognize remedies directly under their state constitutions? Or are they similarly constrained by separation of powers? In this recorded webinar discussion Anya Bidwell and Erin Hawley consider these questions and more.


Featuring:
--Anya Bidwell, Attorney, Institute for Justice
--Erin Hawley, Senior Counsel, Alliance Defending Freedom