FedSoc Forums

This virtual event featured a panel of current and former state solicitors general exploring and discussing how state SGs balance their duty to defend state sovereignty with different political priorities. There are some areas in which the states seem to be more on the same page (such as criminal law) and others that involve sharp disagreements among the states in terms of the duty to defend state sovereignty (e.g. DACA). Focusing on the role of the SG—as opposed to the presumably more overtly political state attorney general position—how do different SGs approach these issues?

Featuring:
--Benjamin M. Flowers, Solicitor General, Ohio
--Elbert Lin, Chair, Issues & Appeals, Hunton Andrews Kurth LLP; Former Solicitor General, West Virginia
--Ryan Park, Solicitor General, North Carolina
--Moderator: Hon. Britt C. Grant, Judge, United States Court of Appeals, Eleventh Circuit; Former Solicitor General, Georgia

February 28, 2023, the U.S. Supreme Court heard oral argument in two cases challenging the Biden Administration's Student Loans forgiveness program: Board of Education v. Brown and Biden v. Nebraska.

In August 2022, the Biden Administration's Department of Education announced plans to forgive up to $20,000 in federal student loans for borrowers who qualified. In order to do this, the DOE relied on the HEROES Act, which allows the government to modify student loans, among other things, during a national emergency.

Both cases challenge this action. Biden v. Nebraska involves a challenge to the Executive action from six states who contend they will suffer direct harm based on a loss of tax revenue. In Department of Education v. Brown, two individual borrowers, one of whom has loans that are fully intelligible for forgiveness under the program, and one of whose loans only qualify for part of the maximum relief possible, also challenge the legitimacy of the program.

The Court will be faced with two questions in both cases: first, do the challengers, whether they be the states or the individual borrowers, have standing to sue? The Biden administration contends neither of the respondents possess standing. Second, assuming the Court decides there is standing to sue, the Court will face the question “Does the plan exceed the statutory authority available to the Secretary of Education, and adopted in a procedurally proper manner?”

We broke down and analyzed how oral argument went in both cases in this Courthouse steps program.

Featuring:
--Mark Chenoweth, President and General Counsel, New Civil Liberties Alliance

Much of global economic competition today centers around gaining market share in the semiconductor industry. Over the past decade, the Chinese Government has attempted to expand its market share across the semiconductor value chain through a complex regime of subsidies and state-owned enterprises.
Beginning in the Trump Administration, the United States launched targeted export controls to restrict certain Chinese firms - like Huawei - from obtaining American semiconductor technology. Over the past two years, the Biden Administration has built on and broadened these efforts. In the Fall of 2022, the Commerce Department announced two new rules that restricted the sale of advanced semiconductors, semiconductor manufacturing equipment, and related software or technical assistance to China. Earlier this January, U.S. officials announced the existence of a deal with Japan and the Netherlands to craft broad, multinational export controls on semiconductor exports to China.
Can the Chinese semiconductor industry survive these new restrictions? How will they impact U.S. firms and researchers in this sector? Do they form a blueprint for new export control restrictions on other technology exports to China? This panel with two leading experts on strategic technology and trade controls discussed these and other questions.

Featuring:
--Hon. Nazak Nikakhtar, Partner, Wiley Rein LLP
--Thomas Krueger, Senior Policy Advisor, Akin Gump LLP; Adjunct Senior Fellow, Center for a New American Security
--Moderator: Trevor Jones, JD Candidate, Harvard Law School

On February 27, 2023, the United States Supreme Court heard Oral Argument in Dubin v. United States.

At issue in the case is whether, when using (reciting, mentioning, or employing) someone else’s' name or identifying information in the committing a predicate offense, one also commits aggravated identity theft.

Petitioner David Dubin was convicted of healthcare fraud for submitting a factually inaccurate reimbursement claim to Medicaid that mischaracterized the nature of the provider, the time spent on the testing in question, and the date of the test. Additionally, because he used the name and identifying information of a real patient, Dubin was also convicted of one count of aggravated identity theft. Both the district court and the Fifth Circuit upheld the convictions on appeal.

Dubin claims that the Fifth Circuit’s decision, if upheld, has massive and undesirable implications for a spectrum of other white collar crimes.

In this webinar, we broke down and analyzed how oral argument went before the Court the same day this case is argued.

Featuring:
--John C. Richter, Partner, King & Spalding

On February 21, 2023, the U.S. Supreme Court heard oral argument in Gonzalez v. Google.

After U.S. citizen Nohemi Gonzalez was killed by a terrorist attack in Paris, France, in 2015, Gonzalez’s father filed an action against Google, Twitter, and Facebook. Mr. Gonzalez claimed that Google aided and abetted international terrorism by allowing ISIS to use YouTube for recruiting and promulgating its message. At issue is the platform’s use of algorithms that suggest additional content based on users’ viewing history. Additionally, Gonzalez claims the tech companies failed to take meaningful action to counteract ISIS’ efforts on their platforms.

The district court granted Google’s motion to dismiss the claim based on Section 230(c)(1) of the Communications Decency Act, and the U.S. Court of Appeals for the Ninth Circuit affirmed. The question now facing the Supreme Court is does Section 230 immunize interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limit the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information?

In this recorded webinar, Erik Jaffe broke down oral argument in this case.

Featuring:
--Erik S. Jaffe, Partner, Schaerr | Jaffe LLP

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this episode are included below.

Gonzalez v. Google (February 21) - Telecommunications; Whether Section 230(c)(1) of the Communications Decency Act allows social media companies to make targeted recommendations of information provided by another content provider, or only limits the liability of such services when they engage in traditional editorial functions.

Twitter v. Taamneh (February 22) - Telecommunications; Whether a defendant providing generic services “knowingly” provided substantial assistance to terrorists using the platform under 18 U.S.C. § 2333 because it allegedly could have taken more “meaningful” or “aggressive” action to prevent such use.

Dubin v. United States (February 27) - Criminal Law; Whether a person commits aggravated identity theft any time they mention or otherwise recite someone else’s name while committing a predicate offense.

New York v. New Jersey (February 27) - Whether the Supreme Court should issue declaratory judgment and/or enjoin New Jersey from withdrawing from its Waterfront Commission Compact with New York, which grants the Waterfront Commission of New York Harbor broad regulatory and law-enforcement powers over all operations at the Port of New York and New Jersey.

Biden v. Nebraska (February 28) - Federalism, Administrative Law; (1) Whether six states have Article III standing to challenge the Department of Education's student-debt relief plan; and (2) whether the plan exceeds the secretary of education's statutory authority or is arbitrary and capricious.

Department of Education v. Brown (February 28) - Federalism; (1) Whether two student-loan borrowers have Article III standing to challenge the Department of Education's student-debt relief plan; and (2) whether the department's plan is statutorily authorized and was adopted in a procedurally proper manner.

Featuring:
--Karen Harned, President, Harned Strategies LLC
--John Richter, Partner, King & Spalding
--Prof. Adam Candeub, Professor of Law & Director of the Intellectual Property, Information & --Communications Law Program, Michigan State University
--Moderator: Robert S. Driscoll, Shareholder, Reinhart Boerner Van Deuren s.c.

Section 706 of the Administrative Procedure Act instructs courts to "set aside" agency action that is unlawful. These two words—"set aside"—have sparked much debate among lawyers, jurists, and scholars. In particular, administrative law enthusiasts disagree about whether the "set aside" language means that courts must enter universal injunctions against unlawful regulations. Some suggest that "set aside" contemplates wholesale invalidation of regulations. Others take the position that the scope of the "set aside" remedy is more limited. In United States v. Texas, which is before the Supreme Court this term, the Court is set to decide whether the "set aside" language requires universal vacatur of regulations. In advance of the Court's ruling, this teleforum panel discussed discuss this difficult question.

Featuring:
--Hon. Beth A. Williams, Member, United States Privacy & Civil Liberties Oversight Board, Professorial Lecturer in Law at the George Washington University Law School, and former Assistant Attorney General for the Office of Legal Policy, United States Department of Justice
--Prof. John Harrison, James Madison Distinguished Professor of Law and Thomas F. Bergin Teaching Professor at the University of Virginia School of Law
--Prof. Ron Levin, William R. Orthwein Distinguished Professor of Law at the Washington University in St. Louis School of Law
--[Moderator] Judge Steven J. Menashi, U.S. Court of Appeals for the Second Circuit

In 2021, LTL Management LLC (LTL), a newly created and separate subsidiary of Johnson & Johnson that was established to hold and manage claims in the cosmetic talc litigation, filed for voluntary Chapter 11 bankruptcy protection. The goal was to resolve all current and future claims fairly and efficiently. Opposition filed a motion to dismiss the case arguing it does not serve a valid restructuring purpose and suggesting J&J filed it in bad faith.

In February 2022, Chief Judge of the United States Bankruptcy Court for the District of New Jersey Michael Kaplan ruled in favor of LTL, holding that LTL’s filing for Chapter 11 protection was “unquestionably a proper purpose under the Bankruptcy Code.” Upon an expedited appeal, a three-judge panel of the Third Circuit reversed Chief Judge Kaplan and narrowly held in favor of claimants. The case is now under appeal for en banc review by the Third Circuit. Given the enormous national significance of the issue for corporate liability and civil justice, this case may advance to the Supreme Court for further adjudication.

In this recorded webinar a panel of bankruptcy law experts discuss the Third Circuit ruling, its impact, significance, and the path forward, including how to assess both the split between Chief Judge Kaplan and the Third Circuit. The panel discusses the purpose of Chapter 11 in preserving economic and social value and discuss the Third Circuit’s ruling in light of other Circuits that are reviewing similar legal questions. The panel will review core questions that the Third Circuit left unanswered and share their expert perspectives on the ruling’s precedent and what it may mean for mass tort litigation going forward.

Featuring:
--Professor Tony Casey, Deputy Dean, Donald M. Ephraim Professor of Law and Economics & Faculty Director, The Center on Law and Finance, University of Chicago Law School
--Professor Lindsey Simon, Robert Cotten Alston Associate Chair in Corporate Law, University of Georgia School of Law

In December 2022, Congress passed and President Biden signed the Respect for Marriage Act (RFMA). The bill (1) repeals section 2 of the Defense of Marriage Act, which permitted states to deny recognition of same-sex marriages created in other states; (2) forbids those acting “under of state law” to withhold recognition of marriages created in other states on the basis of sex, race, ethnicity, or national origin; (3) creates mechanisms to enforce that prohibition; and (4) requires the federal government to recognize marriages validly created in one or more states. The RFMA also includes provisions relating to religious liberty.

Supporters of the bill claimed that portions of the Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization raised the specter of the Court overturning Obergefell v. Hodges (which established a constitutional right to same-sex marriage). They argued that the bill would be needed in the event the Court ever overturned Obergefell. Debate centered on (1) whether legislation to protect same-sex marriage was necessary; (2) the extent to which it would threaten the religious liberty of those who believe that marriage is between one man and one woman and (3) the efficacy of the religious liberty provisions in the bill.

Now in the wake of the RFMA passing, those discussions continue. To what degree does the RFMA affect or possibly impinge on religious liberty? Has anything really changed, or is this simply the codification of the status quo? Is this a statute ripe for abuse that threatens the exercise of religious liberty, or are the warnings issued concerning it perhaps overblown?

Our panel of experts discussed these questions and others in this panel analyzing the Respect for Marriage Act, what it is, and what it means for religious liberty.

Featuring:
--Carl H. Esbeck, R.B. Price Professor Emeritus of Law / Isabelle Wade & Paul C. Lyda Professor Emeritus of Law, University of Missouri School of Law
--Gregory S. Baylor, Senior Counsel & Director of the Center for Religious Schools, Alliance Defending Freedom
--[Moderator] Matt Clark, President, Alabama Center for Law and Liberty

The Office of Federal Contract Compliance Programs (OFCCP) reports to the Secretary of Labor and is tasked with overseeing federal contractors and subcontractors ensuring they adhere to nondiscrimination laws and regulations.

OFCCP’s priorities and budget tend to vary greatly between presidential administrations. The Biden Administration has announced a number of reforms since 2020 including a focus on parental leave policies, intersectional discrimination, affirmative action, and more.

How have these reforms fared? And what does the future hold? Craig Leen, OFCCP Director under President Trump, and Shirley Wilcher, OFCCP Deputy Assistant Secretary under President Clinton, will join us to discuss these questions and more.

Featuring:

Craig E. Leen, Partner, K&L Gates and Former Director, OFCCP, U.S. Department of Labor

Shirley J. Wilcher, Executive Director, American Association for Access Equity and Diversity (AAAED) and Former Deputy Assistant Secretary, OFCCP, U.S. Department of Labor

[Moderator] Robert J. Gaglione, Arbitrator, American Arbitration Association and Former Deputy Director, OFCCP, U.S. Department of Labor