FedSoc Forums

The Biden administration has made aggressive antitrust enforcement a priority, and appointed Jonathan Kanter to be the nation’s chief antitrust law enforcer as the Assistant Attorney General in charge of the Antitrust Division of the U.S. Department of Justice. Though Kanter’s background is in big law, he is a leading advocate of the neo-Brandeisian school of antitrust that seeks to expand the scope and importance of antitrust. His aggressive agenda has yet to be fully revealed; however, the courts do not appear sympathetic and have handed the Division a series of defeats in recently-litigated merger challenges.

At this luncheon event, Rick Rule, the head of the Antitrust Division under President Reagan (and a former partner of Kanter), probed Kanter on what he is hoping to achieve during his tenure and how he is going to deal with the skepticism of the courts.

Featuring:
- Hon. Jonathan S. Kanter, Assistant Attorney General for the Antitrust Division, U.S. Department of Justice
- Moderator: Hon. Charles "Rick" Rule, Partner, Rule Garza Howley LLP

Professors Randy Barnett and Josh Blackman will discuss the most important Supreme Court cases of all time, as featured in their new book, An Introduction to Constitutional Law: 100+ Supreme Court Cases Everyone Should Know. Plus, they will debut a new video series, including previews of Dobbs and Bruen.
Featuring:
Prof. Randy Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center
Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston
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To register, please click the link above.

In early December, Prof. Eugene Volokh, Rumble Canada, and Locals Technology filed a complaint in federal court against New York Attorney General Letitia James, seeking to stop a new New York state law from taking effect. The suit challenges a recently enacted section of New York’s General Business Law, “Social media networks; hateful conduct prohibited.”
The new law originated, in part, as a response to a 2022 mass shooting in Buffalo that left 10 dead as the result of what is alleged to be a racially motivated crime. The law aims to restrict "hateful" speech on social media platforms and requires social media networks to “provide and maintain a clear and easily accessible mechanism for individual users to report incidents of hateful conduct.” Additionally, the networks must establish and publish a policy outlining how they will “respond [sic] and address the reports of incidents of hateful conduct on their platform.”
The State of New York has asserted that hate speech moderation of this sort can be a useful tool in preventing hate crimes. Plaintiffs are represented by the Foundation for Individual Rights and Expression (FIRE) and argue that the law violates the First Amendment and forces social media networks to police their users. They further submit that enforcement of the law requires a subjective determination of what constitutes “hateful conduct,” thereby instituting viewpoint discrimination and chilling constitutionally protected speech.
Please join us for this Litigation Update from Prof. Eugene Volokh.
Featuring:
Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law; Founder, The Volokh Conspiracy
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To register, click the link above.

The Supreme Court has articulated that parents have the unenumerated right rooted in the Fourteenth Amendment to direct the care, custody, and upbringing of their children since the 1920s in such cases as Pierce v. Society of Sisters, Meyer v. Nebraska, Parham v. J.R. and Troxel v. Granville. However, the precise contours of the right have long been uncertain, as has the level of scrutiny to be applied.

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court established a clear threshold for unenumerated rights, that they must be rooted in history and tradition and essential to ordered liberty. The Court noted that its decision does not call into question its line of cases on parental rights. Nevertheless, the question remains: do parental rights meet the Court’s threshold? Are there reasons to believe that parental rights will be affected by the Dobbs decision?

The Dobbs decision comes as a new series of conflicts between parents and the state are arising in education and healthcare around the country. Many of these conflicts over ideas about gender and race. These new conflicts implicate parental rights and are raising questions for courts such as:

1. Who has the primary responsibility for the formation of a child’s identity and values?
2. Do parental rights extend beyond the schoolhouse gate to include instruction and policies in schools?
3. And who gets to decide the treatment of a child’s mental health, including gender distress?

These questions and more have been raised in a series of recent lawsuits against school districts over policies concerning race and gender-based curriculum and policies where challengers have invoked parental rights theories. How do those arguments square with existing doctrine? How might they extend existing doctrine?

Featuring:
--Professor James Dwyer, Arthur B. Hanson Professor of Law at William and Mary Law School
--Ryan Bangert, Senior Vice President, Strategic Initiatives and Special Counsel to the President, Alliance Defending Freedom
--[Moderator] Professor Richard W. Garnett, Paul J. Schierl/Fort Howard Corporation Professor of Law and Director, Program on Church, State & Society, University of Notre Dame Law School

The Department of Labor recently closed its open comment period for its proposed rulemaking regarding Employee or Independent Contractor Classification under the Fair Labor Standards Act. As such, this webinar explores what the proposed rule seeks to do, and how the affected stakeholder community has responded. In addition, the proposed rule comes out of litigation and may in fact create additional litigation in 2023. In addition, the speakers highlight other actions that impact independent workers including the NLRB's pending decision in Atlanta Opera as well as the DOL joint employer rulemaking. On this teleforum we will hear from Maury Baskin (Littler-Mendelson) who led a winning effort against the DOL in Coalition for Workforce Innovation (CWI) v. Secretary Walsh as well as the Chair of CWI, Evan Armstrong.

Featuring:
--Evan Armstrong, Vice President, Government Affairs, Retail Industry Leaders Association
--Maury Baskin, Shareholder, Littler Mendelson P.C.

On December 7, 2022, the U.S. Supreme Court will hear oral argument in Moore v. Harper.
Following the most recent census, North Carolina gained a House seat, and its legislature adopted a new district map. The state’s supreme court deemed that map a partisan gerrymander and substituted in its place the court’s own map. That result, it concluded, was required by four separate parts of the state constitution, including clauses protecting the “freedom of speech” and guaranteeing “free” elections. Although the Supreme Court denied an emergency request to block that ruling for the 2022 election, it agreed to take the case to answer the broader question of state-court authority over the laws governing federal elections.
Supporters of legislature primacy—often called the “independent state legislature” doctrine—say that a decision enforcing the doctrine will cut back on election-litigation gamesmanship, end the disruption of last-minute rule changes, and put primary responsibility back in the hands of democratically accountable legislators. Opponents, however, say that a decision for the state would threaten voting rights and democracy itself.
We will break down the oral argument for this case on the same day, December 7, 2022.
Featuring:
Andrew M. Grossman, partner at Baker & Hostetler LLP, co-leader of the firm’s Appellate and Major Motions practice, and Adjunct Scholar at the Cato Institute
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To register, click the link above

The Senate Select Committee on Intelligence released a detailed report in September 2022 on the state of the U.S. Counterintelligence (CI) mission. Among other things, the report noted that the National Counterintelligence and Security Center (NCSC), the nation's head agency for CI, does not have a clear mission and is limited in its authorities. The Committee further warned that NCSC's work is being hampered by bureaucracy and funding issues. The report also noted that foreign intelligence entities pose a more harmful threat to U.S. interests now than they have at any point in the past. We will discuss the report, its fallout, and the potential solutions to the problem with the former Director of NCSC, The Honorable William Evanina.
Featuring:
Jamil Jaffer, Adjunct Professor, NSI Founder, and Director, National Security Law & Policy Program, Antonin Scalia Law School, George Mason University
William Evanina, CEO, The Evanina Group; Former Director of the National Counterintelligence and Security Center

On December 5,2022, the U.S. Supreme Court will hear oral argument in 303 Creative LLC v. Elenis. Petitioner Lorie Smith, an artist in Colorado and owner/founder of the graphic design firm 303 Creative LLC. is challenging Colorado’s Anti-Discrimination Act (CADA) on the grounds it is unconstitutional, arguing, among other things, it violates her right to free speech.
Ms. Smith was looking to expand her business to include designing websites for weddings but would only design for weddings that were in line with her religious convictions, which meant she would not design websites for same-sex weddings. Further, in expanding her business, she wanted to post a message to her own professional website to communicate what wedding websites she would do, and explain her religious objections to same-sex weddings.
Because 303 Creative LLC. is a business open to the public, however, it falls under CADA, which prohibits any business from discriminating against possible patrons based on a list of characteristics, one of which is sexual identity. Further, CADA defines discrimination not only as the refusal to provide goods or services but also as the promulgation of messaging that says or implies that a potential patron’s business would be unwelcome based on them possessing a protected trait. Under CADA, both the refusal to create webpages for same sex weddings and the promulgation of a message that Ms. Smith would not create such webpages, even if she is never asked so to do, would be illegal.
Before any action was taken against her under CADA, Ms. Smith and 303 Creative LLC. challenged CADA in federal court, alleging its unconstitutionality. The district court granted summary judgement in favor of Colorado, and upon appeal, the Tenth Circuit affirmed that decision.
Our panel of experts will break down and analyze how the Supreme Court oral argument went the same day.

Featuring:

Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity
Prof. Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law
[Moderator] Prof. Michael Dimino, Professor of Law, Widener University Commonwealth Law School

In 2018, the North Carolina General Assembly placed several constitutional amendments before voters for ratification. Voters approved the amendments, which included amendments related to voter ID and a cap on the state income tax. But in August 2022, a sharply divided Supreme Court of North Carolina held that these amendments may be invalid. The majority's opinion focused on a federal court decision issued before the amendments were placed on the ballot which declared several of the state legislative districts to be the result of an unconstitutional racial gerrymander. It concluded that the General Assembly may have lost the ability to propose constitutional amendments given the fact that many of its members were elected from unconstitutionally gerrymandered legislative districts.
Our panel of experts discussed this case and considered its implications for North Carolina and states across the country.

Featuring:
--Jeanette Doran, President and General Counsel, North Carolina Institute for Constitutional Law
--Rick Glazier, Executive Director, North Carolina Justice Center
--Prof. Derek T. Muller, Ben V. Willie Professor in Excellence, University of Iowa College of Law
--Moderator: Hon. Robert T. Numbers, II, U.S. Magistrate Judge, Eastern District of North Carolina

On November 28, 2022, the U.S. Supreme Court is set to hear oral argument in Percoco v. United States.
Justice Scalia once commented “[t]hough it consists of only 28 words, the [honest services] statute has been invoked to impose criminal penalties upon a staggeringly broad swath of behavior.”
In this case, which has potentially broad implications for the continued criminalization of politics and lobbying, the Court is asked to decide if a private citizen who holds no elective office or government employment owes a fiduciary duty to the general public sufficient to be convicted of honest-services fraud if they have informal “influence” over government decisions.
Joseph Percoco was a longtime friend of New York Governor Andrew Cuomo and served as Governor Cuomo’s Executive Deputy Secretary until he decided to leave government service to manager Governor Cuomo’s reelection campaign. While he was working on Governor Cuomo’s campaign, he was paid by a New York businessman to reach out to a state agency to resolve a labor issue. According to the trial court and the Court of Appeals for the Second Circuit, this effort deprived the citizens of New York of Mr. Percoco’s honest services.
According to both courts, the fact that Mr. Percoco was not a state employee was not dispositive -- what mattered was that Mr. Percoco “dominated and controlled” government business and that government officials “actually relied on” Percoco based on some “special relationship” between Mr. Percoco and the government.
If upheld, the Second Circuit’s test has the potential to greatly expand the application of federal honest services charges to people engaged in politics and lobbying.
This talk, featuring Mr. Gary Lawkowski, who is counsel of record for an amicus brief submitted on behalf of Citizens United, Citizens United Foundation, and the Presidential Coalition in Percoco v. United States, will break down the issues in this case and provide instant analysis on the oral argument heard by the Court.
Featuring:

Mr. Gary M. Lawkowski, Counsel at Dhillon Law Group and Senior Fellow with the Institute for Free Speech.