FedSoc Forums

Who decides the rules for federal elections? The Constitution generally assigns that power to the “Legislature” of each state, but state courts are playing an increasing role. Recent elections have witnessed an increase in decisions applying broad provisions of state constitutions to override election laws and congressional maps adopted by legislators.
That is what happened in Moore v. Harper, which the Supreme Court will hear in its upcoming term. Recently 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. Their Exhibit A: the Trump campaign’s failed strategy to convince state legislatures to overrule voters in the 2020 presidential election.
This webinar will provide an overview of the legal debate, background on the Moore case, and discussion of the key issues and controversies that the Court will confront.
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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The EEOC is denying employers’ FOIA requests for the EEOC’s charge investigation files when resulting employment claims are proceeding in arbitration rather than litigation. Our panel will discuss whether the EEOC’s justifications for denying such FOIA requests are consistent with FOIA and other governing federal statutes. We will consider a number of related issues. What is the EEOC’s basis for treating litigation and arbitration differently in responding to employers’ FOIA requests? How long has the EEOC been making this distinction between litigation and arbitration? In light of the increasing prevalence of employment arbitration, should employers challenge the EEOC’s FOIA practices and, if so, how?

Featuring:

--Janet Dhillon, Commissioner, EEOC
--Eric Dreiband, Partner, Jones Day
--Moderator: Christopher C. Murray, Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart

Join us on July 27 to hear three experts give a response to our April 26th event on The America Invents Act and the role of Patent Trial and Appeal Board in resolving patent disputes.

Featuring:

--Prof. Thomas D. Grant, Senior Research Fellow (Wolfson College); Fellow (Lauterpacht Centre for International Law), Faculty of Law, University of Cambridge
--Prof. F. Scott Kieff, Fred C. Stevenson Research Professor of Law and Director, Planning and Publications, Center for Law, Economics, & Finance, George Washington University Law School
--Moderator: Hon. Paul Michel, U.S. Court of Appeals, Federal Circuit (ret.)

With billions of dollars allocated to broadband funding in the Infrastructure Investment and Jobs Act, the future of the FCC’s Universal Service Fund (USF) is a hotly debated topic. Now, with multiple lawsuits challenging the very legality of the USF contribution system, as well as new guidance from the Supreme Court on the limits of federal agencies’ power, the future of the Fund hangs in the balance. Join industry experts to discuss the issues raised in Consumers’ Research v. FCC and where the lawsuits stand in the aftermath of West Virginia v. EPA.

Featuring:

Robert Frieden, Emeritus Professor of Telecommunications and Law, Penn State University
Harold Furchtgott-Roth, Senior Fellow and Director, Center for the Economics of the Internet, Hudson Institute
Michael Romano, Sr. VP of Industry Affairs and Business Development, NTCA – The Rural Broadband Association
Moderator: Arielle Roth, Legislative Counsel, U.S. Senator Roy Blunt

The continuous stream of regulations and other guidance the Internal Revenue Service (IRS) must publish to inform the public how it is going to implement, administer, and enforce the frequent, numerous, and complicated changes to the tax laws, along with the high dollar stakes involved, create constant opportunities and incentives to challenge the IRS.

Some contend that the IRS’s ability to defend itself against these challenges seems to be vanishing as one after another the IRS has lost a string of recent challenges to its guidance. A recent blog post summarizes some of these defeats.

Our speakers will discuss them in more detail, along with what they might portend for how the Internal Revenue Service and the Treasury Department issue future guidance. Another direction to watch is at the other end of Pennsylvania Avenue: will Congress begin to do a better job drafting laws and providing instructions and guidance about how they are to be implemented, administered, and enforced?

Featuring:
--Kristin Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School
--Gilbert Rothenberg, Adjunct Professor of Law, American University's Washington College of Law and the University of Pennsylvania's Carey Law School
--Interlocutor: Robert Carney, Senior Counsel, Caplin & Drysdale; Adjunct Professor of Law, Georgetown Law
--Moderator: Eileen O'Connor, Founder, Law Office of Eileen J. O'Connor PLLC

What can the government do to counter "disinformation" or other statements that it believes to be false? The Supreme Court famously protected some false defamatory statements in New York Times Co. v. Sullivan and extended that holding, in United States v. Alvarez, that the First Amendment prevented the government from punishing a speaker from falsely claiming to have won military honors. Yet other false statements, such as fraud and perjury, may be punished, and recently the question of the government's power to limit false speech has assumed more prominence.

In response to the Capitol attack of January 6, 2021 and President Trump's claims that the 2020 election was stolen, the governor of Washington State proposed a law punishing false speech that was likely to lead to violence. Elsewhere controversies surrounding the truth of COVID-related information have arisen and the Biden Administration's Department of Homeland Security had planned to create a board to counter disinformation. Amid free-speech outcries, the proposal was set aside, but the Administration remains focused on combating disinformation. This program will feature panelists with contrasting views of the government's authority in this field and whether efforts to limit false speech represent a threat to First Amendment values.

Featuring:

--Harmeet K. Dhillon, Founding Partner, Dhillon Law Group Inc.
--Catherine Ross, Lyle T. Alverson Professor of Law, The George Washington University Law School
--Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
--Moderator: Hon. Donald Palmer, Commissioner, U.S. Election Assistance Commission

Please join the Federalist Society's Practice Groups for a virtual event on Dobbs v. Jackson Women's Health Organization. On June 24, 2022, the US Supreme Court decided this case in a 6-3 decision. The Court reversed and remanded the decision of the US Court of Appeals for the Fifth Circuit, holding that the Constitution does not confer a right to abortion; that Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey are overruled; and that the authority to regulate abortion is returned to the people and their elected representatives.

Justice Alito delivered the opinion of the Court. Justices Thomas and Kavanaugh filed concurring opinions. Chief Justice Roberts filed an opinion concurring in the judgment. Justices Breyer, Sotomayor, and Kagan filed a dissenting opinion.

Please join our team of legal experts to discuss the significance of this case.

Featuring:

--Prof. Daniel Farber, Sho Shato Professor of Law, University of California - Berkeley; former law clerk, Justice John Paul Stevens
--Carrie Severino, President, Judicial Crisis Network; former law clerk, Justice Clarence Thomas
--Moderator: Hon. Thomas B. Griffith, former Circuit Judge, U.S. Court of Appeals, D.C. Circuit
--Host: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society

It is growing practice within the business community to engage in diversity initiatives in hiring, promotion, and outside contracting. A network of interrelated state and federal laws and regulations including Title VII of the Civil Rights Act of 1964 and enforced by the EEOC outlaw discrimination on the basis of race, sex, religion, and national origin. But it may not be clear what the law permits when it comes to discrimination on the basis of race.
Should preferences for race or sex be unlawful in the context of hiring, promotions, professional opportunities or contracting?
How should diversity and inclusion officers navigate legal precedent in this area? Is diversity training helpful in the existing legal environment? Does functionally eliminating diversity training via government action benefit the public or create new pitfalls?
Featuring:
Theodore M. Shaw, Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights, Uniersity of North Carolina School of Law
Jonathan Berry, Partner, Boyden Gray & Associates
Moderator: Hon. Paul B. Matey, Judge, United States Court of Appeals for the Third Circuit
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The Biden administration has pledged to meet what it calls “the accelerating threat of climate change” with a wide-ranging campaign to discourage the production and use of fossil fuels in order to control the emission of carbon dioxide and other greenhouse gases said to be the principal cause of global warming. The White House has directed regulatory agencies and departments across the executive branch to “tackle the climate crisis.” The administration has set a goal to eliminate carbon dioxide emissions from the electric power sector by 2035.

The Federal Energy Regulatory Commission, or FERC, is an independent regulatory agency whose enabling statutes include the Federal Power Act and the Natural Gas Act. FERC’s statutory responsibilities include regulation of the transmission and wholesale sale of electricity in interstate commerce, and authorization of proposals for the construction and operation of interstate natural gas pipelines and storage facilities.

Doing its part to tackle the climate crisis, FERC has proposed a new policy that will greatly expand the scope of the climate-related environmental impact analysis required for proposed natural gas projects. Traditionally, such analysis has been limited to an evaluation of the emissions that would result directly from the construction and operation of the proposed project. Going forward, FERC is proposing that such analysis will also evaluate the emissions that would result indirectly from the upstream production and downstream use of the natural gas to be handled by the proposed project.

In other policy statements having to do with the electric sector, FERC has announced that it will consider proposals from entities it regulates to add into wholesale electricity prices any charges that are levied by state regulators on greenhouse gases emitted by the power plants producing the electricity.

Does FERC have the legal authority to implement these new climate-related policies and, by doing that, dramatically expand the scope of its regulatory activities? Join us for a probing, wide-ranging discussion of the statutes and case law that provide the answer to this vitally important question.

Featuring:
--Bernard L. McNamee, Partner, McGuireWoods LLP; Former Commissioner, Federal Energy Regulatory Commission
--J. Kennerly Davis, Senior Attorney, Former Deputy Attorney General for Virginia

Join us for a discussion between David A. Carrillo, Christina Sandefur, and Robert F. Williams moderated by Braden Boucek on Thursday, June 23 at 4:00 PM ET / 1:00 PM PT.
The panelists will address the different purposes and rights guarantees within state constitutions and the federal constitution. What are the federalism implications of an increased focus on state constitutional rights, if that's really the trend? What does the map of states look like if some federal liberties roll back, and does the distribution depend on which rights roll back or expand. These topics and more will be explored by this excellent panel of knowledgeable state constitutional law experts.
Featuring:

David A. Carrillo, Lecturer in Residence and Executive Director, California Constitution Center, University of California, Berkeley, School of Law
Christina Sandefur, Executive Vice President, Goldwater Institute
Robert F. Williams, Distinguished Professor of Law and Director, Center for State Constitutional Studies, Rutgers University of School of Law
[Moderator] Braden Boucek, Director of Litigation, Southeastern Legal Foundation

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