FedSoc Forums

Following the prominent events of early 2020, as part of what’s often referred to as a national, racial reckoning, countless institutions altered their policies. Large publicly traded corporations (including Coca-Cola Company, Novartis AG, McDonald’s Corporation, Starbucks Coffee Company, Lowe’s Companies, Inc., NASDAQ, Inc., and much of the financial services industry) rolled out new policies — under banners invoking diversity, equity, and inclusion — concerning matters ranging from their selection of vendors, to hiring and promotions, to election of future directors to (in NASDAQ’s case) willingness to list customers at all. Those policies have raised concern among some over their potential violation of civil rights law (both state and federal), including Dan Morenoff, the Executive Director of the American Civil Rights Project. Do officers and directors of publicly traded companies advancing these policies run afoul of existing corporate law, with possible personal liability for breaches of fiduciary duty and for their use of corporate resources pursuing ultra vires actions?

Citing the related concerns of shareholders, the ACR Project demanded the public retraction of such policies by Coke last year — Coke acceded in all but name in March, declaring that the policies at issue “have not been and are not policy of the company[.]” The ACR Project has since made demands on behalf of shareholders to the officers and directo


rs of Lowe’s, Novartis, McDonald’s, and Starbucks. America First Legal appears to have taken a related tack this week in publicly demanding on behalf of shareholders that the Walt Disney Company’s officers and directors launch investigations into alleged violations of employee's civil rights.

Featuring:

Dan Morenoff, Executive Director, American Civil Rights Project
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A federal statute allows citizens to sue state and local officers for violating constitutional rights, but there is no federal law that does the same for federal officers. In 1971, in a case called Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court held that a cause of action for damages against federal officers could be inferred from constitutional provisions. But in the 50 years since, the Court has struggled to explain how, or even if, a Bivens cause of action applies in different cases.
In 2014, Erik Egbert, a Customs and Border Patrol Agent, went to the Smugglers Inn, which sits at the U.S.-Canada border, and approached a car carrying a guest from Turkey. The inn’s owner, Robert Boule, asked Egbert to leave. Egbert refused to do so and pushed Boule to the ground. After Boule complained to Egbert’s supervisors, Egbert suggested to the IRS that it investigate Boule. In Egbert v. Boule, argued on March 2, the Court continued to grapple with Bivens questions, including whether Bivens applies to First Amendment retaliation and whether federal officers engaged in immigration-related functions are subject to Bivens suits for violations of Fourth Amendment rights.
Featuring:
Anya Bidwell, Attorney and Elfie Gallun Fellow in Freedom and the Constitution, Institute for Justice
Erin Hawley, Senior Legal Fellow, Independent Women's Law Center
Moderator: Hon. David Stras, Judge, United States Court of Appeals, 8th Circuit
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In 1905, the U.S. Supreme Court decided Jacobson v. Massachusetts, upholding a state's ability to enforce compulsory vaccination laws pursuant to its police powers and for the protection of its citizens. This precedent has recently come under scrutiny for its possible overbreadth. Two distinguished experts join us to discuss and debate the holding of the case, its merits, its relevance today, and ultimately, whether it should be limited or overruled.

Featuring:

--Prof. Josh Blackman, Professor of Law, South Texas College of Law Houston
--Prof. Sanford Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair and Professor of Government, University of Texas at Austin School of Law

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This Zoom event is open to public registration at the link above.

With the Supreme Court about to hear two cases involving the use of race in admissions at Harvard and the University of North Carolina, what do Americans actually think about preferential treatment? Dr. Althea Nagai, Senior Research Fellow at the Center for Equal Opportunity (CEO), will present her analysis of recent data from the Pew Research Center on what Americans believe colleges should consider when deciding whom to admit. Her study focuses on the attitudes of some of the beneficiaries of affirmative action, based on a large sample of black and Hispanic respondents as well as Asians and whites. Joining Dr. Nagai on the panel discussion will be Theodore Johnson, Director of the Fellows Program at the Brennan Center for Justice, and moderator Linda Chavez, CEO Chair.
Featuring:

Dr. Althea Nagai, Senior Research Fellow, Center for Equal Opportunity (CEO)
Theodore Johnson, Director, Fellows Program, Brennan Center for Justice
Moderator: Linda Chavez, Chairman, Center for Equal Opportunity (CEO)

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

Are state governors subject to the same separation of powers restrictions as the federal president?
Expanding on the recent Regulatory Transparency Project panel discussion on emergency executive power during the pandemic, this event will feature experts engaging in a broader separation of powers discussion about the distinctions between the federal and state separation of powers doctrines, using California as an example.
In a conversation moderated by Braden Boucek, David. A. Carrillo, Luke A. Wake, and John C. Yoo will explore those distinctions, examine how they affect the latitude and options state and federal executives have, and debate the extent to which federal separation of powers doctrines can or should be applied to the states through judicial interpretation.
Featuring:

David A. Carrillo, Lecturer in Residence and Executive Director, California Constitution Center, University of California, Berkeley, School of Law
Luke A. Wake, Attorney, Pacific Legal Foundation
John C. Yoo, Emanuel S. Heller Professor of Law; Co-Faculty Director, Korea Law Center; and Director, Public Law & Policy Program, University of California, Berkeley, School of Law
[Moderator] Braden Boucek, Director of Litigation, Southeastern Legal Foundation

Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

New York’s response to the Covid-19 pandemic has been widely criticized, triggered an FBI investigation, and repeatedly landed the state before the Supreme Court. The latest criticism comes coupled with litigation alleging that New York State’s Department of Health (NYHD) is illegally discriminating on the basis of race in administering antiviral medication for covid treatment.

On December 27, 2021, the NYHD issued guidelines for the administration of the antivirals paxlovid and molnupiravir. Citing the short supply of both treatments, the NYHD directed that the drugs could only be administered to patients with Covid who also had “a medical condition or other factors that increase their risk for covid.” While New York’s guidelines link to the CDC’s “People with Certain Medical Conditions” page to describe “risk factors for severe illness,” New York specifically added consideration of race as a factor for prescription.

The guidelines state: “Non-white race or Hispanic/Latino ethnicity should be considered a risk factor, as longstanding systemic health and social inequities have contributed to an increased risk of severe illness and death from Covid-19.”

As a result, in some cases identically situated "whites" and non-white are ineligible or eligible for certain treatments. Although the NYHD disputes the characterization of their guidelines as impermissibly racially discriminatory, many lawsuits have been filed challenging the guidelines as impermissible and illegal race discrimination. The first of those lawsuits was filed by Professor William Jacobson of Cornell who joins us to discuss the pending litigation in New York and in other states across the country.



Featuring:

--Prof. William Jacobson, Clinical Professor of Law and Director of the Securities Law Clinic, Cornell Law School; President, Legal Insurrection

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Internal tensions in the Supreme Court's standing doctrine have led to some unexpected fractures. Last term, in Transunion LLC v. Ramirez, the Court considered a class action arising from Transunion's errors in the processing and use of the plaintiffs' personal credit information. By a vote of 5-4, the Court held that, while Congress had created a cause of action that on its face let all of the class members sue, only those whose information was shared with third parties had sufficiently concrete injuries to establish standing. Justice Thomas joined the court's three more liberal justices in dissent, arguing that Congress's creation of a cause of action was sufficient and pointing out numerous inconsistencies in the Court's standing doctrine. Of particular note, Justice Thomas cited a provocative concurring opinion from the 11th Circuit's Judge Newsom, who argued that standing has no basis in the original meaning of Constitution and that courts should instead look at whether a congressionally created cause of action violates the Constitution's separation of powers. Judge Newsom's opinion, and both the majority and the dissent in Transunion, spent considerable time discussing how courts should approach citizen suits, which have always been on the outer edge of the Court's standing jurisprudence and which several justices have said raise other serious separation of powers concerns.

This webinar will have a lively discussion among three leading experts about what the future may hold for citizen suits, standing doctrine, and the separation of powers

Featuring:
--Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
--Prof. Robin Craig, Robert C. Packard Trustee Chair in Law, USC Gould School of Law
--Jonathan Brightbill, Partner, Winston & Strawn LLP and former Acting Assistant Attorney General for the Environment & Natural Resources Division of the U.S. Department of Justice
--Moderator: Michael Buschbacher, Counsel, Boyden Gray & Associates PLLC

On January 21, 2022, Arizona Governor Doug Ducey filed suit against Janet Yellen and the Treasury Department over its threat to withdraw federal funding if Governor Ducey did not alter school masking conditions. Ducey allocated over $160 million for schools but conditioned the money on those schools remaining open and not mandating masks.

Two attorneys on the ground in Arizona join us to discuss this case.

Featuring:
--Anni Foster, General Counsel, Governor Doug Ducey
--Moderator: Michael Bailey, General Counsel, Arizona Chamber of Commerce & Industry

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Although inflation has broadly scattered across the economy, it is the food we buy where inflation's bite is the most obvious. The Biden Administration has pointed the finger at industry consolidation as the culprit. It proposes a rewrite of the regulations implementing agricultural antitrust statutes as the remedy. Industry disagrees that consolidation is to blame and looks warily at the proposed regulations as harbingers of what is to come for antitrust policy more generally. What is to blame for $18/pound beef, and what if anything can be done to counteract the rapid price increases at the grocery store? How will businesses respond to the proposed regulatory changes? Sean Heather of the U.S. Chamber of Commerce; Mark Dopp, Chief Operating Officer and General Counsel of the North American Meat Institute; and Joe Maxwell, president of Farm Action and former Lieutenant Governor of Missouri will discuss the policy and legal options available. Judge Stephen Alexander Vaden of the U.S. Court of International Trade and former General Counsel of the U.S. Department of Agriculture will moderate the panel.

Featuring:

--Mark Dopp, General Counsel, the North American Meat Institute
--Sean Heather, U.S. Chamber of Commerce
--Joe Maxwell, President, Farm Action
--Moderator: Hon. Stephen Vaden, Judge, U.S. Court of International Trade

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This webinar will focus on spectrum policy in the 5G era and the recent increase in inter-agency spectrum turf wars. In recent years, there has been an uptick in the amount of involvement by other agencies, including the Department of Transportation, Department of Defense, Department of Energy, and the National Oceanic and Atmospheric Administration, to name a few, in FCC spectrum band proceedings. As spectrum demands continue to increase and the importance of sharing rises, some of this proceeding involvement has led to conflicts of interest, delays, and other challenges. The webinar will explore some of the most recent conflicts, such as C-band and 5.9 GHz band, the 6 GHz court challenge, as well as the potential long-term impacts of these battles on spectrum policy at the FCC and beyond.

Featuring:
--Prof. Adam Candeub, Professor of Law, Michigan State University
--Harold Feld, Senior Vice President, Public Knowledge
--Tricia Paoletta, Partner, Harris, Wiltshire & Grannis LLP
--Moderator: Danielle Thumann, Legal Advisor, Commissioner Brendan Carr

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This Zoom webinar is open to public registration at the link above.