FedSoc Forums

During President Biden’s first year in office, Attorney General Merrick Garland rescinded two key memos that were part of the Trump Administration’s stated regulatory reform agenda: the Sessions Memo, which prohibited Department of Justice (DOJ) components from issuing “guidance documents” that effectively bound the public without undergoing notice-and-comment rulemaking, and the Brand Memo, which prohibited the Department from using noncompliance with DOJ's or other agencies' nonbinding guidance documents as a basis for affirmative civil enforcement actions. Calling the procedures laid out in the Sessions and Brand memos “overly restrictive,” Attorney General Garland replaced these memos with the Garland memo, which largely makes it easier for the Department to issue guidance and to rely on its own or other agencies' guidance documents in enforcement actions.

What will be the impacts and effects of the Garland memo? Is this a sea change in favor of regulation by guidance, or a recognition by DOJ that guidance documents do not have the force of law? How have regulated entities responded? Acting Associate Attorney General (2017-2019) Jesse Panuccio and Assistant U.S. Attorney (2011-2019) Christopher Sabis will discuss these issues, moderated by Assistant Attorney General (2017-2020) Beth Williams.

Featuring:
--Jesse Panuccio, Partner, Boies Schiller Flexner LLP
--Christopher Sabis, Member, Sherrard Roe Voigt Harbison
--Moderator: Hon. Beth A. Williams, Board Member, U.S. Privacy and Civil Liberties Oversight Board; Former Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice

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Join us virtually on Tuesday, March 1 to hear our speakers discuss the Supreme Court nomination.
Featuring:
--Edward Whelan, Distinguished Senior Fellow and Antonin Scalia Chair in Constitutional Studies, Ethics and Public Policy Center
--Moderator: Steven A. Engel, Partner, Dechert LLP, former Assistant Attorney General, Office of Legal Counsel, U.S. Department of Justice

Last year, Thomas Jefferson High School (TJ), ranked #1 in the nation for academic excellence, changed its admission policy discarding a merit-based entrance exam in favor of a “holistic evaluation” to determine admission. The school stated the change was made in the name of making the student body more demographically representative. Many concerned parents disagreed, contending that the modification was intended to change the racial makeup of the student body—specifically to exclude some Asian Americans in favor of more whites, blacks, and other racial groups.
Litigation followed. The Coalition for TJ—comprised of approximately 5,000 concerned parents, residents of Fairfax County, and parents of eighth-graders who would be impacted by the admission policy change—sued the Fairfax County School Board and Superintendent Scott Brabrand alleging that the new policy was adopted with racially discriminatory intent in violation of the Equal Protection Clause of the Fourteenth Amendment.
Last Friday, February 25, a District Court granted summary judgment for the Coalition for TJ. In light of the Supreme Court’s recent cert grant in the pair of Students for Fair Admission's cases—Students for Fair Admission v. Harvard and Students for Fair Admission v. UNC Chapel Hill—the Thomas Jefferson litigation is rapidly gaining national attention.
Nicki Neily, President of Parents Defending Education, joined us for a litigation update on the summary judgment decision and its implications.
Featuring:
Nicki Neily, President of Parents Defending Education
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On February 28, 2022, the U.S. Supreme Court will hear West Virginia v. EPA, one of the most anticipated environmental law cases on the Court’s docket in recent years. By way of background, in 2015, EPA issued the “Clean Power Plan.” Using the Agency’s authority under Clean Air Act Section 111(d), and styled as a rule to control greenhouse gas emissions from existing coal- and gas-fired power plants, the Clean Power Plan would have required states to shift their electric generation mix away from fossil fuels towards renewables, employing a “cap and trade” credit scheme.
The Supreme Court stayed the Clean Power Plan in 2016, and in 2019 the Trump Administration rescinded it and replaced it with the Affordable Clean Energy rule, concluding that the Clean Power Plan’s design was unambiguously beyond the limits of the Agency’s authority under Section 111. In 2021, and over a dissent from Judge Walker, the D.C. Circuit disagreed. And in American Lung Association v. EPA (985 F.3d 914), the D.C. Circuit vacated the Clean Power Plan repeal and Affordable Clean Energy rule, staying the vacatur indefinitely pending further rulemaking because EPA, under the current administration, has declared it will not enforce either rule.
The issue before the Court in West Virginia v. EPA is whether, when designing rules under Section 111, EPA is limited to identifying “systems of emission reduction” that can be applied to and at the level of an individually regulated facility, or whether there are no limits to EPA’s authority other than the textual commands to consider cost, nonair quality health and environmental impacts, and energy requirements. Federal respondents argue the case is moot and should be dismissed as improvidently granted.
This teleforum will discuss the legal issues involved, questions from the bench, and anticipate where the law could be headed. A broader discussion on West Virginia v. EPA, with additional speakers and analysis, will be provided after the Court renders its decision.
For accompanying document, click here
Featuring:
Speaker: Justin Schwab, Founder, CGCN Law; former Deputy General Counsel, EPA.
Moderator: Garrett Kral, Associate Member of the Environmental Law & Property Rights Practice Group’s Executive Committee; former Special Advisor for Oversight, EPA.

Join us virtually to hear a discussion on the Supreme Court's recent decision in Unicolors, Inc v. H&M Hennes & Mauritz, LP.
Featuring:
Zvi Rosen, Assistant Professor at SIU Law, and was a Visiting Scholar and Professorial Lecturer in Law at George Washington University School of Law. He has previously taught at University of New Hampshire School of Law as an adjunct professor and New York Law School as an adjunct assistant professor.

Is open discussion and debate essential to the function of the university?
Many universities, including Georgetown, have adopted strong policies on academic freedom, affirming that deliberation or debate may not be suppressed because ideas put forth might be offensive, unwise, immoral or ill conceived.
But when controversy arises on campus, concrete complaints about offensive speech can displace these abstract principles of academic freedom.
What does an environment conducive to learning require? What kinds of limits should govern the ideas that students are exposed to by their teachers and classmates? Should students be exposed to ideas or opinions that are offensive? Should students have recourse to administrative action when faced with an offensive opinion? What kind of harm does offense entail?
On the other hand, when administrators step in to punish offending speech, does that decision come with consequences? And who bears the resulting harm attendant on limiting who can speak or what opinions can be expressed? Who measures what kind of opinions or statements are harmful or not?

Featuring:
Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
Prof. Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law
Moderator: Hon. Stephanos Bibas, Judge, United States Court of Appeals for the Third Circuit
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On February 7, 2022, the Supreme Court noted probable jurisdiction and granted certiorari before judgment in a case involving Alabama's new congressional district map. It also granted a stay allowing the map to go into effect for Alabama's upcoming primary elections. The Alabama State Conference of the NAACP and others had challenged the map adopted by the Alabama State legislature before a three-judge federal district court panel. They argued that the state's redistricting plan dilutes minority votes in violation of Section 2 of the Voting Rights Act. The district court, agreeing with the plaintiffs, enjoined Alabama from implementing the legislature's map and gave the state legislature 14 days to implement a remedial redistricting plan that "include[s] two districts in which Black voters either comprise a voting-age majority or something quite close to it"--or the court would itself retain an expert to draw, on an expedited basis, a congressional map compliant with federal law for purposes of the 2022 congressional elections.
By a 5-4 vote, the Supreme Court stayed that order.
Many commentators have weighed in, some critiquing the Court's order, others dissecting the vote breakdown and still others considering possible implications. Professor Michael T. Morley of FSU College of Law joins us for a litigation update to discuss the issues.
Featuring:
Professor Michael T. Morley, Assistant Professor of Law, Florida State University College of Law

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An exciting petition for certiorari pending before the U.S. Supreme Court, United States v. Tuggle presents the question "Whether long-term, continuous, and surreptitious video surveillance of a home and its curtilage constitutes a search under the Fourth Amendment." The central question deals with the meaning of the word "search." Under Katz v. U.S., the reasonable expectation of privacy test defines a "search." Many argue Katz is incorrect. Instead, the Court should interpret search to have its ordinary public meaning--a purposeful, investigative act. Please join our speakers in a discussion about United States v. Tuggle, the Fourth Amendment, textualism, the meaning of the word "search," and importantly, whether the Court should grant cert in this case.

Featuring:

Professor Orin Kerr, William G. Simon Professor of Law at UC Berkeley School of Law
Josh Windham, attorney at the Institute for Justice
Moderator: Adam Griffin, Law Clerk, U.S. District Courts; former Constitutional Law Fellow, Institute for Justice

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. Issues presented in the next sitting include the regulatory authority of the Environmental Protection Agency, the Controlled Substances Act, states rights, and Indian law.

Ysleta del Sur Pueblo v. Texas (Feb. 22) Indian tribes and state law
Denezpi v. United States (Feb. 22) Indian law
Arizona v. San Francisco (Feb. 23) states’ rights
West Virginia v. EPA (Feb. 28) regulatory authority of the EPA under the Clean Air Act
North American Coal Corp. v. EPA (Feb. 28) regulatory authority of the EPA
Westmoreland Mining Holdings LLC v. EPA (Feb. 28) regulatory authority of the EPA
North Dakota v. EPA (Feb. 28) regulatory authority under the EPA
Ruan v. United States (March 1) defenses under the Controlled Substances Act
Kahn v. United States (March 1) defenses under the Controlled Substances Act
Marietta Memorial Hospital v. Davita Inc. (March 1) – Medicare Secondary Payer Act
Egbert v. Boule (March 2) – Bivens, Fourth Amendment

Featuring:

Anthony J. "A.J." Ferate, Of Counsel, Spencer Fane LLP
Elizabeth Murrill, Solicitor General, Louisiana
Robert V. Percival, Robert F. Stanton Professor of Law, University of Maryland Carey School of Law
Kenji Price, Partner, McDermott Will & Emery
Jeff Beelaert, Partner, Stein Mitchell Beato & Missner LLP
Moderator, Adam Liptak, Supreme Court Correspondent, The New York Times

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This event has concluded. Watch above or on our YouTube page.

The Foreign Sovereign Immunities Act and its lesser-known sibling, the International Organizations Immunities Act, enacted in 1945, codify the immunities afforded to foreign states and certain international organizations in U.S. courts. Sovereign and international organization immunity stand at the nexus of international affairs, policy, and the law. This program will concentrate on developments in this dynamic area of the law, particularly in light of the recent Supreme Court case, JAM v. IFC. The panel features prominent legal practitioners who have litigated these issues and served as directors of international organizations.

Featuring:
--Rick Herz, Senior Litigation Attorney, EarthRights International
--Eliot Pedrosa, Partner, Jones Day
--Moderator: Harout Samra, Counsel, DLA Piper