FedSoc Forums

Rising homicide rates, challenges in fully staffing police departments, and a shortfall in trust between some communities and law enforcement agencies have focused attention on whether and how the federal government should respond. This session will examine the Biden administration’s record on policing during its first year in office and, most importantly, the path forward. In light of stalled congressional talks on policing legislation and constitutional limits on federal power in this traditionally local area, what can and should the administration do in areas such as pattern and practice investigations, use of force, certification and de-certification, training, and qualified immunity?

Featuring:
Andrew McCarthy, Senior Fellow, National Review Institute and Former U.S. Attorney
Renee Mitchell, Co-Founder, American Society of Evidence-Based Policing and Senior Police Researcher, RTI International
Marc Levin, Council on Criminal Justice, Moderator

The propriety of anti-suit injunctions—that is, orders issued in one jurisdiction prohibiting a party from initiating or continuing litigation in another jurisdiction—has recently become a hot topic in international IP disputes. Chinese courts involved in these disputes are a primary reason why: the Shenzhen People’s Court has recently blocked litigants from enforcing their patent rights in other countries, including the United States. During this panel, we will discuss the use of anti-suit injunctions in international IP litigation, including the panelists’ views on recent anti-suit injunction cases and the future viability of this very powerful tool.


Featuring:

--Steve Akerley, Head of Litigation, Interdigital
--Prof. Ann Bartow, University of New Hampshire Franklin Pierce School of Law
--Judge Paul Michel, U.S. Court of Appeals for the Federal Circuit (ret.)
--Moderator: Eliza Beeney, Associate, McKool Smith PC

The FDIC board of directors has been convulsed by the widely publicized dispute over who controls the agenda for FDIC board meetings -- the Board chair or a majority of its members. Currently, the FDIC Board has four members -- Chairperson Jelena McWilliams, Director (and former Chairman) Martin Gruenberg, and serving as ex-officio members, Michael Hsu (Acting Comptroller of the Currency) and Rohit Chopra, Director of the Consumer Financial Protection Bureau; there is one vacancy, that of Vice Chairman.

Director Gruenberg and the two ex-officio directors, both Biden appointees, moved to take control of the board agenda, specifically with regard to bank merger policies, which led McWilliams, a Trump appointee, to resign as chairman, effective February 4. Gruenberg may likely become the acting chairman of what will be, for the time being, a three-member board.
The dispute between McWilliams and the other three directors has raised several issues not just for the FDIC but for other agencies governed by boards, such as the Federal Reserve, the SEC, the NCUA, the CFTC. The FDIC is unique, though, with two directors serving at the pleasure of the President, and who head their own agencies without colleagues who have a vote on their actions.
The webinar panelists will discuss the implications of the turmoil at the FDIC and what it may mean for not just the FDIC but also for the boards of other independent regulatory agencies.

Featuring:

Thomas Vartanian, Executive Director, The Financial Tech and Cybersecurity Center

Michael Krimminger, Senior Counsel, Cleary Gotlieb

Bert Ely, Principal, Ely & Company, Inc.

Moderator: Brian Johnson, Partner, Alston & Bird

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In Cochran v. SEC the Fifth Circuit court of appeals sitting en banc opened the doors of federal district courts in Texas, Mississippi and Louisiana to constitutional challenges to agency administrative law judges (ALJs) who enjoy multiple layers of protection from removal. This means that persons administratively charged by the SEC will no longer have to first endure years of pointless administrative proceedings before judges they claim are unconstitutional. By contrast, in six other circuits (Second, Fourth, Seventh, Eleventh, D.C. and Ninth), administrative agencies such as the SEC and FTC can instigate unconstitutional proceedings and evade judicial review by an Article III court for years on end. Defendants are thereby forced to settle or bankrupted before ever receiving meaningful judicial review.
Cochran is not only a groundbreaking course-correction vindicating Americans’ access to Article III courts for redress of their constitutional rights, but it creates a circuit split that may well prompt Supreme Court review. The Fifth Circuit, by a 9-7 vote (Haynes, Jones, Smith, Elrod, Willett, Duncan, Engelhardt, Oldham and Wilson) held that § 78y of the Exchange Act neither explicitly nor implicitly stripped jurisdiction from federal courts to hear this challenge.
Judge Oldham, joined by Judges Smith, Willett, Duncan, Engelhardt and Wilson, concurred separately in a remarkable opinion that set forth the origins of the administrative state in § 78y’s transfer of power “far away from the three branches of government the Founders worked so hard to create, separate and balance … [a]nd … as far away from democracy and universal suffrage as possible.” They said that critical disjuncture has allowed “administrative agencies to operate in a separate, anti-constitutional, and anti-democratic space—free from pesky things like law and an increasingly diverse electorate.”
Please join Peggy Little, Senior Litigation Counsel of the New Civil Liberties Alliance (NCLA), who argued the en banc, and Gregory Garre, former U.S. Solicitor General and now partner at Latham & Watkins, who worked with another NCLA client in 2020 on a petition for certiorari to the Supreme Court on this point, for a discussion of this landmark decision and the concurrence’s open engagement with administrative power. Peggy and Greg will discuss how this structural constitutional question was litigated in district courts in California, Texas and the Fifth, Ninth and Eleventh Circuits, what the Fifth Circuit got right that so many other circuits got wrong, and how this separation of powers question might reach the Supreme Court in the near future.

Featuring:

Peggy Little, Senior Litigation Counsel, New Civil Liberties Alliance
Gregory Garre, Partner, Latham & Watkins

Breaking news: The Supreme Court granted certiorari in two petitions pending before the Supreme Court which have gained national attention. Students for Fair Admission Inc. v. President and Fellows of Harvard College and Students for Fair Admission, Inc. v. University of North Carolina both ask the Court to overrule Grutter v. Bollinger, a nearly twenty-year-old Supreme Court decision that allowed higher education institutions to consider race in admission decisions.
Beyond challenging Grutter, the petitioners suing Harvard allege the college’s admissions policies discriminate against Asian Americans in violation of Title VI of the Civil Rights Act.
In both the Harvard and UNC cases, lower courts have so far upheld the use of race in admissions. And after the Court called for the views of the Biden Administration, the United States filed a brief urging the Court not to get involved in the Harvard matter. Nevertheless, the case is proceeding to the Court in what is sure to be a significant battle on the topic of whether schools can consider a student's race when making admissions decisions.
Join Will Trachman, former Deputy Assistant Secretary to the Office for Civil Rights, Department of Education, for a litigation update discussing both cases. Will is currently General Counsel to Mountain States Legal Foundation, which filed an amicus brief in both the Harvard and UNC petitions, urging the Court to grant certiorari.
Featuring:

Will Trachman, General Counsel, Mountain States Legal Foundation

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Free speech champion and icon Nadine Strossen joins Erik Jaffe for a virtual “fireside” chat spanning a variety of free speech topics, including: the perpetual and inevitable conflict between process- and outcome-oriented approaches to free speech cases (i.e., whether to defend the speech or speaker you hate); how does a lawyer or public interest group decide whether to take a case raising such a conflict; does more speech always solve the problems of bad speech; how much risk or harm should be tolerated before it is acceptable to restrict speech; the prospective conflict between freedom and equality if speech is claimed to create a hostile environment on campus or in the workplace; balancing private versus public power questions in the free speech and other contexts; how the ACLU has grappled with such issues; and are there areas of or approaches to the First Amendment that might have bipartisan appeal.
Featuring:
Nadine Strossen, John Marshall Harlan II Professor of Law, Emerita, New York Law School
Moderator: Erik Jaffe, Partner, Schaerr Jaffe LLP
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To join, click the link above.

Does New York’s “rent stabilization” law violate the federal Constitution? The law, which regulates approximately 1 million apartments in New York City, was enacted more than fifty years ago and remains in effect based on an every-three-year declaration of a housing “emergency.” The law does not merely regulate rent levels. It also limits a property owner’s right to determine who uses an apartment, to convert the property to new uses or to replace the existing building with a new structure, and to occupy the property for use by the owner and his or her family.
A lawsuit filed in 2019 asserts that the New York law—including 2019 amendments that significantly increased the restrictions on property owners— violates due process and effects both physical and regulatory takings of the property that it regulates. After being dismissed at the District level, the case now moves to the United States Court of Appeals for the Second Circuit.
Rent regulation is not just a New York phenomenon. Other cities across the country have enacted, or are considering, rent regulation legislation. Andrew Pincus, lead counsel for the plaintiffs, and Dean Reuter, Federalist Society Senior Vice President and General Counsel, will discuss the constitutional challenge in the context of the Supreme Court’s evolving property rights jurisprudence—including last Term’s decision in Cedar Point Nursery v. Hassid.
Featuring:
Andrew Pincus, Partner, Mayer Brown
Moderator: Dean Reuter, Senior Vice President and General Counsel, The Federalist Society
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To register, click the link above.

On January 19, 2022, the United States Supreme Court will hear an appeal by the Federal Elections Commission (FEC) from a successful challenge to campaign finance restrictions brought by Sen. Ted Cruz. The action centers on a provision of the Bipartisan Campaign Reform Act (BCRA) of 2002, otherwise known as McCain-Feingold, that restricts candidates’ ability to use campaign donations received after the election to pay back personal loans made to their campaign.
Pursuant to BCRA, the case was heard by a 3-judge district court panel in Washington, D.C. and, after the court struck down the limitation, the FEC appealed directly to the Supreme Court, which set it for oral argument. The case offers an opportunity for the Court to clarify and/or refine its campaign finance jurisprudence, including reviewing the real-world effect of such restrictions on political speech, the distinction devised in Buckley v. Valeo between expenditures and contributions, and the various levels of scrutiny for each.
The webinar will review the traditional free speech issues in the case (including the extent of any risk of corruption or its appearance presented by a candidate's loan to his or her own campaign), as well as practical concerns about the effect these limitations might have on campaigns -- including on the kinds of candidates who will be able to run for office.
Featuring:
Donald A. Daugherty, Jr., Senior Litigator, Institute for Free Speech
Harmeet Dhillon, Founding Partner, Dhillon Law Group Inc.
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To register, click the link above.

In recent years, many companies have required consumers and employees to agree to individually arbitrate any disputes that might arise, eliminating aggregate dispute resolution devices like class actions. In response, plaintiffs’ lawyers have begun filing masses of individual arbitration demands on behalf of employees and consumers against companies like Intuit, Uber, and American Express. The demands place companies on the hook for millions of dollars in arbitration fees, and companies have begun resisting payment and asking to return to court for aggregate dispute resolution, or to create aggregate arbitration procedures. Is this just deserts for corporations or an abuse of the system by plaintiffs’ lawyers? What about the claimants: does mass arbitration deliver for them? Our speakers will explore these and other questions in this lively and timely event.
Featuring:

Daniel Fisher, Chartered Financial Analyst, Walden Consultants, LLC
Maria Glover, Professor of Law, Georgetown University Law Center
Moderator: Brian Fitzpatrick, Milton R. Underwood Chair in Free Enterprise, Vanderbilt University Law School

Title IX of the Education Amendments of 1972 supplemented Title VI of the Civil Rights Act of 1964 to include, in addition to barring discrimination on the ground of race, color, or national origin, sex as a protected class in federally funded education programs or activities. The purpose of enacting Title IX was to ensure that everyone, regardless of sex, would enjoy a discrimination-free educational experience.

In the years since their enactment, observers have accused colleges and universities of violating Titles VI and IX in various ways. Many Title IX concerns have involved single-sex, female-only programs, scholarships, awards, fellowships, camps, clubs, etc. Others have involved single-sex, male-only programs. And recently, programs or scholarships for BIPOC-only or people of color have invoked Title VI concerns. One such observer of these potential civil rights violations is professor emeritus of economics at the University of Michigan, Mark Perry.

Over the last three years, Professor Perry has identified more than 1,200 Title IX and Title VI alleged violations and has filed complaints with the Department of Education’s Office for Civil Rights (OCR) against nearly 400 colleges and universities which have resulted in nearly 200 federal investigations and more than 100 resolutions, mostly in his favor.

However, after years of this work, Professor Perry announced recently that he has noticed what he describes as a “significant departure from past practices” in what OCR now requires of Title VI and Title IX complaints. Please join us for an update from Professor Perry on his civil rights advocacy and what he views as “troubling signs” at the Biden-Cardona-Lhamon OCR for a discrimination-free educational experience for all.

Featuring:

-- Mark Perry, Senior Fellow, American Enterprise Institute

-- Moderator: Devon Westhill, President and General Counsel, Center for Equal Opportunity