FedSoc Forums

As students prepare return to universities across the country, many schools are putting in place Covid vaccine mandates. These mandates require proof of vaccination, and typically include medical and religious exemptions. But, as Professor Ronald Colombo's new paper raises, some kinds of exemption schemes may be unjustly discriminatory. Beyond the issue of exemptions, some students and staff object to the mandates as such. A group of students challenged one such mandate at Indiana University; in July, a district court judge sided with the university, and the ruling was recently upheld 3-0 by the U.S. Court of Appeals for the Seventh Circuit. These cases, the nature of the mandates and exemptions, and more were discussed in this virtual program.

Featuring:

-- Prof. Ronald J. Colombo, Professor of Law, Maurice A. Deane School of Law, Hofstra University

-- Moderator: Stephanie Taub, Senior Counsel, First Liberty

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Last year, the Oregon state bar Bulletin ran two controversial comments. State bar members objected, arguing that because membership in the state bar is mandatory, publication of the comments constituted impermissible political commentary, and mandatory state bar dues could not be used to subsidize activity unrelated to the regulation of the state bar.

The case landed in the Ninth Circuit which affirmed the district court without deciding whether the controversial comments were germane to the bar’s purpose. Instead, the Court held that the Supreme Court’s 1990 decision in Keller v. State Bar of California foreclosed the plaintiff’s speech claim, rejecting the plaintiffs’ argument that since Abood—which underwrote Keller—had been overruled, exacting scrutiny governed speech claims in the context of mandatory bar membership.

The plaintiffs appeal this question to the Supreme Court, asking the Court to either read Keller to require exacting scrutiny or to overrule Keller and provide clarity to the courts across the country that are fielding free speech claims from similarly situated attorneys who are also members of integrated state bars.

Featuring:

-- Jacob Huebert, Senior Attorney, Goldwater Institute

-- Moderator: Erik S. Jaffe, Partner, Schaerr Jaffe LLP

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

On July 16, 2021, the U.S. Court of Appeals for the Eight Circuit issued a decision in InterVarsity Christian Fellowship/USA v. University of Iowa et al. A three-judge panel composed of Circuit Judges Loken, Grasz, and Kobes held that University officials violated the First Amendment when they deregistered a Christian student group, further holding that the university officials were not entitled to qualified immunity.

The University of Iowa deregistered two Christian student groups, finding that the groups violated the University’s “Human Rights Policy” by requiring their membership and/or leadership to sign a statement of faith in order to join. The first group—Business Leaders in Christ—sued and successfully received a preliminary injunction. Following that litigation, the University reviewed its human rights policy and then deregistered the second group—InterVarsity Christian Fellowship. InterVarsity fought the deregistration, then sued alleging the application of the human rights policy was discriminatory and arguing First Amendment free speech, free association, and free exercise violations in addition to several state law claims.

Not only did the District Court enter summary judgment for InterVarsity, but the Court also denied individual University defendants qualified immunity relying on the earlier Business Leaders in Christ preliminary injunction grant. The University appealed and the Eighth Circuit affirmed in a decision with implications for campus free speech, religious liberty after Fulton, and qualified immunity.

Featuring:

-- Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Propserity; Senior Fellow for Free Speech, Charles Koch Institute

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

On June 21, 2021, the Court of Appeals for the Ninth Circuit ruled a shareholder-plaintiff had standing to sue California’s Secretary of State. Creighton Meland, a shareholder at OSI Systems, Inc., sued alleging that Senate Bill 826, which was signed into law in 2018, violates the Fourteenth Amendment because it requires corporations to elect a sliding scale quota of women to corporate board member seats. The District Court ruled Meland had no standing because SB 826 governed corporations, not shareholders, and at the time of Meland’s suit OSI was in compliance so any controversy was moot.
The Ninth Circuit disagreed, allowing Meland’s suit to go forward by finding that the practical effect of SB 826 was to govern shareholders and direct them to vote on the basis of gender to avoid the imposition of fines or penalties for noncompliance. The court further held that Meland’s suit alleged a direct harm and did not rely on prudential standing since he alleged personal harm rather than injury to the corporate entity.
Featuring:

Ann Ravel, Lecuter, Berkeley Law; Former Commissioner and Chair, Federal Election Commission
Anastasia P. Boden, Senior Attorney, Pacific Legal Foundation
Megan L. Brown, Partner, Wiley Rein

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

With expressions ranging from enthusiasm to serious interest, central banks from China to Europe have been actively exploring the potential for Central Bank Digital Currencies (CBDCs). On June 28, Federal Reserve Board Vice Chairman for Supervision Randal Quarles offered comments that, far from equivocal, expressed great doubt about the feasibility and desirability for the Federal Reserve sponsoring such a currency.

Controversies focus on CBDC implications for privacy, greater personal financial inclusion, government control of credit, innovation, government assumption of banking activities, broadening the tax base, and more.

Featuring:

-- Bert Ely, Principal, Ely & Co. Inc.

-- Chris Giancarlo, Senior Counsel, Willkie Farr & Gallagher

-- Peter C. Earle, Writer, American Institute for Economic Research

-- Moderator: Alex J. Pollock, Distinguished Senior Fellow, R. Street Institute

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

This virtual event examined current national security issues, including relations with China, as well as coordination with allies, utilization of available legal tools, and whether those tools might be effective.

Featuring:

-- Hon. Nazak Nikakhtar, Partner, Wiley Rein LLP. Nazak served as Assistant Secretary for Industry and Analysis at the U.S. Department of Commerce’s International Trade Administration. She also served as the U.S. government’s top official for export controls on dual-use items and technologies, performing the non-exclusive functions and duties as Under Secretary for the Bureau of Industry and Security.

-- Adam J. Szubin, Of Counsel, Sullivan & Cromwell LLP. Mr. Szubin served for two years as Acting Treasury Department Under Secretary for Terrorism and Financial Intelligence. During his nearly 13 year tenure at the Treasury, Mr. Szubin served as the Director of Treasury’s Office of Foreign Assets Control (OFAC) for nine years and Senior Advisor to the Under Secretary for Terrorism and Financial Intelligence.

-- Moderator: Eric J. Kadel, Jr., Partner, Sullivan & Cromwell LLP

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

With Democrats holding power in both houses of Congress and the White House, how will congressional oversight and investigations affect private industry and the Biden Administration during the 117th Congress? What should we expect if Republicans take back one or both houses of Congress in the midterm elections? What should private entities expect from congressional investigations, and what effect will recent court decisions such as Mazars have on industry? A panel of current and former congressional investigators will discuss these issues and more, as well as how recent investigations and judicial decisions will affect the structural relationship between Congress and the Executive Branch in the years ahead.

Featuring:

-- Ashley Callen, Deputy Staff Director, House Oversight and Reform Committee

-- Daniel Goshorn, Chief Investigative Counsel, U.S. Senate Committee on Finance

-- Allison Murphy, Former Chief Oversight Counsel of the House Select Subcommittee on the Coronavirus Crisis, Majority Staff; Partner in the Government, Regulatory & Internal Investigations Practice Group, Kirkland & Ellis

-- Christopher Armstrong, Former Chief Oversight Counsel, Senate Committee on Finance; Partner, Holland & Knight LLP

-- Moderator: Michael D. Bopp, Partner, Gibson Dunn & Crutcher LLP

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Opioid deaths in the US rose 29% during the course of the recent COVID pandemic. More than 55,000 Americans die annually from opioid consumption. Overtaken to some extent by other events, the opioid crisis is still with us and might be getting worse. The four participants in this panel discussion brought a wealth of experience and insight to this ongoing problem from both a law enforcement and public health perspective. Discussion ranged from the successes and failures of various law enforcement strategies and experiences to the efficacy of various public health policies and their often unintended consequences. This panel examined and discussed what has been learned to date in the efforts and what those lessons should tell us about what needs to be done to end the opioids crisis.

Featuring:

-- Robert M. Duncan, Jr., Partner, Dinsmore & Shohl LLP

-- Christina E. Nolan, Shareholder, Sheehey Furlong & Behm PC

-- Prof. Tomas J. Philipson, Daniel Levin Professor of Public Policy, University of Chicago

-- Jeffrey A. Singer, Senior Fellow, Cato Institute

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

A Dubious Expediency: How Race Preferences Damage Higher Education is a collection of eight essays written by experts in the field examining and analyzing the impact of racial diversity preferences and identity politics in American colleges and universities. The book’s title comes from a 1976 California Supreme Court opinion in Bakke v. UC Regents authored by Justice Stanley Mosk, who wrote:
“To uphold the [argument for race-preferential admissions] would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality.”
In the book, the authors take up the question of race-based preferences in higher education, arguing that mounting empirical evidence shows race-based solutions cause long term harm both to intended beneficiaries and to society as a whole.
Featuring:

Gail L. Heriot, Professor of Law, University of San Diego School of Law
Maimon Schwarzschild, Professor of Law, University of San Diego School of Law

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Aside from the purely legal questions already addressed in this programming series, how should we think about the practical and philosophical questions at stake? Many of us start with the presumption that the social media companies are private businesses and therefore may operate according to viewpoint norms as their owners see fit.
But the growing reliance on big tech platforms, combined with the behavior of such platforms in restricting the scope of permissible speech, has raised concerns across the political spectrum, including among those of generally libertarian policy preferences. And the new interest in considering a range of regulatory options is not breaking down along conventional left/right lines. How should we think about these larger philosophical questions?
Featuring:

Ashley Keller, Partner, Keller Lenker LLC
Genevieve Lakier, Professor of Law, Herbert and Marjorie Fried Teaching Scholar, University of Chicago Law School
Randy E. Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center
William Baude, Professor of Law, Aaron Director Research Scholar, University of Chicago Law School
Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, D.C. Circuit

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.