FedSoc Forums

On April 20, 2021, the Supreme Court will hear oral argument in the case of United States v. Gary. In this case, defendant Gary pled guilty in federal court to two counts of possession of a firearm as a convicted felon in violation of 18 U.S.C. 922(g)(1) and 924(a)(2) then appealed his sentence.

During the interim following his appeal, the Supreme Court decided Rehaif v. United States and held that for conviction under 922(g)(1) and 924(a)(2), the United States must prove both (1) knowing possession of the firearm and (2) knowledge of felon-status. Gary supplemented his appeal with the Rehaif decision, arguing he had not been informed of the knowing-felon-status element of the crime when he pled guilty.

The Ninth Circuit found the district court’s omission of the knowing-felon-status element was plain error, vacated Gary’s conviction, and remanded even though Gary did not show he would not have taken the plea but for the district court’s omission.

The Supreme Court will decide whether Gary is automatically entitled to the relief awarded by the Ninth Circuit even where Gary does not attempt to show prejudice caused by the district court’s failure to inform Gary on the knowing-felon-status element.

Featuring:
-- Robert Leider, Assistant Professor of Law, Antonin Scalia Law School, George Mason University

On April 21, 2021, the Supreme Court will hear oral argument in the case of City of San Antonio, Texas v. Hotels.com. In this case, the Court granted certiorari on the question whether the Fifth Circuit alone among all its sister circuits correctly held that District Courts have no discretion to deny or reduce appellate costs deemed taxable under Federal Rule of Appellate Procedure 39(e).

Featuring:
-- Dean Charles Campbell, Associate Professor of Law, Interim Dean, Faulkner University, Jones School of Law

On April 19, 2021, the Supreme Court will hear oral argument in the case of Sanchez v. Mayorkas. The Court will decide whether a grant of Temporary Protected Status (TPS) under the Immigration and Nationality Act satisfies the “admission” requirement laid out in section 1255(a) necessary for a grant of Legal Permanent Resident (LPR) status. In taking this case, the Court has the chance to resolve a circuit split: given the recent Third Circuit decision underlying this petition for cert, both the Third and Eleventh Circuits do not allow TPS admission to qualify for LPR admission, while the Sixth and Ninth Circuits allow LPR admission to qualify for TPS status.
Featuring:
Hon. Grover Joseph Rees, Writer, Advocate, and Former United States Ambassador to East Timor

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

On April 5, 2021, the U.S. Supreme Court decided Google v. Oracle. In a 6-2 decision, Justice Stephen Breyer wrote that Google's use of a Java program constituted "fair use" under federal copyright law. Justice Thomas filed a dissenting opinion, which Justice Alito joined. Justice Barrett took no part in the consideration or decision of the case.
A panel of experts joined us to discuss the case, their differing views on the ruling, and its implications for copyright and intellectual property law.

Featuring:
--Prof. Michael Risch, Vice Dean and Professor of Law, Villanova University Charles Widger School of Law
--Prof. Zvi Rosen, Assistant Professor, Southern Illinois University School of Law
--Moderator: Prof. Sandra Aistars, Clinical Professor, Senior Scholar and Director of Copyright Research and Policy, Antonin Scalia Law School, George Mason University

Always on the lookout for new sources of federal revenue, some lawmakers are now drawn to the prospect of taxing wealth. In 2020, Sen. Sanders proposed a “Make Billionaires Pay Act,” described briefly here. In her Presidential campaign, Sen. Warren also proposed a tax on wealth. Now as a member of the Senate Finance Committee, Sen. Warren, along with Sen. Sanders and others, have proposed an “Ultra-Millionaire Tax.”

Because Article I, Section 2, Clause 3 of the Constitution requires that “direct taxes shall be apportioned among the several States,” it took the 16th Amendment, passed by Congress in 1909 and ratified in 1913, to enable Congress to tax incomes. Does the Constitution permit Congress to tax wealth? With co-author Prof. John R. Brooks, Prof. David Gamage wrote Why A Wealth Tax Is Definitely Constitutional. In The Warren Wealth Tax: A Response To Professor Bruce Ackerman, Prof. Jonathan Turley lays out some of the arguments to the contrary.

In this virtual discussion, Profs. Turley and Gamage will discuss the constitutional issues wealth tax proposals present.

Featuring:
-- Prof. Jonathan R. Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law, The George Washington University Law School
-- Prof. David Gamage, Professor of Law, Maurer School of Law
-- Interlocutor: Robert Carney, Senior Counsel, Caplin & Drysdale
-- Moderator: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC

In his new book, The Hollow Core of Constitutional Theory: Why We Need the Framers, historian Donald Drakeman argues that in order to properly interpret the Constitution, one must consider the will of the lawmakers—in this case, those founding fathers who framed the charter—and, more specifically, their decisions about both the ends and the means of the provisions they designed. In the face of ascendant "public meaning" originalism, this book seeks to revive the importance of the framers' intent in constitutional theory and interpretation.
Joining Mr. Drakeman to review his new book are two distinguished constitutional theorists, Professors Lawrence Solum of the University of Virginia and Keith Whittington of Princeton. All three will offer their views on the matters at hand in a discussion moderated by Judge Britt Grant of the 11th Circuit Court of Appeals.
Featuring:

Donald L. Drakeman, Distinguished Research Professor, Program in Constitutional Studies, University of Notre Dame
Prof. Lawrence B. Solum, William L. Matheson and Robert M. Morgenthau Distinguished Professor of Law, University of Virginia School of Law
Prof. Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University
Moderator: Hon. Britt C. Grant, U.S. Court of Appeals for the Eleventh Circuit

* * * * *
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 April 1, the Supreme Court ruled on an original jurisdiction dispute in Florida v. Georgia. Justice Barrett authored the Court's unanimous decision, holding that Florida did not prove by clear and convincing evidence that the collapse of Florida’s downstream oyster fisheries was caused by Georgia’s alleged overconsumption of water from the Apalachicola-Chattahoochee-Flint River Basin. The Court found that other factors besides Georgia’s upstream water consumption contributed to the collapse including overharvesting, a severe drought, and changing rainfall, so Florida could not successfully establish causation. Ultimately, the Court agreed with the report of the Special Master and took his recommendation to dismiss the case.
Featuring:
Tony Francois, Senior Attorney, Pacific Legal Foundation

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

On April 1, 2021, the U.S. Supreme Court ruled in favor of Facebook in Facebook v. Duguid. Writing for the unanimous court, Justice Sonia Sotomayor explained that a device must have the capacity to store or produce a telephone number using a number generator. Justice Samuel Alito filed an opinion concurring in the judgment.

Telecommunications law experts Scott Delacourt and Daniel Lyons discuss the ruling and implications.

Featuring:
-- Scott D. Delacourt, Partner, Wiley
-- Prof. Daniel Lyons, Professor of Law, Boston College School of Law
-- Moderator: Danielle Thumann, Attorney Advisor, FCC Commissioner Brendan Carr

On April 1, 2021, the U.S. Supreme Court decided Federal Communications Commission v. Prometheus Radio Project. Writing for the unanimous court, Justice Kavanaugh explained that the FCC's 2017 decision to modify its media-ownership rules was not arbitrary or capricious under the Administrative Procedure Act.
The distinguished panel that joined us to discuss oral arguments is returning to discuss the ruling and its implications.
Featuring:
Ms. Jane E. Mago, Consultant in Media Policy and Law; former General Counsel, Federal Communications Commission
Hon. Michael O'Rielly, Visiting Fellow, Hudson Institute; former Commissioner, Federal Communications Commission
Mr. Christopher J. Wright, Partner, Harris, Wiltshire & Grannis; former General Counsel, Federal Communications Commission
Moderator: Mr. Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal and Economic Public Policy Studies; Executive Committee Member, Federalist Society's Telecommunications & Electronic Media Practice Group
---
This Zoom panel is open to public registration. See the above link.

American Bar Association Model Rule 8.4(g) defines professional misconduct in relevant part as “conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” Because the 8.4(g) professional misconduct definition is broad and applies to a wide swath of undefined activity, the model rule has prompted spirited debate in light of the serious competing interests implicated.

Join us for a discussion of contrasting views from Professor Josh Blackman and Mr. Robert Weiner.

Featuring:
-- Josh Blackman, Professor of Law, South Texas College of Law Houston
-- Robert Weiner, Partner, Arnold & Porter Kaye Scholer LLP
-- Moderator: Kim Colby, Director of the Center of Law and Religious Freedom, Christian Legal Society