FedSoc Forums

Google copied over 11,000 lines of computer code, called declaring code, owned by Oracle. Ten years after Oracle filed suit, the Supreme Court will hear the oral argument on October 7, 2020. Google says the code is purely functional, is uncopyrightable because there’s only one way to write it, and in any case their copying was fair use. Oracle, backed by the Solicitor General, says its code is creative expression that falls squarely into what Congress intended to protect and that Google’s copying was non-transformative infringement. Join us for a review of oral arguments in Google v. Oracle on the afternoon of October 7th by an all-star panel.

Featuring:

Jordana Rubel, Assistant General Counsel, U.S. Copyright Office, which co-wrote the government's brief

Prof. Michael Risch, Vice Dean and Professor of Law, Villanova University Charles Widger School of Law; author of amicus brief in support of Google

Moderator: Steven Tepp, President & CEO, Sentinel Worldwide; Professorial Lecturer in Law at The George Washington University Law School; author of amicus brief in support of Oracle

This call is open to the public and press. Dial 888-752-3232 to access the call.

This teleforum addresses the October 6, 2020, Supreme Court oral argument in FNU Tanzin v. Tanvir, which involves the sole question of whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C § 2000bb et seq., permits suits seeking money damages against individual federal employees. The underlying facts of the case involve RFRA claims brought by Muslim immigrants to the United States, now U.S. citizens or lawful permanent residents, who allege they were placed on the No Fly List in retaliation for refusing, on religious grounds, to serve as informants for the FBI. In a 2011 decision, Sossamon v. Texas, the Court held that the Religious Land Use and Institutionalized Persons Act (RLUIPA), a companion statute to RFRA, did not authorize money damages against states. This case represents another look at the remedies available under RFRA and the statutory phrase “appropriate relief.”
This teleforum features Stephanie Taub, Senior Counsel for First Liberty Institute, which filed an amicus brief in support of Respondents.
Featuring:
Stephanie Taub, Senior Counsel, First Liberty Institute

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As an act of original jusrisdiction, the Supreme Court appointed a river master to resolve a dispute between New Mexico and Texas over the Pecos River back in 1949. Over 70 years later, the actions of this river master are now in question. After a tropical storm in 2014, overflow water from the Texas reservoir Red Bluff was impounded at a federally owned reservoir in New Mexico. Texas argues that when New Mexico released the impounded water, they wasted it. Because of this claim, the river master did not originally reduce Texas' rights in the 2014 and 2015 annual reports; however, upon New Mexico's request, the river master changed the 2015 reports and reduced its delivery to Texas because of the 2014-2015 flood water. By December 2018, Texas had filed a motion with the U.S. Supreme Court, with argument now scheduled for October 5. Tony Francois joins us to discuss the oral argument.
Featuring:
Anthony L. 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.

Recent events have demonstrated how dependent on China the United States has become for critical needs. The ongoing coronavirus pandemic has demonstrated the supply chain vulnerabilities that exist for antibiotics, personal protective equipment (PPE) and other medical equipment. This newly-appreciated vulnerability has occurred against the backdrop of the Trump administration’s efforts to eliminate Chinese electronic infrastructure companies from the U.S. supply chain for cybersecurity and broader national security reasons. And most recently, China’s adoption of its “Hong Kong Security Law”, and Congress’ reaction – the Hong Kong Autonomy Act, establishing a sanctions regime for Chinese persons found by the Departments of Treasury and State to be undermining the autonomy of Hong Kong – only adds to the complexity of supply chain decision making.
Join a distinguished panel of experts, Joanne Medero, Daniel Ahn, and Bryan Smith, as we delve into whether searching the U.S. supply chain for opportunities to remove Chinese participation is beneficial to U.S. national security, and whether it is even possible. What complications will arise if the U.S. does so? Have recent attempts to remove some Chinese electronics manufacturers been successful? How do China's new Hong Kong Security Law, and the U.S.'s Hong Kong Autonomy Act enacted in response, impact the relevant financial and trade landscapes? And what antitrust or other collateral issues will need to be considered if the United States moves further to remove Chinese participation in our supply chain?
Featuring:
Daniel Ahn, Managing Director, Chief US Economist and Head of Macro Strategy, BNP Paribas
Joanne Medero, formerly Managing Director, BlackRock, Inc.
Bryan Smith, Senior Fellow, George Mason University National Security Institute
Moderator: W. Hartmann Young, Senior Counsel - Government Business, GE Aviation


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.

Eleven months ago the Federal Circuit held that the Administrative Patent Judges who serve on the Patent Trial and Appeal Board, were unconstitutionally appointed because they act as “principal officers” within the meaning of the Constitution but were not appointed with the advice and consent of the Senate as required by the Appointments Clause. The court adopted a narrow “remedial approach” in which it “sever[ed] any problematic portions [of the statute] while leaving the remainder intact.” The court thus invalidated Title 5’s removal restrictions, as applied to these administrative patent judges. , See 35 U.S.C. § 3(c). Because the APJs can be removed without cause, the court concluded that, going forward they were inferior as opposed to principal officers. It has remanded scores of cases to the PTAB for reconsideration by a new panel of APJs.
All parties have sought certiorari. The government argues that there was no Appointments Clause violation at all, and regardless that no remands were required. The patent owner argues that the Federal Circuit did not go far enough, and that there is no remedy for the purported Appointments Clause violation here. And some are of the view that the Federal Circuit got it just right. As the Supreme Court turns to its October 2020 Term, it will decide whether to take up this issue, following on decisions such as Lucia v. SEC and Financial Oversight & Management Board for Puerto Rico v. Aurelius.
The stakes are high. Left unaltered, the Federal Circuit’s decision will lead to do-overs for potentially hundreds of invalidated patents. And if the patent owners’ arguments were to prevail, it would potentially bring down the entire statutory regime for Patent Office review (or at least re-review) of patentability decisions -- affecting hundreds of patents (and ultimately patent cases) each year.
John O’Quinn, a frequent Federal Circuit practitioner with Kirkland & Ellis LLP in Washington D.C., will introduce the topic and its implications for patent practice, and Professor Aditya Bamzai, an expert on the Appointments Clause from the University of Virginia Law School, will discuss the constitutional issues presented by the case
Featuring:
John O'Quinn, Partner, Kirkland & Ellis LLP
Aditya Bamzai, Associate Professor of Law, University of Virginia School of Law

In Delaware, there is a state constitutional provision that requires the state's three highest courts to have no more than a "bare majority" of judges to be affiliated with either major political party. James Adams, a Delaware resident and member of the Delaware bar, decided against applying for a judicial position due to the constitutional provision. Adams would not have qualified for the position because he is not a member of either the Republican party or the Democrat party. Adams subsequently filed a lawsuit challenging the constitutional provision that limits judges to members of either the Democratic or Republican parties. The district court found that Adams had partial Article III standing, and decided to review the case on the merits. On the merits, the district court found that the provision in question was unconstitutional in its entirety. Upon appeal, The United States Court of Appeals for the Third Circuit affirmed in part, but reversed on the provisions for which Adams had been denied Article III standing at the district level. The Supreme Court granted cert and will decide whether a state constitutional amendment that effectively limits the qualifications of judicial applicants based on political affiliations is constitutional. Michael Dimino will join us to discuss the oral arguments and their implications.

Featuring:
-- Michael Dimino, Professor of Law, Widener University Commonwealth Law School

The U.S. Court of Appeals for the First Circuit (Judges Kayatta, Selya and retired Justice Souter) ruled on September 15 that the National Labor Relations Board was correct as a matter of law in holding that private sector unions may never charge dissenting nonmembers for their lobbying activity. The private sector union in this case, United Nurses & Allied Professionals, lobbied the Vermont and Rhode Island legislatures on a variety of bills, and argued that no Supreme Court case squarely held lobbying to be nonchargeable to nonmembers in the private sector, and that the NLRB erred in its analysis of the Supreme Court’s line of compulsory dues cases when it held lobbying per se nonchargeable. To reach its decision, the First Circuit analyzed the line of Supreme Court cases that stretches from IAM v. Street (1961) to CWA v. Beck (1988) to Lehnert v. Ferris Faculty Association (1991) to Harris v. Quinn (2014) and ultimately to the decision in Janus v. AFSCME (2018). The First Circuit agreed with the NLRB and the dissenting employee, nurse Jeanette Geary, that Supreme Court law taken as a whole compelled a finding that private sector unions are banned from ever charging nonmembers for lobbying activities. Jeannette Geary’s lawyer, Glenn Taubman of the National Right to Work Legal Defense Foundation, argued the case and will present an overview of the case and discuss its ramifications for unions and employees in the private sector.
Mr. Taubman will also discuss the significant procedural twists and turns this case took before reaching the First Circuit, as it was the subject of two mandamus petitions in the D.C. Circuit, one challenging the power of President Obama’s NLRB recess appointees to act in the years before Noel Canning was decided, and a second one challenging the NLRB’s inordinate delay in deciding the case once a valid complement of Board members was confirmed by the Senate.
Featuring:
Glenn Taubman, Staff Attorney, The National Right to Work Legal Defense and Education 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.

The case of Midwest Institute of Health, PLLC v. Whitmer concerns the state-law claims (brought to the Michigan Supreme Court through the certified-question process from federal court) made in challenge to all of Michigan Governor Whitmer’s Executive Orders issued after April 30, 2020. On that date, the Michigan Legislature refused to extend Governor Whitmer’s emergency declaration. She asserted this denial was irrelevant under Michigan’s 1945 Emergency Powers of Governor Act, which unlike Michigan’s 1976 Emergency Management Act, does not have an explicit mechanism permitting the Legislature to terminate an emergency declaration. Governor Whitmer has issued around 175 COVID Executive Orders and almost all of the 41 still-active ones were issued after April 30, 2020. Plaintiffs focused their argument on the statutory construction concept of constitutional avoidance – specifically that if read in the manner that the Governor claimed, the 1945 EPGA would violate the 1963 Michigan Constitution’s separation of powers provision as it would be an unlawful delegation.

Featuring:
-- Patrick J. Wright, Vice President for Legal Affairs, Mackinac Center for Public Policy

The Supreme Court's most recent term ended with several high-profile liberty rulings, including Espinoza v. Montana Department of Revenue and Little Sisters of the Poor v. Pennsylvania. This term, set to begin next month, will bring more religious liberty cases before the Court. Chief among these cases is Fulton v. City of Philadelphia, a case which brings to the forefront the questions of whether, when, and why religious exemptions are required by the Free Exercise Clause. Oral arguments for this case are scheduled for November 4, 2020.

Mark Rienzi of the Becket Fund joins us to preview the Fulton case, discuss other religious-liberty cases the Court will hear this year, and analyze the future of religious liberty at the Supreme Court. Professor William Saunders from The Catholic University of America will moderate the conversation.


To listen to Professors Rienzi and Saunders discuss last term's religious liberty cases, see Religious Liberty at the Supreme Court: The 2020 Term and Beyond.


Featuring:

Mark Rienzi, President, Becket Fund for Religious Liberty; Professor of Law and Co-Director of the Center for Religious Liberty, Catholic UniversityModerator: William Saunders, Professor, The Catholic University of America; Director, Program in Human Rights, The Institute for Human Ecology; Chairman, The Federalist Society's Religious Liberties Practice Group


This call is open to the public and press. Please dial 888-752-3232 to access the call.

The new United States-Mexico-Canada Agreement (USMCA) entered into force in the United States on July 1, 2020, and is expected to significantly affect the trade relationship between the United States and Mexico. How successful will it be for either country? This panel of experts will discuss the anticipated effects of USMCA on US-Mexico relations, including recent policies implemented by Mexican president Andres Manuel Lopez-Obrador. The program will feature Ambassador Jeffrey Davidow, former U.S. Ambassador to Mexico and Assistant Secretary of State for Western Hemisphere Affairs, who is currently a Senior Counselor with the Cohen Group in Washington, DC, and Ana Rosa Quintana, Senior Policy Analyst, Latin America and Western Hemisphere, at the Heritage Foundation.

Featuring:
-- Amb. Jeffrey Davidow, Senior Counselor, The Cohen Group, and former U.S. Ambassador to Mexico and Assistant Secretary of State for Western Hemisphere Affairs
-- Ana Rosa Quintana, Senior Policy Analyst, Latin America and the Western Hemisphere, The Heritage Foundation
-- Moderator: Harout Jack Samra, Associate, DLA Piper