FedSoc Forums

In the landmark Title VII of the Civil Rights Act of 1964, Congress legislated a comprehensive scheme for eradicating employment discrimination in American workplaces. Title VII has been implemented by the federal courts in thousands of cases to remedy discrimination on the basis of race, sex and other protected classifications. Congress and the federal courts have worked hard to strike an appropriate balance in the application of Title VII - ensuring the effectiveness of the law while encouraging employers to implement successful preventive measures and enabling them to achieve their legitimate business purposes. Congress has also amended Title VII on numerous occasions in response to concerns that it did not go far enough or that certain federal court interpretations went amiss.

At other times the Executive Branch has sought to alter this balance on its own, but concern is growing about whether federal courts will effectively constrain federal regulations that lack any statutory basis. This teleforum will consider the aforementioned concern in the context of the Office of Federal Contract Compliance Programs (OFCCP). This relatively obscure federal agency exercises broad enforcement powers to monitor the employment practices of federal contractors and subcontractors. OFCCP often has sought to impose controversial and expansive theories of employment discrimination - sometimes including theories rejected by the Department of Justice - through a regulatory framework that is practically unchecked by federal courts. Unlike other Dept. of Labor enforcement programs (e.g., OSHA), there are few federal court decisions involving the merits of OFCCP enforcement actions against federal contractors. The teleforum will address why this is so.

Our OFCCP discussion will also focus on the statutory authority (or lack thereof) for several of the agency's regulatory policies in contrast to federal court interpretations of Title VII. We will examine some particular examples of the statutory authority problem: (1) Congress never gave EEOC authority to issue regulations setting forth substantive discrimination standards with the force and effect of law under Title VII, but OFCCP has asserted that it has such authority under Executive Order 11246; (2) Congress mandated a 300-day statute of limitations for claims by both private plaintiffs and EEOC under Title VII, but OFCCP has asserted that its claims are not governed by any statute of limitations; and (3) Congress provided authority to OFCCP to adjudicate, e.g., veterans and rehabilitation act discrimination claims, but not some other discrimination claims that OFCCP nonetheless asserts the power to adjudicate.

Featuring:
-- Mark Chenoweth, Executive Director and General Counsel, New Civil Liberties Alliance
-- Kara Rollins, Litigation Counsel, New Civil Liberties Alliance
-- William Doyle, Jr., Partner, McGuireWoods

In this teleforum, James R. Copland will discuss competing legislative proposals in Congress, in the context of a complex phenomenon. In Copland's view, the evidence is clear that black men both disproportionately benefit from policing and disproportionately bear its costs. How should we think about the evidence, and how should we address the issue?

Copland will also discuss his newly-released book, The Unelected: How an Unaccountable Elite is Governing America.

Featuring:
-- James R. Copland, Senior Fellow and Director, Legal Policy, Manhattan Institute

The Federalist Society's Intellectual Property Practice Group will host a conversation with the Hon. Alan D. Albright of the Western District of Texas and Art Gollwitzer III, an attorney with Michael Best in Austin, TX. The speakers will be introduced by the Hon. Ryan T. Holte of the U.S. Court of Federal Claims.

Please join us for a conversation expected to cover Judge Albright's approach to patent cases; a unique brand of local patent rules; innovative advisory council group on rules; goals for the rules and how they work in daily practice; and a discussion regarding how new patent procedures evolve to meet the needs of a rapidly growing patent litigation docket.

Featuring:
-- Hon. Alan D. Albright, U.S. District Court, Western District of Texas
-- Arthur Gollwitzer III, Partner, Michael Best
-- Introductions: Hon. Ryan T. Holte, U.S. Court of Federal Claims

The brutal confirmation battles we saw over Supreme Court Justices Neil Gorsuch and Brett Kavanaugh are symptoms of a larger problem with our third branch of government, a problem that began long before Kavanaugh, Merrick Garland, Clarence Thomas, or even Robert Bork: the courts' own self-corruption, aiding and abetting the expansion of federal power. In Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court, Ilya Shapiro, director of the Cato Institute's Robert A. Levy Center for Constitutional Studies, takes readers inside the unknown history of fiercely partisan judicial nominations and explores reform proposals that could return the Supreme Court to its proper constitutional role. Confirmation battles over justices will only become more toxic and unhinged as long as the Court continues to ratify the excesses of the other two branches of government and the parties that control them. Only when the Court begins to rebalance our constitutional order, curb administrative overreach, and return power to the states will the bitter partisan war to control the judiciary subside.

Featuring:
-- Ilya Shapiro, Director, Robert A. Levy Center for Constitutional Studies, The Cato Institute and Author, Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court
-- Joseph Tartakovsky, Author of The Lives of the Constitution: Ten Exceptional Minds that Shaped America's Supreme Law

In Epic Systems Corp. v. Lewis, the Supreme Court confirmed that federal law permits employers to include class action waivers in employment arbitration agreements. In the wake of that decision, employers have increasingly adopted arbitration programs to gain the benefit of class action waivers. Employee-side class action attorneys have responded by filing "mass arbitrations" as a substitute for traditional class actions. Mass arbitrations can involve hundreds or even thousands of individual arbitrations filed simultaneously. Our panel will review the increasing use of the mass-arbitration approach from the perspective of employer-side and employee-side attorneys. In addition, the panel will discuss proposals for modifying arbitration procedures to accommodate mass arbitrations, including, in particular, the new Mass Arbitration Protocol released by the International Institute for Conflict Prevention and Resolution.

Featuring:
-- Allen Waxman, President & CEO, International Institute for Conflict Prevention and Resolution (CPR)
-- David E. Gottlieb, Partner, Wigdor LLP
-- Moderator: Christopher C. Murray, Shareholder, Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The Environmental Protection Agency recently proposed retaining both the existing particulate matter and ozone primary and secondary standards. Over the last several decades, air quality in the United States has improved dramatically. Though many have advocated for more stringent PM and ozone standards, the environmental and public health imperative for tighter standards is the subject of debate. Unlike in the past, the agency was able to finish the review of these criteria pollutants within the five-year statutory window. What was the basis for retaining these standards, how did the agency review the standards in such a timely fashion, and are these actions supported by the best available science? What are the arguments for and against these proposed actions? And are these standards, if finalized, likely to withstand judicial review? Join us as we discuss these and other critical questions.

Featuring:
-- Jeffrey R. Holmstead, Partner, Bracewell LLP
-- Justin Schwab, Founder, CGCN Law, PLLC
-- Moderator: Daren Bakst, Senior Research Fellow, The Heritage Foundation

Now six months into the COVID pandemic, the Internet has offered Americans a welcome economic, educational and sometimes even psychological lifeline to weather the crisis. Given Americans’ increased reliance on broadband, politicians on both sides of the aisle are now actively campaigning on the issue of expanding broadband deployment. Republicans are focusing on promoting private-sector deployment, while Democrats are pushing for the expansion of government-owned networks (“GONs”).

While the debate over the merits of municipal broadband is nothing new, what has been missing from the debate over the years is a cohesive legal and economic analysis to frame the discussion. A new 100-page study recently published in the Federal Communications Law Journal attempts to fill that gap. To explore this important topic in detail, we will be joined in this teleforum by two of the authors of this new study to discuss their findings.

Featuring:
-- Dr. George S. Ford, Chief Economist, Phoenix Center for Advanced Legal & Economic Public Policy Studies
-- Lawrence J. Spiwak, President, Phoenix Center for Advanced Legal & Economic Public Policy Studies and member of the Federalist Society’s Telecommunications & Electronic Media Practice Group Executive Committee
-- Moderator: Danielle K. Thumann, Associate, Wilkinson Barker Knauer and member of the Federalist Society’s Telecommunications & Electronic Media Practice Group Executive Committee

After 87 victims, 53 separate crime scenes, and multiple investigations spanning over four decades, the Golden State Killer was finally brought to justice this past August when he was sentenced to life in prison without the possibility of parole. The key piece of evidence that led investigators to the serial burglar, rapist, and murderer was not a traditional smoking gun, but rather genetic evidence sourced through a public genealogy database. While the positive uses of such investigative techniques are clear, what implications does this new era of genetic detective work have on the wider criminal justice system?

How does this technology work? Are privacy rights at risk? Should there be limits on this new field of DNA forensics as it pertains to criminal investigations? Reflecting the contentious nature of the topic, there are differing answers to all of these questions from public defenders and prosecutors alike. Join us for a thoughtful discussion as we explore the case of the Golden State Killer and the evolving legal landscape of open-source genetic forensics.

Featuring:
-- Arthur Rizer, Resident Senior Fellow and Director of Criminal Justice & Civil Liberties, R Street Institute
-- Nila Bala, Resident Senior Fellow and Associate Director of Criminal Justice & Civil Liberties, R Street Institute

In the last year, many states had seen a new wave of lawsuits against religious organizations based on alleged sexual abuse from decades ago. New York’s Child Victims Act, which revived previously-time barred claims and at first opened a one-year window to bring them, has now extended that window by another year. Thousands of claims were already brought under that Act in New York state courts. Pennsylvania courts are similarly adjudicating issues relating to abuse claims against the religious organizations. These suits raise a variety of procedural and substantive, including constitutional, issues. They also raise the question of how religious organizations can benefit from Chapter 11 reorganization. As noted in the first part of this Teleforum series, these Supreme Court decisions may also impact certain issues in abuse litigation and in how religious organizations are treated under Chapter 11.

Please join the lawyers of Jones Day for a second part of the Teleforum call that will discuss significant developments in state court litigation involving religious organizations and will provide an update on recent reorganizations and bankruptcy filings.

Featuring:
-- Corinne Ball, Partner, Jones Day
-- Todd Geremia, Partner, Jones Day
-- John Goetz, Partner, Jones Day

As the United Arab Emirates and Israel agreed to establish diplomatic ties, Iran and China’s 25-year, $400 billion deal lurks in the background. The nearly finalized Iran-China Deal provides potential for equal or greater regional consequence. Iran, weakened by sanctions and Covid-19 impacts, has turned East to find both economic and military support. China and Iran have a history of deals and arrangements, but does this partnership’s trade and military components pose strategic concerns for the West? Other Iranian allies like Syria, Iraq, and Lebanon reportedly are lining up to negotiate similar pacts. Does this alliance, in providing a foothold in the region, benefit China with leverage in Middle East affairs?

Whether or not sanctions against Iran are renewed, how will the United Nations or the United States respond to an Iran-China arms deal? Will the lessons learned by countries that have entered into Belt and Road Initiatives be instructive as new agreements are forged? What should the West’s response be and what is the range of options?

Featuring:
-- Hon. Dov S. Zakheim, Senior Fellow, CNA
-- Brigadier General (Res.) Prof. Jacob Nagel, Senior Fellow, Foundation for Defense of Democracies
-- Bryan Smith, Senior Fellow, George Mason University National Security Institute
-- Moderator: Matthew R.A. Heiman, General Counsel & Corporate Secretary, Waystar Health