Environmental, Social, and Corporate Governance (ESG) investing has grown in popularity in recent years. As a result of major investment firms and individual stockholders making ethical and social considerations in their investing, firms and corporations have developed ESG rating matrices to grade publicly traded companies on their commitment to diversity and the fight against climate change.These ranking systems, however, have raised eyebrows in light of recent news that major tobacco companies are receiving higher ESG scores than the electric car manufacturer, Tesla. Serious questions are being raised about the reliability of these rating systems as tools for investors, and whether a company's focus on diversity and inclusion on its board of directors should be considered an ethical investment, even if its main product is responsible for millions of deaths every year.Featuring:--Justin Danhof, Head of Corporate Governance, Strive Asset Management--Prof. Lynn LoPucki, Levin, Mabie & Levin Professor of Law, University of Florida Levin College of Law--Paul Watkins, Managing Partner, Fusion Law--Moderator: James Lloyd, Acting Deputy Attorney General for Civil Litigation, Texas Attorney General's Office

How Reliable are Corporate ESG Ratings?

*This series was formerly known as Teleforums. FedSoc Forums is a virtual discussion series dedicated to providing expert analysis and intellectual commentary on today’s most pressing legal and policy issues. Produced by The Federalist Society’s Practice Groups, FedSoc Forum strives to create balanced conversations in various formats, such as monologues, debates, or panel discussions. In addition to regular episodes, FedSoc Forum features special content covering specific topics in the legal world, such as:Courthouse Steps: A series of rapid response discussions breaking down all the latest SCOTUS cases after oral argument or final decisionA Seat at the Sitting: A monthly series that runs during the Court’s term featuring a panel of constitutional experts discussing the Supreme Court’s upcoming docket sitting by sittingLitigation Update: A series that provides the latest updates in important ongoing cases from all levels of governmentThe Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

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Between 2010-2014, the Supreme Court handed down four decisions resulting in the Mayo-Alice two-step test for what counts as an invention or discovery eligible for patent protection. In the ensuing decade, the issue of whether this test is indeterminate, too restrictive, or both, has been vigorously debated by lawyers, judges, and scholars. Recently, Senators Thom Tillis (R-NC) and Christopher Coons (D-DE) introduced the Patent Eligibility Restoration Act (PERA), which would abrogate the Mayo-Alice test among other substantive and procedural reforms to patent eligibility doctrine. This webinar discussed PERA and its implications for the U.S. innovation economy as leader in innovation in the 21st century facing new challenges from global competitors like China.

Is Patent Eligibility Doctrine in Need of Reform?

Congress passed the Antiquities Act in 1906 to protect Native American archaeological sites from looters and vandalism, empowering the President to designate historic landmarks, structures, or objects of scientific interest as national monuments on federal land. However, it also imposed limitations, requiring such designations to cover only "the smallest area compatible with the proper care and management of the objects to be protected." Initially, Presidents designated monuments focused on safeguarding specific landmarks or structures.Over time, modern Presidents have expanded their authority under the Antiquities Act, interpreting "objects" broadly to include ecosystems. President Obama notably expanded the Act's use, establishing 29 new national monuments. However, this expansion faced pushback, with President Trump reducing the size of certain monuments and lifting usage restrictions. President Biden's subsequent actions, such as expanding the Grand Staircase monument and reinstating fishing bans, further illustrate the contentious nature of presidential monument designations.All these challenges present interesting questions of statutory interpretation, limits on presidential power, the authority of the judiciary to review Presidential action, and the scope and content of both the major questions doctrine and the nondelegation doctrine.Please join Adam Griffin, Separation of Powers Attorney at Pacific Legal Foundation, for a litigation update on these exciting cases and the future of presidential power under the Antiquities Act.

Litigation Update: Sagebrush Rebels and Western States Challenge Presidential Monument Designations

On April 25th, the Environmental Protection Agency announced a suite of final rules meant to reduce pollution from fossil fuel-fired power plants.The rule was among four measures targeting coal and natural gas plants that the EPA said would provide “regulatory certainty” to the power industry and encourage them to make investments to transition “to a clean energy economy.” The measures include requirements to reduce toxic wastewater pollutants from coal-fired plants and to safely manage coal ash in unlined storage ponds.Supporters of the new rule argue that it aligns well with the EPA's statutory authority, the current state of electric markets, and available emissions-reduction technologies. However, opponents contend that it is legally flawed and could jeopardize grid reliability. What legal and policy issues does this rule potentially raise? Does it trigger "major questions" issues? Is the agency relying on unproven technology, potentially violating the statutory requirement that emission standards be based on proven systems? Moreover, does the rule infringe on state prerogatives for regulating existing sources? Join us as we delve into these questions and analyze the legal complexities surrounding this new rule.Featuring: Kevin Poloncarz, Partner, Covington & Burling LLPJustin Schwab, Founder, CGCN Law, PLLC

Legal Scrutiny Ahead: Assessing the Implications of EPA's Final Power Plant Rule

Throughout Arizona’s history as a state, the criminal code authorized penalties against any person who performed or procured an abortion for a pregnant woman. In 1971, Planned Parenthood Center of Tucson challenged that law on state and federal constitutional grounds. In early 1973, the state intermediate appellate court upheld the criminal law as constitutional. Shortly thereafter, SCOTUS issued Roe v. Wade recognizing a federal constitutional right to abortion. And the Arizona appellate court then enjoined enforcement of the state’s criminal abortion law.  The Arizona legislature codified numerous abortion-related laws in the ensuing years. One such law, enacted in 2022, adopted a “15-week ban.” Later that same year, SCOTUS issued its opinion in Dobbs v. Jackson Women’s Health Organization, which overturned Roe and concluded that the federal constitution does not support a right to abortion.Dobbs thus set a collision course for two Arizona laws: the previously enjoined but still on-the-books criminal law from 1973 and the 2022 15-week ban. On April 9, 2024, the Arizona Supreme Court issued its opinion in Planned Parenthood v. Mayes / Hazelrigg, resolving the question of which law currently governs.Hon. James D. Smith will join us to break down the majority and dissenting opinions.

Litigation Update: Arizona Supreme Court Opinion in Planned Parenthood v. Mayes / Hazelrigg

On April 23, 2024, the FTC voted 3-2 to adopt a final rule banning the use of non-compete agreements nationwide, impacting 30 million workers by the FTC’s own estimates. This near categorical ban on the non-compete agreements is a contrast from a regime in which these agreements had been recognized to have potential procompetitive value and therefore were reviewed for reasonableness. It also marks a departure from the state law in many jurisdictions. Less than 24 hours after the vote, two lawsuits have challenged the rule based on statutory and Constitutional grounds. This breaking news panel discussed the final rule, grounds for statutory and Constitutional challenges, and state AG reactions.

How Reliable are Corporate ESG Ratings?

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