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News & Politics Podcasts

*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 StepsA Seat at the SittingLitigation Update The Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Location:

United States

Description:

*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 StepsA Seat at the SittingLitigation Update The Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.

Language:

English


Episodes

303 Creative, Masterpiece Cakeshop, and the Fate of Free Exercise for Wedding Vendors

3/27/2024
Over the past decade, the tension between First Amendment rights and public accommodations laws has grown, as wedding vendors have refused to serve same-sex weddings pursuant to their consciences. On June 30, 2023, the U.S. Supreme Court issued its decision in 303 Creative LLC v. Elenis, which held that the free speech clause prohibits a state from forcing a website designer to create messages with which the designer disagrees. That said, the Court has yet to issue a clear decision that resolves these issues under the free exercise clause, even though wedding vendors almost invariably object to providing services on religious grounds. Indeed, when the free exercise question was addressed in Masterpiece Cakeshop Ltd. V. Colorado Civil Rights Commission, the Court largely punted on the issue and resolved the case on very narrow procedural grounds. Wedding-vendor litigation continues to percolate throughout the country and raises important questions for First Amendment jurisprudence, including whether the Supreme Court should reconsider Employment Division v. Smith, whether the free exercise clause extends protection to wedding vendors in a similar way to the free speech clause, and whether the so-called “hybrid rights doctrine” is a viable theory for analyzing religious claims to exemptions. Please join us as we discuss these issues and others with some of the leading scholars and practitioners in this space. Featuring: Prof. Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law Prof. Douglas Laycock, Robert E. Scott Distinguished Professor of Law Emeritus, University of Virginia School of Law Jonathan Scruggs, Senior Counsel and the Director for the Center for Conscience Initiatives, Alliance Defending Freedom (Moderator) Austin Rogers, Chief Counsel at Senate Judiciary Committee

Duration:01:01:01

Courthouse Steps Decision: Pulsifer v. United States

3/27/2024
In Pulsifer v. United States, the Supreme Court considered an Eighth Circuit case that raised the question: "Must a defendant show he does not meet any of the criteria listed in 18 U.S.C. § 3553(f) to qualify for a sentence lower than the statutory minimum?". Key to that question was the meaning of the word "and" in the statute, as the Court was asked to consider whether text and context required "and" in this case be read to mean "or". Oral argument was heard on October 2, 2023, and judgment was rendered in favor of the government (affirming the 8th Circuit's decision) on March 15, 2024. The decision split the Court 6-3, with Justice Kagan authoring the majority opinion. Justice Gorsuch authored a dissent, which Justices Sotomayor and Jackson joined.In the wake of this decision, join us for a Courthouse Steps Decision Forum as we discuss its potential ramifications. Featuring: Vikrant P. Reddy, Senior Fellow, Stand Together Trust

Duration:00:46:23

Courthouse Steps Oral Argument: Gonzalez v. Trevino

3/26/2024
In Gonzalez v. Trevino, Petitioner Sylvia Gonzalez is a 72 year-old city councilwoman from Castle Hills, Texas. Ms. Gonzalez believed that the city's mayor and city manager were ignoring her constituents and her own frustrations with the city. The mayor and other allies of the city manager in turn planned to unseat the councilwoman. The mayor and police chief next filed charges with a rarely-used law to have the councilwoman arrested, booked, and put in jail. Ms. Gonzalez maintains that she did nothing wrong. After a day in jail, local media picked up the story and the local prosecutor dropped the charges. Petitioner is represented by the Institute for Justice and she filed a 2020 lawsuit against the city officials. The city filed a motion to dismiss claiming qualified immunity, which the district court denied. An appeal followed to the Fifth Circuit, which reversed the district court over a dissent from Judge Oldham. The Supreme Court granted certiorari this past fall. On March 20, 2024, the Supreme Court heard oral argument in Gonzalez v. Trevino. This was a discussion with Anya Bidwell, Attorney at the Institute for Justice, as she broke down the case and its developments after oral argument.

Duration:00:18:07

Litigation Update: De Piero v. Pennsylvania State University

3/26/2024
Professor Zack De Piero was an English professor at the Pennsylvania State University Abington campus before resigning and filing a lawsuit against the University in 2023 alleging that administrators and faculty members discriminated against him because of the color of his skin. Professor De Piero claims the University's diversity, equity, and inclusion (DEI) initiatives created a hostile work environment with a race-essentialism focus. Professor De Piero was required to attend professional development meetings to view videos such as “White Teachers Are a Problem”, and was directed to “assure that all students see that white supremacy manifests itself in language and in writing pedagogy.” He took the prescribed course of action and filed a bias report, to no avail. Professor De Piero has now filed suit against Penn State in federal court, alleging violations of his civil rights under federal and Pennsylvania law. Penn State initially argued that De Piero's disparate treatment claim must be dismissed because he resigned from his job at Penn State, and, thus, did not suffer an adverse employment action. On January 11, 2024, the United States District Court for the Eastern District of Pennsylvania denied Penn State’s motion to dismiss the discrimination claim against it by Professor De Piero. The case has now entered the discovery phase. This was a Litigation Update on De Piero v. Pennsylvania State University with Michael Allen, one of Professor De Piero's attorneys and Partner at Allen Harris Law, and moderator William Trachman, General Counsel at the Mountain States Legal Foundation.

Duration:00:50:41

A Seat at the Sitting - March 2024

3/19/2024
Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below. Murthy v. MissouriNRA v. VulloDiaz v. United StatesTruck Insurance Exchange v. Kaiser Gypsum Company, Inc.Gonzalez v. TrevinoTexas v. New Mexico and ColoradoBecerra v. San Carlos Apache TribeHarrow v. Department of DefenseFood and Drug Administration v. Alliance For Hippocratic MedicineErlinger v. United StatesConnelly v. Internal Revenue ServiceFeaturing:

Duration:01:10:33

Litigation Update: Gerber v. Ohio Northern University

3/14/2024
Academic freedom and free speech at colleges and universities are at the center of ongoing litigation in Gerber v. Ohio Northern University. In April 2023, Dr. Scott Gerber was abruptly removed from his law class by school security and brought to the dean's office. Dr. Gerber was then told by Dean Charles H. Rose III that he must resign or face termination proceedings. During his time teaching, he had been a long-standing critic of the University's use of race, sex, and ethnicity factors in hiring and student admissions. He refused to resign and the University soon commenced termination proceedings against him. Dr. Gerber was not told what he was accused of doing, despite his contractual right as a tenured faculty member to be informed with “reasonable particularity” of the accusations against him. Hardin County, Ohio Court of Common Pleas issued a temporary restraining order against ONU, requiring them to notify Dr. Gerber of what he was alleged to have done. At the hearing, the University allegedly failed to give Dr. Gerber a fair hearing as they brought forward new accusations and denied Dr. Gerber his contractual right to interview witnesses. Dr. Gerber, who is represented by the America First Legal Foundation, has now filed suit against Ohio Northern University to restore his reputation, regain his employment, and secure compensation for the actions of the University. This was a Litigation Update on Gerber v. Ohio Northern University with Ben Flowers, one of Dr. Gerber's attorneys and a Partner at Ashbrook Byrne Kresge, moderated by Dan Morenoff, Executive Director at American Civil Rights Project.

Duration:00:36:19

Courthouse Steps Preview: Murthy v. Missouri & NRA v. Vullo

3/14/2024
On March 18, 2024 the Supreme Court will hear two cases related to alleged “jawboning” -Murthy v. Missouri & NRA v. Vullo. Murthy v. Missouri, originally filed as Missouri v. Biden, concerns whether federal government officials had violated the First Amendment by "coercing" or "significantly encouraging" social media companies to remove or demote particular content from their platforms. This content spanned various topics, including the origin of the COVID-19 pandemic, the efficacy of masks and vaccines, and the integrity of the 2020 presidential election, among others. National Rifle Association of America v. Vullo raises the question of whether the First Amendment allows a government regulator to threaten regulated entities with adverse regulatory actions if they do business with a controversial speaker, as a consequence of (a) the government’s own hostility to the speaker’s viewpoint or (b) a perceived “general backlash” against the speaker’s advocacy. This lawsuit, initiated by the NRA in response to what it perceives as targeted actions by Vullo to undermine its financial support structure, argues that these measures amount to unconstitutional viewpoint discrimination, effectively punishing the NRA for its protected speech. Join us for a conversation on the right previewing these cases and the issues at play. Featuring: Robert Alt, President & CEO, The Buckeye Institute Will Duffield, Policy Analyst, Cato Institute [Moderator] Casey Mattox, Vice President for Legal and Judicial Strategy, Americans for Prosperity

Duration:01:01:15

AI Meets Copyright: Understanding New York Times v. OpenAI

3/13/2024
Artificial intelligence is the most important technological tool being developed today, but the use of preexisting copyrighted works to train these AI systems is deeply controversial. At the end of 2023 the New York Times sued OpenAI and Microsoft, alleging that OpenAI's use of articles from the New York Times to train their ChatGPT large language model constitutes copyright infringement. An answer is due at the end of February, and it's expected the case will revolve on the question of whether the use of the copyrighted content of the Times was a fair use. The fair use analysis will likely turn on whether the use of copyrighted content to train a AI system "transforms" the work in a way which makes the use fair. The Supreme Court has spoken on this question twice recently, holding that Google's use of parts of Oracle's Java programming language to build the Android operating system was transformative, but that the licensing of a Andy Warhol work based on a photograph by Lynn Goldsmith was not transformative of Goldsmith's work. Also important and perhaps most on-point is a decision of the Ninth Circuit Court of Appeals that Google's Image Search system is transformative of the photographs it indexes and displays as thumbnails. To help understand this case Professors Charles Duan from the American University Washington College of Law and Zvi Rosen of the Simmons School of Law at Southern Illinois University was joined by Steven Tepp of Sentinel Worldwide, who is also a Lecturer at the George Washington University School of Law and formerly of the U.S. Copyright Office. John Moran of Holland & Knight moderated the panel and provided additional perspective.

Duration:01:04:52

NIST’s Proposed Framework for a New Approach to Bayh-Dole March-in: What You Need to Know

3/12/2024
The National Institute of Standards and Technology (NIST) seeks comments on the Draft Interagency Guidance Framework for Considering the Exercise of March-In Rights, which sets out the factors that an agency may consider when deciding whether to exercise Bayh-Dole march-in rights. The information received will inform NIST and the Interagency Working Group for Bayh-Dole (IAWGBD) in developing a final framework document that may be used by a funding agency when making a march-in decision. This panel seeks to answer what the new framework is while also debating the pros and cons. This FedSoc Forum aims for participants to have a better understanding of this proposed policy change, be able to assess the impact should it be enacted, and be motivated to actively engage in the ongoing debate.

Duration:01:00:56

Litigation Update: Speech First, Inc. v. Sands

3/12/2024
Speech First, Inc. v. Sands concerns a Virginia Polytechnic Institute and State University (Virginia Tech) policy that created a bias response team and protocol where students could report bias incidents. Under this policy, reported incidents would be reviewed and possibly reported to the administration for a formal reprimand. In 2021, Speech First, Inc., a group that focuses on students' freedom of speech on university campuses, filed suit against Virginia Tech on behalf of several students for chilling their right to speech through the bias incident policies. The district court hearing the case ruled in favor of Virginia Tech finding that the Bias Incident policy didn’t specifically outline any particular speech that was chilled for the students being represented and thus the policy wasn’t found to chill speech. In 2022, the Fourth Circuit affirmed the lower court's decision. The Supreme Court granted certiorari in the case, gave judgment with respect to the Bias Policy claims vacated, and remanded the case to the 4th Circuit with instructions to dismiss those claims as moot under United States v. Munsingwear, Inc. Multiple Justices, including Justices Thomas and Alito, filed dissents. Join us for a litigation update on this important case in light of those developments. Featuring: Abigail Smith, Amicus Attorney, The Foundation for Individual Rights and Expression (Moderator) Tyson Langhofer, Senior Counsel, Director of Center for Academic Freedom, Alliance Defending Freedom

Duration:01:00:49

Talks With Authors: Better Money: Gold, Fiat, Or Bitcoin?

3/6/2024
In Better Money: Gold, Fiat, Or Bitcoin?, monetary expert Lawrence H. White delves into the timely debate surrounding alternative currencies amidst the backdrop of constant inflation in the fiat currency world. Better Money explains and analyzes gold, fiat dollars, and Bitcoin standards to evaluate their relative merits and capabilities as currencies. It addresses common misunderstandings of the gold standard and Bitcoin, and scrutinizes the evolution of currency, particularly the interplay between market and government roles. White provides provocative analysis of which standard might ultimately provide better money, and argues that we need a market competition among them. Please join us as Professor Lawrence White joins discussants Alexandra Gaiser and Bert Ely, and moderator Alex Pollock to discuss Better Money. Featuring: Prof. Lawrence H. White, George Mason University Alexandra Gaiser, General Counsel, Strive Bert Ely, Principal, Ely & Company, Inc. Moderator: Alex J. Pollock, Senior Fellow, Mises Institute

Duration:00:59:12

Courthouse Steps Oral Argument: Garland v. Cargill

3/5/2024
Garland v. Cargill concerns whether bump stocks are considered "machineguns" as defined by Title 26 of the United States Code. Impacting the realms of both Second Amendment and Administrative Law, the case raises questions concerning the role of lenity, the applicability of the Chevron Doctrine, and the nature of the ATF’s authority. Bump stocks are devices attached to semi-automatic firearms to increase the rate of fire. In 2019, the ATF issued a rule that bumpstocks themselves were machineguns, and thus subject to the rules of Title 26, which marked a significant shift in federal policy. Michael Cargill, the owner of Central Texas Gun Works, challenged this reclassification, arguing it was an unconstitutional overreach by the ATF and the Department of Justice (DOJ). The Fifth Circuit of Appeals ruled in his favor. A significant circuit split on this issue now exists, with the Fifth and Sixth Circuits holding that bump stocks are not machineguns, while the D.C. and Tenth Circuits have held that they are. The oral argument in Cargill is set to be heard before the Supreme Court on February 28, 2024. Join us the next day as we break down and analyze how oral argument went before the Court. Featuring: Stephen Halbrook, Senior Fellow, Independent Institute (Moderator) Robert Leider, Assistant Professor of Law, George Mason University, Antonin Scalia Law School

Duration:01:02:37

Courthouse Steps Oral Argument: NetChoice Cases

3/5/2024
Two cases involving NetChoice, a company that represents social media giants like Facebook, Twitter, Google, and TikTok will be heard at the Supreme Court this term. Both cases concern issues of free speech and social media platforms. In Moody v. NetChoice, LLC, NetChoice challenges Florida law S.B. 7072, arguing it violates the social media companies’ right to free speech and that the law was preempted by federal law. The lower district court found that the law did not stand up to strict scrutiny. Additionally, the court found that this law didn’t serve a legitimate state interest. The U.S. Court of Appeals for the Eleventh Circuit affirmed this ruling. In NetChoice, LLC v. Paxton, NetChoice challenges the constitutionality of two sections of Texas law HB 20 (sections 7 and 2) that aims to regulate the content restrictions of large social media platforms. The lower district court found the sections unconstitutional and placed an injunction on the two sections. The Fifth Circuit reversed this decision, ruling that HB 20 doesn’t regulate the speech of the platforms, but instead protects the speech of users and regulates the platform's conduct. Both cases are set to be heard at the Supreme Court on February 26, 2024. Join us as we break down and analyze how Oral argument went the same day. Featuring: Allison R. Hayward, Independent Analyst

Duration:00:46:41

The First Step Act: Is It Working and What’s Next?

3/5/2024
The First Step Act of 2018, passed as the result of bi-partisan efforts during the Trump administration, aimed to reduce the population of those in federal prison and to limit some federal prison sentences. Over the years some have contended the act is working well, while others argue it has only partially delivered on its goals or it was flawed from the start. Now, as the act recently celebrated its 5-year anniversary, join us for a panel discussing the First Step Act, its impact, legacy, and future. Featuring: Stephanie Kennedy, Policy Director, Council on Criminal Justice Rafael A. Mangual, Fellow and Deputy Director of Legal Policy Contributing Editor, City Journal, The Manhattan Institute (Moderator) Vikrant P. Reddy, Senior Fellow, Stand Together Trust

Duration:01:02:13

Courthouse Steps Decision: McElrath v. Georgia

3/5/2024
On February 21, the Supreme Court unanimously decided McElrath v. Georgia, holding that a jury’s verdict that the defendant was not guilty by reason of insanity of malice murder constituted an acquittal for double jeopardy purposes notwithstanding any inconsistency with the jury’s other verdicts. McElrath concerned the case of Damian McElrath, who in 2017 was tried for malice murder, aggravated assault, and felony murder Under Georgia Law, in a case where a defendant is claiming insanity at the time of the crime, the jury can render one of four possible verdicts: Guilty, Guilty but Mentally Ill, Not Guilty by Reason of Insanity, or Not Guilty. The jury rendered a split verdict, finding McElrath not guilty by reason of insanity on the malice murder charge and guilty but mentally ill on the felony murder and aggravated assault charges. McElrath challenged his guilty but mentally ill conviction as repugnant to his acquittals. The Georgia Supreme Court, instead of overturning his conviction, vacated both the conviction and the acquittal and remanded the case for a retrial. McElrath then filed a plea in bar asserting that the Double Jeopardy Clause of the United States Constitution prohibited the State from subjecting him to a second trial on the malice murder charge. The Supreme Court heard oral arguments in the case in November of 2023. Please join us for a post-decision Courthouse steps program where we will break down and analyze this recent decision concerning double jeopardy and criminal law. Featuring: Zack Smith, Legal Fellow and Manager, Supreme Court and Appellate Advocacy Program, The Heritage Foundation

Duration:00:22:04

Courthouse Steps Decision: Trump v. Anderson

3/5/2024
On February 8, 2024, the Supreme Court heard Oral Argument in Trump v. Anderson. The Court considered whether the Colorado Supreme Court erred in ordering former President Donald Trump excluded from the 2024 presidential primary ballot. Legal questions involved in the case include whether Section 3 of the Fourteenth Amendment is "self-executing" or requires an additional act of Congress, whether the events of January 6, 2021, constitute an insurrection, and if so whether Donald Trump participated in that insurrection, and whether the President is an "officer of the United States" as meant by Section 3. On March 4, 2024 the Court issued a 9-0 decision overturning the Colorado Supreme Court’s December ruling, holding that President Trump is not precluded from appearing on Colorado’s presidential primary ballot. Featuring: Prof. Derek T. Muller, Professor of Law, Notre Dame Law School

Duration:00:31:27

Courthouse Steps Oral Argument: Ohio v. Environmental Protection Agency

3/5/2024
On February 21, 2024, the Supreme Court will hear oral argument in Ohio v. Environmental Protection Agency. The following questions are presented – (1) Whether the court should stay the Environmental Protection Agency’s federal emission reductions rule, the Good Neighbor Plan; and (2) whether the emissions controls imposed by the rule are reasonable regardless of the number of states subject to the rule. Please join our panel of experts as they break down the case and its developments after oral argument. Featuring: Megan Herzog, Partner, Donahue & Goldberg LLP Matt Kuhn, Solicitor General, Kentucky Viktoria Seale, Regulatory Affairs Director, National Rural Electric Cooperative Association Matthew Z. Leopold, Partner, Hunton Andrews Kurth

Duration:01:01:29

Courthouse Steps Oral Argument: Corner Post, Inc. v. Board of Governors of the Federal Reserve System

2/28/2024
On February 20, 2024, the U.S. Supreme Court will hear oral argument in Corner Post, Inc. v. Board of Governors of the Federal Reserve System. The case asks whether a plaintiff’s Administrative Procedure Act (APA) claim “first accrues” under 28 U.S.C. § 2401(a)—the six-year default federal statute of limitations—when an agency issues a rule or when the rule first causes a plaintiff to “suffer legal wrong” or “be adversely affected or aggrieved,” 5 U.S.C. § 702. Petitioner Corner Post is a North Dakota convenience store and truck stop that seeks to challenge a 2011 Federal Reserve rule governing certain fees for debit card transactions. Corner Post didn’t open its doors until 2018 but the lower courts in this case held that its challenge is time barred because the statute of limitations ran in 2017—before Corner Post accepted its first debit card payment. Please join us as we discuss the case and how oral argument went before the Court.

Duration:01:28:21

State Merger Enforcement: Trends & Outlook

2/28/2024
State Attorneys General have long played a role in merger enforcement, challenging anticompetitive mergers and acquisitions either independently or by partnering with other states and federal enforcers. Today, states are showing a heightened interest in ramping up their merger enforcement. The panel will explore the role of states in merger reviews and recent trends in enforcement. The panel will also discuss legislative efforts by some states to expand the role of the attorney general in merger reviews.

Duration:00:57:56

Proposed Changes to the HSR Merger Filing Process: In-House Counsel View

2/22/2024
The U.S. antitrust agencies have recently proposed changes to the HSR merger filing process, broadening the scope of review beyond consumer and competitive effects to workers and other non-competition factors. Merging parties would also be required to prepare written responses to questions related to the transaction, bringing the U.S. more into line with filing requirements in certain foreign merger control regimes like the EU. The additional volume and scope of information contained in merging parties’ HSR filings would also allow the antitrust agencies to potentially apply more rigorous scrutiny of proposed transactions at an earlier stage because the information provided likely will take considerable time for the agency to review. This panel will discuss how in-house counsel is navigating these changes. Featuring: Kirstie Nicholson, Global Competition Counsel, BHP Gil Ohana, former Senior Director, Antitrust & Competition, Cisco Roman Reuter, Senior Counsel, International Competition Affairs, Deutsche Telekom AG Moderator: Chris Wilson, Partner, Gibson Dunn

Duration:00:49:46