Federalist Society Practice Groups Podcasts

Given the understandable public fear of sexual predators, policies concerning sex offenders have often become politicized. Many critics say these policies have too often swept up consensual conduct and conduct by those as young as 10 years old into the same regulatory framework as the most horrific sexual assaults committed by adults. A growing body of research indicates that placement of youths on public sex offender registries, sometimes for the rest of their lives, can have a serious impact on their ability to secure employment and housing, that of their current and future family members. In 2006, Congress passed the Adam Walsh Act, which threatens states with the withholding of tangentially related federal funds if they do not comply with the federal policy it set forth on public registration of not only adults, but also juveniles, including lifetime registration. Dozens of states have declined to comply with this federal mandate, citing both federalism and cost concerns. On this Teleforum, several experts in the field discussed the impact of current juvenile sex offender registration policies at the federal and state levels as well as proposals for reforms. -- Featuring: Eli Lehrer, President. R Street Institute; Nicole Pittman, Stoneleigh Fellow and Director, Center on Youth Registration Reform, Impact Justice; and Stacie D. Rumenap, President, Stop Child Predators. Moderator: Marc A. Levin, Policy Director, Right on Crime.

On April 6, 2016, the Department of Labor released its much-anticipated “fiduciary” rulemaking, which will greatly expand the universe of entities and persons who will be deemed fiduciaries with respect to retirement plans and accounts. The rulemaking has garnered significant interest from members of Congress, federal and state regulators, FINRA, the financial services industry and investor advocates, among others. Our experts discussed the new rules, and their history and purpose. They also explored several of the key policy issues and controversies associated with the rulemaking. -- Featuring: Jeffrey T. Dinwoodie, Associate, Davis Polk & Wardwell LLP and Hon. Annette L. Nazareth, Partner, Davis Polk & Wardwell LLP.

The American Bar Association (ABA) model rules of conduct have long wrestled with regulating the intersection of discrimination and the law of lawyering. The current model rules forbid discrimination in the practice of law only as a comment to the prohibition on lawyer conduct prejudicial to the administration of justice. After much discussion and pressure, the ABA has proposed expanding the language to become new model rule 8.4 (g). If enacted, this rule would prohibit (in its own right) discrimination or harassment by a lawyer engaged in the practice of law against a list of protected classes, including ethnicity, gender identity, and marital status. Perhaps anticipating a challenge, the new rule's comment states that the new rule does not apply to non-lawyer conduct or activities protected by the first amendment and also exempts times when references to such protected groups and facts are needed to effectively represent a client. However, this new rule would apply to all conduct at primarily firm and legal events, including firm related social events. -- What is discrimination or harassment over socioeconomic status? Since this rule applies to social settings, where is the line to be drawn and what chilling effect might be created? What about free speech and free association? -- Featuring: Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law.

On March 30, Federal district court Judge Rosemary Collyer struck down the Financial Stability Oversight Council’s designation of MetLife as a systemically important financial institution. MetLife v. Financial Stability Oversight Council has readily apparent implications for financial regulation, and many commentators have suggested that it may even have far-reaching effects on the future of the larger administrative state. Our expert discussed the opinion, its outlook on appeal, and its possible impact. -- Featuring: Hon. Peter J. Wallison, Arthur F. Burns Fellow in Financial Policy Studies, American Enterprise Institute.

Bitcoin is dead. Long live Bitcoin. A counterintuitive feature of the groundbreaking cryptocurrency—and there are many—is that both statements may simultaneously be true. The Bitcoin economy is robust and growing, with access to Bitcoin-denominated services expanding and more and more startups and established businesses seeking to capitalize on its popularity. At the same time, the Bitcoin network—literally, the interconnected web of computers that records transactions in Bitcoin’s distributed ledger known as the “blockchain”—is showing the strain of the currency’s success, while disagreements threaten to stymie efforts to expand Bitcoin usage further. -- But even as political disputes threaten disruption of the core Bitcoin blockchain, developers are beginning to introduce a new wave of innovation that has the potential to replace political stalemate with market competition. Alternative blockchains, or “alt-chains,” act as replacements for the Bitcoin network and blockchain that facilitate Bitcoin-based transactions off the core blockchain—in the same way that stocks can be traded on a myriad of competing electric trading networks, apart from primary exchanges like NYSE and NASDAQ. Alt-chains and related technologies may be central to preserving Bitcoin’s key speed and cost advantages over traditional financial networks in the years ahead. -- As in many innovative fields, some of the greatest barriers to alt-chain success are legal and regulatory uncertainty, far more than technological issues. In a recent Federalist Society White Paper, David Rivkin and Andrew Grossman attempt to resolve some of this uncertainty by cataloguing the diversity of potential applications for blockchain alternatives and addressing the issues raised by alt-chains and other blockchain supplements and replacements under federal and state law. They discussed their paper with Federalist Society members on a Teleforum conference call. -- Featuring: Andrew M. Grossman, Partner, Baker & Hostetler LLP and Adjunct Scholar, The Cato Institute and David B. Rivkin, Jr., Partner, Baker & Hostetler LLP.

On April 20, the United States Supreme Court issued a unanimous opinion in Harris v. Arizona Independent Redistricting Commission, a case challenging Arizona's state legislative district map as partisan gerrymandering. Our expert discussed the opinion and what it means for the Court’s voting rights jurisprudence. -- Featuring: Hon. Hans A. von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, The Heritage Foundation.

Should you need the government’s permission to try to save your own life? Today, the FDA regulates medications available to Americans, and it takes an average of ten years to bring a new drug to market. Every day Americans die from fatal diseases for which lifesaving treatments that now exist or are being developed are ruled too “dangerous” for commercial distribution. But how does that FDA standard apply to someone in the terminal stages of cancer or ALS? If terminal patients are given access and drug makers are given immunity, might drugs nearing approval be derailed if there is a bad result for a small number of patients? In her recent book, The Right to Try, Darcy Olsen goes inside the federal bureaucracy that she claims is stopping millions from accessing lifesaving treatments, lays out the case for expanding access to experimental medicines, and describes the ongoing national campaign to change these laws state-by-state. -- Featuring: Darcy Olsen, President and CEO, Goldwater Institute and Evan Bernick, Assistant Director, Center for Judicial Engagement, Institute for Justice.

Is America strangling on red tape? Regulations have become voluminous and complex, and many claim that they now threaten to paralyze the government and stifle the economy. Gridlock and stagnation are commonplace, even a feature of our government. What can be done when cronyism corrupts competition, and compliance replaces common sense? Individuals lack the authority they need to exercise the personal judgment they must exercise to deal effectively with the problems that confront them. Is a radical restructuring and liberating simplification of the regulatory state urgently needed? Our experts held a stimulating discussion of the steps that can be taken. -- Featuring: J. Kennerly Davis, Jr., Former Deputy Attorney General for Virginia and Philip K. Howard, Senior Counsel, Covington & Burling LLP and Chair, Common Good.

Can the Feds keep the courthouse doors closed to you when they have effectively frozen your property? That is the question the Supreme Court of the United States considered on March 30th, when the Solicitor General, representing the U.S. Army Corps of Engineers, and Pacific Legal Foundation, representing Hawkes Company, squared off regarding the Corps’ decision that Hawkes Company could not use its property for peat farming without first spending hundreds of thousands of dollars in pursuit of a federal wetlands permit under the Environmental Protection Agency’s “Waters of the United States” (WOTUS) rule. Pacific Legal Foundation argues that its client should be allowed to challenge that decision, called a Jurisdictional Determination, in court; the Corps disagrees. What will the justices say? The co-counsel for the Hawkes Company who appeared before the Supreme Court discussed the case, how the oral argument went, and what we might expect to see in the Court's decision. -- Featuring: Mark Miller, Managing Attorney, Atlantic Center, Pacific Legal Foundation.

In the much-discussed Little Sisters of the Poor Home for the Aged v. Burwell case, the Court will decide an important challenge to the Affordable Care Act (ACA). At issue is the ACA’s contraceptive mandate, and whether it imposes a substantial burden on religious exercise or a violation of RFRA. Has the Department of Health and Human Services satisfied RFRA’s test for overriding a sincerely-held religious objection? -- Featuring: Michael P. Moreland, Mary Ann Remick Senior Visiting Fellow and Concurrent Professor of Law, University of Notre Dame.

In 1981, President Reagan signed Executive Order 12333. It assigned foreign intelligence collection responsibilities to the agencies that make up the Intelligence Community. Among those responsibilities is electronic surveillance. Following the Edward Snowden disclosures, President Obama placed additional restrictions on the collection and use of certain foreign intelligence, and privacy advocates have argued that additional scrutiny must be applied to electronic surveillance related to Executive Order 12333. Our experts discussed how such collection works, how the intelligence is used, and how this activity supports national security. -- Featuring: Matthew G. Olsen, President, IronNet Cybersecurity and David R. Shedd, Distinguished Fellow, Heritage Foundation, Adjunct Professor, Patrick Henry College. Moderator: Matthew R.A. Heiman, Vice President, Chief Compliance & Audit Officer, Tyco International.

On January 15, 2015, the U.S. Supreme Court granted certiorari in Robert F. McDonnell v. United States. The Court will review the public corruption convictions of former Virginia Governor Bob McDonnell to determine whether the definition of “official action” as used in the federal bribery statute, Hobbs Act, and honest-services fraud statute is limited to exercising actual governmental power or the threat or pressure to do so. If the definition is not so limited, the Court will also consider whether the Hobbs Act and honest-services fraud statute are unconstitutional—given that such a broad definition could include political activity protected by the First Amendment. This Teleforum will allow experts who have been involved in amicus briefs and analyzing the case to debate the positions articulated by Governor McDonnell and the U.S. Government as to the "official act" question. -- Featuring: Brian D. Boone, Alston & Bird LLP and Prof. Randall D. Eliason, George Washington University Law School. Moderator: William J. Haun, Hunton & Williams LLP.

Corporate inversions are transactions, such as mergers or acquisitions, that involve a U.S. and foreign headquartered firm and result in the newly formed firm being headquartered outside the U.S. As a result, it can legally lower its U.S. taxes and enjoy parity with its foreign based competitors. Noting the resulting erosion to the U.S. tax base, critics argue that absent Congressional action the U.S. Treasury has a responsibility to fully utilize its existing authorities to combat this practice. But others are concerned that attempting to do so without addressing the underlying problems with the U.S. tax code will create even greater harm to the U.S. economy. Stephen Shay, Senior Lecturer on Law at the Harvard Law School and until recently the Deputy Assistant Secretary of the Treasury for International Tax Affairs and Mihir Desai, who holds appointments at both the Harvard Business School and Law School, provided perspectives from legal and economic vantage points. -- Featuring: Prof. Mihir A. Desai, Mizuho Financial Group Professor of Finance, Harvard Business School and Professor of Law, Harvard Law School and Prof. Stephen E. Shay, Senior Lecturer on Law, Harvard Law School.

Net Neutrality has been the subject of intense policy discussion in recent years, but the dramatic international implications of a shift in internet regulation remain unappreciated. To date, U.S. regulators have utilized a light-touch form of regulation. Much has been said about the Federal Communication Commission’s new regulatory approach, but left largely undiscussed is how it will affect the global internet, American competitiveness, and more. Our panelists provided an in-depth discussion of the global ripples the FCC’s Open Internet Order may create. -- Featuring: Paul Brigner, Director, North America Regional Bureau, Internet Society; Roslyn Layton, Visiting Fellow, American Enterprise Institute; Hon. Robert M. McDowell, Partner, Wiley Rein LLP; and David Redl, Chief Counsel for Communications and Technology, Committee on Energy and Commerce, U.S. House of Representatives. Moderator: Patricia J. Paoletta, Partner, Harris, Wiltshire & Grannis LLP.

Charlie Savage, the New York Times Pulitzer Prize winning journalist, has just released his new book, "Power Wars." The book is an examination of the legal issues surrounding the War on Terror as practiced in the Obama Administration. Following up on his earlier examination of the Bush White House, this book takes us behind the scenes into the heart of the legal debates. Readers get a front row seat to watch as President Obama and his lawyers consider whether it is lawful to send a SEAL team strike into Pakistan to hunt down Osama bin Laden. They see the cross currents at play in debates over NSA surveillance and drone strikes in Yemen, and much more. -- Featuring: Charlie Savage, Washington Correspondent, New York Times and Paul Rosenzweig, Principal, Red Branch Law & Consulting PLLC.