Federalist Society Practice Groups Podcasts

On September 15, 2015, Deputy Attorney General Sally Yates issued a much-talked about memo, directing federal prosecutors to focus their efforts on individual corporate wrong-doers, not just corporate entities. Unclear in the minds of many is just how much effort will now be expended on corporate entities vs. individuals. Some assert that prosecution of corporate entities is rarely a good idea, since the punishment negatively effects the shareholders, who were often the victims of the initial wrongdoing. Others note that it can be near impossible to prove what should be a required guilty state of mind in an individual operating within a corporate structure. More complications arise when individuals rely in good faith on legal advice from in-house or outside counsel. -- Featuring: James R. Copland, Director, Center for Legal Policy, Manhattan Institute for Policy Research and Paul J. Larkin, Senior Legal Research Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation. Moderator: John G. Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation.

Can the government police speech it thinks is offensive? The Lanham Act allows the government to deny trademark registration to "disparaging" speech. What does the First Amendment have to say about the government's ability to pick and choose among speech it doesn't like? Two pending appeals court cases will directly address this important question. -- The U.S. Court of Appeals for the Fourth Circuit is scheduled to hear oral argument in Pro-Football, Inc. v. Blackhorse, a case challenging the REDSKINS trademark and, by extension, the constitutionality of § 2(a). -- Meanwhile, in In re Tam, an Asian-American rock band called “The Slants” was denied trademark registration after the Patent and Trademark Office found the trademark disparaging to Asians. A panel of the U.S. Court of Appeals for the Federal Circuit affirmed the decision. But the en banc Federal Circuit—without being asked—decided to vacate that decision and consider whether § 2(a) violates the First Amendment. -- Are we headed for a constitutional showdown over § 2(a) of the Lanham Act? Will the two appellate courts reach opposite decisions and invite Supreme Court review? -- Featuring: Dwayne D. Sam, Associate, Wiley Rein LLP and Ilya Shapiro, Senior Fellow in Constitutional Studies and Editor-In-Chief for Cato Supreme Court Review, Cato Institute.

Protection of intellectual property (IP) rights is indispensable to maintaining a vibrant economy, especially in the digital age as creativity and innovation increasingly take intangible forms. Long before the digital age, however, the U.S. Constitution secured the IP rights of authors and inventors to the fruits of their labors. The essays in The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective explore the foundational underpinnings of intellectual property that informed the Constitution of 1787, and it explains how these concepts informed the further development of IP rights from the First Congress through Reconstruction. The essays address the contributions of important figures such as John Locke, George Washington, James Madison, Thomas Jefferson, Noah Webster, Joseph Story, Daniel Webster, and Abraham Lincoln to the development of IP rights within the context of American constitutionalism. Claims that copyrights and patents are not property at all are in fashion in some quarters. This book’s essays challenge those dubious claims. Unlike other works that offer a strictly pragmatic or utilitarian defense of IP rights, this book seeks to recover the Constitution’s understanding of IP rights as ultimately grounded in the natural rights of authors and inventors. -- Featuring: Seth L. Cooper, Senior Fellow, The Free State Foundation; Randolph J. May, President, The Free State Foundation; and Prof. Mark F. Schultz, Senior Scholar & Co-Director of Academic Programs, Center for the Protection of Intellectual Property, George Mason University School of Law and Associate Professor, Southern Illinois University School of Law.

In a case that could have serious implications about the limits of judicial review, the Supreme Court will be deciding a narrow statutory interpretation question. The initial question is whether FERC has authority to regulate the rules used by operators of wholesale-electricity markets to pay for reductions in electricity consumption and to recoup those payments through adjustments to wholesale rates. But wrapped within that question is how much deference the Supreme Court is willing to give FERC on this matter. -- Featuring: Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC.

On October 2, 2015, the United States Supreme Court denied certiorari in United States v. Newman, a high-profile case dealing with the prosecution of two hedge fund managers for alleged insider trading. The Second Circuit Court of Appeals overturned their convictions, and the Department of Justice urged the Supreme Court to take the case and claimed the Second Circuit’s approach to insider trading would greatly reduce the government’s ability to prosecute insider trading. What is the current state of insider trading law? Will the Supreme Court eventually be forced to intervene and provide clarity? -- Featuring: James M. Burnham, Associate, Jones Day and Peter M. Thomson, Special Counsel, Stone Pigman Walther Wittmann LLC.

After suffering two judicial setbacks, most recently in the D.C. Circuit’s Verizon v. FCC decision in January 2014, the Federal Communications Commission adopted new net neutrality regulations and subjected broadband providers to public utility regulation under Title II of the Communications Act. In a new case, petitioners and intervenors challenging the FCC’s order recently filed their opening briefs outlining their arguments opposing the FCC’s latest attempt to regulate the internet. -- In this Teleforum, counsel for two of the net neutrality petitioners and the intervenors discussed the issues being raised in the D.C. Circuit appeal. The panelists described the challenges to the FCC’s authority to regulate the Internet under Title II of the Communications Act and Section 706 of the Telecommunications Act. Is broadband a telecommunications service subject to public utility regulation or is it an information service? Can the FCC adopt rules to regulate the Internet under Section 706? Are broadband providers protected by the First Amendment? How will the Supreme Court’s recent decisions in King v. Burwell and Utility Air Regulatory Group v. EPA, and other constitutionally-rooted canons of statutory construction, affect the net neutrality case? Can the FCC ban paid prioritization of Internet traffic? -- Featuring: Brett Shumate, Partner, Wiley Rein LLP and Adam J. White, Counsel, Boyden Gray & Associates.

After Target, Anthem, Sony, and Ashley Madison, cybersecurity is at the top of every company and regulator’s list of worries. As Congress considers legislation, the Executive Branch has been implementing a Presidential Executive Order to develop a “voluntary” framework for cybersecurity. The private sector faces a rapidly shifting terrain without clear standards. Agencies are flexing their regulatory muscles to expand oversight through informal guidance and threat of enforcement, as embodied in a recent victory by the FTC in the Wyndham case. -- This Teleforum will provide an overview of the cybersecurity trends facing the private sector, and will discuss the implications for predictability, transparency, and innovation. Will the President’s Executive Order, and the NIST Cybersecurity Framework, become the de facto standard for the private sector? Is the federal government regulating through the threat of enforcement by FTC, FCC, and other federal agencies, instead of through more regular administrative processes? What should companies make of emerging agency “guidance” from agencies like the FDA, SEC, NHTSA, and DoD, on operations and innovation in areas like the Internet of Things, mobile applications and devices, cloud services, connected cars? -- Featuring: Megan L. Brown, Partner, Wiley Rein LLP; Brent J. McIntosh, Partner, Sullivan & Cromwell LLP; and Rebecca Seidel, General Counsel, Senate Commerce, Science and Transportation Committee.

Advertising agency Campbell-Ewald sent recruitment texts to Jose Gomez on behalf of the US Navy, violating a little-known law. When Mr. Gomez sued and attempted to get class certification, Campbell-Ewald offered to pay the statutory damages in full. In this upcoming case, the Supreme Court will consider whether or not Mr. Gomez has Article III standing: is there still a controversy since an offer for complete relief has been made? The answer to this question will have serious implications for a possible class action lawsuit against Campbell-Ewald, and for class actions more broadly. -- Featuring: Richard A. Samp, Chief Counsel, Washington Legal Foundation.

In 2012, in Miller v. Alabama, the Supreme Court held that a sentencing scheme that mandates life in prison without possibility of parole for juvenile homicide offenders violates the Eighth Amendment’s ban on cruel and unusual punishment. This Term, in Montgomery v. Louisiana, the Court will decide whether the Miller standard should be applied retroactively to cases where sentencing took place before the Miller decision. State supreme courts have split in their interpretation of whether Miller requires retroactive application. In the current case, in 1963, when he was 17, Henry Montgomery shot and killed Charles Hurt, a sheriff’s deputy. Montgomery is among a reported 1,500 prisoners who stand to be resentenced if the Court holds that Miller is to be applied retroactively. -- Featuring: John J. Park, Jr., Of Counsel, Strickland Brockington Lewis LLP.

In life, we are often judged by the company we keep. But is that fair when it comes to judging a lawyer by the clients he represents? Does it matter whether the attorney is so successful that she has her choice of clients, an abundance of whom are not unsympathetic or controversial, and can thrive professionally even if not representing unsympathetic clients? Can a lawyer reasonably argue that our legal system requires representation, that even the least sympathetic among us deserve their day in court, which implicitly means solid legal representation? -- Featuring: Gene C. Schaerr, Principal, Schaerr Law Group and Hon. Sarah L. Wilson, Partner, Covington & Burling LLP.

Somewhat overlooked at the end of the United States Supreme Court’s October 2014 term was a contentious 5-4 decision on the application of the death penalty in Glossip v. Gross. On Wednesday, October 7, the second day of oral arguments for the term, the Supreme Court wasted no time in turning its attention back towards the death penalty in Kansas v. Gleason and Kansas v. Carr. The cases ask the Court to decide whether the Eighth Amendment requires that capital juries be “affirmatively instructed” that mitigating circumstances need not be proved beyond reasonable doubt. Will the October 2015 term be remembered, as some commentators are predicting, for its remarkable Eighth Amendment focus? -- Featuring: William J. Haun, Associate, Hunton & Williams LLP.

Is Clay v. United States, argued on October 2 in the 11th Circuit, a case study of overcriminalization and abusive federal prosecution? The case raises basic notions of due process, fair notice, the rule of lenity, mens rea, and actus reus. What began as a highly publicized raid by some 200 FBI agents on a Florida health care company over an accounting dispute of how to interpret a provision in Florida’s Medicaid reimbursement statute with no clarifying administrative regulations, led to the indictment, conviction, and prison sentences for the company’s top executives for fraud. This case is particularly important for all regulated industries, where there are numerous and ambiguous laws and complex regulations governing conduct subject to administrative, civil, and criminal enforcement. -- Featuring: Paul D. Kamenar, Senior Fellow, Administrative Conference of the United States and John J. Park, Jr., Of Counsel, Strickland Brockington Lewis LLP.

The Houston Equal Rights Ordinance (HERO) ballot initiative, which extends to housing & employment, has been described as an expansive LGBT anti-discrimination measure. The Texas Religious Freedom Restoration Act and the new Pastor Protection Act are intended to provide rights of conscience protection and some assurance of employment accommodation for religious objectors, in light of initiatives like HERO and the anti-discrimination ordinance in San Antonio. After the Supreme Court Obergefell v. Hodges decision, more and more states will face the conundrum encountered by states like Indiana, Kentucky, and now Texas, where the recently affirmed LGBT constitutional privacy interest is in tension with state and federal RFRA laws and other constitutional religious objector protections. Will states that desire to carve out religious conviction protections be eclipsed by the momentum of locally based anti-discrimination measures? Do federal laws provide sufficient public office and private party religious expression protection? -- Featuring: Prof. John Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law; Prof. Josh Blackman, Assistant Professor of Law, South Texas College of Law; Kathleen Hunker, Senior Policy Analyst with the Center for Economic Freedom, Texas Public Policy Foundation; and Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law.

In Horne v. U.S. Department of Agriculture, eight justices of the Supreme Court agreed that a governmental taking of personal property, just like real property, was a compensable taking under the Fifth Amendment. In Horne, the government took physical control of parts of the Horne's raisin crop, withholding it from the market in order to influence raisin prices. Under other agricultural programs, growers are permitted to send to market only certain quantities of the produce, though the government never takes physical control of the goods. Just how sweeping is the Horne decision? Does it apply to all forms of personal property? What level of control must the government exercise over personal property in order for there to be a compensable taking? Are these other agricultural programs now suspect? -- Featuring: Prof. John D. Echeverria, Vermont Law School and Hon. Michael W. McConnell, Professor of Law and Director, Stanford Constitutional Law Center, Stanford Law School.

The federal rulemakers have begun a wholesale reexamination of the rule on class actions, Federal Rule of Civil Procedure 23. Both the plaintiffs' bar and the defense bar have proposed significant changes. During this Teleforum, we discussed some of these proposals and explained where the rulemaking process is at the present time and how you can get involved to make your views known. -- Featuring: Prof. Brian Fitzpatrick, Professor of Law, Vanderbilt University Law School and Mary Massaron, Partner, Plunkett Cooney.