Federalist Society Practice Groups Podcasts

FBI Director James Comey recently testified before Congress about what he characterized as law enforcement's increasing lack of technical ability to carry out court orders to intercept and access communications and information because of a fundamental shift in communications services and technologies. This issue has been coined the “going dark" problem. According to Comey, changes in technology such as encryption hinder law enforcement’s ability to use investigative tools and follow critical leads to stop terrorists and cyber criminals. -- Is "going dark" a real problem, or are Director Comey's concerns overblown? Do the means exist to develop techniques and tools, designed to mitigate the challenges associated with "going dark," while maintaining the privacy-protecting attributes of the technologies at issue? -- Featuring: Prof. Peter Swire, Nancy J. and Lawrence P. Huang Professor of Law and Ethics, Scheller College of Business, Georgia Institute of Technology and Senior Counsel, Alston & Bird LLP and Mr. Benjamin Wittes, Senior Fellow, Governance Studies, The Brookings Institution.

Class action litigation will be front and center at the Supreme Court this Term, with three potentially landmark cases—Spokeo v. Robins, Tyson Foods v. Bouaphakeo, and Campbell-Ewald v. Gomez—having been scheduled for argument in the fall. The Supreme Court will also soon consider several petitions for certiorari that raise additional class action issues over which the lower courts are divided. Warren Postman, Associate Chief Counsel at the U.S. Chamber Litigation Center, discussed the issues raised in these cases and their potential impact on class action litigation. -- Featuring: Mr. Warren Postman, Associate Chief Counsel for Litigation, U.S. Chamber of Commerce.

Members of the Federalist Society’s Financial Services & E-Commerce Practice Group Executive Committee provided an update on recent important activity at the Consumer Financial Protection Bureau (CFPB). -- Featuring: Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association and Julius L. Loeser, Of Counsel, Winston & Strawn LLP.

As with many things in life and in the law, there are pros and cons. This program will focus on that premise with civil juries. Proponents argue that the civil jury system, with jurors drawn from the general public, represents the values and judgment of the public in individual cases, and that deliberations among those same jurors generally lead to just results. Critics argue that complex cases should be decided by judges or special masters rather than lay jurors who cannot properly comprehend the complexities of some cases, that jurors are more susceptible to what should be unconvincing arguments by particularly persuasive attorneys, or that juries otherwise reach conclusions sometimes not supported by law. There is also concern that verdicts by juries do not permit thorough appeal on the merits. The civil jury has been virtually abolished in every other common law country. Should the system be reexamined? Is it in need of updating? Our experts answered these and other questions. -- Featuring: Prof. Renée Lerner, Professor of Law, The George Washington University Law School and Prof. Suja Thomas, Professor, University of Illinois College of Law.

Former Federal Trade Commissioner Josh Wright reflected on his recently-concluded tenure at the Commission on a Teleforum program recorded in front of a live audience at Covington & Burling's Washington, D.C. office. -- Featuring: Hon. Joshua D. Wright, Professor of Law and Director, Global Antitrust Institute, George Mason University School of Law, and former Commissioner, Federal Trade Commission. Interviewer: Deborah A. Garza, Partner, Covington & Burling LLP.

The role of municipally-owned and operated broadband networks in the United States has been the subject of considerable debate. Among some stakeholders, there is increasing enthusiasm around the potential for government-owned broadband networks (GONs) to serve as an engine for municipalities to jump-start economic development. When GONs fail, however, the costs are borne by taxpayers. Earlier this year, the FCC threw its hat into the ring by moving aggressively to preempt certain provisions of Tennessee and North Carolina law that restrict municipal provision of broadband service. In this teleforum, our experts assessed the need for GONs, addressed the competition policy and regulatory issues associated with these projects, and explored whether the FCC’s move to preempt the states will survive judicial appeal. -- Featuring: Charles M. Davidson, Director, Advanced Communications Law and Policy Institute, New York Law School; Randolph J. May, President, The Free State Foundation; and Christopher Mitchell, Policy Director, Next Century Cities. Moderator: Rachael M. Bender, Senior Policy Director, Mobile Future.

In its new “Waters of the United States” rule, the EPA has substantially increased the scope of its regulatory authority under the Clean Water Act. Dozens of states, trade associations, and private companies have challenged the rule in federal courts across the country. A federal judge in North Dakota recently issued an injunction against the rule just before it was scheduled to take effect. Michael Park of Consovoy McCarthy Park, who represent several of the parties in this litigation, discussed the rule, the status of the litigation, and where things could go from here. -- Featuring: Mr. Michael Park, Partner, Consvoy McCarthy Park PLLC

There has been much in the news recently relating to public officials’ transmission and retention of public records, and the classification and security practices related to the information contained therein. Prime examples include the conviction of former CIA Director David Petraeus for mishandling classified information that he kept in his home in violation of security protocols, and the many issues related to the revelation that former Secretary of State Hillary Clinton, during her tenure in office, used a private email address hosted by a server located in her home to conduct official business, some of which may have been classified. -- In this Teleforum, Professor Nathan Sales, a law professor and a veteran of the Departments of Justice and Homeland Security, and Shannen Coffin, former Deputy Assistant Attorney General for the Justice Department’s Civil Division and later Counsel to Vice President Cheney, will discuss several of the national security, criminal, and regulatory dimensions related to the handling of sensitive government information. What laws and regulations define government officials’ responsibilities concerning the classification, transmittal, and retention of government information? Are government employees allowed to use private servers or commercial email services to conduct official business and transmit government documents? Are government servers in fact the most secure way of communicating sensitive information, or do rules that confine certain communications to official channels serve chiefly as recordkeeping purpose? Are classification markings on documents mere bureaucratic measures, or does their presence or absence on a document containing national security information have legal significance? Does an official who is an Original Classification Authority have legal duties different than other government employees to safeguard sensitive information? -- Our experts broke down these issues as they relate to the national security, counterintelligence, law enforcement, and administrative functions of the government. -- Featuring: Mr. Shannen W. Coffin, former Deputy Assistant Attorney General, Justice Department's Civil Division and Prof. Nathan A. Sales, Associate Professor of Law, Syracuse University College of Law. Moderator: Mr. Adam R. Pearlman, Special Advisor, International & National Security Law Practice Group.

The Citizenship Clause of the Fourteenth Amendment to the United States Constitution states that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Does this clause make all persons born in the United States citizens of the United States? -- Featuring: Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law and Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California Berkeley School of Law.

In The Rise of “Empty Suit” Litigation™: Where Should Tort Law Draw The Line?, Victor E. Schwartz discusses the need to stop all litigation where an individual or class action plaintiff has suffered no real harm, physical, emotional or economic. In his article, Schwartz criticizes finding liability for the estimated cost of medical monitoring following exposure to a potentially harmful substance absent a physical injury. He also examines class action litigation claiming that a product’s actual value was lower than the purchase price, or that the resale value of a product diminished because of an alleged latent defect, even when the product functioned properly for most or all consumers. Of course, he also addresses both individual claims where there has been no real injury, or economic loss and class actions that rely on speculative or expert-driven theories of harm or damages. Mr. Schwartz explained his article in greater depth and answered questions from our audience. -- Featuring: Victor E. Schwartz, Partner, Shook, Hardy & Bacon L.L.P.

With final congressional review action on the Iran Deal just days away, is Congress empowered to act in a fully informed manner with the vital information pertinent to all side agreements? Is the IAEA predictably a trustworthy actor? What tools might the people’s branch of government utilize to provide oversight and enforcement capability if Iran is in violation? Prof. Alan Dershowitz and Ambassador Dennis Ross approached these questions from different perspectives drawn from deep historical and geopolitical experience. Prof. Dershowitz is author of a book entitled The Case Against the Iran Deal: How Can We Now Stop Iran from Getting Nukes? and Ambassador Ross most recently wrote "How to Put Some Teeth into The Nuclear Deal with Iran" with David Patraeus. -- Featuring: Professor Alan Dershowtiz, Felix Frankfurter Professor of Law, Harvard Law School and Ambassador Dennis Ross, William Davidson Distinguished Fellow and Counselor, The Washington Institute. Moderator: Jamil Jaffer, Former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee.

On July 24, 2015, the D.C. Circuit Court issued an opinion allowing a challenge to the constitutionality of the Consumer Financial Protection Bureau and of the recess appointment of its director to continue. Our expert discussed the implications of this decision and other recent developments in Dodd-Frank Act litigation. -- Featuring: Gregory F. Jacob, Partner, O'Melveny & Myers LLP.

When the United States government passed the Bill of Rights in 1791, its uncompromising protection of speech and of the press were unlike anything the world had ever seen before. But by 1798, the once-dazzling young republic of the United States was on the verge of collapse: Partisanship gripped the weak federal government, British seizures threatened American goods and men on the high seas, and war with France seemed imminent as its own democratic revolution deteriorated into terror. Suddenly, the First Amendment, which protected harsh commentary of the weak government, no longer seemed as practical. So that July, President John Adams and the Federalists in control of Congress passed an extreme piece of legislation that made criticism of the government and its leaders a crime punishable by heavy fines and jail time. Liberty’s First Crisis tells the story of the 1798 Sedition Act, the crucial moment when high ideals met real-world politics and the country’s future hung in the balance. Author Charles Slack discussed his latest book and answered questions from the audience. -- Featuring: Charles Slack, Author, Liberty's First Crisis: Adams, Jefferson, and the Misfits Who Saved Free Speech and Stephen Klein, Attorney, Pillar of Law Institute.

On June 30, 2015, the Supreme Court decided to revisit whether the First Amendment permits the government to compel its employees to financially support a union by granting certiorari in Friedrichs v. California Teachers Association, No. 14-915. In Friedrichs, the Court will consider whether to overrule Abood v. Detroit Board of Education (1977), which held that public employees can be compelled to financially support union collective-bargaining with government, but not union political activities. -- The Court’s grant of certiorari in Friedrichs comes on the one-year anniversary of its decision in Harris v. Quinn, where Court criticized Abood’s rationales, but did not overrule Abood after finding it inapplicable to the non-employee Medicaid providers who brought the case. Unlike Harris, Friedrichs squarely presents the issue decided in Abood—whether public school teachers can be required to pay compulsory union fees as condition of their employment. -- The Friedrichs petitioners argue that Abood should be overturned because there is no distinction between bargaining with government and lobbying government—both are political speech. The respondent California Teachers Association, however, counters that union bargaining with government is akin to bargaining with a private employer, and that it wrongful for teachers to get a so-called “free ride” on union bargaining efforts. -- Is the Court likely to overrule Abood? And what will be the implications if it does? -- Featuring: Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine and William Messenger, Staff Attorney, National Right to Work Legal Defense Foundation, Inc.

In The Conservative Heart: How to Build a Fairer, Happier, and More Prosperous America, American Enterprise Institute’s Arthur Brooks declares that it’s time for a new conservative movement — one where fighting poverty, promoting equal opportunity, celebrating earned success, and valuing spiritual enlightenment are embraced as universal goals. A movement with a positive agenda to help people lead happier, more satisfying lives. A movement that can speak to voters’ hearts as well as their minds and reunite the country. Capitalism has been the greatest tool to draw people out of poverty around the world. Yet here in America, the conservatives who champion this system are viewed as callous and disinterested in helping the poor. And, ironically, while American-style free enterprise has been changing the developing world, decades of ineffective government policy in the US have left our own “war on poverty” stagnate. Brooks identifies some new canons of conservative thought. Among them are rebuilding human capital to help people succeed, maintaining fiscal conservatism while making “peace” with a safety net for the truly indigent, reforming education, and fighting for entrepreneurship — not for the wealthy, but for those at the very bottom of the income distribution. Mr. Brooks discussed his latest book and answered audience questions on this Teleforum call. -- Featuring: Arthur C. Brooks, President, American Enterprise Institute and Author, The Conservative Heart: How to Build a Fairer, Happier, and More Prosperous America.