Federalist Society Practice Groups Podcasts

The "Iran Deal" as negotiated by the Obama Administration and approved by the UN raises controversies on many levels. One foundational question concerns whether a president's constitutional Article II power extends to an executive agreement that incurs foreign obligations and implicates international law. The congressional response in the Corker-Cardin review act demurred from challenging whether the nuclear deal was an end-run around treaty Senate ratification requirements by acknowledging the executive agreement classification. Now there are questions as to whether the final deal is sufficiently inconsistent with the anticipated agreement such that the Corker-Cardin bill is undermined. Does UN approval prior to congressional review moot Corker-Cardin? Additionally, as yet unquantified side agreements may have a bearing on congressional posture. Also, some states have sanctioned Iran separately. Since an executive agreement does not carry the federal pre-emptive power as would a treaty, may states continue to act independent of Corker-Cardin, UN, or administration commitments? -- Featuring: Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland and National Security Law Program, George Mason University School of Law and former Chief Counsel and Senior Advisor, Senate Foreign Relations Committee; David B. Rivkin, Jr., Partner, Baker & Hostetler LLP; and Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California Berkeley School of Law.

In what is being described as a "landmark" ruling by the National Labor Relations Board, a divided NLRB has changed a decades-long approach and made it easier for contract and temporary workers to unionize. The NLRB decision expands the traditional definition of "employee" to include shift workers, contract workers, and other temporary employees. What will the decision mean for workers and employers? Will it impact franchisers? Will it lead to more contested matters, as the NLRB has suggested that it will make further determinations on a case-by-case basis? These and other questions, including questions from the audience, were be addressed on our Teleforum call. -- Featuring: Mr. Michael J. Lotito, Co-Chairman, Workplace Policy Institute and Shareholder, Littler Mendelson PC.

Is Clay v. United States, currently pending 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, ended in 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. John Lauro, counsel in the case, discussed the lawsuit, with Paul Kamenar joining to offer questions and comments. -- Featuring: Paul D. Kamenar, Washington, D.C. Attorney and Senior Fellow, Administrative Conference of the United States and John F. Lauro, Principal, Lauro Law Firm. Moderator: John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation.

The Supreme Court issued a number of notable opinions in the area of bankruptcy law during the recently concluded term. Our experts offered their analysis on recent developments in the field and took questions from a call-in audience. -- Featuring: Prof. Thomas Plank, Joel A. Katz Distinguished Professor of Law, University of Tennessee College of Law; Prof. Zvi Rosen Visiting Assistant Professor of Law, Hofstra University Maurice A. Deane School of Law; and Prof. David Skeel, S. Samuel Arsht Professor of Corporate Law, University of Pennsylvania Law School.

On Thursday July 16, 2015, the Wisconsin Supreme Court issued an opinion and order ending the long running “John Doe” investigation into potential violations of Wisconsin campaign finance law and whether candidates and outside groups illegally “coordinated” spending. In mid-June of 2015, a young political consultant was sentenced to nearly two years in federal prison for illegally coordinating between a congressional campaign and a Super PAC. The U.S. Department of Justice also recently announced it will look carefully at allegations of coordination between candidate and outside groups. What does all of this mean? Where is the law heading on this? Are civil and criminal investigations into campaign activity going to be increasing? -- Featuring: Allen Dickerson, Legal Director, Center for Competitive Politics; Edward D. Greim, Partner, Graves Garrett LLC; and Tara Malloy Senior Counsel, Campaign Legal Center. Moderator: Jason Torchinsky, Holtzman Vogel Josefiak PLLC.

July has been a busy month for the Department of Labor (DOL). On July 6th, DOL published proposed revisions to the “white collar” overtime regulations which would more than double the minimum salary level required for exemption. On July 10th, DOL defended its 2011 tip credit regulations before the Ninth Circuit in Oregon Restaurant & Lodging v. Perez. Last week, on July 15th, DOL issued new guidance – an “Administrator’s Interpretation” – concluding that “most” workers are employees, not independent contractors. A decision on the validity of DOL’s home care worker regulations is expected any day from the D.C. Circuit in Home Care Association v. Weil, and in August, DOL is expected to issue a request for information on the use of electronic devices by overtime-protected employees outside of scheduled work hours. In this teleforum, the Bush Administration’s wage-hour team at DOL provided a briefing on these developments and discussed what else we can expect from DOL over the next 18 months. -- Featuring: Paul DeCamp, Jackson Lewis P.C. and Alexander J. Passantino, Seyfarth & Shaw.

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 instructs the Consumer Financial Protection Bureau to study “the use of agreements providing for arbitration of any future dispute . . . in connection with the offering or providing of consumer financial products or services,” and to provide a report to Congress on the same topic. This past March, the CFPB issued its study, pursuant to the statutory requirement. Is the “arbitration study” an anti-arbitration study? Our experts discussed the report and its implications. -- Featuring: Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC and Mr. Andrew J. Pincus, Partner, Mayer Brown LLP.

In her book, The Story: A Reporter's Journey, former New York Times reporter Judith Miller describes going to jail to protect her sources in the investigation of the outing of CIA agent Valerie Plame over a decade ago. Her book catalogs new information that raises questions about the investigation. Bestselling author Arthur Herman led our discussion with the author. -- Featuring: Judith Miller, Author, Senior Fellow, Hudson Institute and Dr. Arthur L. Herman, Senior Fellow, Hudson Institute.

Tens of millions of Americans are between the ages of 18 and 30. These Americans, known as millennials, are, or soon will be, entering the workforce. According to Diana Furchtgott-Roth’s new book, Disinherited: How Washington Is Betraying America's Young, it will be more difficult for this millennial generation to achieve success than it was for young people in the past. Ms. Furchtgott-Roth presents the personal stories of several members of what she terms a “disinherited generation,” each story an indictment of America’s treatment of its young. The book declares that the birthright of America’s young must be restored, and endeavors to explain how. -- Featuring: Diana Furchtgott-Roth, Senior Fellow, Manhattan Institute for Policy Research and Hon. Eileen O'Connor, Partner, Pillsbury Winthrop Shaw Pittman LLP.

In his new book, By the People: Rebuilding Liberty Without Permission, acclaimed social scientist and bestselling author Charles Murray argues that the balance of power between government and the people has become too one-sided, in favor of the government. He argues that citizens across the political spectrum are suffering under the imbalance, and willing and able to act. The question, though, is what is to be done? His answer might surprise you. -- Featuring: Dr. Charles Murray, W.H. Brady Scholar, American Enterprise Institute and Adam J. White, Counsel, Boyden Gray & Associates.

During oral argument in Glossip v. Gross, Justice Samuel Alito pointed to what he called "a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain[.]" The goal of these efforts, apparently, is to facilitate constitutional challenges to the death penalty by making its implementation more painful. -- This teleforum analyzed whether the efforts by death penalty opponents to pressure drug manufacturers to stop supplying drugs for use in execution--resulting in states resorting to execution methods that are more painful--are circumventing the democratic process in debating the death penalty. Specifically, our experts debated the methods used by those in opposition to the death penalty to shut down access to less painful execution methods, the propriety of complicating the death penalty's implementation, the relationship between that complication and constitutional challenges to the death penalty, and whether this amounts to treating the democratic process like a one-way ratchet: only permitting the people to choose more painful means of implementing executions so as to facilitate legal challenges to the death penalty. -- Featuring: Mr. Kent Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation and Prof. John Bessler, Professor of Law, University of Baltimore School of Law

The Supreme Court issued a number of notable opinions in the area of criminal law during the recently concluded term. Members of the Federalist Society’s Criminal Law & Procedure Practice Group Executive Committee offered their analysis on recent developments in the Supreme Court’s criminal law jurisprudence and fielded questions from a call-in audience. -- Featuring: John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation and Dean Mazzone, Senior Trial Counsel, Criminal Bureau, Massachusetts Attorney General’s Office.

During the month of July, the Federalist Society will be celebrating Liberty Month. Our campaign is dedicated to public education and media awareness of the many pressing legal issues that affect the freedom of Americans. The Liberty Month program will include a daily spadea (half-page) insert in the Washington Times. Each insert will feature articles that discuss a specific court case or legal principle. To help kick-off liberty month, we welcomed Senator Mike Lee, who spoke about American Exceptionalism.

On June 25, the Supreme Court issued a 5-4 decision that the Wall Street Journal has characterized as a "Disastrous Misreading of the Fair Housing Act," ruling that disparate-impact claims are cognizable under the Fair Housing Act. The consensus of court-watchers predicted an opposite holding. Is the Court’s decision a broad endorsement of the government’s use of disparate impact theory? Our experts discussed the implications of the decision. -- Featuring: William Consovoy, Partner, Consovoy McCarthy PLLC and alph W. Kasarda, Staff Attorney, Pacific Legal Foundation.

On June 29, with a contentious 5-4 decision in which numerous dissents and concurrences were read from the bench, the Supreme Court upheld the state of Oklahoma’s lethal injection procedure. Our expert discussed the opinion and its impact going forward. -- Featuring: Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation