Federalist Society Practice Groups Podcasts

On June 29, the U.S. Supreme Court limited the power of the EPA. Under the Clean Air Act, the EPA can regulate, as a stationary source of emissions, power plants only if EPA concludes that "regulation is appropriate and necessary." The Court, in a split decision, held that the EPA acted unreasonably when it deemed cost of the regulations irrelevant when it decided to regulate power plants. But what does that mean for the EPA? Will the decision have an impact for other regulatory agencies? -- Featuring: Andrew Grossman, Associate, Baker & Hostetler, and Adjunct Scholar, The Cato Institute

In a 5-4 decision, the Supreme Court today resolved the gay marriage case, ruling that the “Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.” Our experts discussed the case and the decision. -- Featuring: Prof. John C. Eastman, Director, Center for Constitutional Jurisprudence, Henry Salvatori Professor of Law and Community Service, Chapman University Dale E. Fowler School of Law and Ilya Shapiro, Senior Fellow in Constitutional Studies, The Cato Institute

On June 25 the Supreme Court held that Affordable Care Act subsidies are available to individuals in States that have a Federal Exchange as well as a State Exchange. In upholding the subsidies, the majority concluded that the Court must read the statutory provisions of the ACA “in context,” and that “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” In a dissent joined by two colleagues, Justice Scalia wrote that the Court’s conclusion was “quite absurd,” and that “[w]ords no longer have meaning if an Exchange that is not established by a State is ‘established by the state.’” How momentous is today’s decision? -- Featuring: Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law; Prof. Josh Blackman, South Texas College of Law; and David B. Rivkin, Jr., Partner, Baker & Hostetler LLP.

In Kimble v. Marvel Enterprises, citing stare decisis, the Court held that a patent holder cannot charge royalties for the use of his invention after its patent term has expired. In so holding, the Court affirmed a 60 year-old case along the same lines. But in yesterday’s decision, three justices dissented, stating that “[t] he Court employs stare decisis, normally a tool of restraint, to reaffirm a clear case of judicial overreach.” Should the Court have reversed course? -- Featuring: Prof. Gregory Dolin, Co-director, Center for Medicine and Law, University of Baltimore School of Law.

Under what circumstances can the government take your property without giving you compensation? Does it matter whether it is real property or personal property? On June 22, with an interesting alignment of justices, the U.S. Supreme Court decided Horne v. Department of Agriculture, addressing these and other questions. -- Featuring: John Elwood, Partner, Vinson & Elkins LLP.

On Jun 18, the U.S. Supreme Court decided two cases with free speech implications. In Walker v. Texas Division, Sons of Confederate Veterans, the Court held that the speech involved in a specialty license plate was government speech, and the government can regulate its content. In Reed v. Town of Gilbert, the Court held that the content-based time, size and location regulation of a church's signage did not pass strict scrutiny. Our expert discussed the details of the opinions and took questions from the audience. -- Featuring: Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law

It is the year 4300 in an imaginary jurisdiction named Newgarth. Old questions dominate the deliberations of the Supreme Court as Chief Justice Truepenny and his four colleagues present their opinions in the appeal of a notorious murder verdict. Each Justice presents and defends his analysis and disposition of the appeal. The opinions offer considered views of law, justice, judges' work and larger public opinion. No pale pastels for the Truepenny Court, as its members alternately resort to the broad brush and the fine scalpel. The final effect is one of a well written teaching tool and also an essay on our flawed human condition. -- Prof. Lon L. Fuller, in his article, “The Case of the Speluncean Explorers,” presented his ideas in the form of a dialogue, without footnotes. The Harvard Law Review published it in February 1949. In a sense it is a work of moral imagination. In another sense it is so dated as to be almost antiquarian. The members of Supreme Court of Newgarth are male and the legal analysis they offer and the language they use are distinctly old-fashioned. In some quarters it would be regarded as a discredited tool of oppression. That said, Prof. Fuller still entertains and teaches the reader, 65 years later. The questions and worries that lawyers and judges share with the Justices of Newgarth still loom in the 21st century. -- Our discussion panel was composed of legal scholars from Canada, Australia, and the United States. In a real sense, its diversity shows the continuing relevance and appeal of this legal classic. -- Featuring: Prof. James Allan, Garrick Professor of Law, University of Queensland, TC Beirne School of Law; James A. Haynes, Attorney and Alternate Judge, U.S. Department of Labor, Employees Compensation Appeals Board; and Prof. Dan Priel, York University Osgoode School of Law Prof. Frederick Schauer, David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law.

Over the past several years there has been a heightened interest in the operation and structure of the U.S. securities markets. Annette Nazareth and Jeffrey Dinwoodie explained the history and development of our current equity market structure. They also shed light on some of the key issues currently being debated and provided an update on the SEC’s activities in this area. -- Featuring: Jeffrey T. Dinwoodie, Associate, Davis Polk & Wardwell LLP and Annette L. Nazareth, Partner, Davis Polk & Wardwell LLP

On June 15, 2015, the U.S. Supreme Court issued ruling in two important immigration cases: Mata v. Lynch and Kerry v. Din. -- In Mata v. Lynch, the Court overturned the Fifth Circuit’s refusal to hear an appeal of the Board of Immigration Appeals’ decision to dismissal of Noel Reyes Mata’s request to appeal his deportation to Mexico, holding that the Fifth Circuit erred in declining to take jurisdiction over Mr. Mata’s appeal. -- In Kerry v. Din, the Court overturned the Ninth Circuit’s ruling that petitioner Fauzia Din was denied constitutional due process protections when her husband, Kanishka Berashk, a resident citizen of Afghanistan and a former civil servant in the Taliban regime, was denied an immigration visa to the United States on the grounds that he was inadmissable under American law that excludes aliens who have engaged in “[t]errorist activities,” and when Mrs. Din and Mr. Berashk were subsequently denied review of their appeal in U.S. District Court. The Court held that the U.S. Government’s long practice of regulating immigration, which has included erecting serious impediments to a person’s ability to bring a spouse into the United States, precludes Mrs. Din’s claim. -- Our expert, Chapman University School of Law Prof. John C. Eastman, analyzed these opinions and offered his perspectives of their impact on immigration policy.

Property rights in patented inventions are being struck down at an unprecedented rate in a new administrative forum. This new post-grant review procedure (PGR), instituted in late 2012, takes place not in a court, but rather in an administrative forum known as the Patent Trials and Appeals Board. The Board has invalidated the vast majority of the patent claims it has reviewed, around 80% by some measures. -- The US Patent and Trademark Office appears to have erected a vast and expensive system for granting rights with one hand and taking them away with the other. The former Chief Judge of the nation's patent appeals court, Randall Rader, has called the Board a "death squad" for patents. Many businesses and their attorneys have commented that investors and corporate decisionmakers are re-evaluating their investments in R&D whose value is secured by patents. -- Are these criticisms confirmed by the actions of opportunistic hedge funds and law firms? PGR challenges have no standing requirement -- they can be instituted by anyone. Hedge fund manager Kyle Bass has filed a PGR challenge against Jazz Pharmaceuticals after shorting the company's stock. PGRs are viewed as so deadly by investors that they reacted just as Bass hoped -- the stock's value plummeted. Similarly, law firms have been contacting innovative companies and demanding payments not to file PGR challenges against their patents. -- This Teleform discussed the expansion of the administrative powers of the Patent Office in establishing the Board, and whether this is another example of overreach by the executive branch that should be reined in via reform measures currently under consideration in Congress. -- Featuring: Mr. Peter Cicala, Vice President of Intellectual Property, Chief Patent Counsel, Celgene Corporation; Prof. Gregory Dolin, Associate Professor of Law, Co-Director, Center for Medicine and Law, University of Baltimore, School of Law; and Mr. Robert Sterne, Partner, Sterne Kessler Goldstein Fox. Moderator: Prof. Mark Schultz, Senior Scholar, Center for the Protection of Intellectual Property, George Mason University School of Law, Associate Professor, Southern Illinois University School of Law

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

On Monday, June 1, the U.S. Supreme Court overturned the conviction of Anthony Douglas Elonis, who was prosecuted under a 1939 law prohibiting the communication of threats for allegedly threatening his estranged wife via Facebook. Has the Supreme Court clarified the legal status of violent speech on the internet, or merely added to the confusion? Our experts discussed the opinion and its implications. -- Featuring: John Elwood, Partner, Vinson & Elkins LLP and Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation

On June 23, 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for "public use," the Court ruled that the transfer of condemned land to private parties for "economic development" is permitted by the Constitution. In his new book, published by the University of Chicago Press, The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain, Prof. Ilya Somin argues that the closely divided 5-4 ruling in Kelo was a grave error. Prof. Somin provides a detailed study of the case, as well as of the new laws intended to limit the use of eminent domain passed in forty-five states during the political backlash following the decision, alongside a broader history of the dispute over public use and eminent domain and an evaluation of options for reform. -- With the 10th anniversary of the Kelo decision approaching, Prof. Somin joined a Teleforum program to discuss the book, with Prof. Richard Epstein joining to offer his comments. -- Featuring: Prof. Ilya Somin, Author, The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain, and Professor of Law, George Mason University School of Law and Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law.

Many states make money by letting a wide range of groups order specialty license plates for their members. The specialty plates tend to convey a message or an affiliation. May a state reject a proposed plate because it deals with “politically sensitive and emotionally charged issues?" More specifically, may a state forbid a “Choose Life” specialty plate, but allow a “Union Yes” plate and one that says “Support Police?” The Second Circuit just upheld such a policy, by a 2-to-1 vote. Is the decision consistent with the First Amendment? -- Featuring: Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law.

When is an employer liable or not liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice?” We discussed the case decided on June 1, 2015 by the U.S. Supreme Court.on this Courthouse Steps Teleforum conference call. -- Featuring: Michael E. Rosman, General Counsel, Center for Individual Rights.