Federalist Society Practice Groups Podcasts

On Tuesday, May 26, the U.S. Supreme Court decided Kellogg Brown & Root, Inc. v U.S. ex rel Carter, a case in which a private relator sought to bring a False Claims Act lawsuit against a government contractor for actions beyond the statute of limitations and that had been the subject of another relator’s lawsuit. The Supreme Court held that the claims outside of the statute of limitations could not be brought using a criminal tolling statute, but permitted other claims to proceed, despite having been dismissed in other lawsuits. -- Critics have noted that this ruling could make settling False Claims Act lawsuits brought by relators riskier for contractors. Why settle with one relator if another relator can then bring the same claim, given what the Supreme Court deemed the “interpretive challenges” of the False Claims Act? Also left unaddressed by the Supreme Court’s ruling is the Fourth Circuit’s broad holding that the United States is “at war” for purposes of the tolling statute even when there has neither been a formal declaration of war nor an authorization for the use of military force. Could contractors face criminal indictments for decades-old invoices so long as the United States remains involved in any conflict abroad? Our speakers provided expert analysis of the case and answered questions from the callers. -- Featuring: Christopher A. Bowen, Associate, Arent Fox LLP and Marcia G. Madsen, Partner, Mayer Brown.

On Tuesday, May 26, the Fifth Circuit Court of Appeals denied a request from federal government lawyers to overturn a lower court injunction, and to thereby allow President Barack Obama's immigration actions to go into effect pending appeal. What now are the legal effects of the President’s immigration actions? What are the possible next steps in the litigation? These and other questions were answered on this Teleforum Conference call. -- Featuring: Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law

“Political Realism: How Hacks, Machines, Big Money, and Back-Room Deals Can Strengthen American Democracy” (available here as a free e-book) builds on political realism, an emerging school of thought that is characterized by respect for transactional politics and by skepticism toward idealistic political reforms. In our era of intense polarization and gridlock, Jonathan Rauch asks: How can political home truths – truths our grandparents took for granted – help modern politicians negotiate, compromise, and govern? -- Featuring: Stephen R. Klein, Attorney, Pillar of Law Institute and Jonathan Rauch, Senior Fellow, Governance Studies, The Brookings Institution

Is there a way out of the morass on immigration policy that is consistent with conservative principles but allows for a solution to the problems created by outdated and largely unenforceable current laws? Some argue that our current illegal immigration problem is largely the result of laws that prevent willing workers who are foreign born to be matched with U.S. employers who seek the skills they offer at both the high and low end of the skills spectrum. Others are loath to give illegal immigrants a path to citizenship, seeing it as an endorsement of the evasion of the rule of law, and an incentive to future illegal immigration. -- Featuring: Hon. Linda Chavez, Chairman, Center for Equal Opportunity and Hon. Thomas G. Tancredo, Co-chairman, Team America PAC, and President, Rocky Mountain Foundation

Members of the Federalist Society’s Financial Services & E-Commerce Practice Group Executive Committee provided an update on important activity at the Consumer Financial Protection Bureau (CFPB). Developments included the CFPB's adoption of a final policy on publishing consumer complaint narratives, a moratorium on credit card issuers submitting their credit card agreements to the CFPB, the Office of Management and Budget's threat of recommending the veto of a bill that would reduce the CFPB's budget by 0.1% over then next ten years, and the D.C. Circuit Court of Appeals decision to uphold the dismissal on procedural grounds in Morgan Drexen, Inc. v. CFPB, a suit challenging the constitutionality of the 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

The First Amendment reads, in part, "Congress shall make no law . . .abridging the freedom of speech, or of the press . . ." Are there, and should there be, different levels of freedom of speech for media and non-media speakers? If so, how should "media" and "non-media" be defined, and who should decide? Our experts debated a recent Texas Court of Appeals decision that surprised some observers. -- Featuring: Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law and Prof. Sonja R. West, University of Georgia School of Law

There has been a recent surge in consumer class action lawsuits challenging "all natural" labels found in food products. In particular, many lawsuits have targeted "all natural" food products that have ingredients made from so-called Genetically Modified Organisms (GMOs). Plaintiffs have argued that these food products cannot be labeled as "all natural" because GMOs are not natural. This Teleforum provided a background on "all natural" labeling and GMOs and offered a discussion on recent case law and trends in this still-developing area of law. -- Featuring: Stephen Gardner, Of Counsel, Stanly Law Group and Kenneth K. Lee, Partner, Jenner and Block

With the Federal Communications Commission's recent net neutrality regulations, the FCC has potentially entered into the Federal Trade Commission's regulatory arena in the area of antitrust regulation and consumer protection. Are the FCC's net neutrality rules an impermissible intrusion on the FTC's portfolio, or is the regulatory tension between the FTC and FCC merely an accident of overlapping jurisdiction provided by Congress in the respective statutes creating each agency? -- Featuring: Hon. Joshua D. Wright, Commissioner, United States Federal Trade Commission

The America Invents Act, the first substantial legislative changes to patent law, took effect two years ago. Late last year, attempts to reform patent law stalled when late opposition to the proposed act was voiced. This year, a number of legislative proposals are under consideration in both houses of Congress. Some proponents of patent reform cite increasing patent litigation as a key indicator that reform is necessary, while opponents argue that the empirical evidence used to support those claims is faulty. Our experts debated new and old empirical evidence, and the underlying need for further patent reform. Professor Kesan referred to a PowerPoint prseentation available for download on this page. -- Featuring: Eli Dourado, Director of Technology Policy Program, Research Fellow, Mercatus Center, George Mason University School of Law and Prof. Jay Kesan, H. Ross & Helen Workman Research Scholar, Director, Program in Intellectual Property and Technology Law, University of Illinois College of Law.

On April 29, the United States Supreme Court issued a 5-4 opinion in Williams-Yulee v. Florida Bar allowing states to bar candidates for judgeships from personally asking for campaign donations. Writing for the majority, Chief Justice Roberts noted the importance of “public confidence in the integrity of the judiciary,” concluding that “States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians.” In dissent, Justice Scalia noted that the majority disregarded “one settled First Amendment principle after another” to reach its result. -- Featuring: Prof. Brian T. Fitzpatrick, Vanderbilt University Law School and Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC

In their new book, The Constitution: An Introduction, constitutional scholar Michael Stokes Paulsen and his son, Luke Paulsen, write a lively modern primer on the U.S. Constitution. Beginning with the Constitution’s birth in 1787, Paulsen and Paulsen offer a tour of its provisions, principles, and interpretation, introducing readers to the characters and controversies that have shaped the Constitution in the 200-plus years since its creation. In a review published in Engage, the Law Journal of the Federalist Society, U.S. Supreme Court Justice Samuel Alito praises the book’s unique format: “Professor Paulsen and his son began this collaboration when Luke was in high school and continued throughout his college years at Princeton. It is easy to imagine this process as a conversation between a father, who has been immersed in the study of the Constitution for his entire adult life, and a bright son, who brings a new perspective and challenges the father to explain and defend.” Justice Alito goes on to say that the book “invites readers to become personally engaged in the discussion of the Constitution that began in the fall of 1787 when the citizens of the states debated ratification.” In this spirit of debate, both of the authors joined University of Richmond School of Law Professor Kevin Walsh and answered audience questions on a Teleforum conference call. -- Featuring: Luke Paulsen, Co-author, The Constitution: An Introduction; Prof. Michael S. Paulsen, Co-author, The Constitution: An Introduction, Distinguished University Chair and Professor, University of St. Thomas School of Law; and Prof. Kevin C. Walsh, University of Richmond School of Law

On Wednesday, April 29, 2015, the Supreme Court heard oral arguments in Glossip v. Gross. The case turns on the efficacy of the first drug in Oklahoma’s three-drug execution protocol, the subject of controversy after a highly publicized botched execution last year; critics claim that this drug is unable to reliably produce the deep, coma-like unconsciousness necessary to avoid the pain and suffering that can result from the administration of the second and third drugs, and that the protocol violates the Eighth Amendment because of this. Oral arguments were expected to be revealing as to whether the court will focus narrowly on the specific execution method in question or range more broadly over important constitutional issues related to the death penalty. -- Featuring: Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation

The long-anticipated gay marriage cases have now been argued in the Supreme Court. The questions presented are: whether the Fourteenth Amendment "require[s]" a "state to issue a marriage license to two people of the same sex", and/or "to recognize amarriage between two people of the same sex when their marriage was lawfully licensed and performed" in another state or jurisdiction. Join a special Courthouse Steps edition of Teleforum as we discuss the oral argument: Which advocate seemed to fair best? Who fielded the most difficult questions? Which justices seemed most skeptical of which side of the argument? What are the possible outcomes of the case, and what are the implications of those possible outcomes? -- Featuring: Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law

On January 16, 2015, the Supreme Court granted cert in four same-sex marriage cases from the Sixth Circuit (one case from each of four states of the circuit, -- Ohio, Michigan, Tennessee, Kentucky). The questions presented in the cases are: whether the Fourteenth Amendment "require[s]" a "state to issue a marriage license to two people of the same sex", and/or "to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed" in another state or jurisdiction. This Teleforum previewed the strongest and weakest points of argument for each side in the case. -- Featuring: Prof. Gerard V. Bradley, University of Notre Dame Law School and Prof. Ilya Somin, George Mason University School of Law

In what has become a highly visible challenge to the EPA’s authority under the Clean Air Act, the D.C. Court of Appeals heard oral argument on April 16, 2015. The case is being viewed by some as a fundamental test of executive authority and the judiciary’s willingness to evaluate and rein in possible overreach. Is the rule, now in proposed form, ripe for challenge, at least in part because compliance with the rule requires a great deal of planning and expense even before its adoption? Has the EPA overreached and, if so, will the court intervene? Or has the EPA properly utilized its statutory rulemaking authority for what all parties indicate will be an important change in the way coal-fired power plants are able to operate? -- Featuring: Robert R. Gasaway, Partner, Kirkland & Ellis LLP