Federalist Society Practice Groups Podcasts

The 2008 financial crisis—like the Great Depression—was a world-historical event. What caused it will be debated for years, if not generations. The conventional narrative is that the financial crisis was caused by Wall Street’s actions and insufficient regulation of the financial system. That narrative produced the Dodd-Frank Act, the most comprehensive financial-system regulation since the New Deal. A competing narrative about what caused the financial crisis has received little attention -- many contend that the crisis was caused not by bad actors on Wall Street, but by government housing policies. Peter Wallison marshals evidence in support of this view in his recently-released book, Hidden in Plain Sight: What Really Caused the World’s Worst Financial Crisis and Why It Could Happen Again. -- Featuring: Hon. Peter J. Wallison, Arthur F. Burns Fellow in Financial Policy Studies, American Enterprise Institute and Prof. Todd J. Zywicki , Foundation Professor of Law, George Mason University School of Law

umerous states have passed voter identification laws, and the Supreme Court has permitted them to remain in effect. Nonetheless, voter ID remains a highly controversial issue. Former United States Attorney General Edwin Meese III discussed voter fraud and the importance of voter ID laws and answered audience questions on a live Teleforum conference call. -- Featuring: Hon. Edwin Meese III, Ronald Reagan Distinguished Fellow Emeritus, The Heritage Foundation

On January 9, 2015, the Nebraska Supreme Court held that the law dictating the potential path of the Keystone XL pipeline through the state was not unconstitutional. President Obama previously cited the pending lawsuit as a reason to delay making an approval decision on the controversial pipeline project. Nebraska’s former Deputy Attorney General Katie Spohn argued the case, and she joined a Teleforum conference call to discuss the decision and potential upcoming Keystone XL litigation. -- Featuring: Katie Spohn, Partner, Bruning Law Group, LLC. Moderator: J. Tyler Ward II, Member, Environmental Law & Property Rights Practice Group Executive Committee.

Paul G. Cassell, a University of Utah School of Law professor and a former federal judge, will discuss victims' rights to restitution at the federal level. He will focus his presentation on a controversial practice used in the U.S. Attorney’s Office in the Eastern District of New York -- secret settlements of fraud cases without notification to the victims of the fraud. The victims are, without notice, unable to seek restitution. Professor Cassell alleges that the practice violates the Crime Victim’s Restitution Act (although the Department of Justice disputes this claim). -- Featuring: Hon. Paul G. Cassell, Ronald N. Boyce Presidential Endowed Chair in Criminal Law, The University of Utah College 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 Court called for Reply Briefs by April 17, with oral argument and decision expected this term. Cert was granted on two questions about the Fourteenth Amendment. The questions 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. -- The relationship between the two questions is asymmetrical. An affirmative answer to the first settles the second likewise, where the Court could coherently, hold that states must recognize out-of-state same-sex marriages, but not necessarily license them. -- Featuring: Prof. Gerard V. Bradley, University of Notre Dame Law School and Ilya Shapiro, Senior Fellow in Constitutional Studies, The Cato Institute

In December 2013, the Federal Deposit Insurance Corporation released a proposal on the so-called “Single Point of Entry” (SPOE) strategy as a means of resolving large failing banks without financial-market disruption. In a recent paper, AEI scholars Paul Kupiec and Peter Wallison raised questions about legal support for the SPOE strategy in Title II of the Dodd-Frank Act, whether the strategy can be used for resolving the largest failed banks, and the economic consequences of using the SPOE approach to attenuate the systemic risk of a large-bank failure. To facilitate a SPOE resolution, regulators recently proposed new requirements that large financial firms have enough long-term debt and equity — or total loss absorbing capacity — to cover potential losses and bank recapitalization. Mr. Kupiec and Mr. Wallison’s paper questions whether these measures will allow authorities to resolve large banks without a bailout or disorderly break-up. -- Mr. Kupiec and Mr. Wallison will presented their paper and fielded audience questions during a live Teleforum conference call. -- Featuing: Paul H. Kupiec, Resident Scholar, American Enterprise Institute and Hon. Peter J. Wallison, Arthur F. Burns Fellow in Financial Policy Studies, American Enterprise Institute

On Tuesday, January 20, the Supreme Court heard argument in Williams-Yulee v. The Florida Bar, a First Amendment case involving the manner in which elected judges may raise campaign funds for themselves. The issue is whether a widely adopted provision of the ABA Model Code of Judicial Conduct, which prohibits judicial candidates from personally soliciting campaign funds, violates the First Amendment. Personal solicitation of campaign funds raises concerns that prospective or sitting judges might favor or disfavor litigants and attorneys based on how they responded to such solicitation. On the other side of the issue, once States have decided to elect judges, free political speech becomes a critical component of any fair and democratic election process. In addition to broader arguments regarding the proper scope and function of the First Amendment in the context of judicial elections, this case will involve more focused First Amendment questions regarding whether the current rule, as adopted in Florida, is actually effective in preserving the existence or appearance of impartiality and whether there are less restrictive means – such as recusal – to further such goals. -- Featuring: Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC and M. Edward Whelan III, President, Ethics and Public Policy Center

On Wednesday, January 21, 2015, the Supreme Court heard oral arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project Inc. The Supreme Court has previously attempted twice to hear cases reaching the question of whether disparate impact claims are cognizable under the Fair Housing Act, in Magner v. Gallagher and Mount Holly v. Mount Holly Gardens Citizens in Action, and in both instances the cases were settled less than a month before oral arguments. The Fair Housing Act makes it illegal to “refuse to sell or rent . . . or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race.” Do policies that can be demonstrated to have a discriminatory effect on certain racial groups, without a showing of discriminatory intent, violate the statute? -- Featuring: Hon. Todd F. Gaziano, Executive Director, Washington, D.C. Center and Senior Fellow in Constitutional Law, Pacific Legal Foundation

The Environmental Protection Agency (EPA) is required by the 1978 Environmental Research, Development, and Demonstration Authorization Act to submit all proposed regulations to the federal Science Advisory Board (SAB) for peer review. However, in 2011 the EPA issued regulations establishing greenhouse gas emission and fuel efficiency standards both for cars and for medium- and heavy-duty vehicles (the Car Rule and the Truck Rule) without submitting either proposed rule to the SAB. On Friday, January 9, the D.C. Circuit Court of Appeals heard oral arguments in a consolidated case that will determine the legal remedy for these alleged violations of administrative procedure. Ted Hadzi-Antich of the Pacific Legal Foundation argued the case before the D.C. Circuit Court, and he discussed the case and the oral arguments on a live Teleforum conference call. -- Featuring: Theodore Hadzi-Antich, Senior Staff Attorney, Pacific Legal Foundation

FCC Commissioner Ajit Pai spoke to Telecommunications & Electronic Media Practice Group Chairman Bryan Tramont about one of the hottest topics before the Commission today – Open Internet, otherwise known as Net Neutrality. The internet has become a vital platform for innovation and growth throughout the nation, and has flourished with little or no federal or state regulation. Yet the FCC is currently considering new “rules of the road” for the internet that could substantially alter the future of the web and have a profound impact on our economy. The main questions at hand are whether the FCC should regulate internet service providers’ network management practices, and if so, what those rules should be. Some have suggested that the FCC should classify broadband service as a telecommunications service and subject internet service providers to public utility regulation, otherwise known as Title II. Others believe the Commission should pursue other regulatory avenues, such as using the FCC’s existing authority under Section 706 of the Communications Act. -- What is net neutrality exactly? Is there a legitimate need for a regulated internet, or is this is a solution in search of a problem? Does the Commission have legal authority to regulate the internet, or is Congressional authorization a prerequisite? What impact would regulation have on innovation and investment in broadband? Commissioner Pai explored these and other issues in this important teleforum. -- Featuring: Hon. Ajit V. Pai, Federal Communications Commission and Bryan N. Tramont, Managing Partner, Wilkinson, Barker, Knauer, LLP

On January 12, 2015, the U.S. Supreme Court heard oral argument in Reed v. Town of Gilbert. The Town of Gilbert has a sign code that imposes limits on the size, location, number, and duration of the signs advertising the weekly services of the Good News Community Church, whose pastor, Clyde Reed, sued. The sign code does not impose the same restrictions on political, ideological, and homeowners’ association signs. Does the First Amendment rule against content discrimination require a plaintiff to prove intentional discrimination by a government entity? Does the Town of Gilbert's assertion that its sign code lacks a discriminatory motive render its facially content-based sign code content-neutral and justify the code's differential treatment of religious signs? -- Featuring: Hans A. von Spakovsky, Manager, Election Law Reform Initiative and Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

The Common Core State Standards attempts to define what K-12 students should know at the end of each school year in key subject areas. The initiative garnered strong and broad support, but has come under increasingly heavy criticism from state and local officials, and parents. Supporters argue that uniform standards are an essential part of assuring quality education throughout the nation. Criticisms range from concerns about top-down, federal control of a traditionally state and local government function, to attempts to impose a nationwide curriculum, to a lack of field testing of the standards. Our experts discussed the standards and who has the better argument. -- Featuring: Jimmy R. Faircloth, Jr., Managing Partner, Faircloth, Melton & Keiser, LLC and D. John Sauer, Partner, Clark & Sauer, LLC

The battle over the use of affirmative action in college admissions seems far from over, as the recent filing of two federal lawsuits demonstrates. The Project for Fair Representation recently sued both Harvard University and the University of North Carolina at Chapel Hill for allegedly capping the number of Asian-Americans they admit and using racial classifications to engage in invidious discrimination. Edward Blum and William Consovoy provided a litigation update on these and other cases. Featuring: Edward Blum, Director, The Project on Fair Representation and William Consovoy, Partner, Consovoy McCarthy PLLC

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) and look forward to potential CFPB developments in 2015 on this Teleforum conference call. Recent developments included the CFPB’s approach to alleged unlawful discrimination in auto lending and a November study by the American Financial Services Association that suggests that the methodology the CFPB is using to identify minorities is wrong much of the time. -- 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 January 20. 2015, the Supreme Court issued its decision in Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. The question in the case was the level of deference the U.S. Court of Appeals for the Federal Circuit must give to a trial court’s interpretation of patent claims. -- In an opinion delivered by Justice Breyer, the Court altered the long-standing practice of the Federal Circuit to review patent claim constructions de novo, holding that a trial court’s resolution of “subsidiary factual matters” made while interpreting patent claims must be reviewed for clear error. The ultimate interpretation of the claim terms, however, remains subject to de novo review. -- Featuring: Prof. Kristen Osenga, University of Richmond School of Law