Federalist Society Practice Groups Podcasts

In December 2011 the last American soldier left Iraq. “We’re leaving behind a sovereign, stable, and self-reliant Iraq,” boasted President Obama. He was proved devastatingly wrong less than three years later as jihadists seized the Iraqi city of Mosul. The event cast another dark shadow over the future of global order—a shadow, which, Bret Stephens, Deputy Editorial Page Editor and Foreign Affairs Columnist for The Wall Street Journal, argues, we ignore at our peril. -- America in Retreat: The New Isolationism and the Coming Global Disorder identifies a profound crisis on the global horizon. As Americans seek to withdraw from the world to tend to domestic problems, America’s adversaries spy opportunity. Vladimir Putin’s ambitions to restore the glory of the czarist empire go effectively unchecked, as do China’s attempts to expand its maritime claims in the South China Sea, as do Iran’s efforts to develop nuclear capabilities. Civil war in Syria displaces millions throughout the Middle East while turbocharging the forces of radical Islam. Long-time allies such as Japan, Saudi Arabia, and Israel, doubting the credibility of American security guarantees, are tempted to freelance their foreign policy, irrespective of U.S. interests. -- Mr. Stephens argues for American reengagement abroad. He explains how military intervention in Iraq and Afghanistan was the right course of action, foolishly executed. He traces the intellectual continuity between anti-interventionist statesmen such as Henry Wallace and Robert Taft in the late 1940s and Barack Obama and Rand Paul today. And he makes an unapologetic case for Pax Americana, “a world in which English is the default language of business, diplomacy, tourism, and technology; in which markets are global, capital is mobile, and trade is increasingly free; in which values of openness and tolerance are, when not the norm, often the aspiration.” -- In a chapter imagining the world of 2019, Mr. Stephens shows what could lie in store if Americans continue on their current course. Yet we are not doomed to this future. Mr. Stephens makes a passionate rejoinder to those who argue that America is in decline, a process that is often beyond the reach of political cures. Instead, we are in retreat—the result of faulty, but reversible, policy choices. By embracing its historic responsibility as the world’s policeman, America can safeguard not only greater peace in the world but also greater prosperity at home. -- Featuring: Bret L. Stephens, Deputy Editorial Page Editor, Foreign Affairs Columnist, The Wall Street Journal

In 1963, the Supreme Court ruled that indigent persons accused of crimes must be provided with an attorney. The Court, however, did not specify how those attorneys should be financed. The public defender model is, of course, the most familiar model that has arisen. Texas is about to start something new--a pilot program involving defense vouchers. Like the school voucher concept, the idea is to replicate, so far as possible, a free market for defense services. By giving the person with the most at stake more say in choosing the attorney who will defend his reputation and liberty, will vouchers produce gains for both the defendant and the public at large? Featuring: James D. Bethke, Executive Director, Texas Indigent Defense Commission and Prof. Stephen J. Schulhofer, Robert B. McKay Professor of Law, New York University Law School. Moderator: Tim Lynch, Director, Project on Criminal Justice, Cato Institute.

On December 8, 2014, the Tenth Circuit Court of Appeals heard arguments in three cases challenging the HHS contraceptive mandate, including Little Sisters of the Poor v. Burwell. The Little Sisters case has already been to the Supreme Court once when Justice Sotomayor gave the nuns an emergency injunction on December 31, 2013, and the full court gave them an injunction in January 2014. The Little Sisters returned to court on December 8 to challenge whether the government can force them to sign forms that would let the government and third parties use their plan to provide contraceptives. -- Mark Rienzi is Senior Counsel at the Becket Fund for Religious Liberty, and an Associate Professor of Constitutional Law at the Catholic University of America. He argued on behalf of the Little Sisters and several other parties before the 10th Circuit, and he gave a report on the argument and the status of the challenges to the contraceptive mandate.

Immigration law and enforcement have been on the front pages for the last several years, and that shows no signs of changing. One aspect to our national debate on immigration that hasn't received as much attention as it should is the effect that the several states can have on the issue. Through its policing powers and criminal sentencing guidelines, a state can influence who the federal immigration authorities can remove from the country. Our experts discussed the important constitutional issues that these trends present. -- Featuring: Peter K. Nunez, Chairman, Center for Immigration Studies Board of Directors and Margaret D. Stock, Counsel to the Firm, Cascadia Cross-Border Law. Moderator: Brian M. Fish, Member, Federalist Society Criminal Law & Procedure Practice Group Executive Committee.

Congress adopted the Telephone Consumer Protection Act (“TCPA”) to protect consumers from aggressive telemarketing and to bolster the “right to be left alone.” But more than 20 years after its adoption, the statute has given rise to an explosion of class action lawsuits, raising questions about whether the law is continuing to serve its intended purpose. Defendants have sought relief from the implementing agency, the Federal Communications Commission, and some relief has been forthcoming. However, the rate at which lawsuits have proliferated has far outstripped the pace of regulatory relief. Our experts discussed whether fundamental TCPA reform is needed and, if so, how it might be achieved. -- Featuring: Scott D. Delacourt, Partner, Wiley Rein LLP and Jason D. Goldman, Senior Telecommunications Policy Counsel, Managing Director, Environment, Technology & Regulatory Affairs Division, U.S. Chamber of Commerce

The Akaka Bill, originally proposed by former U.S. Senator Daniel Akaka, was designed to establish a process for Native Hawaiians to gain federal recognition similar to that of some Native American tribes. Based on this status, members can then receive preferential treatment. Critics argue that such treatment would violate the Equal Protection Clause of the U.S. Constitution. Supporters argue that such preferences would be authorized because they would be on the political relationship that existed between the U.S. government and its native peoples, and based on the pre-existing sovereignty of those native peoples. Will the Akaka Bill, or some version of it, resurface? If so, is it good law? Good policy? -- 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

Congress passed the Passenger Rail Investment and Improvement Act (PRIIA) in 2008. Section 207 of PRIIA requires the Federal Railroad Administration and Amtrak to “jointly develop” the metrics and standards for Amtrak’s performance that are used by the Surface Transportation Board to trigger the investigation of private freight railroads for failing to provide preferences for Amtrak passenger trains (as required by federal law) if Amtrak fails to meet the standards. Is PRIIA Section 207 an unconstitutional delegation of legislative power to a private entity? The D.C. Circuit said yes, concluding that the statute is the functional equivalent of granting General Motors the authority to write regulations covering its industry rivals. Will the Supreme Court agree and breathe life into the rarely invoked non-delegation doctrine? Our expert attended the oral argument on Monday, December 8, and offered his impressions to a Teleforum audience. -- Featuring: C. Frederick Beckner, III, Partner, Sidley Austin LLP

Congress passed the Passenger Rail Investment and Improvement Act (PRIIA) in 2008. Section 207 of PRIIA requires the Federal Railroad Administration and Amtrak to “jointly develop” the metrics and standards for Amtrak’s performance that are used by the Surface Transportation Board to trigger the investigation of private freight railroads for failing to provide preferences for Amtrak passenger trains (as required by federal law) if Amtrak fails to meet the standards. Is PRIIA Section 207 an unconstitutional delegation of legislative power to a private entity? The D.C. Circuit said yes, concluding that the statute is the functional equivalent of granting General Motors the authority to write regulations covering its industry rivals. The Supreme Court will have a chance to consider the question in Department of Transportation v. Association of American Railroads, scheduled to be heard on December 8, 2014. Our experts discussed the case and previewed the oral arguments. -- Featuring: Hon. Ronald A. Cass, Dean Emeritus, Boston University School of Law and President, Cass & Associates, PC and Prof. Michael E. Herz, Arthur Kaplan Professor of Law, Co-Director, Floersheimer Center for Constitutional Democracy, Benjamin N. Cardozo School of Law. Moderator: Brian Callanan, Associate, King & Spalding.

The President, with much attention from the media and the public, announced executive action on immigration. Our discussion will address the specifics of the President’s actions, and the legality of those actions. What exactly was said and done by the President, and how do his actions differ from acts he previously asserted were beyond his unilateral power? Has the President exceeded his constitutional authority to act? What happens next? -- Featuring: Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center and Professor Emeritus, LSU Law School; Prof. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law; Margaret D. Stock, Counsel to the Firm, Cascadia Cross-Border Law; and Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California Berkeley School of Law

In 2008, Larry Whitfield attempted to rob a credit union. In the aftermath of the attempted bank robbery, Mr. Whitfield hid from the police in the home of seventy-nine-year-old Mary Parnell. After entering her home, Mr. Whitfield assured Ms. Parnell that he did not intend to harm her and asked her to move with him several feet from the hallway into the home’s computer room so that the police wouldn’t see him. Ms. Parnell suffered a fatal heart attack shortly thereafter. The federal bank robbery statute, in 18 U.S.C. § 2113(e), provides that a bank robber who “forces another person to accompany him” will receive between ten years and life in prison. Among other crimes related to the attempted bank robbery, Mr. Whitfield was found guilty of one count of “forced accompaniment” and sentenced to twenty-two years in prison. In Whitfield v. United States, the Supreme Court will answer whether the statute requires proof of more than a de minimis movement of the victim. Will the Court be skeptical of another possibly overzealous federal prosecution as it was in both Bond v. United States and Yates v. United States, or will the severity of Mr. Whitfield’s crimes help convince the Justices of the validity of the government’s position? Our expert will attend the oral arguments and offer his impressions to a Teleforum 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

Anthony Douglas Elonis was convicted and sentenced to forty-four months in prison for a series of 2011 Facebook posts that prosecutors argued were in violation of a federal law making it a crime to “transmit in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.” In Elonis v. United States, argued on December 1, 2014, the Court will answer whether conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as both a First Amendment and a statutory interpretation issue. Anthony Elonis argues that his postings on Facebook were not “true threats” because he actually had no “subjective intent to threaten another person.” Several of his supporters allege that “genre of artistic expression through which a message is conveyed is relevant to a court’s evaluation of alleged threats,” and that Mr. Elonis’ posts, many of which identify him as an “aspiring rapper” and take the form of rap lyrics, are protected artistic expression. The government argues that Mr. Elonis’s statements were properly judged by two measures: first, did he make his statements intentionally (without regard to what he was thinking), and, second, would “a reasonable person” read the words used and their context as conveying to the target of the message that they would be injured or killed? Our expert offered his impressions of the oral arguments to a Teleforum audience. -- Featuring: Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation

In 2012 and 2013, Indiana and Michigan, respectively, passed Right to Work laws covering both public and private sector employees. Wisconsin (2012) passed Act 10, which created Right to Work protections for most public employees and limited many aspects of public sector bargaining. -- In response to this legislation, unions and their supporters in each of these states filed numerous state and federal lawsuits, challenging these laws on a wide variety of federal and state constitutional grounds. Some of the cases have been decided and others remain pending. The Wisconsin Supreme Court recently turned down a major challenge to Act 10, the Indiana Supreme Court recently heard oral argument on one state constitutional challenge, and the Michigan Supreme Court is slated to hear oral argument soon on a challenge brought by civil service unions. In addition, employees seeking to resign their memberships or cut off dues deductions have filed numerous actions in state courts and administrative agencies to enforce the laws in the face of union policies designed to restrict resignations and dues revocations. The current status of the three states’ laws and the many court challenges will be discussed in this Teleforum. -- Featuring: Milton L. Chappell, Staff Attorney, National Right to Work Legal Defense Foundation

On October 8, the U.S. Supreme Court heard oral arguments in Integrity Staffing Solutions, Inc., v. Busk. The case involves a dispute between Nevada warehouses and their employees. The warehouses fill orders for Amazon.com customers. At the conclusion of shifts, employees spend time being screened to make sure they haven’t stolen anything from the shelves or the bins, a company requirement before they leave for the day. The company refers to this process as “inventory control.” Employees claim that the time spent undergoing the screening is compensable under the Fair Labor Standards Act, while the employer asserts that the screening procedure is analogous to the time employees spend clocking out on their way out the door, and is not compensable. Employers also assert that they must be able to protect their businesses with security measures without having to choose between security and compensating employees for their time going from point A to point B, which would raise operating costs. -- Karen R. Harned, Executive Director of the National Federation of Independent Business Small Business Legal Center, attended the oral arguments, and she offered her analysis of the facts of the case and the possible outcome. -- Featuring: Karen R. Harned, Executive Director, National Federation of Independent Small Business Legal Center

Members of the Federalist Society’s Financial Services & E-Commerce Practice Group Executive Committee will provide an update on recent important activity at the Consumer Financial Protection Bureau (CFPB) on this Teleforum conference call. Recent developments include the CFPB Student Loan Ombudsman’s comments at a meeting of the American Bar Association Business Law Section, the CFPB’s lawsuit against Corinthian Colleges, Inc., a recent CFPB report on fair lending in the indirect auto loan market, a report from the Government Accountability Office on the CFPB’s data collection practices, Director Richard Cordray’s remarks on public service and student debt, and a Washington Post article on whether Wal-Mart and Apple’s provision of some financial services may subject them to oversight by the CFPB. Featuring: Julius L. Loeser, Of Counsel, Winston & Strawn LLP and Prof. Todd J. Zywicki, Foundation Professor of Law, George Mason University School of Law

The tragedy of asbestos continues to play out. The ensuing litigation has no counterpart in our history. Over 10,000 companies have been named as defendants, leading to 100 bankruptcies (and counting). While the litigation continues apace, it has undergone radical changes from the 1985-2003 period, when millions of nonmalignant asbestos claims, mostly of asbestosis, surged through the civil justice system. U.S. District Court Judge Janis G. Jack painstakingly documented that the litigation screenings which had generated approximately 90% these claims were permeated with fraud. As stated by Judge Jack: "it [was] clear that the lawyers, doctors and screening companies were all willing participants [in a scheme] to manufacture. . . [diagnoses] for money." -- Malignancies, most especially mesothelioma and lung cancer, account for a substantial percentage of the billions being paid out currently. Because of the unique nature of asbestos etiology and bankruptcies, trusts with assets of approximately $30 billion have been created from the assets of reorganized companies to compensate current and future victims of asbestos exposures. -- Asbestos claimants today have two separate sources from which to seek compensation: claims against the trusts and suits against solvent defendants in the tort system. In “Fraud and Abuse in Mesothelioma Litigation,” 88 Tulane L. Rev. 1071 (2014), Professor Lester Brickman has examined the interplay between trust payments to claimants and tort claims. He presents evidence that plaintiffs and their counsel have routinely failed to identify exposures to the products of reorganized companies when suing defendants in the tort system even though they state, under oath, that the claimants had “meaningful and credible exposures” to the very products that plaintiffs have denied having exposed to in interrogatories, depositions, and trial testimony. Plaintiffs’ counsel steadfastly maintain that with a sole exception, there is no evidence that plaintiffs or their counsel have engaged in unethical or illegal conduct. -- Recently, U.S. Bankruptcy Judge George R. Hodges, in In re Garlock Sealing Techs., 504 B.R. 71 (Bankr. W.D.N.C. 2014), found a “startling pattern of misrepresentation” “of exposure evidence,” thus sustaining Professor Brickman’s expert testimony in the Garlock bankruptcy. The committee representing the interests of plaintiffs and their counsel have appealed Judge Hodges’ Order. -- The significance of Judge Hodges’ Order is yet to be determined. Already, Garlock has filed RICO actions against several of the law firms that obtained substantial payments from Garlock. Insurers and defendants are undoubtedly conducting investigations based on the revelations in Garlock and newly emerging evidence that may result in additional lawsuits being brought against plaintiffs’ counsel. If so, we may be entering a new era in litigation. -- Featuring: Prof. Lester Brickman, Yeshiva University, Benjamin N. Cardozo School of Law and Mark A. Behrens, Partner, Shook, Hardy & Bacon, L.L.P.