Federalist Society Practice Groups Podcasts

The North Carolina State Board of Dental Examiners is the state agency responsible for regulating the practice of dentistry in North Carolina. Under state law, six of the Board's eight members are practicing dentists elected by the state’s licensed dentists. In response to the Board's enforcement actions against non-dentist teeth-whitening providers, the FTC issued an administrative complaint charging that the Board had engaged in concerted action to exclude competition from those non-dentist providers. -- The Board moved to dismiss under the state-action antitrust doctrine, which exempts a State’s anticompetitive actions from federal antitrust scrutiny. The doctrine also exempts the activities of private actors if their conduct is (1) authorized by a clearly articulated state policy to displace competition, and (2) “actively supervised” by state officials. Municipal actors are exempt so long as they act pursuant to a clearly articulated state policy. -- The FTC determined that the state-action doctrine did not exempt the Board’s conduct. According to the FTC, a state regulatory body that is controlled by participants in the market that it regulates must be actively supervised by the State—it is treated as a private actor rather than a municipality. Thus, the FTC concluded, even assuming that the Board’s actions were authorized by a clearly articulated state policy, because no state official had “actively supervised” the Board’s enforcement activities, the state-action doctrine did not apply. The Board petitioned for review, which the Fourth Circuit denied. The Fourth Circuit agreed with the FTC that a state agency operated by market participants elected by other market participants is a private actor for purposes of the state-action exemption. And for such agencies, the court reasoned, the State must "exercise sufficient independent judgment and control" to address the “danger” that they are acting “to benefit [their] own membership,” even where their conduct is authorized by a clearly articulated state policy. -- The Supreme Court heard oral arguments on October 14. The Court will consider whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants. -- Featuring: Prof. Rebecca Haw Allensworth, Vanderbilt University Law School and Misha Tseytlin, Deputy Attorney General, Office of West Virginia Attorney General

While the Supreme Court in City of Richmond v. J.A. Croson Co. (1989) and Adarand Constructors, Inc. v. Pena (1995) handed down landmark decisions against the use of racial preferences in government contracting, the practice continues. One of the largest such federal programs is run by the Small Business Administration, but Rothe Development Co. has now challenged it, in a case where the federal district court will hear oral argument later this month. The lawyer in that case -- who also represented Rothe in its successful challenge to a similar U.S. Department of Defense program -- is David Barton, and he discussed the case in this Teleforum. Also participating in the discussion was Roger Clegg, President and General Counsel of the Center for Equal Opportunity. Featuring: David F. Barton, Partner, The Gardner Law Firm and Roger Clegg, President and General Counsel, Center for Equal Opportunity

In Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., the Supreme Court will address 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 1996, the Supreme Court stated that patent claim construction was “exclusively within the province of the court.” Two years later, the Federal Circuit held, en banc, that the proper standard of review for district court claim constructions is de novo review, extending to related fact-based questions, in Cybor Corporation v. FAS Technologies. Since that time, the use of the de novo standard has been widely criticized. Recently, in the Lighting Ballast Control LLC v. Philips Electronics N.A. Corp. case, the Federal Circuit took another look at this issue, but affirmed the use of the de novo standard, finding no compelling reason to depart from its 15-year precedent. -- Now the Supreme Court will have the opportunity to decide whether the Federal Circuit’s longstanding use of the de novo standard of review for patent claim construction is wrong. Specifically, the question before the Court is whether a district court’s factual finding in support of its construction of a patent claim term may be reviewed de novo, as per Federal Circuit precedent, or only for clear error, as per Federal Rules of Civil Procedure 52(a). -- Featuring: Prof. Kristen Osenga, Professor of Law, University of Richmond School of Law

The recent debate over President Obama’s enforcement of immigration laws and the Affordable Care Act has focused attention on a President’s duty to enforce federal statutes, arising from his constitutional obligation to “Take Care that the Laws be faithfully executed.” Also arising from the Take Care Clause is a President’s distinct duty to defend the constitutionality of federal laws when they are challenged in court, a duty whose scope was hotly debated when Attorney General Eric Holder announced that the Justice Department would not defend section 3 of the Defense of Marriage Act. Some scholars – most notably Professors Neal Devins and Saikrishna Prakash – argue that a presidential duty to defend federal statutes lacks any sound constitutional basis and is unnecessary (see their paper, "The Indefensible Duty to Defend"). However, recent United States Attorneys General – with the possible exception of Attorney General Holder – have agreed that the President has such a duty, subject only to narrow exceptions for laws that are transparently unconstitutional or that the President believes unconstitutionally encroach upon executive power. -- In their article “Take Care Now: Stare Decisis and the President’s Duty to Defend Acts Of Congress” in the Harvard Journal of Law & Public Policy, authors Curt Levey and Ken Klukowski argue for a strong presidential duty to defend, including a duty to defend even statutes alleged to be transparently unconstitutional where the administration’s defense is the only way to facilitate a judicial determination of constitutionality. Levey and Klukowski contend that a strong duty to defend is necessary to maintain the separation of powers under which the judiciary serves as the final voice in constitutional challenges, to prevent Presidents from enacting a form of post-enactment veto of legislation they dislike, and – like the judicial doctrine of stare decisis – to provide federal law with stability and predictability. -- Prof. Neal E. Devins, Goodrich Professor of Law, Cabell Research Professor, Professor of Government, Director, Institute of Bill of Rights Law and Director, Election Law Program, William & Mary Law School and Curt A. Levey, President and Executive Director, The Committee for Justice

From healthcare to workplace conduct, the federal government is taking on ever more responsibility. At the same time, Americans have never been more disaffected with Washington, with many seeing it as an intrusive, incompetent, wasteful giant. The most alarming consequence of ineffective policies, in addition to unrealized social goals, is the growing threat to the government's democratic legitimacy. Understanding why government fails so often--and how it might become more effective--is an urgent responsibility of citizenship. In his book, Why Government Fails So Often: And How It Can Do Better, lawyer and political scientist Peter Schuck provides a wide range of examples and an enormous body of evidence to explain why so many domestic policies go awry--and how to right the foundering ship of state. Professor Schuck joined a Teleforum conference call to discuss the book, with Brian Callanan of King & Spalding offering comments. -- Featuring: Prof. Peter H. Schuck, Author, Why Government Fails So Often: And How It Can Do Better, Simeon E. Baldwin Professor Emeritus of Law, Yale Law School and Brian Callanan, Associate, King & Spalding

The Supreme Court will rule on the religious liberty rights of prisoners in one of the first cases it will hear this term, Holt v. Hobbs. A Muslim prisoner incarcerated in an Arkansas state prison, Gregory Houston Holt (aka, Abdul Maalik Muhammed), is challenging a prison rule preventing him from growing a half inch beard, as his Islamic religious beliefs require. Mr. Holt is asserting his rights under the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), which requires state authorities to justify a substantial burden on a prisoner’s exercise of religion with a compelling state interest, implemented in the least restrictive means. This is essentially the same standard found in the federal Religious Freedom Restoration Act, under which the Supreme Court ruled last June in favor of Hobby Lobby Stores and Conestoga Wood Specialties in their challenges to the HHS mandate on abortifacient contraceptives. -- The Arkansas Department of Corrections limits prisoner beards to a quarter inch, and then only to help remedy medical conditions. Arkansas justifies the short-beard policy to prevent prisoners from smuggling contraband in their beards, and to prevent prisoners from easily altering their appearances after an escape. -- How much deference must courts give to state prison officials, who need flexibility to deal with the complex circumstances of maintaining security in a prison environment? Our expert attended the oral arguments and offered his analysis of the case and its likely outcome. -- Featuring: Jordan Lorence, Senior Counsel, Senior Vice President, Office of Strategic Initiatives, Alliance Defending Freedom

A panel of notable constitutional experts discussed the likely highlights, including the denial of cert in all pending gay marriage cases, of the upcoming Supreme Court term, which began on October 6. -- Featuring: Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law; Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network; and Prof. Stephen I. Vladeck, Professor of Law, American University Washington College 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) on this Teleforum conference call. Recent developments included a Washington Examiner article titled “Revolving Door at Regulator CFPB Enables Former Bureaucrats to Cash In at Taxpayers’ Expense”, the repeal of the bank regulators credit practices rules and the simultaneous warning that agencies will still enforce them, the CFPB’s barring the sale of student loans by Corinthian Colleges Inc., a CFPB report promoting “financial wellness” in the workplace, the CFPB's announcement that it will hold a field hearing on auto finance on September 18 in Indianapolis, and the introduction of bipartisan legislation that would invalidate the CFPB’s March, 2013 auto finance guidance and require the CFPB to proceed, if it chooses to do so, by rulemaking. -- Featuring: Julius L. Loeser, Of Counsel, Winston & Strawn LLP and Prof. Todd J. Zywicki, Foundation Professor of Law, George Mason University School of Law

Is it within a federal court's authority to order local police officers to wear video cameras in an effort to create an "objective record" of police activity, as occurred last summer in New York City? What is the basis and is it advisable for the Department of Justice to impose reforms on local police activity via consent decrees or other means (see here and here)? What should we make of lawsuits, such as the one filed by police officers rejecting such oversight in Seattle? Are they attempts to vindicate the sovereignty of their own policing, or do they gloss over the serious problems in law enforcement that would go otherwise unchecked without federal involvement? Our experts answered these and other questions. -- Featuring: Prof. William G. Otis, Adjunct Professor of Law, Georgetown University Law Center and Prof. Samuel Walker, Emeritus Professor of Criminal Justice, University of Nebraska at Omaha

Until recently prisons have been the sacred cows in state budgets. They are the second fastest growing item in state budgets, second only to Medicaid. Conservative leaders in several states have enacted reforms that have saved billions by reserving costly prison beds for violent offenders, while punishing non-violent offenders in community programs, without increasing their crime rates. Do these reforms provide a roadmap for other states and the federal government? -- Marc Levin, of the Texas Public Policy Foundation and Pat Nolan of the American Conservative Union Foundation, are leaders of Right on Crime, a movement of conservatives working with the states to provide conservative and fiscally responsible solutions to their criminal justice problems. They described the specific reforms that have been utilized in states such as Texas, Georgia, Pennsylvania, South Carolina, and Ohio to cut their prison costs while also driving the crime rates down. Featuring: Marc A. Levin, Director, Center for Effective Justice, Texas Public Policy Foundation and Pat Nolan, Director, Center for Criminal Justice Reform, The American Conservative Union

On July 25, 2014, the Fifth Circuit Court of Appeals issued its decision in Fisher v. University of Texas at Austin, on remand from the Supreme Court of the United States. In a 2-1 decision, the panel upheld the University of Texas' affirmative action policies, "persuaded by UT-Austin ... of its necessary use of race in a holistic process and the want of workable alternatives that would not require even greater use of race." Was this decision consistent with the Supreme Court's 7-1 decision in June 2013? What will happen going forward? Our expert answered these and other questions for a live call-in audience. -- Featuring: Andrew Grossman, Associate, Baker & Hostetler LLP and Adjunct Scholar, The Cato Institute

On July 21, 2014 President. Obama issued Executive Order 13672, amending EO 11246 which has been around since 1965. The new EO added sexual orientation and gender identity to the list of prohibited bases of employment discrimination by federal contractors. The order applies to all employees of a contractor, not just those working on a federal contract. It also requires the contractor to hold itself out to the public as an equal opportunity employer with respect to these newly protected classes, and to post in conspicuous places notice to employees and job applicants of its nondiscrimination duties. -- Some religious organizations are federal contractors. This has long been the practice with respect to international relief efforts, as well as for services to meet the religious needs of those in prison and serving in the armed forces. Religious organizations petitioned the White House for an exemption from these new requirements. Although they did not succeed, they were able to convince President Obama to leave intact a more limited religious exception permitting religious organizations to staff on a religious basis, an exception drawn from Title VII of the 1964 Civil Rights Act. -- Featuring: Prof. Carl H. Esbeck, R.B. Price Professor Emeritus and Isabelle Wade & Paul C. Lyda Professor of Law Emeritus, University of Missouri, Columbia School of Law; Dr. Stanley W. Carlson-Thies, Founder and President, Institutional Religious Freedom Alliance; Senior Fellow and former Director of Social Policy Studies, Center for Public Justice; former Director, White House Office of Faith-Based & Community Initiatives; and Prof. Robin Fretwell Wilson, Director, Program in Family Law and Policy, University of Illinois College of Law.

Race-based affirmative action had been declining as a factor in university admissions even before the recent spate of related cases arrived at the Supreme Court. Since the mid-1990s, the percentage of four-year public colleges that consider racial or ethnic status in admissions has fallen from 60 percent to 35 percent. Only 45 percent of private colleges still explicitly consider race, with elite schools more likely to do so, although they too have retreated. Law school professor and civil rights activist Sheryll Cashin believes that this isn’t entirely bad news, because, as she argues, affirmative action as currently practiced does little to help disadvantaged people. The truly disadvantaged are not getting the quality schooling they need in part because backlash and wedge politics undermine any possibility for common-sense public policies. Using place instead of race in diversity programming, she writes, will better amend the structural disadvantages endured by many children of color, while enhancing the possibility that we might one day move past the racial resentment that affirmative action engenders. In Place, Not Race: A New Vision of Opportunity in America, Professor Cashin reimagines affirmative action and champions place-based policies, arguing that college applicants who have thrived despite exposure to neighborhood or school poverty are deserving of special consideration. -- Featuring: Prof. Sheryll D. Cashin, Author, Place, Not Race: A New Vision of Opportunity in America, and Professor of Law, Georgetown University Law Center and Roger B. Clegg, President and General Counsel, Center for Equal Opportunity

Professor Tom W. Bell, Chapman University, Fowler School of Law, participated in a Teleforum conference call on the topic, "Copyright Originalism." Professor Bell's new book, Intellectual Privilege: Copyright, Common Law, and the Common Good, argues that copyright in the United States has mutated into something the Founders would have hardly recognized, much less approved of. He so admires their version of copyright that he convinced the Mercatus Center to publish Intellectual Privilege under what he calls the "Founders' Copyright," allowing the public to enjoy his book under terms that replicate the effect of the original Copyright Act, passed in 1790. Christopher Newman, Associate Professor of Law, George Mason University School of Law, joined to offer his comments and questions. Featuring: Prof. Tom W. Bell, Professor of Law, Chapman University School of Law and Prof. Christopher Newman, Associate Professor of Law, George Mason University School of Law

John D. Graham, former Administrator of the Office of Information and Regulatory Affairs (OIRA), and Professor Todd J. Zywicki participated in a Teleforum conference call discussing the use of stealth regulatory tactics by federal agencies to circumvent OIRA review and rulemaking standards under the Administrative Procedures Act. Dr. Graham and Prof. Zywicki addressed the range of tactics used by agencies to bypass OIRA and APA regulatory standards, the implications of such tactics to the democratic accountability and technical competence of agencies, and options for pursuing reform. Both Speakers drew from a multi-author research collaboration organized by the Mercatus Center at George Mason University and edited by Dr. Graham that was published in Volume 37, Issue 2 and the Federalist Edition, Volume 1, Issue 1 of the Harvard Journal of Law and Public Policy. -- Featuring: Dr. John D. Graham, Dean, Indiana University School of Public and Environmental Affairs, and former Administrator, Office of Information and Regulatory Affairs (2001-2006) and Prof. Todd J. Zywicki, Foundation Professor of Law, George Mason University School of Law, and Senior Scholar, Mercatus Center at George Mason University