Federalist Society Practice Groups Podcasts

Politicized spending by the Executive Branch is of increasing interest to social science scholars, transparency advocates, and lawyers. Beginning in 2010, in response to perceived abuses, Congress instituted an earmark moratorium; however, recent research details how political influence perseveres in the merit-based allocation of taxpayer funds. Unlike federal contracts, however, limited judicial remedies exist for challenging politicization in discretionary spending. A recent piece in the Federalist Society’s Engage details how courts will generally defer to agency determinations concerning spending, thus presenting difficulties for lawyers who seek to challenge political spending decisions in the Executive Branch. Our experts discussed the extent and effect of the political influence on spending and the importance of transparency. -- Cause of Action, a government accountability group, also is launching a website detailing the phenomenon of Executive Branch earmarks and the transparency problems that persist. The website is available at www.ExecutiveBranchEarmarks.com/. -- Featuring: Daniel Z. Epstein, Executive Director, Cause of Action and Dr. John Hudak, Fellow, Governance Studies and Managing Editor, FixGov Blog, The Brookings Institution

Professor Todd J. Zywicki joined a Teleforum conference call on his new book, Consumer Credit and the American Economy, co-authored with Thomas Durkin, Gregory Elliehausen, and Michael Staten. The book examines the economics, behavioral science, sociology, history, institutions, law, and regulation of consumer credit in the United States. Because of the importance of consumer credit in consumers' financial affairs, Professor Zywicki's intended audience includes anyone interested in these issues, not only specialists who spend much of their time focused on them. For this reason, the authors have carefully avoided academic jargon and the mathematics that is the modern language of economics. It also examines the psychological, sociological, historical, and especially legal traditions that go into fully understanding what has led to the demand for consumer credit and to what the markets and institutions that provide these products have become today. Bill Himpler, Executive Vice President at the American Financial Services Association, offered his comments and questions. Featuring: Prof. Todd J Zywicki, Author, Consumer Credit and the American Economy, and Foundation Professor of Law, George Mason University School of Law and Bill Himpler, Executive Vice President, American Financial Services Association.

The recent indictment of Texas Governor Rick Perry has garnered huge press attention. In an unusual alignment, commentators from both the left and the right have been highly critical of the indictment, with the New York Times editorial board calling it “the product of an overzealous prosecution.” But condemnation of the indictment has not been perfectly unanimous, and a few commentators have now come out in support of the indictment. We examined all the details on a Teleforum conference call. Featuring: Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center, and Professor Emeritus, Louisiana State University Law School.

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 the CFPB’s proposal to make public the details of anonymous consumer complaints, the CFPB’s 573-page proposal to require residential mortgage lenders to report publicly 37 new details on each home mortgage application that they receive, a bill that was introduced in the U.S. Senate to increase the threshold size of banks subject to CFPB examination from $10 billion to $50 billion, an enforcement action that the CFPB commenced against a law firm for its debt collection practices, and a warning that the CFPB issued to consumers about virtual currencies like Bitcoin. 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 Privacy and Civil Liberties Oversight Board (PCLOB) recently released its report on the surveillance program authorized under Section 702 of the Foreign Intelligence Surveillance Act. The report includes an evaluation of whether the surveillance program comports with the terms of the statute, an evaluation of the Fourth Amendment issues raised by the program, and a discussion of the treatment of non-U.S. persons under the program. Also, the report makes policy recommendations for the program going forward. Two members of the PCLOB will discuss the report on this Teleforum and answer audience questions. Featuring: Hon. Rachel Brand, Chief Counsel for Regulatory Litigation, National Chamber Litigation Center, United States Chamber of Commerce; Member, Privacy and Civil Liberties Oversight Board; former Assistant U.S. Attorney General for Legal Policy, United States Department of Justice and Hon. James X. Dempsey, Senior Counsel, Center for Democracy & Technology; Member, Privacy and Civil Liberties Oversight Board. Moderator: Matthew R.A. Heiman, Vice President, Chief Compliance & Ethics Officer, Tyco.

Following the Snowden leaks, the country is once again re-examining the proper balance between national security and individual privacy. Senator Patrick Leahy (Vermont) has introduced a bill that would revise aspects of certain NSA surveillance programs. Two leading experts addressed the merits of this bill. Featuring: Hon. Stewart A. Baker, Partner, Steptoe & Johnson LLP and Harley Geiger, Senior Counsel and Deputy Director, Freedom, Security and Surveillance Project, Center for Democracy & Technology

From the time he entered office after being tapped by Boris Yeltsin to succeed him, President Vladimir Putin’s overarching objective was to consolidate power – at home and abroad. From earlier focuses on the Russian economy and quashing internal rivals, President Putin now seeks to recover geo-strategic assets lost in the Soviet collapse, which he called “the greatest geo-political catastrophe of the 20th century.” -- President Putin's adventurism in the “post-Soviet space” was previously limited to cyber-activities in the Baltics, widespread regional economic and security pressure, and the 2008 invasion of Georgia. But in 2014 he aimed far higher by invading and annexing Crimea and then destabilizing eastern Ukraine. The downing of Malaysia Airlines Flight MH17 by Russian-backed separatists in Ukraine has caused the West to re-assess its overall approach to Russia. -- What is President Putin up to? How far will he go? What should the United States do to deter President Putin's ambitions to make Russia the dominant power in Eurasia? And what are our European allies willing to do? -- Featuring: Hon. Brian H. Hook, Founder, Latitude, LLC and former Assistant U.S. Secretary of State for International Organization Affairs and Ms. Heather Hurlburt, Senior Fellow in National Security, Human Rights First

While other fields of law are trying to anticipate the future ramifications of the widespread use of drones, robots, and self-driving vehicles, financial markets have already confronted the fact that – for about five years now – automated trading programs have made the majority of all trades in equities and commodities. Automation has substantially reduced the cost of trading, but it has also had profound effects on the structure of financial markets, and has raised questions about its facilitation of allegedly abusive practices. A 2013 documentary, “Ghost Exchange,” and a 2014 best-selling book, Michael Lewis’s Flash Boys, focused public attention on the effects of high-frequency trading (HFT) on market integrity and stability, and helped precipitate a series of aggressive enforcement investigations as well as rulemaking initiatives at financial regulatory agencies in the U.S. and abroad. Our experts reviewed the state of the debate over HFT, and possible paths forward. Featuring: Brian Mannix, President, Buckland Mill Associates and Joanne Medero, Managing Director, BlackRock Inc.

After suffering two judicial setbacks already, most recently in the D.C. Circuit’s Verizon v. FCC decision this past January, the Federal Communications Commission is once again proposing to adopt new net neutrality regulations. The proposed regulations would bar internet service providers from blocking access to any lawful website or from engaging in commercially unreasonable practices. A key aspect of the FCC’s proposal drawing considerable attention concerns whether the FCC should bar so-called paid prioritization of internet traffic. -- In this Teleforum, three experts with divergent views addressed whether there is any need for the FCC to adopt any new neutrality regulations and, if so, whether the agency possesses the legal authority to do so. Two principal legal theories that may support FCC action were discussed – using the FCC’s existing authority under Section 706 of the Communications Act or classifying internet service providers as common carriers under Title II of the Act. The panelists also discussed the most important question of all: whether and how net neutrality regulation might affect consumer welfare. -- Maureen K. Ohlhausen, Commissioner, Federal Trade Commission; Prof. Daniel Lyons, Boston College Law School; and Michael Weinberg, Vice President, Public Knowledge. Moderator: Randolph J. May, President, The Free State Foundation.

It has been argued that EPA's recently announced carbon emissions rule is just the latest attempt to draw states into the implementation of its regulations. The Supreme Court has long been permissive of such "cooperative federalism" programs in both the regulatory and spending contexts, insisting in New York v. United States (1992) and Printz v. United States (1997) that such programs constitute mere "encouragement" not rising to the level of coercion or commandeering. But Texas's fight to resist being drawn into implementing EPA's greenhouse gas regulations suggests that federal "encouragement" can be deeply coercive, employing penalties against the state's economy that courts have no doctrine to account for. -- Prof. Michael S. Greve, George Mason University School of Law; Mario Loyola, Senior Fellow, Texas Public Policy Foundation; and Dr. Bryan W. Shaw, Chairman, Texas Commission on Environmental Quality.

In a case decided on Tuesday, July 22, 2014 by the D.C. Circuit Court of Appeals, the court ruled that subsidies can be granted only to those people who bought health insurance in exchanges run by an individual state or the District of Columbia, and not to people who purchased health insurance on the federally run exchange, HealthCare.gov. How did the court reach its conclusion, and is the court’s reasoning sound? Will the ruling make the Affordable Care Act financially unworkable? Is a final ruling by the U.S. Supreme Court inevitable? -- Featuring: Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law and Prof. Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School

The Supreme Court issued a number of notable opinions in the area of criminal law during the recently concluded term. Members of the Federalist Society’s Criminal Law & Procedure Practice Group Executive Committee offered their analysis on recent developments in the Supreme Court’s criminal law jurisprudence and fielded questions from a call-in audience. -- Featuring: Dean Mazzone, Chief of the Enterprise and Major Crimes Division, Massachusetts Attorney General's Office and Kent S. Scheidegger, Legal Director and General Counsel, Criminal Justice Legal Foundation

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 on this Teleforum conference call. Recent developments included CFPB Director Richard Cordray’s congressional testimony on auto lending discrimination, as well as the congressional testimony of CFPB whistleblower Ali Naraghi on alleged “results-oriented” examinations of regulated entities, bureaucratic inefficiency, and workplace discrimination at the CFPB, and Operation Chokepoint. -- Featuring: Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association and Prof. Todd J. Zywicki, Foundation Professor of Law, George Mason University School of Law

At bottom, in Kuretski v. Commissioner, presidential power is at stake. Judges of the U.S. Tax Court (26 USC 7443(f)), were arguably characterized by the U.S. Supreme Court, in Freytag v. Commissioner, as exercising a portion of the judicial power of the United States. Recently, however, the D.C. Circuit Court of Appeals disagreed when it found that the Tax Court exercises only executive power. What are the implications of the D.C. Circuit Court’s opinion on the president’s removal power? Has the D.C. Circuit misread Freytag, or faithfully applied it? -- Featuring: Prof. Kristin E. Hickman, Harlan Albert Rogers Professor in Law, University of Minnesota Law School and Prof. Tuan Samahon, Professor of Law, Villanova University School of Law

On Monday, June 23, 2014 the Supreme Court issued a 9-0 decision in the highly anticipated securities fraud case Halliburton v. Erica P. John Fund. The case offered the Court an opportunity to revisit its 1988 decision in Basic v. Levinson, in which it adopted the “fraud on the market” doctrine. Fraud on the market is critical to modern securities fraud class action lawsuits -- the doctrine assumes that any misrepresentations of a security traded in an efficient market will affect that security’s market price and thus affect any shareholders trading in reliance of market price, an assumption that precludes consideration of whether potential class members actually heard and acted on fraudulent statements. The Court declined to overturn Basic; our expert discussed the reasoning and impact of the decision. Featuring: George T. Conway III, Partner, Wachtell, Lipton, Rosen & Katz