Federalist Society Practice Groups Podcasts

In a June 25, 2014, decision, the U.S. Supreme Court ruled in ABC v. Aereo that Aereo publicly performs copyrighted works, in violation of the Copyright Act’s Transmit Clause, when its technology allows its paid subscribers to watch television programs over the Internet in near real-time as the programs are broadcast over the air. Has the decision increased certainty and predictability in the world of copyright, or did the Court’s reasoning inject more uncertainty? Are there implications in the decision for what is anticipated to be a legislative effort to change existing copyright law? -- Featuring: Prof. Mark Schultz, Associate Professor and Director of Faculty Development, Southern Illinois University and Senior Scholar and Co-Director of Academic Programs, Center for the protection of Intellectual property, George Mason University School of Law

In his new book, Is Administrative Law Unlawful?, Professor Philip Hamburger answers the provocative question posed in his title in the affirmative. Rather than accepting administrative law as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative and traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the United States Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Professor Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the U.S. Constitution — and constitutions in general — were designed to prevent. -- Professor Hamburger joined us on a Teleforum conference call to discuss his new book, with additional commentary from Adam White. Mr. White’s recent review of the book for the Wall Street Journal is available here. -- Prof. Philip A. Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia Law School and Adam J. White, Counsel, Boyden Gray & Associates

Is Harris v. Quinn a landmark in labor law? The case asked the Court to decide whether the First Amendment bars Illinois from compelling personal homecare providers to accept and financially support a private organization as their exclusive representative to petition the state for greater reimbursements from its Medicaid programs. -- Viewed narrowly, Harris is a challenge to the organization of home-care workers, asking the Court to clarify whether a state's interest in maintaining "labor peace" -- the justification for allowing government to burden workers' First Amendment rights by requiring them to associate with and support a labor union -- is sufficient in these circumstances. -- But Harris also asked whether a state ever has an interest sufficiently compelling to require its own workers to speak to it through the intermediary of a labor union. It was only in 1977, in a case called Abood v. Detroit Board of Education, that the Supreme Court held that "labor peace" justifies this imposition on government employees' First Amendment rights. The Harris petitioners contend that Abood was wrongly decided and that governments never have any sufficiently compelling interest to compel their workers to support a labor union. Does the majority opinion's language on Abood signal the Court is ready to reverse it when the right case presents itself? -- Prof. Samuel Bagenstos, University of Michigan Law School and Andrew M. Grossman, Associate, Baker & Hostetler LLP, Adjunct Scholar, The Cato Institute

Two of the biggest cases of the U.S. Supreme Court Term were discussed in a specially-extended Teleforum conference call. In the Hobby Lobby case, the U.S. Supreme Court ruled on whether the federal government may enforce, against private businesses owned by religiously devout owners, the requirement that their employee health plans provide certain no-cost benefits under the Health and Human Services Department’s contraceptive mandate. In McCullen v. Coakley, the Supreme Court determined that a state law-imposed buffer zone around abortion clinics violated the plaintiffs' First Amendment free speech rights. Our panel of four experts discussed the cases, the outcomes, and their implications, and then fielded audience questions in a special 90-minute Teleforum conference call. -- Prof. Richard W. Garnett, IV, Professor of Law & Concurrent Professor of Political Science, Founding Director, Program on Church, State & Society, University of Notre Dame Law School; Erik S. Jaffe, Law Office of Erik S. Jaffe, P.C.; Prof. Michael P. Moreland, Vice Dean & Professor of Law, Villanova University School of Law; and Prof. Micah J. Schwartzman, Edward F. Howrey Professor of Law, University of Virginia School of Law

On June 26, 2014 the U.S. Supreme Court issued its opinion in NLRB v. Noel Canning. In a unanimous decision authored by Justice Breyer, the Court holds that recess appointments made in pro forma sessions are invalid. Our experts discussed the decision and its implications. -- Noel J. Francisco, Partner, Jones Day; Prof. Kristin E. Hickman, Harlan Albert Rogers Professor in Law; Associate Director, Corporate Institute, University of Minnesota Law School; and Prof. Michael B. Rappaport, Hugh and Hazel Darling Foundation Professor of Law, and Director, Center for the Study of Constitutional Originalism, University of San Diego School of Law

The U.S. Supreme Court recently decided another important pair of property rights cases. Nautilus v. Biosig Instruments concerns definiteness and the scope of patents. In Limelight Networks v. Akamai Technologies, the Court held that a defendant is not liable for inducing infringement under 35 U.S.C. § 271(b) when no one has directly infringed under Section 217(a) or any other statutory provision. How important are these decisions? What are their implications? -- Aaron M. Panner, Partner, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C and Thomas G. Saunders, Partner, WilmerHale

On Monday, June 23, 2014, the Supreme Court decided Utility Air Regulatory Group v. Environmental Protection Agency. At issue was the EPA’s conclusion that its regulation of greenhouse gases from motor vehicles triggered mandatory regulation of GHGs from large stationary sources, as well as EPA’s subsequent decision to rewrite the statutory emission thresholds in order to facilitate GHG regulation. The Court held that the EPA is not obligated to regulate GHGs under the Prevention of Significant Deterioration (PSD) and Title V programs, and that the EPA is not permitted to rewrite the applicable statutory emission thresholds – an important reaffirmation that agencies are not allowed to rewrite the statutes that they administer. However, the Court also concluded that it was reasonable for the EPA to interpret the Clean Air Act to allow for the regulation of GHG emissions from sources already subject to regulation under the PSD and Title V program. Our expert discussed the opinion and its impact and future regulation of greenhouse gases. -- Robert R. Gasaway, Partner, Kirkland & Ellis LLP

Controversies over jurisdiction and management of public lands are building. Whether grazing rights disputes in Nevada or New Mexico, alarm over federal disinterest in long recognized local partnerships for management of multi-use lands, BLM review of millions of acres to balance factors like environmental justice, and complaints of forest maintenance hazards, states are increasingly concerned. Western states contend that return of public lands to state control would generate a North Dakota-like renaissance of jobs, access to resources, and economic activity. Several Western states are investigating the legal basis for challenging federal retention of these public multi-use lands as described in state charter enabling acts. The state of Utah now has statutory authority to sue the federal government for return of its lands in January, 2015. How sound is the legal case, and what are the economic implications for the Western states -- as well as the country in general? What are the environmental policy issues and is state stewardship of these lands best??? -- Hon. Ken Ivory, State Representative, Utah House of Representatives; Prof. Donald J. Kochan, Professor of Law, Chapman University School of Law; Carl Graham, Director, Center for Self-Government in the West, Sutherland Institute and David Garbett, Staff Counsel, Southern Utah Wilderness Alliance

In its surprisingly short opinion in Alice Corp. v. CLS Bank on June 19, 2014, the Supreme Court invalidated Alice Corporation's patent on a computer-implemented technology for managing risk in financial transactions as claiming an “abstract idea.” In doing so, is the Court continuing a practice it began with its 2010 decision in Bilski v. Kappos, in which it strikes down patents on the grounds that they allegedly cover unpatentable subject matter like an abstract idea or law of nature? Is the Court providing enough legal guidance such that inventors and commercial firms working in the innovation industries can know with certainty if their discoveries or inventions are patentable? -- Prof. Adam Mossoff, Professor of Law and Co-Director of Academic Programs and Senior Scholar, Center for the Protection of Intellectual Property, George Mason University School of Law

In their new book, Obama's Enforcer: Eric Holder's Justice Department, Hans von Spakovsky and John Fund present an analysis of the Attorney General’s role in advancing the administration’s political agenda, as well as his responsibilities as a “heat shield,” protecting the president on numerous fronts. The authors joined us on a Teleforum conference call to discuss the book and answer questions from a call-in audience. -- John Fund, National Affairs Columnist, National Review and Fox News Analyst and Hans A. von Spakovsky, Senior Legal Fellow and Manager, Civil Justice Reform Initiative, The Heritage Foundation

The Supreme Court decided a complex but important case on June 16, 2014, Republic of Argentina v. NML Capital, Limited. The Republic of Argentina issued bonds to American investors, correspondingly waiving its sovereign immunity and consenting to jurisdiction in New York State. Argentina subsequently defaulted on those bonds. Plaintiff bondholder NML did not participate in a renegotiation of the bonds and sued to prevent Argentina from paying other bondholders that agreed to settle their claims. -- At issue were whether NML Capital could bring suit against Argentina under the Foreign Sovereign Immunities Act (FSIA) and the extent of discovery to which plaintiffs are entitled. In court, the United States sided with Argentina. Argentina asserted it should be able to block third party disclosure of its assets, since some assets might be sensitive diplomatic or military assets. The Supreme Court ruled, 7-1, that Argentina is subject to the FSIA, and thus liable to suit pursuant to it, and that American banks can be ordered to disclose Argentina’s assets in the U.S. as part of discovery in the default lawsuit. This decision has potential ramifications for government debt restructuring around the world. Our experts examined these and other possible effects of the decision. -- Prof. Michael D. Ramsey, Hugh and Hazel Darling Foundation Professor of Law, Director, International & Comparative Law Programs, University of San Diego School of Law and Prof. Thomas H. Lee, Leitner Family Professor of International Law, Director Graduate and International Studies, Fordham University School of Law

There is a recent, concerted effort to ratify an amendment to the U.S. Constitution to allow Congress to regulate political speech when it is engaged in by corporations as opposed to individuals. What would the proposed amendment accomplish? What is the likelihood of its adoption? These and other questions were addressed by our experts. -- Prof. Bradley A. Smith, 2013-14 Judge John T. Copenhaver Visiting Endowed Chair of Law, West Virginia University College of Law and Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law, Capital University Law School and Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law

Operation Chokepoint is a new initiative of the Obama administration led by the Department of Justice, the FDIC, and the CFPB. It aims to pressure certain industries, primarily payday lending and online lending, by increasing oversight requirements to such levels that it becomes unprofitable for the banks to work with the third-party payment processors who enable these targeted industries to process payments. Other industries that may be targeted by the program include firearms/fireworks sales, ammunition sales, “As Seen on TV” products, gambling, home-based charities, pornography, online pharmaceuticals, and sweepstakes. Our experts shed light on the little-known program, and offered a thorough discussion of the legal and policy implications. -- Charles J. Cooper, Partner, Cooper & Kirk, PLLC; Iain Murray, Vice President for Strategy, the Competitive Enterprise Institute; and Prof. Todd J. Zywicki, Foundation Professor of Law, George Mason University School of Law

The Supreme Court’s decision last Term in Missouri v. McNeely is an important one for judges and attorneys involved in criminal matters in state courts. In McNeely, the Court decided that the exigency exception to the warrant requirement does not always apply to the taking of blood from the driver to determine his or her blood-alcohol level, even though alcohol dissipates in the blood over time. In this Teleforum, we examined the implications of the McNeely decision, including whether any of the other exceptions to the warrant requirement apply, its implications for state-court judges and practitioners, and how McNeely fits within the framework of other recent Fourth Amendment decisions of the Supreme Court. -- Featuring: Prof. Orin S. Kerr, Fred C. Stevenson Research Professor of Law, The George Washington University Law School and Prof. Rory Little, Professor of Law, University of California Hastings College of the Law. Moderator: Hon. David Stras, Minnesota Supreme Court

Guantanamo BayWould relocation of War on Terror detainees currently held at Guantánamo Bay, Cuba into the United States result in detainees’ possible eligibility for removal from the U.S. under any grounds, or give to those detainees additional U.S. constitutional rights they do not currently possess? Would their relocation result in a new spate of litigation designed to assert such claims, even if those claims are not ultimately successful? As a policy matter, is relocation a good idea? Our experts discussed these and other questions, many of which are also addressed in the May 14, 2014, Department of Justice report, linked here. -- John C. O'Quinn, Partner, Kirkland & Ellis LLP and Prof. Stephen I. Vladeck, Associate Dean for Scholarship, American University Washington College of Law