Federalist Society Practice Groups Podcasts

On June 2, 2014, the U.S. Supreme Court decided Bond v. U.S. The Court did not avail itself of the opportunity to decide an important issue: Do the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’ authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations? Instead, the Court resolved the case using statutory interpretation. How important is the decision? What can be gleaned from the Court’s decision? -- Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law and Prof. Nicholas Quinn Rosenkranz, Professor of Law, Georgetown University Law Center

In an effort to address air pollution and global warming, on June 2, 2014, the Obama Administration took action that would require a 30 percent cut in carbon emissions at fossil fuel-burning power plants by 2030. How must such reductions be accomplished? How much latitude will states and private actors have in meeting the new requirements? What is the process for finalizing the administration’s proposal? Our experts addressed these and other questions. -- Mark W. DeLaquil, Partner, Baker & Hostetler LLP and David B. Rivkin, Jr., Partner, Baker & Hostetler LLP

In recent years, many state and local governments have encountered severe fiscal problems, partly because of the recession and financial crisis, and partly because of long-term pension and other obligations that outstrip revenue. This raises a number of important policy and legal questions, such as the extent to which it is desirable for federal and state governments to "bail out" fiscally troubled jurisdictions, and whether or not such governments can default on any of their obligations. If state or local governments become more dependent on federal funding, that may also have implications for the long-term future of American federalism. Our panelists, Prof. Sanford Levinson and Prof. David Skeel considered these issues. -- Professor Sanford V. Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair, University of Texas School of Law and Professor David A. Skeel, S. Samuel Arsht Professor of Corporate Law, University of Pennsylvania Law School

Part lament, part provocative call-to-action, Democracy in Decline: Steps in the Wrong Direction argues how democracy is being diluted and restricted in five of the world's oldest democracies – the United States, Canada, the United Kingdom, Australia, and New Zealand. University of Queensland School of Law Professor James Allan targets four main, interconnected causes of decline – judicial activism, the transformation and growth of international law, the development of supranational organizations, and the presence of undemocratic elites. He argues that the same trends are occurring whether the country has a constitutional bill of rights (United States and Canada), a statutory bill of rights (the United Kingdom and New Zealand), or no bill of rights at all (Australia). Identifying tactics used by lawyers, judges, and international bureaucrats to deny that any decline has occurred, Mr. Allan looks ahead to further deterioration caused by attacks on free speech, intolerant worldviews, internationalization through treaties and conventions, and illegal immigration. Social and political decisions, Mr. Allan argues, must be based on counting every adult in a nation state as equal. An essential book for anyone concerned with majority rule and fairness in numbers, Democracy in Decline presents an account of trends that he says have been undermining democracy over three decades. -- Featuring: Professor James Allan, Garrick Professor in Law, The University of Queensland School of Law, and author of Democracy in Decline and James A. Haynes, Attorney and Alternate Judge, Employees Compensation Appeals Board, U.S. Department of Labor

On April 23, 2014, the Supreme Court decided Paroline v. United States, a case involving the efforts of “Amy,” a victim of child pornography, to collect the full amount of damages owed to her. In a 5-4 decision, the Court held that Amy could not collect the full $3.4 million in damages from one man convicted of possessing two images of her, because defendants should only be made liable for the consequences and gravity of their own conduct, not the conduct of others. University of Utah Professor Paul G. Cassell, who argued for Amy at the Supreme Court, discussed the impact of the decision, as well as current Congressional efforts to ensure that victims of child pornography are not forced into a lifetime of litigation to extract damages from those involved in their abuse. He was joined by John G. Malcolm, Chairman of the Federalist Society’s Criminal Law & Procedure Practice Group. -- Professor Paul G. Cassell, Ronald N. Boyce Presidential Endowed Chair in Criminal Law, The University of Utah College of Law? and 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?, and Chairman of the Federalist Society's Criminal Law & Procedure Practice Group

On April 23, 2014, the Supreme Court decided Paroline v. United States, a case involving the efforts of “Amy,” a victim of child pornography, to collect the full amount of damages owed to her. In a 5-4 decision, the Court held that Amy could not collect the full $3.4 million in damages from one man convicted of possessing two images of her, because defendants should only be made liable for the consequences and gravity of their own conduct, not the conduct of others. University of Utah Professor Paul G. Cassell, who argued for Amy at the Supreme Court, discussed the impact of the decision, as well as current Congressional efforts to ensure that victims of child pornography are not forced into a lifetime of litigation to extract damages from those involved in their abuse. He was joined by John G. Malcolm, Chairman of the Federalist Society’s Criminal Law & Procedure Practice Group. -- Professor Paul G. Cassell, Ronald N. Boyce Presidential Endowed Chair in Criminal Law, The University of Utah College of Law? and 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?, and Chairman of the Federalist Society's Criminal Law & Procedure Practice Group

The world today is overwhelmed by wars between nations and within nations, wars that have dominated American politics for quite some time. Point of Attack?: Preventative War, International Law, and Global Welfare calls for a new understanding of the grounds for war. In this book, University of California at Berkeley School of Law Professor John Yoo argues that the new threats to international security come not from war between the great powers, but from the internal collapse of states, terrorist groups, the spread of weapons of mass destruction, and destabilizing regional powers. In Point of Attack, he rejects the widely-accepted framework built on the U.N. Charter and replaces it with a new system consisting of defensive, pre-emptive, or preventive measures to encourage wars that advance global welfare. Professor Yoo concludes with an analysis of the Afghanistan and Iraq wars, failed states, and the current challenges posed by Libya, Syria, North Korea, and Iran. Professor Yoo and Ohio Northern University College of Law Professor Michael W. Lewis explored the premises of Professor Yoo’s book and the ways super powers might respond and adapt to the changing geopolitical landscape. - Professor John C. Yoo, Emanuel S. Heller Professor of Law, University of California, Berkeley School of Law, and author of Point of Attack and Professor Michael W. Lewis, Professor of Law, Ohio Northern University Claude W. Pettit College of Law

DC Circuit CourtCorporations’ First Amendment rights have been litigated frequently. One area of interest in the Circuit Courts is compelled corporate speech—sometimes controversial disclosures, messages and information mandated by the government. As such obligations expand, businesses have brought First Amendment challenges, forcing courts to evaluate what standard the government must meet before it can require private parties to engage in speech. -- The U.S. Court of Appeals for the D.C. Circuit recently issued two conflicting decisions on compelled corporate speech. In National Association of Manufacturers v. SEC, the D.C. Circuit found the so-called “conflict minerals” disclosure rule violated the First Amendment, while in American Meat Institute v. Dep’t of Agriculture, a panel sustained a country of origin label requirement. The panels took different approaches to the Supreme Court’s seminal compelled disclosure case, Zauderer v. Office of Disciplinary Counsel, which recognized a narrow opening for compulsions of purely factual and uncontroversial information to prevent consumer deception in advertising. At stake now is whether Zauderer remains a narrow exception to traditional First Amendment review of compelled speech, or whether the government only has to satisfy rational basis review to promote various interests through informational obligations on the private sector. -- Notably, the panel in American Meat Institute itself suggested that the full court hear the case, which is set to be heard en banc by the D.C. Circuit on May 19. The D.C. Circuit will be poised to decide how government speech mandates are to be judged under the First Amendment. Its decision could open the door to more disclosure and informational obligations. -- Featuring: Megan L. Brown, Partner, Wiley Rein LLP and Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC

“There is no right more basic in our democracy than the right to participate in electing our political leaders,” said the U.S. Supreme Court in striking down the federal biennial limit on contributions to non-candidate committees. In his new book, Outsider Inside the Supreme Court: A Decisive First Amendment Battle, plaintiff Shaun McCutcheon explains how he sought to achieve positive change in the political process in bringing his lawsuit. On our Teleforum, Mr. McCutcheon described his road to the nation's highest court, and his quest to bring needed change to Washington by giving more candidates an opportunity to compete in the political arena and offer expanded ideas in the public marketplace. -- Featuring: Shaun McCutcheon, owner and Chief Executive Officer, Coalmont Electrical Development Company and Author, Outsider Inside the Supreme Court: A Decisive First Amendment Battle

Bitcoin is the most prominent cryptographic digital currency emerging as a privately-created medium of exchange. What exactly are these currencies, and what is their impact on commerce, government, and national security? -- Featuring: Jim Harper, Global Policy Counsel, The Bitcoin Foundation, and Senior Fellow, Cato Institute and Chip Poncy, Co-founder, The Financial Integrity Network, and former Senior Advisor, U.S. Department of Treasury. Moderator: Vincent J. Vitkowsky, Partner, Seiger Gfeller Laurie LLP.

On May 5, 2014, the Supreme Court issued its decision in Town of Greece v. Galloway, overturning a 2nd Circuit decision that held that a legislative prayer practice violates the Establishment Clause of the First Amendment. The Court held that “[l]egislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause,” and that the “[r]espondents’ insistence on nonsectarian prayer is not consistent with this tradition.” Our expert, Christian Legal Society Senior Counsel Kim Colby, offered her analysis of the implications of the decision for religious liberty jurisprudence. -- Featuring: Kim Colby, Senior Counsel, Christian Legal Society

Washington University in Saint Louis School of Law Professor Brian Z. Tamanaha argues law schools are failing abjectly. Recent front-page stories have detailed widespread practices, including false reporting of LSAT and GPA scores, misleading placement reports, and the fundamental failure to prepare graduates to enter the profession. -- Addressing all these problems and more in his book, Failing Law Schools, Prof. Tamanaha lays out the how and why of the crisis and the likely consequences if these trends continue. The out-of-pocket cost of obtaining a law degree at many schools now approaches $200,000. The legal job market is the worst in decades, with the scarce jobs offering starting salaries well below what is needed to handle such a debt load. At the heart of the problem, Prof. Tamanaha argues, are the economic demands and competitive pressures on law schools, paired with a lack of regulatory oversight, the work environment of professors, the limited information available to prospective students, and loan-based tuition financing. Bringing to the table his years of experience from within the legal academy, Prof. Tamanaha assesses what he believes is wrong with law schools and suggests how to fix them. James Haynes of the Federalist Society's Professional Responsibility & Legal Education Practice Group Executive Committee discussed the book and its premises with Prof. Tamanaha. -- Featuring: Professor Brian Z. Tamanaha, William Gardiner Hammond Professor of Law, Israel Treiman Faculty Fellow 2013-2014, Washington University School of Law and James A. Haynes, Professional Responsibility & Legal Education Practice Group, The Federalist Society

On Tuesday, April 29, 2014 the Supreme Court held back-to-back hearings on cases testing the authority of police to search the contents of cellphones they take from people they have arrested. -- Riley v. California involves a San Diego man, David Leon Riley, convicted of shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic weapon. Riley was not arrested at the time of the incident, and he was never positively identified as a participant. A jury convicted him on all three counts largely based on data from a cellphone seized from him at the time of a later arrest, the contents of which were examined without a warrant. -- United States v. Wurie concerns a search made of a drug dealer’s South Boston apartment. The residence was discovered and the search made after arresting officers noticed that a phone in suspect Brima Wurie’s possession was getting repeated calls from a number identified on the screen as “my house.” Tracing the telephone number, they located his residence. The inspection of the phone was without a search warrant, and evidence at the apartment was eventually used to convict Wurie of distributing crack cocaine, possessing the crack with intent to distribute it, and owning a gun and ammunition as a felon. -- Our expert attended both arguments and offered his impressions to a call-in audience. -- Featuring: Prof. Orin S. Kerr, Fred C. Stevenson Research Professor of Law, The George Washington University Law School

Having completed work on the America Invents Act in 2011, Congress is now considering further patent revision legislation. While some observers argue that the patent system is broken, in dire need of repair, others assert that the patent system has fostered innovation in technology, communications and elsewhere, which has permitted remarkable advances and robust economic expansion in those sectors in an otherwise tepid economy. Is the business world overrun with patent suits, or are judges already empowered to control nuisance litigation? What parts of the current patent revision efforts are true reform, and which are unwarranted government intrusions? What are the respective roles and expertise of the judiciary and the legislature when it comes to patents, patentability, fee-shifting, patent-licensing, and more? These and other issues were discussed by Chief Judge Randall R. Rader, United States Court of Appeals for the Federal Circuit.

In 2000, Ramiro Hernandez was convicted in Texas state court of murdering his employer, and was sentenced to death. Hernandez sought habeas relief from the state district court, arguing in part that because he suffered from mental retardation, his execution would be unconstitutional under Atkins v. Virginia. In Hernandez v. Stephens, the Fifth Circuit ruled that Atkins permits a state court to find that a defendant is not intellectually disabled, notwithstanding IQ scores in the disabled range, if that score is brought up to the bottom of the non-disabled range when "scaled to Mexican norms." Can the determination of intellectual disability -- and thus death penalty eligibility -- depend on his national origin? Our experts discussed their amicus brief in support of the petition for certiorari, available here. -- Featuring: Erin C. Blondel, Associate, Ellis & Winters LLP and Prof. Ernest A. Young, Alston & Bird Professor of Law, Duke University School of Law