Federalist Society Practice Groups Podcasts

The recent discussion of whether the National Security Agency knew about and exploited the Heartbleed bug demonstrates a larger cybersecurity dilemma. The NSA has two missions: conducting foreign cyber spying operations and protecting key U.S. cyber networks from external breach. In carrying out these missions, there is an inherent tension whenever a vulnerability is discovered. "Zero-day vulnerabilities" are software defects that are unknown before they are exploited. When should they be exposed and eliminated, and when should they be preserved and exploited? Encryption protects privacy and communications security. When, if ever, should the NSA seek to subvert, undermine, or weaken the encryption systems of commercially available software? -- Featuring: Paul Rosenzweig, former Deputy Assistant Secretary for Policy, U.S. Department of Homeland Security, and Principal, Red Branch Law and Consulting and Chris Soghoian, Principal Technologist and Senior Policy Analyst, Speech, Privacy and Technology Project, American Civil Liberties Untion. Moderator: Vincent J. Vitkowsky, Partner, Seiger Gfeller Laurie LLP.

In 2001, Argentina defaulted on $80 billion of government bonds. When issuing the bonds in the early 1990s, Argentina expressly waived sovereign immunity, in order to get higher value for the bonds it issued. Now, Argentina is asking the U.S. Supreme Court to throw out a ruling by the Second Circuit Court of Appeals requiring disclosure of information about the country’s assets. What are the extent of the plaintiff’s rights to discovery of Argentina’s assets? Does the answer depend on the location, use, or character of the assets? The Supreme Court heard oral arguments in Republic of Argentina v. NML Capital on Monday, April 21, 2014. Our expert offered his impression of the arguments and answered questions from a call-in audience. -- Featuring: Prof. Michael D. Ramsey, Hugh and Hazel Darling Foundation Professor of Law, Director, International & Comparative Law Programs, University of San Diego School of Law

On Tuesday, April 22, 2014, the Supreme Court heard oral arguments in Susan B. Anthony List v. Driehaus. The Court will answer the following questions: (1) Whether, to challenge a speech-suppressive law, a party whose speech is arguably proscribed must prove that authorities would certainly and successfully prosecute him, as the Sixth Circuit holds, or should the court presume that a credible threat of prosecution exists absent desuetude or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold; and (2) whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree. Our expert attended the oral arguments and offered his impressions to a call-in 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

Between 2008 and 2010, cyber criminals breached the computer networks of Wyndham Hotels & Resorts, stealing customer payment card data and initiating a legal battle with the Federal Trade Commission. The FTC claimed that Wyndham’s allegedly lax security practices violated Section 5(a) of the FTC Act, prohibiting “unfair or deceptive acts or practices.” Wyndham countered with a motion to dismiss, asserting, among other things, that the FTC’s “unfairness” authority does not confer jurisdiction over data security, particularly in the absence of binding FTC rules or guidance. -- The first round of the battle has now ended in favor of the FTC. On April 7, 2014, the U.S. District Court for the District of New Jersey denied Wyndham’s motion to dismiss and affirmed FTC jurisdiction. -- What happens now and where should the private sector attention be focused? In the absence of clear rules or guidance, how should companies proceed? How does FTC enforcement interact with congressional efforts to clarify agency authority over data security, and Executive Branch action on cyber? -- Featuring: Megan L. Brown, Partner, Wiley Rein LLP and Karen R. Harned, Executive Director, National Federation of Independent Business Legal Foundation. Moderator: Scott D. Delacourt, Partner, Wiley Rein LLP.

prison barsIn 2005, Washington, D.C. resident Antwuan Ball was indicted for a massive drug conspiracy and associated murders. Following a lengthy jury trial he was acquitted on all the counts, except for one crack distribution count. At sentencing, District Judge Richard Roberts found “clear evidence of [Ball's leadership in] a drug conspiracy” and sentenced Ball to a 225-month prison sentence for the drug distribution — far in excess of the recommended guideline sentence for the single drug distribution charge. The D.C. Circuit upheld this sentence in a decision on March 14. Was the D.C. Circuit Court correct? Our experts discussed the opinion and answered questions from our call-in audience. -- Featuring: Prof. Douglas Berman, Robert J. Watkins/Procter & Gamble Professor of Law, The Ohio State University Moritz College of Law and Hon. Paul G. Cassell, Ronald N. Boyce Presidential Endowed Chair in Criminal Law, The University of Utah College of Law

The authors of the PPACA envisioned a system in which state governments would establish health insurance exchanges in which individuals could shop for health coverage and receive tax credits and subsidies for the purchase of qualifying health plans. After the law was passed, however, a majority of states refused to set up their own exchanges, leaving the task to the federal government. The IRS subsequently issued a rule purporting to authorize tax credits and cost-sharing subsidies in both state and federal exchanges. In Halbig v. Sebelius and three other cases pending in federal court, plaintiffs challenge the authority of the IRS to grant tax credits and cost-sharing subsidies in federal exchanges. These suits will help clarify the limits of agency authority to implement the PPACA and, if successful, these suits could have a significant impact on the implementation of the PPACA. -- 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

Stating that “There is no right more basic in our democracy than the right to participate in electing our political leaders,” the U.S. Supreme Court last week struck down the federal biennial limit on contributions to non-candidate committees. News coverage of the decision explains that it effects only a small handful of donors, but characterizes it as important nevertheless. How sweeping is the decision, and how important might it prove to be in coming elections? Is the Court now positioned to continue to favor the First Amendment over the Bipartisan Campaign Reform Act? -- Featuring: 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 former Chairman, Federal Election Commission

The Food and Drug Administration (FDA) has taken the first step to effectively ban trans fat from processed food. In November 2013, the Food and Drug Administration published a tentative determination that partially hydrogenated oils, which are the major dietary source of trans fat in processed food, are not “generally recognized as safe” (GRAS). This agency action, if finalized, “could, in effect, mean the end of artificial, industrially-produced trans fat in foods” according to the FDA. This unprecedented action would come after consumption of trans fat from products containing partially hydrogenated oils has declined from 4.6 grams a day in 2003 to about 1 gram a day in 2012. What is the legal authority for this action and are there legal arguments against the FDA moving forward in the proposed manner? What are the policy arguments for and against this action to eliminate “artificial” trans fat from the food supply? Could other aggressive actions against “unhealthy” ingredients such as caffeine, sodium and sugar be on the horizon? -- Featuring: Daren Bakst, Research Fellow in Agricultural Policy, The Heritage Foundation? and Stuart Pape, Partner, Patton Boggs LLP

Recently U.S. Attorney General Eric Holder, citing the Supreme Court's 5-4 decision in United States v. Windsor, urged the members of the National Association of Attorneys General to exercise their discretion to decline to defend state-level Defense of Marriage Acts (DOMA). State attorneys general of California, Pennsylvania, and Virginia, among others, have followed the Justice Department's lead in declining to defend such state laws. Colorado Attorney General John Suthers urged state attorneys general not to employ a "litigation veto" to nullify popularly enacted laws with which state attorneys general might disagree. What is the scope of a state attorney general's power to decline to execute or enforce state law on the basis that the law is or is thought to be unconstitutional and inconsistent with the oath to uphold the U.S. Constitution? What lessons, if any, may properly be drawn from the federal context and any Presidential authority to decline to enforce federal statutes that he views as unconstitutional? Do such instances of executive non-defense and non-enforcement amount to executive arrogation of legislative prerogative? Colorado Attorney General John Suthers and William & Mary Professor Neal Devins discussed these questions and engaged with the audience's comments and questions. -- Featuring: Prof. Neal E. Devins, Professor of Law, Professor of Government, and Director of the Institute of Bill of Rights Law, William and Mary Marshall-Wythe School of Law and Hon. John W. Suthers, Attorney General, State of Colorado

On March 14, 2014, the U.S. Commerce Department’s National Telecommunications and Information Administration (NTIA) announced its plan to transition its key internet domain name functions to the global multistakeholder community. It has asked the Internet Corporation for Assigned Names and Numbers (ICANN) to commence the multistakeholder process to develop the transition plan. -- NTIA administers changes to the authoritative root zone file – the database containing the lists of names and addresses of all top-level domains – and serves as the historic steward of the Domain Name System. NTIA currently contracts with ICANN to carry out the Internet Assigned Numbers Authority (IANA) functions and has a cooperative agreement with Verisign under which it performs related root zone management functions. ICANN’s government contract expires September 30, 2015. NTIA has indicated that ICANN’s transition plan must adhere to four principles. It must: --Support and enhance the multistakeholder model --Maintain the security, stability, and resiliency of the Internet DNS --Meet the needs and expectations of the global customers and partners of the IANA services --Maintain the openness of the internet -- In this Teleforum, we discussed the implications of this pending transition and its potential impact on a free and open internet. -- Featuring: Hon. John M.R. Kneuer, President and Founder, Kneuer LLC and Patricia J. Paoletta, Partner, Wiltshire & Grannis LLP

The rise of the software industry following the personal computer revolution in the early 1980s created a heated policy debate about whether this “computer-implemented technology” should be secured in the patent system. The debate culminated this year with the Supreme Court’s cert grant in Alice Corp. v. CLS Bank, in which the Court will determine whether computer-implemented technology, such as computer software programs like Excel or Word, are eligible for patent protection or whether they should be excluded from the patent system on the grounds that they are “abstract ideas” tantamount to scientific formulas or mathematical algorithms. Given the “smart phone war” between Apple, Samsung, Google, Microsoft, and other high-tech firms, many commentators in newspaper articles, in blogs, and at conferences now complain about the “problem of software patents.” But for at least twenty years, patents have secured software and served an important function in bringing to market technological innovation once imagined as only science fiction — tablet computers, smart phones, wireless telecommunication, cloud computing, and streaming television, movies and songs, to name but a few. In Alice, the Court holds the fate of a significant portion of America’s innovation economy in its hands, as the Justices will wrestle with the difficult issues of how the patent system can best promote high-tech innovation in the twenty-first century. -- Featuring: Prof. Adam Mossoff, Professor of Law and Co-Director of Academic Programs and Senior Scholar of the Center for the Protection of Intellectual Property, George Mason University School of Law

On March 25, 2014, the contraceptive mandate case was? argued in the U.S. Supreme Court. Hobby Lobby Stores’ owners have no moral or other objection to the use of 16 of 20 contraceptives required by the contraceptive mandate under the Affordable Care Act (ACA), but cite their deeply held religious beliefs in objecting to providing or paying for four others they see as possibly life-threatening. How will the Supreme Court rule? Does the Religious Freedom Restoration Act of 1993 (RFRA), allow Hobby Lobby a way around the ACA ‘s contraceptive mandate? Our experts reviewed the oral arguments and took questions from the audience in this Courthouse Steps Teleforum. -- Featuring: Prof. Robert A. Destro, Professor of Law, and Director, Interdisciplinary Program in Law & Religion, The Catholic University of America Columbus School of Law and Adele Keim, Counsel, The Becket Fund for Religious Liberty

Numerous proposals in Congress, the Justice Department, and the Sentencing Commission would bring down the sentences now given to those convicted of federal drug offenses. Probably the most prominent of these is the proposed Smarter Sentencing Act, which was passed out of the Senate Judiciary Committee with the support of all its Democratic members and several Republicans. The act would, among other things, reduce the mandatory minimum sentences judges must now give certain classes of drug offenders and would expand the existing Safety Valve that has enabled some defendants to avoid the mandatory minimum. -- Proponents of the Smarter Sentencing Act say that our prisons are overcrowded and that the pendulum has swung too far in terms of mandatory minimum penalties for non-violent drug offenders. Opponents say that stern mandatory sentencing has helped bring down crime, reined in irrational disparities from one courtroom to the next, insured at least a rock-bottom sentence for socially destructive behavior, and has been more than worth the expense through the savings reduced crime has brought about. -- 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 and Prof. William G. Otis, Adjunct Professor of Law, Georgetown University Law Center

Cy pres (from the French cy pres comme —“as near as possible”) originated in the trust context, but has more recently been applied to class action litigation, as courts try to determine what to do with sometimes significant amounts of settlement funds remaining after all identified plaintiff awards have been made. In recent decades, courts have agreed to award such remaining funds to third party recipients who, while not parties to the underlying suits, are deemed worthy by the court. Sometimes, the courts have selected these third party recipients based on recommendations from the attorneys representing the plaintiffs. What are the legal underpinnings for such awards to entities or people not party to the underlying case? What are the policy considerations in making or prohibiting such awards? These and other questions were discussed by our experts. -- Featuring: Prof. Brian T. Fitzpatrick, Vanderbilt University Law School and Mr. Theodore H. Frank, Founder and President, Center for Class Action Fairness and Adjunct Fellow, Manhattan Institute Center for Legal Policy

The contraceptive mandate case is being argued in the U.S. Supreme Court next week. Hobby Lobby Stores is an incorporated chain of arts and crafts supply stores. Its owners have no moral or other objection to the use of 16 of 20 contraceptives required by the contraceptive mandate, but cite their deeply held religious beliefs in objecting to providing or paying for four others they see as possibly life-threatening. Does the Religious Freedom Restoration Act of 1993 (RFRA), which provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest, allow Hobby Lobby to deny its employees the health coverage of those contraceptives? Our experts previewed the merits of the case on the eve of oral arguments. -- Featuring: Prof. Stephen M. Bainbridge, University of California at Los Angeles School of Law; Prof. Gerard V. Bradley, University of Notre Dame Law School; Prof. Martin S. Lederman, Georgetown University Law Center; and Prof. Nelson Tebbe, Brooklyn Law School