Federalist Society Practice Groups Podcasts

Congress premised the part of the Hate Crimes Prevention Act banning crimes based on race on Congress's Thirteenth Amendment power to end slavery and involuntary servitude. (Another part of the Act, which addressed crimes committed on the basis of other biases, was passed pursuant to Congress's Commerce Clause power.) But with slavery long dead, some argue that the connection between it and contemporary hate crimes is at best distant. Does the Thirteenth Amendment give Congress the power to reach race-based hate crimes and other social ills arguably related to slavery? This issue will be before the U.S. Supreme Court in a petition for certiorari in Hatch v. United States, which the Court is scheduled to consider on March 21. In this call, Professor Jennifer McAward of Notre Dame will discuss the scope of Congress's power to pass legislation pursuant to the Thirteenth Amendment and the pending cert petition - will it be granted? Should it be granted? Additional comments will be made by Professor Gail Heriot of the University of San Diego School of Law. -- Featuring: Prof. Jennifer Mason McAward, Associate Professor of Law, Notre Dame Law School and Hon. Gail Heriot, Professor of Law, San Diego School of Law

The United States Government has consistently interpreted the International Covenant on Civil and Political Rights and other key treaties as not applying to its actions outside the U.S. It is in the process of explaining that interpretation to a United Nations monitoring panel, which disagrees. This process has potential implications for both the fight against terrorists and intelligence gathering. What should the U.S. position be? -- Featuring: Prof. Peter S. Margulies, Professor of Law, Roger Williams University School of Law; Dr. C. Nicholas Rostow, Director, Center for Strategic Research, National Defense University, and Senior Research Scholar in Law, Yale Law School; and Hon. Edwin D. Williamson, Of Counsel, Sullivan & Cromwell LLP

Originalism holds that the U.S. Constitution should be interpreted according to its meaning at the time it was enacted. In their innovative defense of originalism, John McGinnis and Michael Rappaport maintain that the text of the Constitution should be adhered to by the Supreme Court because it was enacted by supermajorities — both its original enactment under Article VII and subsequent Amendments under Article V. A text approved by supermajorities has special value in a democracy because it has unusually wide support and thus tends to maximize the welfare of the greatest number. -- The authors recognize and respond to many possible objections. Does originalism perpetuate the dead hand of the past? How can following the original meaning be justified, given that African Americans and women were excluded from the enactment of the Constitution in 1787 and many of its subsequent Amendments? What is originalism’s place in interpretation of the Constitution, when after two hundred years there is so much non-originalist precedent? -- A fascinating counterfactual they pose is this: had the Supreme Court not interpreted the Constitution so freely, perhaps the nation would have resorted to the Article V amendment process more often and with greater effect. The authors of Originalism and the Good Constitution, Prof. Michael B. Rappaport and Prof. John O. McGinnis, discussed the book along with commentary from Prof. Michael Greve on a live Teleforum conference call. -- Featuring: Prof. Michael S. Greve, Professor of Law, George Mason University School of Law; Prof. Michael B. Rappaport, Darling Foundation Professor of Law, University of San Diego School of Law; and Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law

In December 2013, Rep. Fred Upton, House Energy and Commerce Committee Chairman, and Rep. Greg Walden, Chairman of the Committee's Communications and Technology Subcommittee, announced plans to use 2014 to begin a review process leading to an update of the Communications Act of 1934. Rep. Walden announced in a news release that the committee plans “to look at the Communications Act and all of the changes that have been made piecemeal over the last 89 years and ask the simple question: ‘Is this working for today’s communications marketplace?’” The statute has not been changed in any material way since 1996, when the internet was just beginning to be used on a widespread basis and broadband services were only then emerging. -- The participants in this Teleforum addressed fundamental questions, such as: whether an update to the Communications Act is needed and why; if an update is desirable, what a new Communications Act should like, including, more specifically, how the structure of the act should be changed along with the jurisdiction of the Federal Communications Commission. -- Featuring: Mr. Shawn H. Chang, Majority Counsel, Communications and Technology Policy, Committee on Energy and Commerce, United States House of Representatives; Mr. Randolph J. May, President, The Free State Foundation; and Mr. David Redl, Chief Counsel for Communications and Technology, Committee on Energy and Commerce, U.S. House of Representatives

On March 5, 2014, the Supreme Court hears oral argument in Halliburton v. Erica P. John Fund, and our expert attended and then reported on the argument. Will the Court continue to recognize the fraud on the market theory? How much reliance is required on the part of the plaintiffs? Will the Court allow introduction of evidence that a defendant’s statements did not affect the price of its stock to rebut a presumption of reliance? -- Featuring: Jeffrey B. Wall, Special Counsel, Sullivan & Cromwell LLP

Shareholders of Halliburton filed a class action lawsuit arguing that Halliburton falsified its financial statements and misrepresented projected earnings, invoking a “fraud on the market” theory to demonstrate class reliance on Halliburton’s statements. The “fraud on the market” theory assumes that investors have relied on any material misstatements when they purchase a security. The federal district court certified the class and did not allow Halliburton to introduce evidence that the statements did not affect its stock prices. The U.S. Court of Appeals for the Fifth Circuit affirmed. Will the Supreme Court continue to recognize the fraud on the market theory? If so, will the Court allow introduction of evidence that a defendant’s statements did not affect the price of its stock to rebut the presumption of reliance? -- Featuring: Steven G. Bradbury, Partner, Dechert LLP, and former head of the Office of Legal Counsel, U.S. Department of Justice and Prof. Michael Klausner, Nancy and Charles Munger Professor of Business and Professor of Law, Stanford Law School

One feature of the Dodd-Frank Act is the authority given to the Financial Stability Oversight Council (FSOC) to designate certain nonbank firms as systemically important, subjecting them to "stringent" regulation by the Federal Reserve Board. Could the exercise of this authority change the very nature of our financial system? Is the FSOC Dodd-Frank provision based on accurate information about what actually happened in the financial crisis, or does information only more recently available argue in another direction? Should this authority Dodd-Frank confers not be exercised until Congress has had an opportunity to reconsider the underlying facts? -- Featuring: Hon. Peter J. Wallison, Arthur F. Burns Fellow in Financial Policy Studies, American Enterprise Institute and Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association

On Wednesday, February 26, 2014, the Supreme Court heard two cases dealing with relief available to a prevailing party in patent litigation. Section 285 of the Patent Act allows the court, upon the finding that the case is “exceptional,” to award reasonable attorney fees to the prevailing party. The Federal Circuit has long held that in order to satisfy the “exceptional” standard there must be a showing that the arguments made to the court are not just “baseless,” “frivolous,” or “objectively unreasonable,” but that the losing party must have known that its arguments are in fact frivolous. -- In Octane Fitness, the Court will address whether this two-prong test is the correct standard under Section 285, while in Highmark the Court addressed a narrower issue of whether the District Courts findings under Section 285 are entitled to deference. -- Featuring: Prof. Gregory Dolin, Co-director, Center for Medicine and Law, University of Baltimore School of Law

On Monday, February 24, 2014, the Supreme Court heard oral arguments in the highly anticipated greenhouse gas case, Utility Air Regulatory Group v. Environmental Protection Agency. The issue at hand is whether the EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases. In adopting the regulations now before the Court, the EPA construed specialized provisions of the Clean Air Act designed primarily to regulate a limited number of air pollutants for which the EPA has established “National Ambient Air Quality Standards” to apply to any airborne compound regulated under any provision of the Clean Air Act, including carbon dioxide and other greenhouse gases. To avoid the costs and administrative burdens that would otherwise result from this interpretation, the EPA purported to alter specific numerical permitting thresholds that Congress had written into the Clean Air Act. Additionally, the EPA claimed the power to make further alterations to these thresholds on an ongoing basis. Our expert offered a summary and his impressions of the oral arguments. -- Featuring: Robert R. Gasaway, Partner, Kirkland & Ellis LLP

Preferred and common shareholders of Freddie Mac and Fannie Mae have not recently received earnings distributions or dividends, and the prospects for the short-term future would seem to depend on a pending shareholder lawsuit. After bailing out the two entities with a $180 billion loan, the Federal government is, under a total net worth sweep, claiming all profits as its own. Chuck Cooper led a litigation update on this important case. -- Featuring: Charles J. Cooper, Partner, Cooper & Kirk, PLLC

On January 14, 2014, the United States Court of Appeals for the District of Columbia Circuit issued its decision in Verizon v. FCC, the case regarding the Federal Communications Commission’s Open Internet Order. The decision leaves the door open for the FCC’s regulation of the internet, but strikes down certain provisions of the Order, leaving many to wonder what the future holds for innovation, experimentation, and competition in the online marketplace. -- While the court did not unequivocally uphold the Commission’s net neutrality protections, it recognized the FCC’s authority to regulate broadband internet service and access under Section 706 of the Telecommunications Act of 1996, and found that open internet requirements would promote deployment. Specifically, it found support for the Commission’s conclusion that absent open internet requirements, “broadband providers represent a threat to Internet openness and could act in ways that would ultimately inhibit the speed and extent of future broadband deployment.” The court also deferred to the FCC’s finding that broadband providers have the ability to impose restrictions on edge providers’ conduct, particularly given end users’ inability to immediately respond to ISPs’ activities in this regard. Nonetheless, the court vacated and remanded the non-discrimination and no-blocking requirements adopted in the Order on the basis that they improperly constitute common carriage regulation of broadband services, but left in place the FCC’s transparency (i.e., disclosure) requirements. -- Randy May and John Bergmayer held a spirited discussion about this landmark decision. -- Featuring: John Bergmayer, Senior Staff Attorney, Public Knowledge and Randolph J. May, President, The Free State Foundation

A bill to enact the proposed Employment Non-Discrimination Act ("ENDA") was introduced into the 113th Congress and approved by the Senate by a 64-32 vote. The Act would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by employers with at least 15 employees. Non-profit membership clubs and organizations that are solely religious are exempted, but religiously affiliated organizations (such as hospitals and schools) are not. -- Proponents and opponents disagree about whether sexual orientation and gender identity discrimination is widespread and a serious problem. Proponents point, for example, to a field experiment in which job applications with a fictitious resumé including membership in a gay organization in college received substantially fewer invitations for interviews than did applications with a fictitious resumé identical except for the membership. Opponents note studies showing that gays have average or above-average incomes and conclude that discrimination does not seem to have impaired their earning potential. -- There is also disagreement about the impact ENDA would have on people of faith. Proponents note that the religious exemptions of ENDA track those of other federal anti-discrimination laws. Opponents point out that disapproval of homosexual acts is a fundamental tenet of Christianity, Judaism, and Islam, as well as of many other faiths, and that ENDA would be the first American federal law to outlaw exercise of a mainstream belief of our major religions. -- Featuring: Prof. David E. Bernstein, George Mason University Foundation Professor of Law, George Mason University School of Law and Prof. William N. Eskridge, Jr., John A. Garver Professor of Jurisprudence, Yale Law School

Is liberty or democracy the primary constitutional value? At a time when Americans are increasingly facing violations of their civil liberties, Timothy Sandefur's insightful new book explains why the Declaration of Independence, with its doctrines on the primacy of liberty, the natural rights of man, and the limits on legitimate government, should serve as the guidepost for understanding the Constitution. The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty argues that modern legal doctrines, which value democracy over liberty, are endangering individual rights and corrupting our civic institutions. Mr. Sandefur discussed his new book followed by commentary from Mr. Clark Neily of the Institute for Justice. -- Featuring: Timothy Sandefur, author, The Conscience of the Constitution: The Declaration of Independence and the Right to Liberty, and Principal Attorney, National Litigation Center, Pacific Legal Foundation. Commentary by: Clark Neily, Senior Attorney, Institute for Justice

On January 8, 2014, the Department of Justice Civil Rights Division and the Department of Education Office for Civil Rights jointly released a memo urging public schools to revisit discipline policies that they assert have a disproportionate effect on minority students. “Schools ... violate Federal law when they evenhandedly implement facially neutral policies and practices that, although not adopted with the intent to discriminate, nonetheless have an unjustified effect of discriminating against students on the basis of race," read the memo. "Examples of policies that can raise disparate impact concerns include policies that impose mandatory suspension, expulsion, or citation (e.g., ticketing or other fines or summonses) upon any student who commits a specified offense — such as being tardy to class, being in possession of a cellular phone, being found insubordinate, acting out, or not wearing the proper school uniform.” Our experts discussed the expansion of disparate impact analysis into school discipline. Materials referenced during this podcast are available on this web page under "Related Links."? -- Featuring: Hans Bader, Senior Attorney and Counsel for Special Projects, Competitive Enterprise Institute and Roger Clegg, President and General Counsel, Center for Equal Opportunity. Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society.

On January 27, 2014, in Sandifer v. United States Steel, the U.S. Supreme Court unanimously held that time employee time spent donning and doffing their protective gear is not compensable by application of the Fair Labor Standards Act. The impact of the Court’s decision may have a substantial impact on employers, especially manufacturers. Our experts discussed the breadth and impact of the decision.? -- Featuring: Lawrence C. DiNardo, Partner, Jones Day and Hon. Tammy D. McCutchen, former Administrator, Wage and Hour Division, United States Department of Labor, Shareholder, Littler Mendelson, P.C., and Chairman, Labor & Employment Law Practice Group.