Federalist Society Practice Groups Podcasts

There is a split among appellate courts in the United States over medical monitoring – court-ordered payments to plaintiffs who have been exposed to some potentially harmful product or situation but have no symptoms. Is a present injury a fundamental prerequisite to any award? Should the person or entity that created the product or situation be required to pay plaintiffs for periodic medical testing? Most, but not all, courts say no. Mark Behrens discussed medical monitoring, when and where it might be required, and the latest trends. -- Featuring: Mark A. Behrens, Partner, Shook, Hardy & Bacon, L.L.P.

Based on 20 years of research, including an examination of the papers of eight of the nine Justices who voted in Roe v. Wade and Doe v. Bolton, Abuse of Discretion is a critical review of the behind-the-scenes deliberations that went into the Supreme Court's abortion decisions and how the choices made by the Justices in 1971-1973 have led to the circumstances we see today in legislation, politics, and public health. National Constitution Center President and Chief Executive Officer Jeffrey Rosen interviewed the author, Americans United for Life Senior Counsel Clarke D. Forsythe, and offered his commentary.? -- Featuring: Clarke D. Forsythe, Senior Counsel, Americans United for Life. Commentary by Prof. Jeffrey Rosen, President and Chief Executive Officer, National Constitution Center.

At a press conference last week, President Obama indicated support for reforms of the Foreign Intelligence Surveillance Court. The President’s Review Group on Intelligence and Communications Technologies and members of Congress have made various reform proposals. These include the manner in which FISC member judges are appointed, allowing public interest advocates to participate in certain cases to ensure decisions are reached through an adversarial process, allowing the filing of amicus briefs by interested parties in certain cases, and increasing transparency of the court. Our experts will discuss whether or not reform is advisable, and the proposals being considered.? -- Featuring: Prof. Stephen I. Vladeck, American University Washington College of Law and Hon. Kenneth L. Wainstein, Partner, Cadwalader, Wickersham & Taft LLP, former U.S. Homeland Security Advisor, and former Assistant U.S. Attorney General for National Security. Moderator: Matthew R.A. Heiman, Vice President and Chief Compliance & Ethics Officer, Tyco.

Doyle R. Paroline pled guilty to possession of 150-300 images of child pornography. Included among those files on his computer were two photographs of Amy Unknown, a victim of child pornography. He was sentenced to 24 months of incarceration followed by release under supervision. Under a federal statute that mandates full restitution to victims of child pornography by those convicted of creating, distributing or possessing such material, the Government and Amy sought restitution in the amount of nearly $3.4 million. The district court denied restitution and held that the statute required the Government to prove that Paroline’s possession of the images was the proximate cause of the injuries for which restitution was sought. The U.S. Court of Appeals for the Fifth Circuit reversed and held that Paroline was responsible for restitution for all the victim’s losses even if his criminal acts occurred after the victim’s losses. On Wednesday, January 22, the Supreme Court heard oral arguments in Paroline v. United States. Two questions are presented to the Court: 1) In determining restitution in child pornography cases , is the award of restitution limited to losses proximately caused by the defendant’s criminal actions or may a defendant be required to pay restitution for all losses, regardless of whether his criminal acts proximately caused the loss? and 2) Is the Government correct in its argument that authorizing $3.4 million in restitution against a defendant to a victim of child pornography who has never had contact with the defendant may violate the Eighth Amendment ban on excessive fines in the absence of a proximate cause requirement in the setting of the amount of restitution assessed against that defendant? Our expert attended oral arguments and offered his impressions to a live Teleforum audience.? -- Featuring: John G. Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation. Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society.

Doyle R. Paroline pled guilty to possession of 150-300 images of child pornography. Included among those files on his computer were two photographs of Amy Unknown, a victim of child pornography. He was sentenced to 24 months of incarceration followed by release under supervision. Under a federal statute that mandates full restitution to victims of child pornography by those convicted of creating, distributing or possessing such material, the Government and Amy sought restitution in the amount of nearly $3.4 million. The district court denied restitution and held that the statute required the Government to prove that Paroline’s possession of the images was the proximate cause of the injuries for which restitution was sought. The U.S. Court of Appeals for the Fifth Circuit reversed and held that Paroline was responsible for restitution for all the victim’s losses even if his criminal acts occurred after the victim’s losses. On Wednesday, January 22, the Supreme Court heard oral arguments in Paroline v. United States. Two questions are presented to the Court: 1) In determining restitution in child pornography cases , is the award of restitution limited to losses proximately caused by the defendant’s criminal actions or may a defendant be required to pay restitution for all losses, regardless of whether his criminal acts proximately caused the loss? and 2) Is the Government correct in its argument that authorizing $3.4 million in restitution against a defendant to a victim of child pornography who has never had contact with the defendant may violate the Eighth Amendment ban on excessive fines in the absence of a proximate cause requirement in the setting of the amount of restitution assessed against that defendant? Our expert attended oral arguments and offered his impressions to a live Teleforum audience.? -- Featuring: John G. Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation. Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society.

On January 21, 2014, the Supreme Court heard Harris v. Quinn, which considers (1) whether a state may, consistent with the First and Fourteenth Amendments to the United States Constitution, compel personal care providers to accept and financially support a private organization as their exclusive representative to petition the state for greater reimbursements from its Medicaid programs; and (2) whether the lower court erred in holding that the claims of providers in the Home Based Support Services Program are not ripe for judicial review. Our expert attended the oral arguments and offered his analysis of the merits of the case and its likely outcome. -- Featuring: Andrew Grossman, Associate, Baker & Hostetler LLP and Visiting Legal Fellow, Center for Legal and Judicial Studies, The Heritage Foundation. Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society.

In Noel Canning v. NLRB, the U.S. Court of Appeals for the D.C. Circuit held that the President's 2012 recess appointments to the National Labor Relations Board were unconstitutional, which meant the Board lacked a quorum to conduct business. The President made these appointments during an intra-session recess shorter than three days, a move no previous President had tried. But the court's reasoning in Noel Canning extended beyond these circumstances. Taking an orginalist approach to the Recess Appointments Clause, the court held that the President cannot make recess appointments during intra-session recesses at all, but only during the recess that occurs between the end of one session of Congress and the beginning of the next. The court held further that the President cannot fill a vacancy with a recess appointment unless the vacancy arises during that same recess. This reasoning calls into question the validity of virtually every recess appointment in modern history. The NLRB stated that it would continue to conduct business as usual. The government subsequently petitioned the Supreme Court for cert to hear the case. Later last year, the Senate confirmed President Obama’s NLRB nominees, and the all Board seats are currently filled. Meanwhile, the Noel Canningdecision is being invoked to challenge NLRB decisions in dozens of other cases around the country. -- On January 13, 2014, the Supreme Court will hear oral arguments in NLRB v. Noel Canning. This teleforum will discuss the Noel Canning case itself, whether the Board validly continued to function without Supreme Court resolution of the validity of the recess appointments, and how the decision is likely to be decided. -- Featuring: John Elwood, Partner, Vinson & Elkins LLP. Moderator: Christian Corrigan, Director of multimedia, The Federalist Society.

Recently, the IRS proposed new regulations governing 501(c)(4) social welfare groups. Proponents argue that the proposed regulations will more clearly define permissible political activities of organizations operated as 501(c)(4)s. Opponents see the proposed regulations as further infringement on the free speech and association rights of the groups and those who contribute to them, and argue that the proposed regulations will unduly restrict their activities. Our experts discussed the proposed regulations, the likelihood of them being implemented, and the road forward. -- Featuring: Cleta Mitchell, Partner, Foley & Lardner LLP; John Pomeranz, Harmon, Curran, Spielberg + Eisenberg LLP; and Jason Torchinsky, Partner, Holtzman Vogel Joseflak PLLC. Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society.

On July 10, 2012, the Consumer Product Safety Commission (CPSC) determined that Buckyballs and Buckycubes, executive office desk toys made for adults, were defective. The CPSC pressured retailers to stop selling these products, and on July 25, 2012, the CPSC’s staff brought an administrative action against Maxfield and Oberton Holdings LLC, the company that produced Buckyballs and Buckycubes, initiating a proceeding to order the company to stop selling all of its products and to conduct a total recall of all of its products already sold. On February 11, 2013, the CPSC amended its complaint to add Craig Zucker, the former General Manager of Maxfield and Oberton Holdings LLC, as a respondent, to hold him personally liable to conduct a CPSC-estimated $57 million recall of Buckyballs and Buckycubes. On November 12, 2013, Mr. Zucker fought back, claiming that the CPSC overreached by bringing an administrative remedial action against Maxfield and Oberton, a limited liability company, as well as him personally. Mr. Zucker challenges the CPSC’s personal jurisdiction over him, claiming he is neither a manufacturer nor a distributor of Buckyballs or Buckycubes and that, instead, the CPSC is exercising undelegated adjudicative authority over individual corporate officers. The CPSC justifies its authority under the Park doctrine, after United States v. Park, 421 U.S. 658 (1975), which has been applied to hold responsible corporate officers personally liable for criminal violations by the companies they oversee. The CPSC has made no findings of legal violations by Craig Zucker, nor has it sought to impose a criminal sentence, fine, or other monetary liability or penalty against him, instead using the responsible corporate officer doctrine for purposes of having him pay for a product recall. Here, the CPSC has asserted the responsible corporate officer doctrine without a predicate violation of the law by a corporate entity. Is the CPSC’s asserted authority justified? More broadly, the panelists sought to discuss the role and importance of the responsible corporate officer doctrine and whether the courts will recognize an expanding application of the responsible corporate officer doctrine in the future. -- Featuring: Prof. Kathleen M. Boozang, Associate Dean and Professor of Law, Seton Hall University School of Law and Sheila A. Millar, Partner, Keller & Heckman LLP. Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society.

Last week, U.S. banking regulators issued the 900-page Volcker Rule. The rule, long under consideration, is designed to limit proprietary trading - investment banks’ speculative trading for their own gains and their participation in hedge funds. Our experts debated the scope of the Volcker Rule, and its anticipated benefits and drawbacks. -- Featuring: Timothy E. Keehan, Vice President & Senior Counsel, Center for Securities, Trust and Investments, American Bankers Association and Dr. Marcus Stanley, Policy Director, Americans for Financial Reform. Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society.

Earlier this week, U.S. District Court Judge Richard Leon ruled that the National Security Agency's bulk collection of telephone metadata is unconstitutional under the Fourth Amendment. Judge Leon enjoined the program in its entirety, but immediately stayed his injunction pending appeal, citing national security considerations. On a Teleforum conference call, our experts discussed the data collection program, Judge Leon’s decision, and the next steps in the case. -- Featuring: Steven G. Bradbury, former head of the Office of Legal Counsel, U.S. Department of Justice and Prof. Orin S. Kerr, Fred C. Stevenson Research Professor of Law, The George Washington University Law School. Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society.

Last month, the U.S. Senate changed its procedural rules well into the tenure of a Congress. The rules change concerned the filibuster. Where previously a cloture vote to end debate on all filibusters required 60 votes, cloture votes on a President's Executive Branch and judicial nominees now require only 51 votes. The rules change stipulates that U.S. Supreme Court nominees are not covered by the change. -- Did the Senate act contrary to its own rules, procedures, and customs by making this change in the middle of a Congress, instead of at the beginning of a Congressional term? Is the rule change a proper corrective measure in light of the growth of the use of the filibuster over the past 20 years? Or is the change an example of a majority determined to accomplish its ends merely by virtue of its being a majority? Perhaps more importantly, is the rule change here to stay, or might it be reversed in the future? These and other questions were addressed by our experts. -- Featuring: Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network and M. Edward Whelan III, President, Ethics and Public Policy Center. Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society.

Maureen K. Ohlhausen was nominated to the Federal Trade Commission by President Barack Obama and, on March 29, 2012, was confirmed unanimously by the United States Senate. She will be participate in a Teleforum on the FTC’s activities in the area of consumer privacy, including recent revisions to the Children’s Online Privacy Protection Act (COPPA) Rule. -- The rise of sophisticated technologies over the last few years has allowed websites and other online entities to gather and distill large amounts of data about particular internet users. Although there are many efficiency gains from this activity, such as the development of new services and better-targeted advertising, people have also become concerned about possible invasions of privacy from monitoring an individual’s internet activity. Recognizing that children’s online privacy is an especially sensitive area, COPPA prohibits an operator of a website or online service that is directed to children, or who has actual knowledge that it is gathering personal information from a child, from collecting such information without providing notice of its data collection and obtaining verifiable parental consent for it. The FTC recently expanded the COPPA Rule’s coverage to include more types of personal information, such as IP addresses, and to expand the definition of an operator to reach entities that do not collect or use children’s information. Commissioner Ohlhausen addressed how she seeks to balance the FTC’s mandate under Section 5 of the FTC Act to protect consumers against unfair or deceptive acts with the legitimate rights of business to gather and use information for commercial purposes and why she dissented from the FTC’s revision to the COPPA Rule. Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society.

On Tuesday, December 10, the Supreme Court heard oral arguments in EPA v. EME Homer City Generation. The Court will be deciding a number of questions: (1) Whether the court of appeals lacked jurisdiction to consider challenges to the Clean Air Act on which it granted relief; (2) whether states are excused from adopting state implementation plans prohibiting emissions that “contribute significantly” to air pollution problems in other states until after the EPA has adopted a rule quantifying each state’s inter-state pollution obligations; and (3) whether the EPA permissibly interpreted the statutory term “contribute significantly” so as to define each upwind state’s “significant” interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires the EPA to consider only each upwind state’s physically proportionate responsibility for each downwind air quality problem. Mark DeLaquil attended oral arguments and offered his impressions to a live Courthouse Steps Teleforum audience. -- Featuring: Mr. Mark DeLaquil, Partner, Baker & Hostetler LLP. Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society.

On December 3, 2013, a federal judge held that the city of Detroit is eligible to shed billions in debt in the largest public bankruptcy ever in the United States. The judge also ruled that public pensions could be reduced during reorganization, a provision in Michigan's Constitution notwithstanding. As an increasing number of local and municipal governments find themselves in dire financial straits, leaders are looking to new methods of increasing revenues and cutting costs, including pension reform. Professor David Skeel discussed the challenges faced by cities considering a restructuring of their pension plans, as well as the strength of various arguments regarding the legality of those efforts. -- Featuring: Prof. David A. Skeel, S. Samuel Arsht Professor of Corporate Law, University of Pennsylvania Law School. Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society.