Federalist Society Practice Groups Podcasts

In an opinion by Justice Alito on June 25, the U.S. Supreme Court ruled in favor of petitioner Coy Koontz Jr. who owned land in the Florida wetlands and was denied a permit by St. Johns River Water Management District to develop a portion of his property. The Court held that when a government engages in land-use regulation, including by denying a permit or demanding payment as a condition for a permit, the government must prove that there is an "essential nexus" or fundamental relationship between the conditions or exactions and the impact of the owner's proposed use of the land. Mr. Paul Beard, the lead attorney who represented the petitioner in this case, discusses the opinion and it's implications.? -- Featuring: Mr. Paul J. Beard II, Principal Attorney, National Litigation Center, Pacific Legal Foundation. Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

On Tuesday, June 25, the U.S. Supreme Court decided Shelby County v. Holder, a Voting Rights Act case. ?Our expert discusses the decision and the implications. ? -- Featuring: Hon. Abigail Thernstrom, Vice-chair, U.S. Commission on Civil Rights, and Adjunct Scholar, American Enterprise Institute. Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society??

The Freedom of Information Act has been the subject of several recent developments, each of which raise interesting questions. On April 2, 2013, the U.S. Court of Appeals for the D.C. Circuit ruled in Citizens for Responsibility and Ethics in Washington v. FEC that an agency FOIA determination must include disclosure of the relevant time period and scope of the documents it will produce as well as exemptions claimed for any withheld documents. Will agencies now refuse to disclose the scope of documents and exemptions unless and until a FOIA requester brings a lawsuit? If so, does the decision really enhance transparency? In McBurney et al v. Young, the Supreme Court held that the Virginia Freedom of Information Act (FOIA) grants only citizens of Virginia the right to access the state of Virginia’s public records. Does McBurney harm transparency? On April 15, 2009, Gregory Craig, Counsel to the President, sent a memorandum to all executive department and agency general counsels, concerning the need to consult the White House regarding FOIA, GAO, congressional and judicial subpoena requests concerning “white house equities”. To what extent does this memo conflict with the current Administration’s policy on FOIA? -- Featuring: Mr. Daniel Epstein, Executive Director, Cause of Action?; Mr. Kip Steinberg, Principal, Law Office of Kip Evan Steinberg?; and Ms. Anne L. Weismann, Chief Counsel, Citizens for Responsibility and Ethics in Washington?. Moderator: Ms. Margaret Stock, Counsel to the Firm, Cascadia Cross-Border Law Group. Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

??The National Security Agency (NSA) is charged with collecting and analyzing information and data deemed to have potential intelligence value. The NSA’s recently-revealed data mining program has become the topic of popular conversation and debate, focusing largely on national security and privacy concerns. Our experts will describe what is known about how the data mining system operates, what oversight and checks are in place, and the legal limits of authority to operate the system. -- Featuring: Hon. Stewart A. Baker, Partner, Steptoe & Johnson LLP; Prof. Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center; and Mr. Steven G. Bradbury, Partner, Dechert LLP. Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The affirmative action case, Fisher v. University of Texas, was decided, 7-1, by the U.S. Supreme Court on June 24. On this previously recorded conference call, experts Peter Kirsanow and Gail Heriot discuss the decision and its implications.? -- Featuring: Hon. Peter N. Kirsanow, Commissioner, U.S. Commission on Civil Rights, and Partner, Benesch Friedlander Coplan & Aronoff LLP with Commentary by: Prof. Gail Heriot, Commissioner, U.S. Commission on Civil Rights, and Professor of Law, University of San Diego School of Law. Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

On June 13, the Supreme Court decided ACLU v. Myriad Technologies, one of the more important patent cases of the October 2012 Term. In its unanimous decision, the Court held that isolated DNA in the laboratory is not patentable, but that synthesized versions of DNA and the methods for identifying DNA are patentable. Some in the biotech industry breathed a sigh of relief when the decision came down given widespread concern that the Supreme Court would reject all DNA-related patents. Although the Court appeared to take a middle-road position, it did overturn over a century of established patent doctrine that isolated biological material, such as DNA, falls within the legal definition a patentable “composition of matter. The biotech industry expends hundreds of millions of dollars to identify and isolate DNA and other biological material, productive labors creating the breakthrough medical treatments that are a commonplace feature of the healthcare industry of the last thirty years. The implications of the Myriad decision are profound, both for the biotech industry and for millions of people who benefit from lifesaving medical technology today. On this previously recorded conferene call, our ?panel of experts discuss the Myriad decision and its implications for patented innovation in the biotech industry.? -- Featuring: Prof. Gregory Dolin, University of Baltimore School of Law; Prof. Michael Risch, Villanova University School of Law; Prof. Jacob S. Sherkow, Fellow, Center for Law and the Biosciences, Stanford Law School; and Moderator: Prof. Kristen Osenga, University of Richmond School of Law. Introduction: Mr. Christian Corrigan, Director of Publications, The Federalist Society

Cyberspace is a globe-spanning domain with more than 2.5 billion users and more than 1 trillion different “things” attached. Who runs it? Who sets the rules for international governance? For years, most of the management has been by two non-governmental organizations, the Internet Corporation for Assigned Names and Numbers and the Internet Engineering Task Force. In Dubai last December, the International Telecommunications Union (a body of the United Nations) made a bid for a role in the governance structure. What does that mean for the future of the internet? What does this mean for international and national security? -- Featuring: Mr. Paul Rosenzweig, Red Branch Law and Consulting, former Deputy Assistant Secretary for Policy, U.S. Department of Homeland Security, and Author of Cyber Warfare: How Conflicts in Cyberspace Are Challenging America and Changing the World and Dr. Herbert Lin, Chief Scientist, Computer Science and Telecommunications Board, The National Academy of Sciences. Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The bank regulators require larger banking organizations to prepare and file financial projections assuming various adverse scenarios under a program called "stress testing." The Federal Reserve Board staff studies these projected financial results and approve them for some banks and reject them for other banks. If your results are rejected, you may not be allowed to pay dividends to shareholders, and you may be required to raise additional capital. Bankers have been complaining that the basis for rejection is never explained by the Fed, and the Fed has repeatedly declined to make available to the affected banks what standards it is using to approve or reject stress test results. Does this raise an issue as to whether banks are being provided due process rights in how they are regulated? Does it raise questions as to whether bank regulation is governed by the rule of law or something else? Does the Fed have a secret capital regulation that it has adopted without following the Administrative Procedures Act? -- Featuring: Mr. Walter J. Mix III, Director, Berkeley Research Group and Ms. Hester Peirce, Senior Research Fellow, Mercatus Center, George Mason University. Moderator: Mr. Dean Reuter, Vice President and Practice Groups Director, The Federalist Society

The use of disparate impact analysis is growing very rapidly, and it is becoming the source of some controversy. It holds, generally speaking, that a violation of certain federal statutes can be shown by the discriminatory effect of a policy, even in the absence of an intent to discriminate. The U.S Supreme Court has recently agreed to hear the Mt. Holly case, which will examine the use of disparate impact analysis under the Federal Housing Act. Disparate impact analysis is now being used in or proposed for use in employment, housing, lending, and many other contexts. On this previously recorded conference call, the experts describe and then debate the use of disparate impact analysis. -- Featuring: Mr. Roger Clegg, President and General Counsel, Center for Equal Opportunity and Prof. Theodore "Ted" M. Shaw, Professor of Professional Practice in Law, Columbia Law School. Moderator: Mr. Dean Reuter, Vice President and Practice Groups Director, The Federalist Society

The Federalist Society co-sponsored a Teleforum call with the National Constitution Center and the American Constitution Society to discuss the Supreme Court's decisions in the Fisher affirmative action case and the Shelby County Voting Rights Act case. ?On this previously recorded conference call, Roger Clegg, President and CEO of the Center for Equal Opportunity, Erwin Chemerinsky, Founding Dean of the University of California, Irvine, School of Law, and Jeffrey Rosen, President and CEO of the National Constitution Center, discuss the opinions and their implications?.? -- Featuring: Dean Erwin Chemerinsky, Founding Dean, University of California, Irvine School of Law and Mr. Roger Clegg, President and General Counsel, Center for Equal Opportunity. Moderator: Prof. Jeffrey Rosen, George Washington University Law School, and President and Chief Executive Officer, National Constitution Center?

On June 20, the U.S. Supreme Court handed down two important decisions that are covered in this practice group podcast. In American Express v. Italian Colours Restaurant, the Court continued to clarify the law at the intersection of arbitration and class action. US AID v. OSI concerns government and speech. On this previously recorded conference call, our experts explain each case, discuss their implications, and answer questions from callers. Featuring: Mr. Erik Jaffe, Sole Practitioner, Erik S. Jaffe, PC and Mr. Andrew J. Pincus, Partner, Mayer Brown LLP. Moderator: Mr. Christian Corrigan, Director of Publications, The Federalist Society

On June 13th, the Supreme Court decided Association for Molecular Pathology v. Myriad Genetics, Inc., the case concerning human genes and patents. Myriad Genetics had identified two sections of the human genetic code that might indicate higher risk for certain types of cancer, and obtained patents on the "isolated" or removed versions of these two genes on the basis that Myriad invented a new chemical in the process of identifying and removing these genes from the body. The challengers claimed that Myriad Genetics had created nothing new, but rather the process is an examination of a substance found in nature whose attributes remain unchanged. Professor Gregory Dolin discusses the decision and its implications. -- Featuring: Prof. Gregory Dolin, Co-director, Center for Medicine and Law, University of Baltimore School of Law. Moderator: Mr. Dean Reuter, Vice President and Practice Groups Director, The Federalist Society

On Monday, June 17th, the U.S. Supreme Court decided five important cases. Listen to experts Dean Emeritus John Eastman, Professor Stephen Yelderman, appellate practitioners Erik Jaffe and Brian Murray discuss Arizona v. The Inter Tribal Council of Arizona, Inc. (a voter ID/preemption case), Salinas v. Texas (prosecutor comment on defendant's silence), and Alleyne (mandatory minimum question). -- Featuring: Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law; Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC; Mr. Brian J. Murray, Partner, Jones Day; and Prof. Stephen Yelderman, Associate Professor, Notre Dame Law School. Moderator: Mr. Dean Reuter, Vice President and Practice Groups Director, The Federalist Society

On June 3, the U.S. Supreme Court decided Maryland v. King, a criminal case in which a rape and assault rendered identifiable DNA material that did not match any existing samples in the DNA database. Alonzo King was subsequently arrested in an unrelated matter and, under Maryland's DNA Collection Act, a DNA sample was collected. King's DNA sample matched the sample from the earlier rape and assault case. In an interesting 5-4 decision, with Justice Scalia in dissent, the Court decided that King's DNA sample can be used in his prosecution for that rape and assault. -- Held: When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment. -- Featuring: Mr. John Elwood, Partner, Vinson & Elkins LLP and Mr. John G. Malcolm, Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation. Moderator: Mr. Dean Reuter, Vice President and Practice Groups Director, The Federalist Society

Mr. Gerald Walpin's book, The Supreme Court vs. The Constitution, asserts that the Framers of the Constitution and those who drafted and championed the Bill of Rights and the seventeen additional amendments carefully considered and meant every word they wrote, but the "activist" justices of the Supreme Court pay little heed to their language or intent as they "legislate from the bench" and deprive us of rights that our Constitution was adopted to protect. His book carefully lays out the history of court rulings, providing quotations from the Justices' own writings and dramatic facts from key cases to document each illegitimate assumption of power by activist justices. Yet it is so clearly and simply written that one need not be a lawyer to see unequivocally where the fault lies. -- Featuring: Mr. Gerald Walpin, Former Inspector General of the Corporation for National and Community Service, Former Chief of Prosecutions for the United States Attorney for the Southern District of New York, and Author of The Supreme Court vs. The Constitution and Prof. Lillian R. BeVier, David and Mary Harrison Distinguished Professor of Law Emeritus, University of Virginia School of Law -- Moderator: Mr. Christian Corrigan, Director of Publications, The Federalist Society