FedSoc Forums

On February 20, 2024, the Supreme Court will hear argument in Bissonnette v. LePage Bakeries Park Street LLC. The court will consider whether the Federal Arbitration Act’s exemption for the employment contracts of “workers engaged in interstate commerce” applies to any worker who is “actively engaged” in the interstate transportation of goods, or whether the worker’s employer must also be in the “transportation industry.”Join us as Prof. Samuel Estreicher previews the case and the questions implicated by its potential outcomes.Featuring: Prof. Samuel Estreicher, Dwight D. Opperman Professor of Law Director, Center for Labor and Employment Law Co-Director, Institute of Judicial Administration, NYU School of Law

Each month, a panel of constitutional experts convenes to discuss the Court’s upcoming docket sitting by sitting. The cases covered in this preview are listed below. Corner Post v. Board of Governors of the Federal Reserve System (February 20) - Does the six-year statute of limitations to challenge an action by a federal agency begin to run when the agency issues the rule or when the plaintiff is actually injured? Bissonnette v. LePage Bakeries Park Street, LLC (February 20) - Labor & Employment; Whether the Federal Arbitration Act’s exemption for the employment contracts of “workers engaged in interstate commerce” applies to any worker who is “actively engaged” in the interstate transportation of goods, or whether the worker’s employer must also be in the “transportation industry.” Warner Chappell Music v. Nealy (February 21) - Intellectual Property; Whether copyright plaintiffs can recover damages for acts that allegedly occurred more than three years before they filed their lawsuit. Ohio v. Environmental Protection Agency (February 21) - Environmental Law; (1) Whether the court should stay the Environmental Protection Agency’s federal emission reductions rule, the Good Neighbor Plan; and (2) whether the emissions controls imposed by the rule are reasonable regardless of the number of states subject to the rule. Moody v. NetChoice, LLC (February 26) - First Amendment; (1) Whether the laws’ content-moderation restrictions comply with the First Amendment; and (2) whether the laws’ individualized-explanation requirements comply with the First Amendment. NetChoice, LLC v. Paxton (February 26) - First Amendment; Whether the First Amendment prohibits viewpoint-, content-, or speaker-based laws restricting select websites from engaging in editorial choices about whether, and how, to publish and disseminate speech — or otherwise burdening those editorial choices through onerous operational and disclosure requirements. McIntosh v. United States (February 27) - Criminal Law & Procedure; Whether a district court can enter a criminal forfeiture order when the time limit specified in the Federal Rules of Criminal Procedure has already passed. Cantero v. Bank of America, N.A. (February 27) - Whether the National Bank Act preempts the application of state escrow-interest laws to national banks. Garland v. Cargill (February 28) - Second Amendment; Whether a “bump stock” – an attachment that transforms a semiautomatic rifle into a fully automatic, assault-style weapon – is a “machinegun,” which is generally prohibited under federal law. Coinbase v. Suski (February 28) - When an arbitration agreement tasks the arbitrator with deciding whether a dispute should be arbitrated, should courts or the arbitrator decide whether the agreement is narrowed by a later contract that does not address arbitration? Featuring: Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law Scott Dixler, Partner, Horvitz & Levy LLP Stephen Halbrook, Senior Fellow, Independent Institute Allison R. Hayward, Independent Analyst John Masslon, Senior Litigation Counsel, Washington Legal Foundation Moderator: Alexandra Gaiser, General Counsel, Strive

At the age of 96, Judge Pauline Newman is the nation’s oldest federal judge. In 1984, Judge Newman became the first judge appointed directly to the US Court of Appeals for the Federal Circuit. In April of last year, reports surfaced that Federal Circuit Chief Judge Kimberly Moore had initiated a complaint against Judge Newman under the Judicial Conduct and Disability Act of 1980. Although the complaint was initially based on alleged “cognitive decline,” it later morphed to focus on her unwillingness to cooperate with Judge Moore’s investigation. This program will provide an update on Judge Newman’s case and discuss issues related to this most-unusual set of circumstances. This program coincides with panelist David Lat’s recent interview with Judge Newman, available here, which allows viewers to hear Judge Newman in her own words. The Committee on Judicial Conduct and Disability released an opinion in the case, available here. Check out this recording for a discussion of Judge Newman’s case, the state of judicial conduct, and more.Featuring: David Lat, Founder, Original JurisdictionProf. Arthur Hellman, Professor Emeritus of Law, University of Pittsburgh School of LawModerator: Hon. Jennifer Perkins, Arizona Court of Appeals, Division One

On November 29, 2023, Henry Kissinger died at the age of 100. The former US Secretary of State and National Security Advisor had a long and distinguished career as a scholar and statesman, and his legacy is both prolific and controversial. While many have celebrated his success in resolutely pursuing US global interests, others have criticized Kissinger for his alleged disregard of such values as human rights. This panel discussion explores the complex and multifaceted nature of Kissinger’s legacy, focusing on his interaction with international law and his role in shaping US foreign policy. Featuring:Prof. Jeremi Suri, Mack Brown Distinguished Chair for Leadership in Global Affairs; Professor of Public Affairs and History, University of TexasProf. Thomas Schwartz, Distinguished Professor of History, Professor of Political Science and European Studies, Director of Undergraduate Studies, Vanderbilt UniversityProf. John Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley; Nonresident Senior Fellow, American Enterprise Institute; Visiting Fellow, Hoover Institution

In his recent book Why Congress, Dr. Phillip Wallach covers the past, present, and future of the Legislative branch to help measure its modern level of dysfunction and offer suggestions for future restoration. The book traces how Congress was designed to operate, how it has met the challenges of decades past, and the trends that have contributed to increased polarization and decreased power. Having established how we got where we are, Dr. Wallach articulates three potential paths forward for Congress: continued dysfunction, increased power for the Executive branch, or a revival of the forms that ensured it will function as designed in the past.
Join the author and our panel of guest experts for an enlightening discussion!Featuring:Prof. Bridget Dooling, Assistant Professor of Law, The Ohio State University - Moritz College of LawProf. Christopher J. Walker, Professor of Law, University of Michigan Law SchoolDr. Philip A. Wallach, Senior Fellow, American Enterprise Institute(Moderator) Mr. Joel S. Nolette, Associate, Wiley Rein LLP

The Federal Trade Commission and Department of Justice’s Antitrust Division have put labor issues at the center of antitrust enforcement and policy making. The agencies are closely examining companies’ hiring, recruitment, non-compete, and employee classification and compensation policies. They have recently amended the merger review process to require parties to provide granular information about their labor force to screen for potential impact on labor markets, and have signaled they may challenge a proposed merger if it impacts workers but not consumers. The FTC has also recently entered agreements to share investigative files, personnel, and other intelligence with both the National Labor Relations Board and the Department of Labor, and may soon issue its first unfair competition rule that may ban non-compete provisions in employment contracts nationwide. This panel examined these developments and discussed how big of a role antitrust should play in labor matters.

On February 8, 2024, the Supreme Court will hear Oral Argument in Trump v. Anderson. The Court will consider whether the Colorado Supreme Court erred in ordering former President Donald Trump excluded from the 2024 presidential primary ballot. Legal questions involved in the case include whether Section 3 of the Fourteenth Amendment is "self-executing" or requires an additional act of Congress, whether the events of January 6, 2021, constitute an insurrection, and if so whether Donald Trump participated in that insurrection, and whether the President is an "officer of the United States" as meant by Section 3. Join us as a panel of experts, including Prof. Kurt Lash, who submitted an amicus brief in the case, and Prof. Ilya Somin, who also submitted an amicus brief, preview this case the day before the oral argument, discussing the case and the questions implicated by it. Featuring: Prof. Kurt T. Lash, E. Claiborne Robins Distinguished Chair in Law, University of Richmond School of Law Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University (Moderator) Prof. Derek T. Muller, Professor of Law, Notre Dame Law School

On January 18, the Supreme Court heard oral arguments in Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce. These cases will determine whether Chevron v. NRDC, a 1984 case in which the Court held that courts should defer to agency interpretations of ambiguous statutes, should be overturned. This program will discuss the potential effect of the decision on new rulemaking, specifically in labor law. The discussion will cover how deference has been applied in the past and how Loper and Relentless may impact recent rulemaking. The program will focus on a series of recent rulemaking, including the Section 541 Exemption Revision of the Fair Labor Standards Act, the NLRB’s modified Independent Contractor Standard, the NLRB Joint Employer rule, and the FTC proposal to ban Non Compete Clauses. Please join us as an expert panel addresses recent rulemaking and more in pursuit of understanding the potential fallout after Loper and Relentless. To learn more about Loper's potential impact on Labor Law, check out Alex MacDonald's article on the subject here. Featuring: Alexander Thomas MacDonald, Shareholder Littler Hon. Tammy Dee McCutchen, Former Administrator, Wage and Hour Division, U.S. Department of Labor

Title IX of the Education Amendments of 1972 applies to educational institutions at all levels that receive federal financial assistance from the Department of Education. As such, it has traditionally not applied to private schools that do not accept government funding, generally doled out in the form of federal grants or loans. Two recent cases however (Buettner-Hartsoe v. Baltimore Lutheran High School Association & Chen et al. g. Hillsdale College) have presented a novel theory that would classify an institution's tax-exempt status as federal financial assistance, leaving even those private schools who have sought to remain independent from governmental regulation subject to Title IX. This would affect schools at all levels, as Buettner-Hartsoe concerns a secondary school serving grades 6-12 and Chen et al. is challenging Hillsdale College's actions. Join us for a litigation update on these two cases featuring Mary Margaret Beecher of Napa Legal Institute, which filed an amicus brief in Buettner-Hartsoe. Featuring: Mary Margaret Beecher, Vice President and Executive Director, Napa Legal Institute (Moderator) Amanda Salz, Associate, Morgan, Lewis, & Bockius LLP

In two cases this term (Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce) the Court will consider whether Chevron v. NRDC, a 1984 case in which the Court held that courts should defer to agency interpretations of ambiguous statutes, should be overturned. Both cases concern attempts of the National Marine Fisheries Service (NMFS) to promulgate rules requiring industry-funded monitoring of Atlantic herring fishery under the Magnuson-Stevens Fishery Conservation and Management Act (MSA). Regulated fisheries contended that the MSA does not allow the NMFS to create a program requiring the industry to pay for monitoring services. The NMFS does not contend there is an explicit grant of this power, but argues its interpretation of the statute is appropriate and due deference under the precedent of Chevron. Oral argument is set to be heard in both cases on January 17th, 2024. Join us for a courthouse steps oral argument webinar featuring John Vecchione, who argued the Relentless case in the lower court, where we will discuss and break down how oral argument went in both cases before the court. Featuring: John Vecchione, Senior Litigation Counsel, New Civil Liberties Alliance