FedSoc Forums

On June 23, 2021, the U.S. Supreme Court in Collins v. Yellen held 7-2 that 1) because the Federal Housing Finance Agency did not exceed its authority under the Housing and Economic Recovery Act of 2008, the anti-injunction provisions of the Recovery Act bar the statutory claim brought by shareholders of Fanne Mae and Freddie Mac; and 2) the Recovery Act’s structure violates the separation of powers.Justice Alito wrote the majority opinion. Justice Gorsuch joined the opinion as to all but Part III–C, Justices Kagan and Breyer joined as to all but Part III–B, and Justice Sotomayor joined as to Parts I, II, and III–C. Justice Thomas filed a concurring opinion. Justice Gorsuch filed an opinion concurring in part. Justice Kagan filed an opinion concurring in part and concurring in the judgment, in which Justices Breyer and Sotomayor joined as to Part II. Justice Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined.Featuring: Jason Levine, Partner, Alston & BirdJeffrey McCoy, Attorney, Pacific Legal Foundation* * * * * As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

American politics grows embittered because it is increasingly torn between two rival constitutions, two opposed cultures, two contrary ways of life. American conservatives rally around the founders’ Constitution, as amended and as grounded in the natural and divine rights and duties of the Declaration of Independence. American liberals herald their “living Constitution,” a term that implies that the original is dead or superseded, and that the fundamental political imperative is constant change or transformation (as President Obama called it) toward a more and more perfect social democracy ruled by a Woke elite.Crisis of the Two Constitutions details how we got to and what is at stake in our increasingly divided America. It takes controversial stands on matters political and scholarly, describing the political genius of America’s founders and their efforts to shape future generations through a constitutional culture that included immigration, citizenship, and educational policies. Then it turns to the attempted progressive refounding of America, tracing its accelerating radicalism from the New Deal to the 1960s’ New Left to today’s unhappy campus nihilists. Finally, the volume appraises American conservatives’ efforts, so far unavailing despite many famous victories, to revive the founders’ Constitution and moral common sense. From Ronald Reagan to Donald Trump, what have conservatives learned and where should they go from here?Along the way, Charles R. Kesler argues with critics on the left and right, and refutes fashionable doctrines including relativism, multiculturalism, critical race theory, and radical traditionalism, providing in effect a one-volume guide to the increasingly influential Claremont school of conservative thought by one of its most engaged, and engaging, thinkers.Featuring: -- Prof. Charles R. Kesler, Author, Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness, Senior Fellow, The Claremont Institute-- Moderator: Prof. Gerard V. Bradley, Professor of Law, Univeristy of Notre Dame Law School* * * * * As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

The Supreme Court issued its decision in Goldman Sachs Group, Inc., v. Arkansas Teacher Retirement System on June 21, 2021. Justice Barrett delivered the opinion of the Court, which Chief Justice Roberts and Justices Breyer, Kagan, and Kavanaugh joined in full.In this case, a group of Goldman shareholders sought to certify a class action suit against Goldman arguing that they had detrimentally relied on Goldman’s alleged misrepresentations about conflict management, which had resulted in inflation maintenance and subsequent shareholder loss. In arguing for class certification, the plaintiffs relied on the Supreme Court’s 1988 Basic Inc. v. Levinson decision allowing plaintiffs to prove reliance based on evidence common to the class. Goldman argued against certification and against the Basic presumption by presenting evidence showing the alleged misrepresentations had not affected stock prices.On its second attempt, the District Court certified a class and the Second Circuit affirmed. In its decision, the Supreme Court remanded to the Second Circuit to consider the generic nature of the alleged misrepresentations even though that evidence might get to materiality not usually considered at the initial certification stage under Rule 23. The Court also clarified the Basic presumption holding that a defendant does bear the burden of persuasion to rebut the presumption of reliance allowed to class action plaintiffs.Featuring:Theodore "Ted" Frank, Director of Litigation and Senior Attorney, Hamilton Lincoln Law Institute * * * * * As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

On June 21, 2021, the Supreme Court unanimously decided NCAA v. Alston in favor of respondent. Writing for the Court, Justice Gorsuch explained that the district court's injunction on NCAA rules limiting the benefits schools can make available to student athletes is consistent with antitrust law and principles. Justice Kavanaugh filed a concurring opinion.Featuring: Michael Murray, Former Principal Deputy Assistant Attorney General, Antitrust Division, U.S. Department of Justice* * * * * As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

In October 2020, two countries, India and South Africa, that had been hit particularly hard by the COVID-19 virus and its variants and by inadequate supply of personal protective equipment, diagnostic tests, and medicines, requested a waiver of intellectual property protections covering COVID-19 vaccines. Specifically, these countries sought a waiver that would exempt World Trade Organization (WTO) member countries from obligations related to patents, copyrights, industrial designs, and trade secrets under TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights). Among other things, TRIPS requires member countries to provide minimum intellectual property protections and enforcement mechanisms that support these intellectual property rights.In a move that surprised many, on May 5, 2021, United States Trade Representative Katherine Tai issued a statement announcing the current administration’s support for this waiver, but initially for vaccines only rather than the additional COVID-19 health technologies covered by the waiver proposal. In Tai’s announcement, she stated that “The Administration believes strongly in intellectual property protections, but in service of ending this pandemic, supports the waiver of those protections for COVID-19 vaccines.” The purpose of the waiver, as Tai noted, was to “get as many safe and effective vaccines to as many people, as fast as possible.”Since Representative Tai’s statement, there has been much commentary in favor and against the waiver and the US support for it, but after the most recent TRIPS Council meeting, text-based negotiations have begun on the India/South Africa proposal and a European Union communication emphasizing elimination of trade barriers, voluntary agreements, and clarifications of the TRIPS Agreement’s compulsory licensing rules. In this webinar, experts in intellectual property and international trade helped to explain the pros and cons of the waiver proposal, what effects it may have on the pandemic, and what other impacts the waiver may have long term.Featuring: -- Jorge Contreras, Professor of Law, University of Utah College of Law-- James Bacchus, Distinguished Professor of Global Affairs and Director, Center for Global Economic and Environmental Opportunity, University of Central Florida-- Ana Santos Rutschman, Assistant Professor, Saint Louis University School of Law-- Brook K. Baker, Professor of Law, Northeastern University School of Law-- Moderator: Steven M. Tepp, President and CEO, Sentinel Worldwide * * * * * As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

On June 25, the Supreme Court issued its decision in Holly Frontier Cheyenne Refining LLC. v. Renewable Fuels Association. This case turned on the interpretation of the statutory term “extension” contained in the Renewable Fuel Program. In an effort to encourage refineries to produce renewable fuel, Congress directed the EPA to require refineries to blend certain percentages of renewable fuel into their products, while allowing certain exemptions to small refineries. In this case, the exemptions granted to several small refineries had lapsed. When they reapplied and received exemptions, biofuels interests sued. They argued that, because these refineries' exemptions had lapsed, they were no longer eligible under the terms of the statute, which provides that small refineries can apply for “an extension of the exemption [for] . . . disproportionate economic hardship.” The Tenth Circuit interpreted the statutory language to bar an exemption grant based on the lapse—granting an exemption after a lapse would not be an “extension.” The Supreme Court reversed, holding that “extension” as used in this statute does not require “unbroken continuity” and determining that the statutory language’s context indicated Congressional intent to allow small refineries to apply for an exemption even if they hadn't continuously received one before.Justin Schwab, former EPA Deputy General Counsel and founder of CGCN Law, previewed the case for us on April 27, 2021. He joins us again to discuss the opinion.Featuring:-- Justin Schwab, Founder, CGCN Law, PLLC

The rise in cancel culture aided by online activity—and more recently by the national press—can result in significant harm to an individual’s or a company’s reputation. Speaking out on nearly any topic on an online platform has become increasingly risky because it takes no time for a profile or a post to move from virtual anonymity to notoriety. Join Libby Locke, a Partner at Clare Locke LLP, to discuss how individuals and companies can respond effectively to high-profile reputational attacks.Featuring:Libby Locke, Partner, Clare Locke LLPModerator: Hon. G. Barry Anderson, Associate Justice, Minnesota Supreme Court* * * * * As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Over the past year, police reform has become a priority for many at both the state and federal levels. In this teleforum, Zack Smith at The Heritage Foundation will recap some of the recent efforts to pass police reform legislation at the state and federal levels and will provide an update on where police reform stands in the 117th Congress.Featuring:-- Zack Smith, Legal Fellow, Meese Center for Legal and Judicial Studies, The Heritage Foundation

The Supreme Court issued its decision in Yellen, Secretary of Treasury v. Confederated Tribes of the Chehalis Reservation on June 25, 2021. In this case, the Coronavirus Aid, Relief, and Economic Security (CARES) Act allotted 8 million dollars to “Tribal governments” defined as the “recognized governing body of an Indian tribe” under the Indian Self-Determination and Education Assistance Act.Under this definition, Alaska Native Corporations (ANCs) qualified for CARES Act Covid-19 relief. Several other Indian tribes sued, arguing that the money should be reserved for federally recognized tribes. The District Court entered summary judgment for the ANCs and the Department of the Treasury, the DC Circuit reversed, and the Supreme Court ultimately held that the ANCs do qualify for COVID-19 relief under the CARES Act.Featuring:Anthony "AJ" Ferate, Of Counsel, Spencer Fane LLPJennifer Weddle, Shareholder, GreenbergTraurig* * * * * As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Popular and political discussions of the climate invariably invoke “The Science” as settled. But a careful reading of the research, literature, and government assessment reports shows a different picture. In this Federalist Society book event, Dr. Koonin discussed his bestseller, Unsettled: What Climate Science Tells Us, What It Doesn’t, and Why It Matters. He will describe some of the surprises in the official science that he asserts belie the notion that the world has already broken the climate and faces certain doom unless we take prompt and drastic action. Dr. Koonin also examined whether society’s right to make fully informed decisions about climate and energy has been usurped in the assessment reports and media, and he will close with suggestions to improve the presentation of climate certainties and uncertainties to nonexperts. Featuring:-- Dr. Steven E. Koonin, Author, Unsettled: What Climate Science Tells Us, What it Doesn't, and Why it Matters; Professor, New York University-- Moderator: Diana Furchtgott-Roth, Adjunct Professor, George Washington University * * * * * As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.