FedSoc Forums

When the Texas electric grid failed over Valentine’s Day weekend in February 2021, the recriminations were plentiful and contradictory: too many renewables that failed; too much natural gas-fired generation that didn’t show up; a flawed regulatory model that fell short on resource adequacy and weatherization; a competition model that gives customers apparent choice with over 70% of the market controlled by two retailers. While ideological priors explain many of the explainers’ explanations, the terrible fact is that the Texas grid went down, causing death and misery. The Texas legislature has now instituted reforms to correct the problems with the Texas market, but a hot summer already has Texans on edge whether the grid will meet the soaring demand. This teleforum explored the legal and regulatory fallout from the Texas electricity mess with a former Chairman of the Public Utility Commission of Texas, Barry Smitherman. The focus of the conversation was not be so much on recriminations, but on an assessment of what went wrong, the regulatory and institutional challenges and what the experience might mean for energy policy nationally. Featuring:-- Barry Smitherman, principle of BARRY SMITHERMAN, P.C. and a former partner at Vinson & Elkins LLP. He served on the Texas Railroad Commission from 2011 through 2014, and was Chairman of the Commission from March 2012 through August 2014.-- Raymond L. Gifford, who counsels communications, electric and gas utilities, and information technology companies on state and federal aspects of regulation, administrative law, and competition policy. He is an expert in public utilities law, and the law and economics of regulation of network industries. * * * * * 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 recent concurrence by Justice Thomas in Biden v. Knight First Amendment Institute has raised new questions about how we might think about restrictions on speech and debate on social media. Where private, concentrated control over online content and platforms exists, can a solution be found in doctrines that limit the right of a private company to exclude? While there is historical precedent for regulating communications networks in a similar manner as traditional common carriers, are social media platforms best understood as communications networks that “carry” information from one user to another? Or have they created a business model built more on “curated” speech that to some degree reflects their own expressive interest in acceptable debate and discussion? And how should we think about possible state regulatory efforts to regulate private companies in this way? Featuring: Adam Candeub, Professor of Law, Michigan State University Geoffrey A. Manne, President and Founder, International Center for Law and Economics Olivier Sylvain, Professor of Law, Fordham University Charles M. Miller, Deputy Chief Counsel, Ohio Attorney General's Office Moderator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, D.C. Circuit * * * * * 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 23, 2021, the Supreme Court decided Mahanoy Area School District v. B.L., a high-school student, was disciplined for posting on Snapchat a vulgar message that was critical of the school's cheerleading team. By an 8-1 vote, the Court held that the discipline was unconstitutional. The Court concluded that a school has less authority to regulate students' off-campus speech than to regulate speech that occurs on-campus. The Court noted three reasons for its conclusion. First, where a student speaks off campus, it is generally the responsibility of parents, not school officials, to supervise students' conduct. Second, courts should be skeptical of off-campus regulation of speech, because allowing schools to regulate both on- and off-campus speech would subject all of a student's speech to potential school discipline. Third, since schools are the “nurseries of democracy,” they have an interest in protecting the freedom of speech and teaching respect for people's right to express messages over which there is disagreement. Applying those principles, the Court determined that the school could not discipline B.L. for her off-campus speech, which denigrated the school and its cheerleading team, but which did not substantially disrupt the operation of the school.Featuring:Michael R. Dimino, Professor of Law, Widener University Commonwealth 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.

On March 11, 2021, President Joseph R. Biden issued an Executive Order titled “Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex….” President Biden’s Order requires the US Department of Education’s Office for Civil Rights (OCR) to undertake a comprehensive review of existing Title IX policies, including sexual harassment regulations that the Trump administration issued last year. Earlier this month, OCR conducted public hearings as part of its review. This webinar will provide differing perspectives on the issues that are now under OCR review, such as how best to address sexual assault, protect due process, and ensure that related public policy goals are met in schools and colleges.Featuring: -- Samantha Harris, Attorney, Allen Harris Law-- Shiwali Patel, Director of Justice for Student Survivors and Senior Counsel, National Women's Law Center-- Moderator: Hon. Kenneth L. Marcus, Founder and Chairman, Louis D. Brandeis Center for Human Rights Under Law * * * * * 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 this CLE Webinar, Judge Jennifer M. Perkins of the Arizona Court of Appeals and Professor Emeritus of Law William Hodes will discuss the following three areas of lawyer professional responsibility.* The American Bar Association adopted Model Rule 8.4(g) in August 2016 to provide enforceable regulations against discrimination and harassment by lawyers on the basis of sex, race, and several other characteristics. But the Rule has proven to be controversial, and even five years later the controversy seems to be increasing rather than fading from view.* Wide adoption of computer-based and online technology has dramatically affected the practice of law, beginning well before the dawn of this century. Ramifications for legal ethics include responding to online criticism by clients or opposing parties, working remotely outside the state of licensure, preventing and dealing with data breaches involving confidential client information, maintaining competency to practice law beyond knowledge of legal doctrine and familiarity with procedural requirements, using artificial intelligence to conduct judge-specific legal research, and avoiding ex parte or other improper communications through interactions on social media.* Model Rule 1.2(d) and its predecessors have always prohibited lawyers from knowingly assisting clients in carrying out fraudulent or criminal schemes. But how does a lawyer know when a client is up to no good? In suspicious circumstances, is there an unavoidable tension among client loyalty, client service, self-protection., and good citizenship? An uncomfortable "client audit" can become necessary, in litigation and non-litigation matters.Featuring:-- William Hodes, Owner and President, The William Hodes Law Firm-- Judge Jennifer M. Perkins, Arizona Court of Appeals, Division One* * * * * 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 Lange v. California on June 23, 2021. Lange was pulled over by a California policeman for misdemeanor driving violations. Instead of stopping when the police officer initiated the stop, Lange drove home and fled into his garage. The officer followed him into his garage—without a warrant—and arrested him for drunk driving. Lange moved to suppress the evidence of his intoxication recovered after the police officer entered his garage. California state courts ruled against Lange, the California Supreme Court denied review, and Lange appealed the Fourth Amendment issue to the Supreme Court.The Court held that the hot pursuit exigency exception to the warrant requirement of the Fourth Amendment is not a categorical exception where a police officer has probable cause to believe the suspect committed a misdemeanor. The 1976 decision in United States v. Santana cited by amici does not create a categorical flight exception. Instead, determining whether hot pursuit of a misdemeanant allows for a warrantless entry requires case by case analysis.Featuring: Clark Neily, Vice President for Criminal Justice, Cato InstituteLarry H. James, Managing Partner, Crabbe Brown & James LLPVikrant Reddy, Senior Research Fellow, Charles Koch 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.

Recent rulings from the United States Supreme Court and regional circuit courts have shed new light on what have long been understood to be settled—if not always clear—principles in arenas such as protectability of product configurations, colors and even generally used commercial terms. The panel reviewed these developments, as well as recent changes of significance in the law of both injunctive and monetary remedies for trademark infringement. Featuring:-- Stephen Baird, Shareholder, GreenbergTraurig LLP-- Antoinette Tease, Founder, Antoinette M. Tease PLLC-- Moderator: Andrew Halaby, Shareholder, GreenbergTraurig LLP* * * * * 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 Cedar Point Nursery v. Hassid today, June 23, 2021, holding 6-3 that a California regulation allowing California union organizers entry onto the private property of California growers constituted an uncompensated per se physical taking in violation of the Fifth and Fourteenth Amendments. The Ninth Circuit’s decision upholding the regulation was reversed and the case was remanded. Featuring:Wen Fa, Attorney, Pacific Legal Foundation ---Dial 888-752-3232 to access the call.

On June 21, 2021, the US Supreme Court decided United States v. Arthrex, Inc. Writing for the 5-4 majority, Chief Justice Roberts explained that the patent judge's unreviewable authority is incompatible with his appointment as an inferior officer.Justices Alito, Gorsuch, Kavanaugh, and Barrett joined Parts I and II of the opinion, and Justices Alito, Kavanaugh, and Barrett joined Part III of the opinion. Justice Gorsuch filed an opinion concurring in part and dissenting in part. Justice Breyer filed an opinion concurring in the judgment in part and dissenting in part, in which Justices Sotomayor and Kagan joined. Justice Thomas filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined as to Parts I and II.Featuring: Prof. Gregory Dolin, Associate Professor of Law and Co-Director, Center for Medicine and Law, University of Baltimore School of LawProf. Dmitry Karshtedt, Associate Professor of Law, The George Washington Law SchoolModerator: Prof. Kristen Osenga, Austin E. Owen Research Scholar & Professor of Law, The University of Richmond School of Law* * * * * 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 17, 2021, the U.S. Supreme Court decided California v. Texas. Writing for the 7-2 majority, Justice Stephen Breyer explained that plaintiffs lack standing to challenge the Affordable Care Act's minimum essential coverage provision. Justice Thomas filed a concurring opinion. Justice Alito filed a dissenting opinion, in which Justice Gorsuch joined. Two experts join us to discuss the ruling and offer their differing views on the important constitutional issues involved, including standing and severability. Featuring: Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of LawMario Loyola, Senior Fellow, Competitive Enterprise Institute---This Zoom webinar is open to public registration at the link above.