Litigation Practice Group TeleforumMonday, August 01, 02:00 PMFederalist Society Teleforum Conference Call
Climate change activists have for the past year been urging the Department of Justice and state attorneys general to investigate ExxonMobil, think tanks, and other corporations and organizations that have expressed skepticism or otherwise presented contrary views either on the science or the policy of climate change regulatory action. These calls include members of Congress petitioning the U.S. Department of Justice to investigate whether Exxon and its “brain trust” violated civil RICO, an ongoing Martin Act investigation launched last fall by the New York Attorney General, and more recently, subpoenas issued by the US Virgin Islands and civil investigative demands from the Massachusetts AG. A press conference on March 29, 2016 attended by former vice-president Al Gore, represented that these calls for investigations are supported by a coalition of 20 attorneys general. The next day a majority of state attorneys general, 29 in all, issued a press release that they would not be joining in that call for investigations or other regulatory action, citing respect for the rule of law and the First Amendment. Asserting that good science embraces disagreement and the chilling effect on research when the government decides what is “truth” and what is “fraud,” these majority states revealed a stark divide in our polity about the proper role of the executive branch – state and federal – in formulating, enforcing and financing climate change policy.
At the March 29, 2016 press conference, former vice-President Gore asserted that “our democracy’s been hacked” and that these state and federal enforcement actions were necessary to remedy Congress’s and other legislative inactivity. In this Teleforum, Andrew Grossman – who has been involved in both defending targets of the subpoenas and in challenging the lawfulness of their issuance – will discuss some of the legal and policy questions implicated by this division between the states, and the executive branches and Congress. Should a corporation’s published research that expresses concerns about climate change be grounds for civil RICO or other regulatory action? Would such potential liability disincentive research? Should the government decide what is truth and what is not in the historically uncertain arena of science? Should those matters be decided in legislative hearings with the opportunity for the expression of multiple views on the science, policy, and proposed solutions? Should there have to be a substantiated allegation of unlawful conduct before such investigatory powers are wielded? Who has been defrauded? Is there harm in forcing corporations and think tanks to open up their records, research and communications – isn’t that a good way to determine whether there has been fraud on the energy markets? On the other hand, has Exxon sold oil or raised capital by claiming climate change is not affected by fossil fuels? Are consumers/investors uncritical consumers of industry information? What are the pros and cons of legislative action, inaction or accretional action versus sweeping state and federal executive enforcement actions? What regulatory authority or past practice provides a template for these investigations, and what are their practical and historical goals and outcomes? Do think tanks have a different status vis-a-vis the First Amendment than a for profit business selling fossil fuels, and if so what role, if any, does the source of their funding play?
Andrew Grossman, Partner, Baker & Hostetler LLP and Adjunct Scholar, The Cato Institute
Moderator: Margaret A. (Peggy) Little,Partner, Little and Little, Director, The Federalist Society's Pro Bono Center, and Foundation Professor of Law, George Mason University School of Law
2016 Faculty Division Summer Conference for Students Interested in AcademiaWednesday, August 03, 06:00 PMLoews Annapolis Hotel 126 West Street Annapolis, MD 21401
The Federalist Society’s James Kent Summer Academy is a new program for students and recent graduates who demonstrate strong potential for being leaders among a future generation of legal scholars. Participants will have an opportunity to engage in academic discourse, to learn about an academic career track, to deepen their understanding of key ideas about the law, the founding period, originalism, religious liberty, and markets and the law, and to receive some personalized career planning and publishing guidance. Confirmed faculty include Randy Barnett (Georgetown) and Daniel Kelly (Notre Dame), among others.
The Academy will take place in early August in Annapolis, MD. This all-expenses-paid conference will include seminar-style sessions guided by a group of leading faculty, informational sessions and workshops for professional development, and the opportunity to connect to a community of talented students and scholars. Participants will also receive invitations to ongoing events and academic and professional development resources throughout the year.
The program is intended for students and recent graduates (three years or less out of law school), including prospective or current clerks, with a serious interest in an academic career, who would contribute to the intellectual diversity of the legal academy, and who are beginning to develop their legal scholarship. Applicants should possess strong academic qualifications.
Applications are due no later than March 30, 2016.
Litigation Practice Group TeleforumThursday, August 18, 12:00 PMFederalist Society Teleforum Conference Call
A “requester pays” amendment to the Federal Rules of Civil Procedure (FRCP) would require that those seeking discovery pay for its costs, moving federal civil litigation away from the current “American rule” that requires all parties to bear their own litigation expenses, including the costs of responding to discovery requests. Supporters of “requester pays” argue that discovery requests can be so broad and costs can be so high that they become a disincentive to defend. Opponents claim that the amendment would make legal proceedings even more expensive for individual litigants, who would be unable to pay for the discovery necessary to make a case against larger and more powerful defendants. Here to discuss this idea are Alex Dahl of Brownstein Hyatt Farber Schreck LLP and Professor Benjamin Spencer of UVA School of Law.
Prof. A. Benjamin Spencer, Earle K. Shawe Professor of Law, University of Virginia School of Law
Alexander R, Dahl, Shareholder,Brownstein Hyatt Farber Schreck
Thursday, August 25, 02:00 PMFederalist Society Teleforum Conference Call
In April, the mortgage lender PHH Corporation challenged the constitutionality of the Consumer Financial Protection Bureau (CFPB) after being ordered by the CFPB to disgorge $109 million. PHH challenged the bureau’s legitimacy under Article II, and cited Free Enterprise Fund v. Public Company Accounting Oversight Board as relevant precedent, because PCA officers could be removed for cause, and then, only by officers of the SEC. Meanwhile, the CFPB cited Humphrey’s Executor v. United States, in which the Supreme Court upheld the constitutionality of the Federal Trade Commission Act, which allowed the president to remove an FTC commissioner only for cause. Here to discuss the CFPB and the constitutionality of other independent agencies like it are Professor Peter Conti-Brown of The Wharton School and Gregory Jacob, partner at O'Melveny & Myers LLP.
Peter Conti-Brown, Assistant Professor of Legal Studies and Business Ethics, The Wharton School
Gregory F. Jacob,Gregory F. Jacob Partner, O'Melveny & Myers LLP