Publications

Subscribe in a reader

Welcome to the Federalist Society's online publication archive.  Choose a publication to view from the menu on the left or by selecting one of our most recent publications below.  You can also browse our publications by Practice Group, Special Project, and Subject.

 


 


Sovereign Immunity and Freedom of Contract - Republic of Argentina v. NML Capital - Podcast

April 24, 2014  |  Michael D. Ramsey

Central Bank of Argentina

In 2001, Argentina defaulted on $80 billion of government bonds. When issuing the bonds in the early 1990s, Argentina expressly waived sovereign immunity, in order to get higher value for the bonds it issued. Now, Argentina is asking the U.S. Supreme Court to throw out a ruling by the Second Circuit Court of Appeals requiring disclosure of information about the country’s assets. What are the extent of the plaintiff’s rights to discovery of Argentina’s assets? Does the answer depend on the location, use, or character of the assets? The Supreme Court heard oral arguments in Republic of Argentina v. NML Capital on Monday, April 21, 2014. Our expert offered his impression of the arguments and answered questions from a call-in audience.

Featuring:

  • Prof. Michael D. Ramsey, Hugh and Hazel Darling Foundation Professor of Law, Director, International & Comparative Law Programs, University of San Diego School of Law

[Listen now!]

Is “False” Political Speech Protected? - Susan B. Anthony List v. Driehaus - Podcast

April 23, 2014  |  John G. Malcolm

vote

On Tuesday, April 22, 2014, the Supreme Court heard oral arguments in Susan B. Anthony List v. Driehaus. The Court will answer the following questions: (1) Whether, to challenge a speech-suppressive law, a party whose speech is arguably proscribed must prove that authorities would certainly and successfully prosecute him, as the Sixth Circuit holds, or should the court presume that a credible threat of prosecution exists absent desuetude or a firm commitment by prosecutors not to enforce the law, as seven other Circuits hold; and (2) whether the Sixth Circuit erred by holding, in direct conflict with the Eighth Circuit, that state laws proscribing “false” political speech are not subject to pre-enforcement First Amendment review so long as the speaker maintains that its speech is true, even if others who enforce the law manifestly disagree. Our expert attended the oral arguments and offered his impressions to a call-in audience.

Featuring:

  • John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

[Listen now!]

FTC v. Wyndham Worldwide: The Limits FTC “Unfairness” Authority and the Future of Cyber and Data Security Enforcement - Podcast

April 22, 2014  |  Megan L. Brown, Karen Harned, Scott D. Delacourt

cybersecurity

Between 2008 and 2010, cyber criminals breached the computer networks of Wyndham Hotels & Resorts, stealing customer payment card data and initiating a legal battle with the Federal Trade Commission. The FTC claimed that Wyndham’s allegedly lax security practices violated Section 5(a) of the FTC Act, prohibiting “unfair or deceptive acts or practices.” Wyndham countered with a motion to dismiss, asserting, among other things, that the FTC’s “unfairness” authority does not confer jurisdiction over data security, particularly in the absence of binding FTC rules or guidance.

The first round of the battle has now ended in favor of the FTC. On April 7, 2014, the U.S. District Court for the District of New Jersey denied Wyndham’s motion to dismiss and affirmed FTC jurisdiction.

What happens now and where should the private sector attention be focused? In the absence of clear rules or guidance, how should companies proceed? How does FTC enforcement interact with congressional efforts to clarify agency authority over data security, and Executive Branch action on cyber?

Featuring:

  • Megan L. Brown, Partner, Wiley Rein LLP
  • Karen R. Harned, Executive Director, National Federation of Independent Business Legal Foundation
  • Moderator: Scott D. Delacourt, Partner, Wiley Rein LLP

[Listen now!]

Walden v. Fiore - Post-Decision SCOTUScast

April 21, 2014  |  Paul J. Stancil

Paul StancilOn February 25, 2014, the Supreme Court issued its decision in in Walden v. Fiore. This case involves a dispute over personal jurisdiction. For a court to validly adjudicate a dispute, it must possess jurisdiction over the parties before it. Here the question is whether due process permits a federal court in Nevada to exercise personal jurisdiction over a law enforcement defendant in Atlanta, Georgia regarding an allegedly improper seizure of the plaintiffs’ gambling winnings that took place in transit at Atlanta’s airport. In addition, there is a question of whether Nevada is a proper venue to adjudicate the parties’ dispute under the terms of an applicable federal statute.

In a unanimous decision delivered by Justice Thomas, the Court held that the United States District Court for the District of Nevada lacked personal jurisdiction over the petitioner. Given the lack of jurisdiction, the Court did not reach the venue issue. The decision of the Ninth Circuit was reversed.

To discuss the case, we have Paul Stancil, who is a Professor of Law at the University of Illinois College of Law.

[Listen now!]

Controversial Sentencing in the Antwuan Ball Case - Podcast

April 18, 2014  |  Douglas Berman, Paul G. Cassell

prison bars

In 2005, Washington, D.C. resident Antwuan Ball was indicted for a massive drug conspiracy and associated murders. Following a lengthy jury trial he was acquitted on all the counts, except for one crack distribution count. At sentencing, District Judge Richard Roberts found “clear evidence of [Ball's leadership in] a drug conspiracy” and sentenced Ball to a 225-month prison sentence for the drug distribution — far in excess of the recommended guideline sentence for the single drug distribution charge. The D.C. Circuit upheld this sentence in a decision on March 14. Was the D.C. Circuit Court correct? Our experts discussed the opinion and answered questions from our call-in audience.

Featuring:

  • Prof. Douglas Berman, Robert J. Watkins/Procter & Gamble Professor of Law, The Ohio State University Moritz College of Law
  • Hon. Paul G. Cassell, Ronald N. Boyce Presidential Endowed Chair in Criminal Law, The University of Utah College of Law

[Listen now!]

Halbig v. Sebelius - The Next Threat to Obamacare? - Podcast

April 16, 2014  |  Jonathan H. Adler, Nicholas Bagley

healthcare reform

The authors of the PPACA envisioned a system in which state governments would establish health insurance exchanges in which individuals could shop for health coverage and receive tax credits and subsidies for the purchase of qualifying health plans. After the law was passed, however, a majority of states refused to set up their own exchanges, leaving the task to the federal government. The IRS subsequently issued a rule purporting to authorize tax credits and cost-sharing subsidies in both state and federal exchanges. In Halbig v. Sebelius and three other cases pending in federal court, plaintiffs challenge the authority of the IRS to grant tax credits and cost-sharing subsidies in federal exchanges. These suits will help clarify the limits of agency authority to implement the PPACA and, if successful, these suits could have a significant impact on the implementation of the PPACA.

Featuring:

  • Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law
  • Prof. Nicholas Bagley, Assistant Professor of Law, University of Michigan Law School

[Listen now!]

Lawson v. FMR LLC - Post-Decision SCOTUScast

April 15, 2014  |  Jessie Liu

Jessie LiuOn March 4, 2014, the Supreme Court issued its decision in Lawson v. FMR LLC. The question in the case is whether the Sarbanes-Oxley Act's retaliation protections for whistleblowers extend to employees of privately owned contractors who are working for public companies.

Justice Ginsburg delivered the opinion of the Court, which held that the Sarbanes-Oxley Act's whistleblower protection does extend to employees of a public company's private contractors and subcontractors. The decision of the First Circuit was reversed and the case remanded for further proceedings. Chief Justice Roberts, Justice Breyer, and Justice Kagan joined the opinion of the Court. Justices Scalia and Thomas joined in principal part. Justice Scalia filed an opinion concurring in principal part and concurring in the judgment, which Justice Thomas joined. Justice Sotomayor filed a dissenting opinion, joined by Justices Kennedy and Alito.

To discuss the case, we have Jessie Liu, who is a partner at Jenner & Block.

[Listen now!]

Loughrin v. United States - Post-Argument SCOTUScast

April 14, 2014  |  Todd F. Braunstein

Todd BraunsteinOn April 1, 2014, the Supreme Court heard oral argument in Loughrin v. United States. The question in this case is whether the government must prove that a defendant intended to defraud a bank and expose it to risk of loss in every prosecution under 18 U.S.C. § 1344, or whether the government need only prove that a defendant knowingly attempted to defraud someone “to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, by means of false or fraudulent pretenses, representations, or promises.

To discuss the case, we have Todd Braunstein, who is counsel at the law firm WilmerHale.

[Listen now!]

Wood v. Moss - Post-Argument SCOTUScast

April 11, 2014  |  Patrick Garry

Patrick GarryOn March 26, 2014, the Supreme Court heard oral argument in Wood v. Moss. This lawsuit against several Secret Service agents presents two questions: First, did the court of appeals err in denying qualified immunity to agents protecting the president by evaluating the respondent’s claim of viewpoint discrimination at a high level of generality, and concluding that pro- and anti-Bush demonstrators should have been positioned an equal distance from the President while he was dining on the outdoor patio and while he was travelling by motorcade? Second, have respondents adequately pleaded viewpoint discrimination in violation of the First Amendment when no factual allegations support their claim of discriminatory motive and there was an obvious security-based rationale for moving the nearby anti-Bush group and not the farther-away pro-Bush group?

To discuss the case, we have Patrick Garry, who is a professor of law at the University of South Dakota School of Law.

[Listen now!]

Sebelius v. Hobby Lobby Stores, Inc.

April 10, 2014  |  Michael W. McConnell

“Conscience Exemptions”Prof. Michael W. McConnell recapts the oral argument in Sebelius v. Hobbuy Lobby Stores, Inc. and offers his thoughts on the four key issues in the case....[Read Now!]

The First Amendment and Campaign Finance: Assessing the Recently-Decided McCutcheon v. FEC Case - Podcast

April 9, 2014  |  Bradley A. Smith

flag money

Stating that “There is no right more basic in our democracy than the right to participate in electing our political leaders,” on April 2, 2014, the U.S. Supreme Court struck down the federal biennial limit on contributions to non-candidate committees. News coverage of the decision explains that it effects only a small handful of donors, but characterizes it as important nevertheless. How sweeping is the decision, and how important might it prove to be in coming elections? Is the Court now positioned to continue to favor the First Amendment over the Bipartisan Campaign Reform Act?

Featuring:

  • Prof. Bradley A. Smith, 2013-14 Judge John T. Copenhaver Visiting Endowed Chair of Law, West Virginia University College of Law and Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law, Capital University Law School and former Chairman, Federal Election Commission

[Listen now!]

United States v. Quality Stores - Post-Decision SCOTUScast

April 8, 2014  |  Kristin E. Hickman

Kristin HickmanOn March 25, 2014, the Supreme Court issued its decision in United States v. Quality Stores. The question in this case is whether severance payments made to employees whose employment was involuntarily terminated are taxable under the Federal Insurance Contributions Act (“FICA”), 26 U.S.C. 3101 et seq.

In an 8-0 opinion delivered by Justice Kennedy, the Court held that severance payments to employees who are involuntarily terminated are taxable wages for purposes of the Federal Insurance Contributions Act. The judgment of the Sixth circuit was reversed and remanded. Every justice joined Justice Kennedy’s opinion except for Justice Kagan, who took no part in the consideration or decision of the case.

To discuss the case, we have Kristin Hickman, Harlan Albert Rogers Professor in Law; Associate Director, Corporate Institute at the University of Minnesota Law School.

[Listen now!]

Kaley v. United States - Post-Decision SCOTUScast

April 8, 2014  |  Darpana Sheth

Darpana ShethOn February 25, 2014, the Supreme Court issued its decision in Kaley v. United States. The question in this case is whether, when a post-indictment ex parte restraining order freezes assets needed by a criminal defendant to hire his attorney of choice, the Fifth and Sixth Amendments require a pre-trial hearing at which the defendant may challenge the evidentiary support and legal theory upon which the government relied to freeze the assets.

In a 6-3 opinion delivered by Justice Kagan, the Court held that when challenging the legality of a pre-trial asset seizure under 21 U.S.C. § 853(e)(1), a criminal defendant who has been indicted is not constitutionally entitled to contest a grand jury’s determination of probable cause to believe that he committed the crimes charged. The opinion of the Eleventh Circuit was affirmed and remanded. Justices Thomas, Alito, Kennedy, Ginsburg, and Scalia joined the opinion of the Court. Chief Justice Roberts filed a dissenting opinion, which Justices Breyer and Sotomayor joined.

To discuss the case, we have Darpana Sheth, an attorney at the Institute for Justice in Arlington, VA. 

[Listen now!]

FDA's Proposed Ban of Trans Fat in Processed Food - Podcast

April 8, 2014  |  Daren Bakst, Stuart Pape

FDA

The Food and Drug Administration (FDA) has taken the first step to effectively ban trans fat from processed food. In November 2013, the Food and Drug Administration published a tentative determination that partially hydrogenated oils, which are the major dietary source of trans fat in processed food, are not “generally recognized as safe” (GRAS). This agency action, if finalized, “could, in effect, mean the end of artificial, industrially-produced trans fat in foods” according to the FDA. This unprecedented action would come after consumption of trans fat from products containing partially hydrogenated oils has declined from 4.6 grams a day in 2003 to about 1 gram a day in 2012. What is the legal authority for this action and are there legal arguments against the FDA moving forward in the proposed manner? What are the policy arguments for and against this action to eliminate “artificial” trans fat from the food supply? Could other aggressive actions against “unhealthy” ingredients such as caffeine, sodium and sugar be on the horizon?

Featuring:

  • Daren BakstResearch Fellow in Agricultural Policy, The Heritage Foundation
  • Stuart Pape, Partner, Patton Boggs LLP

[Listen now!]

McCutcheon v. FEC - Post-Decision SCOTUScast

April 7, 2014  |  Derek Muller

Derek MullerOn April 2, 2014, the Supreme Court issued its decision in McCutcheon v. Federal Election Commission. This case involves constitutional challenges to federal election laws that limit, over the course of a two-year election cycle, the total amount a person may contribute to so-called “non-candidate committees,” such as political parties and political action committees. Petitioner McCutcheon contends that these limits are based on no “constitutionally cognizable interest” and therefore violate the First Amendment on their face, or alternatively, as applied to contributions to national party committees. In addition, McCutcheon contends, the limits are numerically so low as to be constitutionally invalid on that basis as well, both on their face and as applied. Finally, McCutcheon argues that federally imposed limits on contributions to candidate committees likewise violate the First Amendment for lack of a “constitutionally cognizable interest.”

In an opinion delivered by Chief Justice Roberts, the Court held by a vote of 5-4 that the aggregate limits violate the First Amendment, as they do little to prevent quid pro quo corruption or the appearance thereof, yet seriously restrict participation in the democratic process. Justices Scalia, Kennedy, and Alito joined the Chief’s opinion. Justice Thomas wrote an opinion concurring in the judgment. Justice Breyer wrote a dissenting opinion, joined by Justices Ginsburg, Kagan, and Sotomayor. The decision of the United States District Court for the District of Columbia was reversed and remanded.

To discuss the case, we have Derek Muller, an Associate Professor of Law at the Pepperdine University School of Law.

[Listen now!]