Podcast
FedSoc Forums
Hosted by The Federalist Society · EN
*This series was formerly known as Teleforums.
FedSoc Forums is a virtual discussion series dedicated to providing expert analysis and intellectual commentary on today’s most pressing legal and policy issues. Produced by The Federalist Society’s Practice Groups, FedSoc Forum strives to create balanced conversations in various formats, such as monologues, debates, or panel discussions. In addition to regular episodes, FedSoc Forum features special content covering specific topics in the legal world, such as:
The Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
FedSoc Forums is a virtual discussion series dedicated to providing expert analysis and intellectual commentary on today’s most pressing legal and policy issues. Produced by The Federalist Society’s Practice Groups, FedSoc Forum strives to create balanced conversations in various formats, such as monologues, debates, or panel discussions. In addition to regular episodes, FedSoc Forum features special content covering specific topics in the legal world, such as:
- Courthouse Steps: A series of rapid response discussions breaking down all the latest SCOTUS cases after oral argument or final decision
- A Seat at the Sitting: A monthly series that runs during the Court’s term featuring a panel of constitutional experts discussing the Supreme Court’s upcoming docket sitting by sitting
- Litigation Update: A series that provides the latest updates in important ongoing cases from all levels of government
The Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers.
84episodes
Episodes
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What Was an "Establishment of Religion" at the Founding?
May 2800:52:02Tap to summarizeIn this Federalist Society America250 series, experts analyze modern legal and policy debates through the lens of the Founding generation. The Founders gave us the tools to answer many contemporary questions; join us as we explore those answers.In 2022, the Supreme Court overruled the "Lemon Test" for interpreting the Establishment Clause of the First Amendment, holding that the Clause must instead be interpreted by reference to "historical practices and understandings." To do this, the Court suggested it would look to certain historical "hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment." This has kicked off a vigorous debate, in both caselaw and scholarship, about what constituted "an establishment of religion" at the time of the Founding, and how that history should inform interpretation of the Establishment Clause today. Join a gathering of the foremost scholars and litigators of the Establishment Clause to discuss the Clause's historical meaning both as a matter of originalist theory and in its application to current church-state controversies, such as displays of the Ten Commandments in public schools.Featuring:Joe Davis, Senior Counsel, The Becket Fund for Religious LibertyDouglas Laycock, Robert E. Scott Distinguished Professor of Law Emeritus, University of Virginia; Alice McKean Young Regents Chair in Law Emeritus, University of TexasMichael McConnell, Richard and Frances Mallery Professor of Law, Stanford Law School(Moderator) Hon. Ryan D. Nelson, Judge, U.S. Court of Appeals, Ninth Circuit
Transcribe →Commandeering for Conservation?
May 2800:59:26Tap to summarizeIn Bear Warriors United v. Secretary, Florida Department of Environmental Protection the Eleventh Circuit is considering the question of whether the Endangered Species Act can hold states responsible for the harms of regulated private parties without running afoul of the Constitution's anti-commandeering doctrine.The Endangered Species Act prohibits anyone, including a state, from harming an endangered or threatened species. But threats to species are often driven by many small harms, which makes enforcement difficult. In Florida, manatee habitat is degraded by nitrogen released from septic tanks, none of which contributes substantially to the problem on their own. Bear Warriors United, an environmental group, sued Florida's Department of Environmental Protection alleging that it is liable for these harms as the regulator of septic tanks. A Florida district court agreed, ordering the state to prohibit new septic tanks in the watershed, to implement various conservation programs, and to maintain these policies unless and until a federal agency authorizes the state to change them.The anti-commandeering doctrine prohibits the federal government from "seeking to control or influence the manner in which States regulate private parties." But every court to have considered the question so far has held that enforcing the ESA against states for harms created by private permittees does not run afoul of the doctrine. Will the Eleventh Circuit be the first to go the other way?Join us as a panel of experts explore this conflict between anti-commandeering, preemption, and conservation. Featuring:Prof. William Snape, III, Director of the Program on Environmental and Energy Law, Assistant Dean of Adjunct Faculty Affairs, and Fellow in Environmental Law, American University Washington College of LawJonathan Wood, Vice President of Law and Policy, Property and Environment Research Center(Moderator) Prof. Jonathan Adler, Tazewell Taylor Professor of Law, William H. Cabell Research Professor, William & Mary Law School
Transcribe →Emerging Applications of the Congressional Review Act
May 2601:01:49Tap to summarizeThis panel will explore the evolving use of the Congressional Review Act, with particular attention to its application in recent high-profile regulatory contexts. Panelists will examine Congress’s recent use of the Congressional Review Act to nullify California Clean Air Act waivers—an action that is both a significant environmental policy development and a potential turning point in congressional practice. Panelists will consider key institutional and procedural questions raised by the recent congressional activity, including what the use of Senate procedural tools reveals about internal chamber rules and potential implications for the filibuster and legislative practice more generally. The panel will also examine emerging legislative strategies in employing the Congressional Review Act, including innovative applications to a wider range of agency actions, and consider how courts may approach judicial review in this evolving landscape. Through these lenses, the discussion aims to provide a deeper understanding of the Congressional Review Act’s role at the intersection of administrative law, congressional procedure, and separation of powers. Featuring: Prof. Jonathan Adler, Tazewell Taylor Professor of Law, William H. Cabell Research Professor, William & Mary Law School Michael Buschbacher, Partner, Boyden Gray, PLLC Dean Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law, Professional Lecturer in Law, George Washington University Law School (Moderator) Laura Stanley, Associate Attorney, Gibson, Dunn & Crutcher LLP
Transcribe →Litigation Update: Ten Commandments in Public Schools
May 1200:56:40Tap to summarizeThis week, the en banc U.S. Court of Appeals for the Fifth Circuit held that a Texas law requiring public schools to display a copy of the Ten Commandments in classrooms does not violate the First Amendment's Establishment or Free Exercise Clauses. The court explained that Stone v. Graham, which relied upon the now-defunct Lemon test to invalidate a similar Kentucky law decades ago, is no longer controlling. In the place of Lemon and its progeny, the en banc court explained, courts must ask whether a challenged law resembles a founding-era religious establishment. The court also held the challengers here failed to show the law substantially burdened their free exercise. Join us for a litigation update breaking down this ruling and what it may hold for Establishment and Free Exercise cases in the future. Featuring: Prof. Stephanie Barclay, Professor of Law and Faculty Director for the Georgetown Center for the Constitution, Georgetown University Law Center Prof. Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law (Moderator) Joe Davis, Senior Counsel, The Becket Fund for Religious Liberty
Transcribe →How Does the First Amendment Protect Churches in Court?
May 1200:58:52Tap to summarizeThe First Amendment’s church autonomy doctrine sets a structural constitutional barrier keeping the State from interfering in certain matters of a church. While the doctrine’s roots go deeper than even the nation’s Founding, how exactly it protects churches has recently and sharply divided courts. Some courts say it provides broad protections for matters falling within its scope—barring not only liability for removing a wayward minister, but also entangling and distracting litigation into the merits of that minister’s claims. But other courts—over a chorus of dissenting colleagues—have narrowed church autonomy to barring liability only. This has many important implications, including whether there can be a right of appeal when trial courts deny church autonomy defenses and send cases to entangling merits adjudication. The Supreme Court has been asked to clarify the contours of this doctrine in a case stemming from a class action lawsuit against the U.S. Conference of Catholic Bishops that challenges how the Catholic Church has described and used Peter's Pence, an offering that has been given to the Pope for over 1,000 years. Join us as a panel of experts explore the future of the church autonomy doctrine and what may unfold if the Supreme Court takes up the pending case concerning Peter's Pence. Featuring:Branton Nestor, Associate Attorney, Gibson, Dunn & Crutcher LLPProf. Lael Weinberger, Assistant Professor of Law, Antonin Scalia Law School, George Mason University(Moderator) Prof. Michael W. McConnell, Richard and Frances Mallery Professor of Law and Faculty Director, Constitutional Law Center, Stanford Law School
Transcribe →Originalism and State Constitutions
May 1200:52:33Tap to summarizeOriginalism has quickly become the leading approach to interpreting the U.S. Constitution, drawing from the work of Justice Antonin Scalia and others over the past three decades. But what place does originalism have in the states? State constitutions often contain unique provisions that have no federal analogue. Take Alaska's unique constitutional provision empowering grand juries to investigate matters of public welfare and safety and to issue reports. This power falls outside the traditional role grand juries play and raises interesting questions. Recent scholarship published by the Harvard Journal of Law & Public Policy explores the text, history, and tradition behind this provision, offering a window into how originalism might operate differently at the state level. What lessons can be drawn about the similarities between originalist interpretation of state constitutions and the federal constitution? Does originalism look different from state to state and between state and federal governments? How might judges and scholars take up the originalist mantle and shed light on other underexplored state constitutional provisions? Join our panel of experts as they explore how originalism is playing out in the states. Featuring:Dr. Nicholas Cole, Senior Research Fellow, Pembroke College, University of Oxford; Director, the Quill ProjectHon. Stephen Cox, Attorney General, AlaskaProf. Richard Garnett, Paul J. Schierl Professor of Law, University of Notre Dame Law SchoolSavannah Shoffner, J.D. Candidate, Notre Dame Law School(Moderator) Hon. John D. Couriel, Justice, Florida Supreme Court(Introducer) Sean-Michael Pigeon, Editor-in-Chief, Harvard Journal of Law & Public Policy
Transcribe →When Should We Recognize Something as a Property Right?
May 1201:00:24Tap to summarizeAmerica has historically led the way in intangible property rights. We were the first country to recognize copyright and patents in our constitution and became the first to recognize trade secrets as protectable assets in 1868. Property rules assume that the rights-holder has superior knowledge about how to use the property— when to share, when to exclude, and when to sell—and would do so without causing significant problems for others. Some see IP as a barrier to the free dissemination of ideas, art and inventions. Others argue that IP rights ensure control and appropriate returns for creators while unleashing an economic and creative engine that delivers trillions of dollars in value, high-quality jobs, life-saving medicines, and breathtaking works of beauty and ingenuity that wouldn’t otherwise exist.As modern debates swirl around everything from whether using copyrighted works to train generative AI should count as ‘fair use’, to whether medical diagnostic methods, business models and other abstract ideas should be patentable as they are overseas, to whether we should adopt European-style rules that treat privacy and data as a quasi-proprietary right or extend “rights of publicity” in the era of AI, this gathering of astute legal minds will return to first principles to explore a deceptively simple-sounding question: when should we recognize something as a property right? Join us for a deep dive into history, philosophy, and economics to understand some of the legal and policy dilemmas of our time, and whether and when expanding property rights is the answer.Featuring:Alden F. Abbott, Senior Research Fellow, Mercatus Center, George Mason University; Former General Counsel at the Federal Trade Commission (FTC)Prof. Jane Bambauer, Professor of Law and Journalism, University of FloridaJeffrey E. Depp, Senior Counsel for Law and Policy, Committee for Justice(Moderator) Satya Marar, Postgraduate Research Fellow, Mercatus Center, George Mason University
Transcribe →Clearing the Air: Recent Trump Administration Reforms to Environmental Criminal Enforcement
May 1200:57:42Tap to summarizeWith the growth of the administrative state over the last half-century, an equal expansion has occurred in the number of actions committable by individual citizens that can be prosecuted as crimes. At President Trump’s direction, the U.S. Department of Justice has initiated a new round of reforms aimed at ending “over-criminalization” of the Nation’s complex web of regulatory laws and standards. Most recently, DOJ announced that it was exercising enforcement discretion to dismiss several Biden-era prosecutions of individuals charged with violating the Clean Air Act who were alleged to have tampered with emissions-related diagnostic systems on cars and trucks. Supporters of the Biden-era policies and critics of this new policy argue that such emissions control deliver considerable benefits to the owner in the form of better fuel efficiency, and to society, in the form of cleaner air, and that this is a step backwards in environmental enforcement. This panel will discuss DOJ’s traditional approaches to criminal enforcement of administrative laws and regulations and offer viewpoints on recent reforms and changes to criminal enforcement in the current administration. Discussion will focus, in particular, on the DOJ’s decision to end criminal prosecutions of individuals for vehicle tampering cases under the Clean Air Act.Featuring:Granta Nakayama, Partner, King & Spalding LLPJustin Savage, Partner, Sidley Austin LLP(Moderator) John Irving, Partner, Secil Law
Transcribe →When Should We Recognize Something as a Property Right?
May 1201:00:24Tap to summarizeAmerica has historically led the way in intangible property rights. We were the first country to recognize copyright and patents in our constitution and became the first to recognize trade secrets as protectable assets in 1868. Property rules assume that the rights-holder has superior knowledge about how to use the property— when to share, when to exclude, and when to sell—and would do so without causing significant problems for others. Some see IP as a barrier to the free dissemination of ideas, art and inventions. Others argue that IP rights ensure control and appropriate returns for creators while unleashing an economic and creative engine that delivers trillions of dollars in value, high-quality jobs, life-saving medicines, and breathtaking works of beauty and ingenuity that wouldn’t otherwise exist.As modern debates swirl around everything from whether using copyrighted works to train generative AI should count as ‘fair use’, to whether medical diagnostic methods, business models and other abstract ideas should be patentable as they are overseas, to whether we should adopt European-style rules that treat privacy and data as a quasi-proprietary right or extend “rights of publicity” in the era of AI, this gathering of astute legal minds will return to first principles to explore a deceptively simple-sounding question: when should we recognize something as a property right? Join us for a deep dive into history, philosophy, and economics to understand some of the legal and policy dilemmas of our time, and whether and when expanding property rights is the answer.Featuring:Alden F. Abbott, Senior Research Fellow, Mercatus Center, George Mason University; Former General Counsel at the Federal Trade Commission (FTC)Prof. Jane Bambauer, Professor of Law and Journalism, University of FloridaJeffrey E. Depp, Senior Counsel for Law and Policy, Committee for Justice(Moderator) Satya Marar, Postgraduate Research Fellow, Mercatus Center, George Mason University
Transcribe →Is the FDA Trying to Ban Direct-to-Consumer Drug Ads?
May 500:58:48Tap to summarizeThe Trump Administration has been exploring new ways to tighten requirements for direct-to-consumer advertisements for prescription drugs. In its recent budget proposal, the Food and Drug Administration is asking Congress for new powers to deem drugs misbranded if they lack "fair balance" or create a "misleading impression" about a drug's approved uses or efficacy. In recent months, FDA has sent letters to Novo Nordisk, Argenx, and Sobi concerning ads it termed false or misleading. While some argue that banning drug ads on TV and online will lower drug prices and address overprescription, critics point out these increased efforts may violate the First Amendment's protection of commercial speech. The Supreme Court held in 1976 that prescription drug advertisements are protected by the Constitution and it reaffirmed this principle again in 2011, underscoring that the government may not ban truthful, non-misleading ads. Is the FDA trying to regulate away ads that it can't outright ban? How do these efforts implicate patients and their access to healthcare information? Join a panel of experts as they explore the constitutional and policy questions raised by the FDA's crack down on direct-to-consumer drug ads. Featuring:Paul Avelar, Senior Attorney, Institute for JusticeJeff Stier, Policy Advisor, Heartland Institute(Moderator) Dan Troy, Managing Director, Berkeley Research Group
Transcribe →