Teleforum

Google copied over 11,000 lines of computer code, called declaring code, owned by Oracle. Ten years after Oracle filed suit, the Supreme Court will hear the oral argument on October 7, 2020. Google says the code is purely functional, is uncopyrightable because there’s only one way to write it, and in any case their copying was fair use. Oracle, backed by the Solicitor General, says its code is creative expression that falls squarely into what Congress intended to protect and that Google’s copying was non-transformative infringement. Join us for a review of oral arguments in Google v. Oracle on the afternoon of October 7th by an all-star panel. Featuring: Jordana Rubel, Assistant General Counsel, U.S. Copyright Office, which co-wrote the government's brief Prof. Michael Risch, Vice Dean and Professor of Law, Villanova University Charles Widger School of Law; author of amicus brief in support of Google Moderator: Steven Tepp, President & CEO, Sentinel Worldwide; Professorial Lecturer in Law at

This teleforum addresses the October 6, 2020, Supreme Court oral argument in FNU Tanzin v. Tanvir, which involves the sole question of whether the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C § 2000bb et seq., permits suits seeking money damages against individual federal employees. The underlying facts of the case involve RFRA claims brought by Muslim immigrants to the United States, now U.S. citizens or lawful permanent residents, who allege they were placed on the No Fly List in retaliation for refusing, on religious grounds, to serve as informants for the FBI. In a 2011 decision, Sossamon v. Texas, the Court held that the Religious Land Use and Institutionalized Persons Act (RLUIPA), a companion statute to RFRA, did not authorize money damages against states. This case represents another look at the remedies available under RFRA and the statutory phrase “appropriate relief.”This teleforum features Stephanie Taub, Senior Counsel for First Liberty Institute, which filed an ami

As an act of original jusrisdiction, the Supreme Court appointed a river master to resolve a dispute between New Mexico and Texas over the Pecos River back in 1949. Over 70 years later, the actions of this river master are now in question. After a tropical storm in 2014, overflow water from the Texas reservoir Red Bluff was impounded at a federally owned reservoir in New Mexico. Texas argues that when New Mexico released the impounded water, they wasted it. Because of this claim, the river master did not originally reduce Texas' rights in the 2014 and 2015 annual reports; however, upon New Mexico's request, the river master changed the 2015 reports and reduced its delivery to Texas because of the 2014-2015 flood water. By December 2018, Texas had filed a motion with the U.S. Supreme Court, with argument now scheduled for October 5. Tony Francois joins us to discuss the oral argument. Featuring:Anthony L. Francois, Senior Attorney, Pacific Legal Foundation Teleforum calls are open to all dues paying members o

Recent events have demonstrated how dependent on China the United States has become for critical needs. The ongoing coronavirus pandemic has demonstrated the supply chain vulnerabilities that exist for antibiotics, personal protective equipment (PPE) and other medical equipment. This newly-appreciated vulnerability has occurred against the backdrop of the Trump administration’s efforts to eliminate Chinese electronic infrastructure companies from the U.S. supply chain for cybersecurity and broader national security reasons. And most recently, China’s adoption of its “Hong Kong Security Law”, and Congress’ reaction – the Hong Kong Autonomy Act, establishing a sanctions regime for Chinese persons found by the Departments of Treasury and State to be undermining the autonomy of Hong Kong – only adds to the complexity of supply chain decision making.Join a distinguished panel of experts, Joanne Medero, Daniel Ahn, and Bryan Smith, as we delve into whether searching the

Eleven months ago the Federal Circuit held that the Administrative Patent Judges who serve on the Patent Trial and Appeal Board, were unconstitutionally appointed because they act as “principal officers” within the meaning of the Constitution but were not appointed with the advice and consent of the Senate as required by the Appointments Clause. The court adopted a narrow “remedial approach” in which it “sever[ed] any problematic portions [of the statute] while leaving the remainder intact.” The court thus invalidated Title 5’s removal restrictions, as applied to these administrative patent judges. , See 35 U.S.C. § 3(c). Because the APJs can be removed without cause, the court concluded that, going forward they were inferior as opposed to principal officers. It has remanded scores of cases to the PTAB for reconsideration by a new panel of APJs.All parties have sought certiorari. The government argues that there was no Appointments Clause violation at all,

In Delaware, there is a state constitutional provision that requires the state's three highest courts to have no more than a "bare majority" of judges to be affiliated with either major political party. James Adams, a Delaware resident and member of the Delaware bar, decided against applying for a judicial position due to the constitutional provision. Adams would not have qualified for the position because he is not a member of either the Republican party or the Democrat party. Adams subsequently filed a lawsuit challenging the constitutional provision that limits judges to members of either the Democratic or Republican parties. The district court found that Adams had partial Article III standing, and decided to review the case on the merits. On the merits, the district court found that the provision in question was unconstitutional in its entirety. Upon appeal, The United States Court of Appeals for the Third Circuit affirmed in part, but reversed on the provisions for which Adams had been denied Article II

The U.S. Court of Appeals for the First Circuit (Judges Kayatta, Selya and retired Justice Souter) ruled on September 15 that the National Labor Relations Board was correct as a matter of law in holding that private sector unions may never charge dissenting nonmembers for their lobbying activity. The private sector union in this case, United Nurses & Allied Professionals, lobbied the Vermont and Rhode Island legislatures on a variety of bills, and argued that no Supreme Court case squarely held lobbying to be nonchargeable to nonmembers in the private sector, and that the NLRB erred in its analysis of the Supreme Court’s line of compulsory dues cases when it held lobbying per se nonchargeable. To reach its decision, the First Circuit analyzed the line of Supreme Court cases that stretches from IAM v. Street (1961) to CWA v. Beck (1988) to Lehnert v. Ferris Faculty Association (1991) to Harris v. Quinn (2014) and ultimately to the decision in Janus v. AFSCME (2018). The First Circuit agreed with the

The case of Midwest Institute of Health, PLLC v. Whitmer concerns the state-law claims (brought to the Michigan Supreme Court through the certified-question process from federal court) made in challenge to all of Michigan Governor Whitmer’s Executive Orders issued after April 30, 2020. On that date, the Michigan Legislature refused to extend Governor Whitmer’s emergency declaration. She asserted this denial was irrelevant under Michigan’s 1945 Emergency Powers of Governor Act, which unlike Michigan’s 1976 Emergency Management Act, does not have an explicit mechanism permitting the Legislature to terminate an emergency declaration. Governor Whitmer has issued around 175 COVID Executive Orders and almost all of the 41 still-active ones were issued after April 30, 2020. Plaintiffs focused their argument on the statutory construction concept of constitutional avoidance – specifically that if read in the manner that the Governor claimed, the 1945 EPGA would violate the 1963 Michigan Constitution’s separation of po

The Supreme Court's most recent term ended with several high-profile liberty rulings, including Espinoza v. Montana Department of Revenue and Little Sisters of the Poor v. Pennsylvania. This term, set to begin next month, will bring more religious liberty cases before the Court. Chief among these cases is Fulton v. City of Philadelphia, a case which brings to the forefront the questions of whether, when, and why religious exemptions are required by the Free Exercise Clause. Oral arguments for this case are scheduled for November 4, 2020. Mark Rienzi of the Becket Fund joins us to preview the Fulton case, discuss other religious-liberty cases the Court will hear this year, and analyze the future of religious liberty at the Supreme Court. Professor William Saunders from The Catholic University of America will moderate the conversation. To listen to Professors Rienzi and Saunders discuss last term's religious liberty cases, see Religious Liberty at the Supreme Court: The 2020 Term and Beyond. Featuring: Mark Ri

The new United States-Mexico-Canada Agreement (USMCA) entered into force in the United States on July 1, 2020, and is expected to significantly affect the trade relationship between the United States and Mexico. How successful will it be for either country? This panel of experts will discuss the anticipated effects of USMCA on US-Mexico relations, including recent policies implemented by Mexican president Andres Manuel Lopez-Obrador. The program will feature Ambassador Jeffrey Davidow, former U.S. Ambassador to Mexico and Assistant Secretary of State for Western Hemisphere Affairs, who is currently a Senior Counselor with the Cohen Group in Washington, DC, and Ana Rosa Quintana, Senior Policy Analyst, Latin America and Western Hemisphere, at the Heritage Foundation.Featuring: -- Amb. Jeffrey Davidow, Senior Counselor, The Cohen Group, and former U.S. Ambassador to Mexico and Assistant Secretary of State for Western Hemisphere Affairs-- Ana Rosa Quintana, Senior Policy Analyst, Latin America and the Western He

In the landmark Title VII of the Civil Rights Act of 1964, Congress legislated a comprehensive scheme for eradicating employment discrimination in American workplaces. Title VII has been implemented by the federal courts in thousands of cases to remedy discrimination on the basis of race, sex and other protected classifications. Congress and the federal courts have worked hard to strike an appropriate balance in the application of Title VII - ensuring the effectiveness of the law while encouraging employers to implement successful preventive measures and enabling them to achieve their legitimate business purposes. Congress has also amended Title VII on numerous occasions in response to concerns that it did not go far enough or that certain federal court interpretations went amiss.At other times the Executive Branch has sought to alter this balance on its own, but concern is growing about whether federal courts will effectively constrain federal regulations that lack any statutory basis. This teleforum wil

In this teleforum, James R. Copland will discuss competing legislative proposals in Congress, in the context of a complex phenomenon. In Copland's view, the evidence is clear that black men both disproportionately benefit from policing and disproportionately bear its costs. How should we think about the evidence, and how should we address the issue?Copland will also discuss his newly-released book, The Unelected: How an Unaccountable Elite is Governing America.Featuring:-- James R. Copland, Senior Fellow and Director, Legal Policy, Manhattan Institute

The Federalist Society's Intellectual Property Practice Group will host a conversation with the Hon. Alan D. Albright of the Western District of Texas and Art Gollwitzer III, an attorney with Michael Best in Austin, TX. The speakers will be introduced by the Hon. Ryan T. Holte of the U.S. Court of Federal Claims.Please join us for a conversation expected to cover Judge Albright's approach to patent cases; a unique brand of local patent rules; innovative advisory council group on rules; goals for the rules and how they work in daily practice; and a discussion regarding how new patent procedures evolve to meet the needs of a rapidly growing patent litigation docket. Featuring:-- Hon. Alan D. Albright, U.S. District Court, Western District of Texas-- Arthur Gollwitzer III, Partner, Michael Best-- Introductions: Hon. Ryan T. Holte, U.S. Court of Federal Claims

The brutal confirmation battles we saw over Supreme Court Justices Neil Gorsuch and Brett Kavanaugh are symptoms of a larger problem with our third branch of government, a problem that began long before Kavanaugh, Merrick Garland, Clarence Thomas, or even Robert Bork: the courts' own self-corruption, aiding and abetting the expansion of federal power. In Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court, Ilya Shapiro, director of the Cato Institute's Robert A. Levy Center for Constitutional Studies, takes readers inside the unknown history of fiercely partisan judicial nominations and explores reform proposals that could return the Supreme Court to its proper constitutional role. Confirmation battles over justices will only become more toxic and unhinged as long as the Court continues to ratify the excesses of the other two branches of government and the parties that control them. Only when the Court begins to rebalance our constitutional order, curb administrative overreach,

In Epic Systems Corp. v. Lewis, the Supreme Court confirmed that federal law permits employers to include class action waivers in employment arbitration agreements. In the wake of that decision, employers have increasingly adopted arbitration programs to gain the benefit of class action waivers. Employee-side class action attorneys have responded by filing "mass arbitrations" as a substitute for traditional class actions. Mass arbitrations can involve hundreds or even thousands of individual arbitrations filed simultaneously. Our panel will review the increasing use of the mass-arbitration approach from the perspective of employer-side and employee-side attorneys. In addition, the panel will discuss proposals for modifying arbitration procedures to accommodate mass arbitrations, including, in particular, the new Mass Arbitration Protocol released by the International Institute for Conflict Prevention and Resolution.Featuring: -- Allen Waxman, President & CEO, International Institute for Conflict Preventio

The Environmental Protection Agency recently proposed retaining both the existing particulate matter and ozone primary and secondary standards. Over the last several decades, air quality in the United States has improved dramatically. Though many have advocated for more stringent PM and ozone standards, the environmental and public health imperative for tighter standards is the subject of debate. Unlike in the past, the agency was able to finish the review of these criteria pollutants within the five-year statutory window. What was the basis for retaining these standards, how did the agency review the standards in such a timely fashion, and are these actions supported by the best available science? What are the arguments for and against these proposed actions? And are these standards, if finalized, likely to withstand judicial review? Join us as we discuss these and other critical questions. Featuring: -- Jeffrey R. Holmstead, Partner, Bracewell LLP-- Justin Schwab, Founder, CGCN Law, PLLC-- Moderator:

Now six months into the COVID pandemic, the Internet has offered Americans a welcome economic, educational and sometimes even psychological lifeline to weather the crisis. Given Americans’ increased reliance on broadband, politicians on both sides of the aisle are now actively campaigning on the issue of expanding broadband deployment. Republicans are focusing on promoting private-sector deployment, while Democrats are pushing for the expansion of government-owned networks (“GONs”).While the debate over the merits of municipal broadband is nothing new, what has been missing from the debate over the years is a cohesive legal and economic analysis to frame the discussion. A new 100-page study recently published in the Federal Communications Law Journal attempts to fill that gap. To explore this important topic in detail, we will be joined in this teleforum by two of the authors of this new study to discuss their findings. Featuring:-- Dr. George S. Ford, Chief Economist, Phoenix Center for Advanced Legal &

After 87 victims, 53 separate crime scenes, and multiple investigations spanning over four decades, the Golden State Killer was finally brought to justice this past August when he was sentenced to life in prison without the possibility of parole. The key piece of evidence that led investigators to the serial burglar, rapist, and murderer was not a traditional smoking gun, but rather genetic evidence sourced through a public genealogy database. While the positive uses of such investigative techniques are clear, what implications does this new era of genetic detective work have on the wider criminal justice system?How does this technology work? Are privacy rights at risk? Should there be limits on this new field of DNA forensics as it pertains to criminal investigations? Reflecting the contentious nature of the topic, there are differing answers to all of these questions from public defenders and prosecutors alike. Join us for a thoughtful discussion as we explore the case of the Golden State Killer and the evo

In the last year, many states had seen a new wave of lawsuits against religious organizations based on alleged sexual abuse from decades ago. New York’s Child Victims Act, which revived previously-time barred claims and at first opened a one-year window to bring them, has now extended that window by another year. Thousands of claims were already brought under that Act in New York state courts. Pennsylvania courts are similarly adjudicating issues relating to abuse claims against the religious organizations. These suits raise a variety of procedural and substantive, including constitutional, issues. They also raise the question of how religious organizations can benefit from Chapter 11 reorganization. As noted in the first part of this Teleforum series, these Supreme Court decisions may also impact certain issues in abuse litigation and in how religious organizations are treated under Chapter 11.Please join the lawyers of Jones Day for a second part of the Teleforum call that will discuss significant developme

As the United Arab Emirates and Israel agreed to establish diplomatic ties, Iran and China’s 25-year, $400 billion deal lurks in the background. The nearly finalized Iran-China Deal provides potential for equal or greater regional consequence. Iran, weakened by sanctions and Covid-19 impacts, has turned East to find both economic and military support. China and Iran have a history of deals and arrangements, but does this partnership’s trade and military components pose strategic concerns for the West? Other Iranian allies like Syria, Iraq, and Lebanon reportedly are lining up to negotiate similar pacts. Does this alliance, in providing a foothold in the region, benefit China with leverage in Middle East affairs?Whether or not sanctions against Iran are renewed, how will the United Nations or the United States respond to an Iran-China arms deal? Will the lessons learned by countries that have entered into Belt and Road Initiatives be instructive as new agreements are forged? What should the West’s response be