This series of podcasts features experts who analyze the latest developments in the legal and policy world. The podcasts are in the form of monologues, podcast debates or panel discussions and vary in length. The Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speakers. We hope these broadcasts, like all of our programming, will serve to stimulate discussion and further exchange regarding important current legal issues.
Arbitration and the Supremes: A Roundup of Recent and Anticipated Supreme Court Arbitration Precedents
Domestic and international arbitration has been the subject of considerable activity before the U.S. Supreme Court over most of the last decade. The Supreme Court’s last term (2021-2022) was no exception, with the Court deciding five arbitration-related cases, with additional cases in the Court’s current term. This program will concentrate on recent and currently Supreme Court pending cases concerning international and domestic arbitration, as well as hot topics before the Circuit Courts that may rise to the Court in the near future.
Manuel Farach, Shareholder, Mrachek, Fitzgerald, Konopka, Thomas & Weiss, P.A.
Joshua B. Simmons, Partner, Wiley Rein LLP
Moderator: Harout Jack Samra, Of Counsel, DLA Piper
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Section 230 Goes to Court: Gonzalez v. Google and the Future of the Electronic Town Square
Social media platforms have emerged as the new "town square" and a key forum for public debate, but some have questioned whether that debate is as open and robust as it should be. On the other hand, some worry that efforts to regulate social media platforms may themselves crimp debate. At the heart of the discussion is Section 230 of the Communications Decency Act. A panel of experts discussed what Section 230 permits and doesn't permit—a question now before a number of courts, including the U.S. Supreme Court in Gonzalez v. Google.
- Ashkhen Kazaryan, Senior Fellow, Free Speech & Peace, Stand Together
- Randolph May, President, The Free State Foundation
- Joel Thayer, President, Digital Progress Institute
- Moderator: Boyd Garriott, Associate, Wiley Rein LLP
Ukraine's National Bar: Reform, Renewal, and Independence
In an abrupt shift away from decades of tradition, Ukraine’s current National Bar arose from the adoption of a new model in 2013. The “Law On the Bar and Practice of Law” emerged amid recurring east-west tensions and pressures for domestic reform. This legislation produced an all-Ukrainian, non-governmental, non-profit organization that promotes adjudicatory reform. It has been recognized by the International Bar Association and the European Council of Bars and Law Societies.
Join Dr. Valentyn Gvozdiy, Vice President of the Ukrainian National Bar Association, for a conversation led by George Bogden regarding the origin of this independent body.
Dr. Valentyn Gvozdiy, Vice President, Ukrainian National Bar Association
Moderator: Dr. George Bogden, George F. Kennan Fellow, Kennan Institute, and Olin Fellow, Columbia Law School.
Is Cy Pres Defensible?
Cy pres is the practice of awarding class-action settlement funds to third-party organizations when distribution of settlement funds directly to class members is considered impractical. Champions of cy pres awards – which can amount to tens of millions of dollars – claim that the practice directly aids the causes in question. They also note its convenience and the importance of deterrence. Cy pres critics contend that such awards lead to conflicts of interest, the failure of class attorneys to prioritize class recovery, and First Amendment concerns over the compelled support of political beneficiaries.
By a 6-5 vote, the Eighth Circuit recently declined en banc review of an opinion affirming approval of a Monsanto settlement that paid $16 million to cy pres while leaving 98% of the class uncompensated. The Second Circuit affirmed approval of a settlement with Navient that paid the class of student debtors nothing with all settlement proceeds going to a few nonprofits affiliated with the teachers' union funding the class action. Both courts rejected objectors' First Amendment and Rule 23 arguments, and both cases are now the subject of cert petitions.
Ted Frank, who argued Frank v. Gaos and is counsel of record in St. John v. Jones and Yeatman v. Hyland, and Brian Fitzpatrick, author of The Conservative Case for Class Actions, will debate the pros, cons, and legality of cy pres and discuss possible Supreme Court review.
--Theodore "Ted" Frank, Director of Litigation & Senior Attorney, Hamilton Lincoln Law Institute
--Brian T. Fitzpatrick, Milton R. Underwood Chair in Free Enterprise, Vanderbilt University Law School
Clean Water Act – Forward to the Past?
The federal Clean Water Act regulates discharges to “navigable waters,” which the Act defines as “waters of the United States, including the territorial seas.” For decades the Environmental Protection Agency interpreted “waters of the US” very broadly through regulations, but in the past 20 years the agency lost two Supreme Court cases that have required amendments to the regulations. With a third significant decision pending from the Court in Sackett v. EPA, the agency just released the fourth major revision to the regulations defining “navigable waters” in the last eight years. This panel discussed what is old and what is new in the Biden Administration’s bid to finally capture what “waters of the US” means, and what impact the Sackett decision may have when it comes down.
--Kevin Minoli, Partner, Alston & Bird
--[Moderator] Tony Francois, Partner, Briscoe Ivester & Bazel
Courthouse Steps Oral Argument: Turkiye Halk Bankasi A.S. v. United States
On January 17, 2023, the US Supreme Court heard oral argument in Turkiye Halk Bankasi A.S. v. United States.
Turkiye Halk Bankasi A.S. (“Halkbank”) was indicted by a grand jury in 2019, and charged with involvement in a scheme to launder billions of dollars worth of proceeds from Iranian oil and natural gas, which was in violation of U.S. sanctions against Iran at the time.
Halkbank, is majority-owned by the government of Turkey and moved to dismiss this indictment, arguing that the court lacked jurisdiction. Halkbank contended that the Foreign Sovereign Immunities Act (FSIA) and the fact that the government of Turkey had a majority of its ownership made it immune to criminal prosecution in U.S. federal court. In relying on FSIA, Halkbank asserted that exceptions in FSIA apply only to civil cases, and that even if such exceptions applied in criminal cases, Halkbank Would still be immune under common law standards.
The U.S. District Court rejected the argument put forward by Halkbank, and the Second Circuit affirmed. This Supreme Court granted certiorari on the question of whether US district courts may exercise subject matter jurisdiction over criminal prosecutions against foreign sovereigns and their instrumentalities under 18 U.S.C. § 3231 and in light of FSIA.
This program, held on January 18, 2023 broke down and analyzed the oral argument.
--Mike Hurst, Partner, Phelps Dunbar LLP
GREAT...But Covid quality
Amazing content. We need to address the quality of the audio. Thank you for producing these. Amazing content!
The best law podcast out there
It’s impressive how FedSoc cranks out these teleforums on a weekly basis, covering a wide variety of topics with an array of speakers. I can almost never jump on a phone for the actual calls so I appreciate these podcasts. Fantastic series.
Quality of Audio
What kind of potato was this recorded on?