The Federalist Society’s Criminal Law and Procedure and Environmental Law and Property Rights Practice Groups bring you a roundtable discussion with leading Fourth Amendment scholars and litigators reviewing the major Fourth Amendment decisions from the 2020-2021 term and previewing the future of the Fourth Amendment at the High Court. What is the fate of Katz, the third-party doctrine, and the exigent-circumstances exception to the warrant requirement? What is the best method of interpreting the Amendment and will we see a revival of its original meaning? Four Fourth Amendment experts review:

Caniglia v. Strom, a unanimous opinion written by Justice Thomas rejecting the warrantless search of a home under the “community caretaking exception.”
Lange v. Caniglia, an opinion written by Justice Kagan rejecting a categorical exception to the warrant requirement for a fleeing misdemeanant.
Torres v. Madrid, a 5-3 decision by Chief Justice Roberts with a resounding dissent by Justice Gorsuch, debating what constitutes a “seizure”–is mere touch sufficient or must an officer take actual possession?
Bovat v. Vermont, Justice Gorsuch, joined by Justices Kagan and Sotomayor, dissenting from the denial of certiorari in a case involving the “knock and talk” exception to the warrant requirement.
The last term was a busy one for the Fourth Amendment and no doubt many questions remain in this important area of constitutional law. Join the nation’s leading scholars and litigators as they discuss the most recent developments in Fourth Amendment law and preview the Amendment’s future at the High Court.

Yesterday, the Supreme Court issued its decisions in two federal vaccine mandate cases. Several states and interest groups sought emergency relief on regulations issued by the Occupational Safety and Health Administration as well as the Centers for Medicare and Medicaid Services.

The OSHA rule required large employers to require vaccination or regular testing of their employees. CMS required vaccination of staff at health care facilities participating in Medicare or Medicaid programs. The Court granted a stay of the OSHA rule pending merits review in the Sixth Circuit, but stayed an injunction of the CMS rule allowing it to go into effect.

The Clean Water Act authorizes the Environmental Protection Agency and U.S. Army to regulate discharges to “navigable waters,” defined in the statute as “waters of the United States, including the territorial seas.” The agency regulations further defining these terms have engendered controversy and litigation for decades.

Since 2015, the agencies have modified their Navigable Waters regulations three times, and dozens of federal lawsuits have challenged the various versions. Meanwhile, the validity of these regulations have been the key issue in several enforcement cases.

This webinar will host a debate over the pending amendments to Federal Rule of Evidence 702, which governs the admissibility of expert testimony. In August 2021, the federal judiciary’s Advisory Committee on Evidence Rules published proposed amendments to Rule 702 to include within the text of the rule language directly stating that the proponent of expert testimony must establish each of Rule 702’s elements by a preponderance of the evidence. Currently, Rule 702 does not explicitly include a preponderance standard, but merely cross-references the preponderance standard included under another evidentiary rule. A year’s worth of research into federal cases analyzing the current Rule 702 reveals that some courts apply a preponderance standard while others apply a more relaxed policy favoring admissibility.
The Advisory Committee will host a public hearing on January 21, 2022, and those wishing to testify are asked to reserve a spot 30 days in advance. The Committee is also accepting public comments on the proposed amendment until February 16, 2022.
The webinar discussion will be moderated by Leah Lorber, Assistant General Counsel of Dispute Resolution and Prevention at GSK. Participants will include Lee Mickus, a Partner at Evans, Fears & Schuttert, who has written and spoken extensively in support of Rule 702 reforms; David Wool, a Partner at the Wagstaff Law Firm who has litigated Rule 702 and Daubert issues extensively and questioned the need for the proposed amendment; and Katie Jackson, an Associate at Shook, Hardy & Bacon and Fellow with Lawyers for Civil Justice who has conducted research regarding the courts’ application of Rule 702.

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Late in 2020, several pharmaceutical companies developed vaccines for Covid-19 that received FDA approval, first for emergency use and then for general use. Next came the question of whether the federal or state governments should mandate vaccination or leave that decision to individuals. The states have generally deferred to the federal government, and Congress punted punted the question to President Joe Biden. At first, he tried to persuade the public, and numerous people were vaccinated. In September 2021, however, the President changed course, expressing dissatisfaction with the rate of vaccination. Among other things, he ordered the Occupational Safety and Health Administration (OSHA) to promulgate an Emergency Temporary Standard (ETS) requiring all employees at companies with 100 or more employees to be vaccinated or receive weekly negative test results to remain at the workplace. Numerous parties challenged the OSHA Vaccination Mandate. The U.S. Court of Appeals for the Fifth Circuit stayed the effect of the ETS, and OSHA agreed not to enforce it for the time being. All related cases have now been transferred to the Sixth Circuit, and the federal government has asked that court to dissolve the stay.

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On Tuesday, November 30, 2021, the Supreme Court heard oral argument in American Hospital Association v. Becerra. One of the certified questions asks the Court to revisit the famed Chevron doctrine which has been subjected to much criticism since its implementation. The petitioners ask the Court whether Chevron allows the Department of Health and Human Services to set reimbursement rates for hospital groups and whether 42 U.S.C. 1395I(t)(12) precludes the petitioners’ suit. Rich Samp of the New Civil Liberties Alliance which filed an amicus brief in the litigation before the Court joins us to discuss the oral argument.

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In District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), the Supreme Court decided for the first time that the Second Amendment protects the right of individual Americans to keep a handgun in their homes for self-defense. In New York State Rifle & Pistol Association v. Bruen, the Court is expected to decide whether New York violated the Second Amendment by denying the applications of two law-abiding citizens to carry a concealed weapon in public.

Oral argument in this case was held on November 3. In this webinar, two Second Amendment experts will discuss the arguments, as well as the effects that the decision, whichever way it goes, might have on government power to enforce the criminal law.

On December 8, 2021, the U.S. Supreme Court will hear oral arguments in Carson v. Makin on the question of whether a state violates the Religion Clauses or Equal Protection Clause by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious instruction.

We are joined by two experts, one of whom will argue the case before the Supreme Court for the petitioner, to discuss the legal issues involved and the implications of oral arguments.

On December 1, 2021, the U.S. Supreme Court will hear Dobbs v. Jackson Women’s Health Organization, one of the most anticipated cases on the Court’s docket in recent years, on the question of whether all pre-viability prohibitions on elective abortions are unconstitutional.
This distinguished panel will review the oral arguments, explore the legal issues involved, and anticipate where the law might be headed.
You can view our pre-argument webinar here.
Featuring:

Prof. Daniel Farber, Sho Sato Professor of Law, University of California, Berkeley
Prof. Richard W. Garnett, Paul J. Schierl/Fort Howard Corporation Professor of Law, University of Notre Dame Law School
Prof. Julia Mahoney, John S. Battle Professor of Law, University of Virginia School of Law
Prof. Richard Re, Joel B. Piassick Research Professor of Law, University of Virginia School of Law
Prof. Mary Ziegler, Stearns Weaver Miller Professor, Florida State University College of Law
Moderator: Jennifer C. Braceras, Director, Independent Women’s Law Center, Independent Women’s Forum

The ongoing, high-decibel, public debate over vaccine mandates has entered its litigation phase. Please join us for a conversation with one of the country’s leading vaccine and civil rights litigators, Aaron Siri of Siri|Glimstad. Mr. Siri will provide a litigation update and summarize the issues and strategic challenges facing litigators, their clients, and policy makers. Our host will be Robert Destro, former U.S. Assistant Secretary of State for Democracy, Human Rights and Labor and Professor of Law at The Catholic University of America. Together, they will discuss the evidentiary and human rights issues facing lawyers who plan to challenge the public health regime.

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On December 1, 2021, the U.S. Supreme Court will hear Dobbs v. Jackson Women’s Health Organization, one of the most anticipated cases on the Court’s docket in recent years, on the question of whether all pre-viability prohibitions on elective abortions are unconstitutional.

In defending its ban on abortions after 15-weeks gestation, Mississippi asks the Court to overrule Planned Parenthood v. Casey and Roe v. Wade, arguing that the cases were egregiously wrong because a right to abortion has no basis in the text, structure or history of the Constitution. Mississippi further argues that the various frameworks have proved hopelessly unworkable; that the cases have inflicted severe damage on democratic self-government, on the country, and on the understanding that the Supreme Court is a neutral arbiter of the law; that they have been overtaken by a better legal and factual understanding; that reliance interests do not support upholding Roe and that accordingly stare decisis principles counsel in favor of overruling them. Respondents argue that the viability standard is the central line that underpins these rulings, and that the Court’s decision to retain it in Casey, in the face of repeated requests to abandon it both in the years leading up to Casey and in Casey itself, makes the bar for overruling it particularly high. They further note stare decisis’s centrality to the rule of law and to public confidence in the courts. They add that the viability standard is well-grounded in the Constitution and that a right to abortion remains critical to women’s equal participation in the workforce.

During the first two weeks of November, the Justices will hear ten oral arguments on cases including the Second Amendment, free speech, abortion, and religious freedom.

The case names, issues, and dates of argument are listed below:

On September 1, 2020, the U.S. Centers for Disease Control and Prevention took a step into nationwide housing policy, and issued a nationwide ban on evictions. With the order, the federal agency invoked a little-known WWII-era statute that empowered the agency to “make and enforce such regulations” that “are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” The agency asserted that evictions presented a unique and unacceptable danger to the public in light of Covid-19.
CDC’s order was challenged almost immediately by a variety of public interest groups on a variety of statutory and constitutional grounds. At the heart of these challenges was an objection to the agency’s determination that property owners could be forced to turn over their real property to tenants who refused to pay rent.
The order was, in months-long increments, in existence for most of the past year. Meanwhile, several district courts and the Sixth Circuit invalidated the moratorium, but only with respect to individual litigants. After one trip to the Supreme Court, another extension, and a final stop back at the Supreme Court, the moratorium ended. However, related rules issued by agencies like the Consumer Financial Protection Bureau, as well as local eviction moratoria, continue around the country.
This litigation update by Caleb Kruckenberg of the New Civil Liberties Alliance, which filed the first challenge to the CDC order, discusses the origins of the moratorium, including relevant Congressional action (and inaction), the legal challenges to the moratorium, recent and possible future extensions of the moratorium, and why this case was bound for resolution by the Supreme Court.

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Fifty years ago, on August 15, 1971, President Richard Nixon put the economic and financial world into a new era. By his decision to “close the gold window,” he fundamentally changed the international monetary system into the system of today, where the whole world runs on pure fiat currencies. “The dollar was the last ship moored to gold, with all the other currencies on board,and the U.S. cut the anchor and sailed off.” Nobody knew how it would turn out. Fifty years later, we are completely used to this post-Bretton Woods monetary world with endemic inflation and floating exchange rates, and take it for granted. Nobody thinks it is even possible to go back to the old world: We are all Nixonians now. How shall we judge the momentous Nixon decision in its context and since? A fundamental question with pluses and minuses remains. Is the international monetary system now permanently open to more money printing and more monetization of government debt, making faith in central banks misplaced, and expectation of an ideal monetary policy foolish?

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In July 2021, the U.S. Court of Appeals for the Ninth Circuit ruled that California’s recent school closures violated parental rights to direct the education of children, and reversed the lower court’s decision upholding California’s regulations as they relate to private education. Robert Dunn, who argued the case at the Ninth Circuit for plaintiffs, joins us to discuss the litigation, this ruling, and its implications.

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In a January 26, 2021 White House Memorandum, President Biden directed the Secretary of Housing and Urban Development to reexamine actions taken during the Trump presidency, and ordering the Secretary to ensure the 1968 Fair Housing Act, which bans discrimination, was being properly administered. On that initiative, Housing Secretary Marcia Fudge moved to reinstate two Obama-era Fair Housing rules rejecting former Secretary Ben Carson’s previous directives.

Secretary Fudge rescinded Secretary Carson’s interpretation of the disparate impact rule, rescinded the Preserving Community and Neighborhood Choice Rule, and reinstated the Affirmatively Furthering Fair Housing Rule.

As students prepare return to universities across the country, many schools are putting in place Covid vaccine mandates. These mandates require proof of vaccination, and typically include medical and religious exemptions. But, as Professor Ronald Colombo’s new paper raises, some kinds of exemption schemes may be unjustly discriminatory. Beyond the issue of exemptions, some students and staff object to the mandates as such. A group of students challenged one such mandate at Indiana University; in July, a district court judge sided with the university, and the ruling was recently upheld 3-0 by the U.S. Court of Appeals for the Seventh Circuit. These cases, the nature of the mandates and exemptions, and more will be discussed in this virtual program.

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A Dubious Expediency: How Race Preferences Damage Higher Education is a collection of eight essays written by experts in the field examining and analyzing the impact of racial diversity preferences and identity politics in American colleges and universities. The book’s title comes from a 1976 California Supreme Court opinion in Bakke v. UC Regents authored by Justice Stanley Mosk, who wrote:

“To uphold the [argument for race-preferential admissions] would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality.”

On June 23, 2021, the U.S. Supreme Court in Collins v. Yellen held 7-2 that 1) because the Federal Housing Finance Agency did not exceed its authority under the Housing and Economic Recovery Act of 2008, the anti-injunction provisions of the Recovery Act bar the statutory claim brought by shareholders of Fanne Mae and Freddie Mac; and 2) the Recovery Act’s structure violates the separation of powers.

Justice Alito wrote the majority opinion. Justice Gorsuch joined the opinion as to all but Part III–C, Justices Kagan and Breyer joined as to all but Part III–B, and Justice Sotomayor joined as to Parts I, II, and III–C. Justice Thomas filed a concurring opinion. Justice Gorsuch filed an opinion concurring in part. Justice Kagan filed an opinion concurring in part and concurring in the judgment, in which Justices Breyer and Sotomayor joined as to Part II. Justice Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined.

On June 21, 2021, the U.S. Supreme Court unanimously decided NCAA v. Alston in favor of respondent. Writing for the Court, Justice Gorsuch explained that the district court’s injunction on NCAA rules limiting the benefits schools can make available to student athletes is consistent with antitrust law and principles. Justice Kavanaugh filed a concurring opinion.

A former senior DOJ Antitrust official joins us to discuss the ruling and its implications.