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ABA Law School Accreditation Standards Dec 13, 2021

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The 2021 National Lawyers Convention took place November 11-13, 2021 at the Mayflower Hotel in Washington, DC. The topic of the conference was "Public and Private Power: Preserving Freedom or Preventing Harm?" This panel discussed "ABA Law School Accreditation Standards."
For many years, the U.S. Department of Education has recognized the Council of the American Bar Association Section on Legal Education and Admissions to the Bar as the accrediting organization for law schools. The importance of that function cannot be overstated. For nearly every state, a J.D. degree from an ABA-accredited law school is required to practice law. To become accredited, a law school must comply with the standards contained in the ABA Standards and Rules of Procedure for Approval of Law Schools. In May 2021, the Council of the ABA Section proposed a set of accreditation standards that, among other things, would require law schools to "take effective actions that, in their totality, demonstrate progress in (1) Diversifying the students, faculty, and staff; and (2) Creating an inclusive and equitable environment for students, faculty, and staff." An interpretation of that provision stated, "The requirement of a constitutional provision that purports to prohibit consideration of race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, or military status in admissions or employment decisions is not a justification for a school’s non-compliance." The school would have to show "effective actions and progress . . . by means other than those prohibited by the applicable constitutional or statutory provisions." In addition, law schools must "provide training and education to law students on bias, cross-cultural competency, and racism: (1) at the start of the program of legal education, and (2) at least once again before graduation." The Council has since withdrawn the proposal for further study, but it may reappear.
Our panel of experts will discuss the degree to which the ABA’s proposed new policy represented a change from its prior practice; if it was a change, how it came about, including any arguments for or against it; whether it is justified and consistent with the accrediting role; and, if it is not, what steps, if any, might be appropriate to take.
Featuring:
Hon. Scott Bales, Former Chief Justice, Arizona Supreme Court
Prof. John McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University Pritzker School of Law
Prof. Thomas D. Morgan, Oppenheim Professor Emeritus of Antitrust and Trade Regulation Law, George Washington University Law School
Mr. Daniel R. Thies, Shareholder, Webber & Thies, P.C.
Moderator: Hon. Gregory Katsas, U.S. Court of Appeals, D.C. Circuit

Showcase Panel III: Corporate and Academic Management Today Dec 13, 2021

Show notes

The 2021 National Lawyers Convention took place November 11-13, 2021 at the Mayflower Hotel in Washington, DC. The topic of the conference was "Public and Private Power: Preserving Freedom or Preventing Harm?". The final day of the conference commenced with showcase panel on "Corporate and Academic Management Today."
The life of law school Deans and university administrators have always included responding to various demands from students and faculty. In recent years those demands include attacks on the school for failing to address racist behavior and patterns, sexual harassment and the mistreatment of gays and other minorities. Over the last couple of years those demands have significantly increased in quantity, volume and force. At the same time corporate management, especially across Fortune 500 companies, but by no means limited to them, have experienced similar pressures. Most recently, we're beginning to see pushback on behalf of outspoken students on free speech grounds, accused predators with due process claims, and others on equal protection grounds. How has management handled these pressures both in academia and in the corporate world? How should they? This roundtable includes those who have dealt with these issues—is some cases very recently and in others from a few years ago.
Featuring:
Mr. Richard Bagger, Partner and Executive Director, Christie 55 Solutions LLC
Dean David Schizer, Dean Emeritus & Harvey R. Miller Professor of Law, Columbia Law School
Dr. Lee Burdette Williams, Executive Director, College Autism Network; Former Vice President of Student Affairs and Dean of Students, Wheaton College; Former Dean of Students, University of Connecticut
Prof. Robin Fretwell Wilson, Mildred Van Voorhis Jones Chair in Law, Director, Institute of Government and Public Affairs, University of Illinois College of Law
Moderator: Hon. Michael Brennan, U.S. Court of Appeals, Seventh Circuit

20th Annual Barbara K. Olson Memorial Lecture Dec 13, 2021

Show notes

The 2021 National Lawyers Convention took place November 11-13, 2021 at the Mayflower Hotel in Washington, DC. The topic of the conference was "Public and Private Power: Preserving Freedom or Preventing Harm?".
On September 11, 2001, at the age of 45 and at the height of her professional and personal life, Barbara K. Olson was murdered in the terrorist attacks against the United States as a passenger on the hijacked American Airlines flight that was flown into the Pentagon. The Federalist Society believes that it is most fitting to dedicate an annual lecture on limited government and the spirit of freedom to the memory of Barbara Olson. She had a deep commitment to the rule of law and understood well the relationship between respecting limits on government power and the preservation of freedom. And, significantly, Barbara Olson was an individual who never took freedom for granted in her own life, even in her final terrifying moments-her inspiring and energetic human spirit is a testament to what one can achieve in a world that places a premium on human freedom. Solicitor General Theodore B. Olson delivered the first lecture in November 2001. The lecture series continued in following years with other notable individuals.
Featuring:
Hon. Theodore B. Olson, Partner, Gibson Dunn

Originalism: Perspectives from the Bench Dec 13, 2021

Show notes

The 2021 National Lawyers Convention took place November 11-13, 2021 at the Mayflower Hotel in Washington, DC. The topic of the conference was "Public and Private Power: Preserving Freedom or Preventing Harm?". This panel explored "Originalism: Perspectives from the Bench."
Many would agree that originalism is now a standard when it comes to judicial philosophy. On this panel, a variety of judges will discuss how they 'do' originalism while sitting on a case. Furthermore, they will provide their views on whether and how advocates can best brief and argue cases along originalist lines.
Featuring:
Hon. Edith Jones, U.S. Court of Appeals, Fifth Circuit
Hon. Kevin Newsom, U.S. Court of Appeals, Eleventh Circuit
Hon. Andrew Oldham, U.S. Court of Appeals, Fifth Circuit
Hon. Neomi Rao, U.S. Court of Appeals, D.C. Circuit
Moderator: Hon. John Nalbandian, U.S. Court of Appeals, Sixth Circuit

China, Global Companies, and Human Rights Dec 13, 2021

Show notes

The 2021 National Lawyers Convention took place November 11-13, 2021 at the Mayflower Hotel in Washington, DC. The topic of the conference was "Public and Private Power: Preserving Freedom or Preventing Harm?" This panel covered "China, Global Companies, and Human Rights."
This panel will explore a suite of issues related to global companies that do business in China and the implications for national security, human rights, and the rule of law. Panelists will explore how companies that have supply chains or otherwise are active in China weigh human rights concerns (e.g., in Xinjiang or Hong Kong) against market access, as well as consider the dilemma companies face when they find themselves caught in the crossfire between U.S. and allies' human rights sanctions (e.g., Global Magnitsky) and Chinese retaliatory sanctions. Do American companies feel an obligation, apart from any legal mandates, to act in ways that advance U.S. national security or foreign policy objectives? With senior policymakers intently focused on these and related issues, is the private sector giving them sufficient attention?
Featuring:
Amb. Craig Allen, President, US-China Business Council; Former U.S. Ambassador to Brunei Darussalam
Amb. Kelley Currie, Former U.S. Ambassador-at-Large for Global Women’s Issues
Mr. John S. Jenkins, Jr., Executive Vice President and General Counsel, TE Connectivity
Dr. Kori Schake, Senior Fellow and Director of Foreign and Defense Policy Studies, American Enterprise Institute
Moderator: Hon. Carlos T. Bea, Senior Judge, U.S. Court of Appeals, Ninth Circuit

Is Anyone Still Committed to Free Speech? Dec 13, 2021

Show notes

The 2021 National Lawyers Convention took place November 11-13, 2021 at the Mayflower Hotel in Washington, DC. The topic of the conference was "Public and Private Power: Preserving Freedom or Preventing Harm?". This panel asked "Is Anyone Still Committed to Free Speech?".
The Supreme Court in 1964 spoke of "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." That commitment has seemingly waned of late. Conservatives bemoan a new institutional "cancel culture" that chills heterodox views, with many now questioning limits on government’s ability to regulate the speech and associations of private parties like social-media platforms, corporations, and employers. Meanwhile, progressives complain that speech rights are, as one ACLU attorney put it, "more often a tool of the powerful than the oppressed" and should be subordinated to other values like equity, safety from harmful speech, and "anti-racism." Has something truly changed in recent years, and, if so, does it matter? Is the traditional view of free speech—freedom from government regulation—worth defending?
Featuring:
Mr. Mike Davis, President and Founder, Internet Accountability Project; Former Chief Counsel for Nominations to Senate Judiciary Chairman Chuck Grassley; Founder, The Article III Project
Prof. Stanley Fish, Professor of Law, Florida International University College of Law; Floersheimer Distinguished Visiting Professor of Law, Cardozo Law
Prof. Joel Gora, Professor of Law, Brooklyn Law School
Ms. Nicole Neily, President and Founder, Parents Defending Education
Moderator: Hon. David R. Stras, U.S. Court of Appeals, Eight Circuit

Federalism and Broadband Spending: Finding the Right Approach Dec 13, 2021

Show notes

The 2021 National Lawyers Convention took place November 11-13, 2021 at the Mayflower Hotel in Washington, DC. The topic of the conference was "Public and Private Power: Preserving Freedom or Preventing Harm?". This panel covered "Federalism and Broadband Spending: Finding the Right Approach."
The Covid-19 pandemic accelerated the desire for increased—indeed, universal—broadband access. This panel will focus on the infusion of federal and state funding into broadband networks. The panel will explore the ways in which states and private actors can play a role in ubiquitous deployment, the appropriate role of the FCC and other government agencies, including the USDA, NTIA, and DOE, how the FCC’s Universal Service programs can continue to facilitate deployment and adoption, and the terms that should accompany government funding distributed through states and federal agencies.
Featuring:
Hon. Brendan Carr, Commissioner, Federal Communications Commission
Hon. Eric Allan Koch, Senator and Chairman, Indiana Senate Utilities Committee, Indiana State Senate
Dr. Roslyn Layton, Senior Vice President, Strand Consult
Moderator: Hon. Steven Menashi, U.S. Court of Appeals, Second Circuit

"Cancel Culture" Comes to Financial Services Dec 13, 2021

Show notes

The 2021 National Lawyers Convention took place November 11-13, 2021 at the Mayflower Hotel in Washington, DC. The topic of the conference was "Public and Private Power: Preserving Freedom or Preventing Harm?". This panel discussed "Cancel Culture Comes to Financial Services."
Under the Obama Administration’s Operation Choke Point initiative bank regulators sought to de-bank various legal industries such as payday lenders, firearms dealers, and home-based charities. Today, banks have increasingly acted on their own initiative to effectively operate a new voluntary form of Operation Choke Point. In January 2021, Florida’s Bank United closed Donald Trump’s personal bank account. Other banks have cut off others seemingly because of political views and have been pressured by activists to cut off funding to politically-disfavored industries, religious organizations, and others, effectively a new voluntary form of Operation Choke Point.
Is this voluntary activity the free exercise of business judgment, or is it inappropriate response to external pressure? What kind of unintended consequences might occur where banks use their business to punish based on viewpoint? Could this behavior make banks into utilities subject to more financial regulation or even government actors carrying out government directives? What are the appropriate responses to "cancel culture" or "choke point" tactics in banking? What steps are appropriate either through governmental or private actions?
Featuring:
Prof. Christopher Peterson, John J. Flynn Endowed Professor of Law, University of Utah S.J. Quinney College of Law
Mr. Paul Watkins, Managing Director, Patomak Global Partners
Prof. Todd J. Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University; Senior Fellow, Cato Institute
Moderator: Hon. Eric Murphy, U.S. Court of Appeals, Sixth Circuit

Classrooms, Curricula, and the Law Dec 13, 2021

Show notes

The 2021 National Lawyers Convention took place November 11-13, 2021 at the Mayflower Hotel in Washington, DC. The topic of the conference was "Public and Private Power: Preserving Freedom or Preventing Harm?". This panel explored "Classrooms, Curricula, and the Law."
Competing legal and cultural interests are at play in the push to implement critical race theory and diversity, equity, and inclusion-based curricula at all levels from elementary school through higher education. Some argue that state bans are necessary to combat a divisive, stigmatizing, and arguably unlawful set of educational practices. Others take a libertarian approach, casting classrooms as marketplaces of ideas and criticizing proponents of CRT-bans as opponents of free speech. Still others praise these educational practices for raising greater awareness of American’s historical injustices, arguing that this is a necessary step towards a more equitable and inclusive society. In the tradition of the First Amendment, this convergence of issues leaves much room for a lively debate.
Featuring:
Prof. Akhil Reed Amar, Sterling Professor of Law, Yale Law School
Mr. Josh Hammer, Opinion Editor, Newsweek; Research Fellow, Edmund Burke Foundation
Ms. Kimberly Hermann, General Counsel, Southeastern Legal Foundation
Ms. Letitia Todd Kim, Managing Director, Foundation Against Intolerance & Racism
Mr. Greg Lukianoff, President and CEO, Foundation for Individual Rights in Education
Moderator: Hon. Kyle Duncan, U.S. Court of Appeals, Fifth Circuit

Showcase Panel II: Private Control Over Public Discussion Dec 13, 2021

Show notes

The 2021 National Lawyers Convention took place November 11-13, 2021 at the Mayflower Hotel in Washington, DC. The topic of the conference was "Public and Private Power: Preserving Freedom or Preventing Harm?" The second day of the conference commenced with a showcase panel on "Private Control Over Public Discussion."
Online platforms host a growing share of public discussion and debate. As private businesses, they have been free to develop and implement their own content moderation policies, free of First Amendment constraints. But as the amount of speech hosted on a few platforms has grown, the resulting concentration of control over that speech has sparked questions about the power of private companies to stifle lawful expression.
As Justice Clarence Thomas recently noted, the Court soon will need to consider how existing legal doctrines apply to these highly concentrated, privately owned, digital platforms. Part of the solution, he suggests, might lie with common law doctrines like common carrier or public accommodation – doctrines that might permit regulation that limits the right of private platforms to exclude.
But what of the First Amendment interests of the platforms themselves? Do these corporations have a protected expressive interest in declining to carry speech which is lawful but which they find objectionable? How should we think about the digital platform model – are they more like a communications network distributing information, more like publishers that actively curate content and associate themselves with hosted expression, or do they toggle back and forth?
Finally, should the concentration of private power over speech change how we think about public and private threats to free expression? Private businesses are presumptively free to set terms and conditions for the use of their own property. Have digital platforms assumed a degree of control over public discourse, sufficient to alter that presumption? Is some form of regulation appropriate to protect against private threats to liberty? Or is government intrusion into private decision-making still the greater threat?
Featuring:
Prof. Jane Bambauer, Professor of Law, University of Arizona James E. Rogers College of Law
Prof. Randy E. Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center
Prof. Adam Candeub, Professor of Law & Director, Intellectual Property, Information and Communications Law Program, Michigan State University College of Law
Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
Moderator: Hon. Barbara Lagoa, U.S. Court of Appeals, Eleventh Circuit

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