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2021 Antonin Scalia Memorial Dinner Dec 13, 2021

Show notes

On November 11, 2021, The Federalist Society hosted its annual Antonin Scalia Memorial Dinner. This year featured an address by Senator Tom Cotton.
Featuring:
Hon. Tom Cotton, U.S. Senate, Arkansas
Jennifer C. Braceras, Director, Independent Women's Law Center, Independent Women's Forum; Member, Federalist Society Board of Visitors; Former Member, U.S. Commission on Civil Rights
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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Religious Liberty after Fulton v. City of Philadelphia 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 "Religious Liberty after Fulton v. City of Philadelphia."
Fulton v. City of Philadelphia was a victory for religious liberty, but it is unclear how broad its implications will be for other cases and what the opinions in Fulton portend for the future of Employment Division v. Smith. The Court’s majority opinion relied on provisions of Philadelphia’s foster care agency contracting process, but the majority also potentially reworked Smith’s understanding of when government regulation is "generally applicable." Meanwhile, several justices indicated a willingness to revisit Smith altogether, though what a post-Smith free exercise jurisprudence would look like remains unclear. This panel will explore these and other questions raised by Fulton and the future of religious free exercise.
Featuring:
Prof. Akhil Reed Amar, Sterling Professor of Law, Yale Law School
Prof. Thomas C. Berg, James L. Oberstar Professor of Law and Public Policy, University of St. Thomas School of Law
Prof. William Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law
Ms. Lori Windham, Senior Counsel, The Becket Fund for Religious Liberty
Moderator: Hon. Lawrence VanDyke, U.S. Court of Appeals, Ninth Circuit

Criminal Justice 2021 and The Rule of 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 "Criminal Justice 2021 and The Rule of Law."
For many who align themselves with fundamental principles of our constitutional system, the progressive agenda seems to be driven not only by an unreasonable cry to defund police, but a broader assault on the fundamental American precept "ordered liberty" through the rule of law. Meanwhile, those who align themselves with another agenda see these principles as a shield for abuses of police authority, particularly abuses aimed at certain communities, driven by perceived lack of accountability on the part of beat cops and administrators alike.
This panel will review the Constitutional underpinnings of "ordered liberty" at the state and federal level. It will discuss and consider the criminal justice system's role in both securing liberty and protecting civil rights, including as carried out by police, prosecutors, defense counsel and judges.
Featuring:
Mr. Lawrence S. Krasner, District Attorney, City of Philadelphia
Prof. Tracey L. Meares, Walton Hale Hamilton Professor of Law; Founding Director, The Justice Collaboratory, Yale Law School
Mr. McGregor W. Scott, Partner, King & Spalding LLP; Former U.S. Attorney, Eastern District of California
Mr. Richard Stanek, Sheriff, Hennepin County, Retired
Moderator: Hon. Stephanos Bibas, U.S. Court of Appeals, Third Circuit

Administrative Inquisitions? How Agencies Initiate, Conduct, and Conclude Investigations 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 "Administrative Inquisitions? How Agencies Initiate, Conduct, and Conclude Investigations."
In addition to formal rulemaking and case-by-case adjudication and enforcement, federal agencies have long employed a myriad of mechanisms to influence and punish private behavior. Their civil administrative investigations are unbounded by the procedural constraints of the Administrative Procedure Act, traditional transparency protections, or the redress afforded by timely judicial review. Civil administrative investigations can be not only onerous but also financially catastrophic, especially when the targets are small businesses and individuals. The abuse of agency investigative authority raises significant constitutional and statutory questions. Agencies have compelled information from investigative targets without the warrant the Fourth Amendment would require, and then converted the investigation from civil to criminal. Federal agencies have been imposing draconian conditions to end administrative investigations, like imposing "gag" orders that prohibit the target from disclosing the terms of the settlement, and requiring the target to make payments to agency-designated third parties in lieu of paying the statutorily prescribed fine into the Federal Treasury. These conditions are imposed without affording the investigative target the opportunity to meaningfully challenge the agency’s underlying authority to act or the tactics by which it acts.
This panel will explore the under-researched civil investigative and related activities of federal agencies and engage on their underlying legal authority to so act.
Featuring:
Mr. Tyler S. Clarkson, Associate General Counsel, Synthetic Biology Company; Former Acting General Counsel, U.S. Department of Agriculture
Prof. Aram Gavoor, Professorial Lecturer in Law, George Washington University Law School
Prof. Richard J. Pierce, Lyle T. Alverson Professor of Law, George Washington University Law School
Ms. Susan C. Rodriguez, Partner, McGuireWoods LLP
Moderator: Hon. James C. Ho, U.S. Court of Appeals, Fifth Circuit

"Progressive" HR in 2021: The Solution or the Problem? 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 "Progressive HR in 2021: The Solution of the Problem?"
The average United States workplace has changed in many ways over the past twenty years. The development of modern internet, computers, and smartphones shifted corporate America fully into the 21st century. The changes, however, have not been only technological in nature. New HR practices can now be found in more and more companies, both large and small. In the same way the iPhone modernized how U.S. workers communicate, new progressive HR policies seek to modify several aspects of workplace interaction. Our panel of experts will discuss the school of thought and fundamental reasoning behind these policies, as well whether these changes are helpful or harmful, or something in between.
Featuring:
Hon. Sharon Fast Gustafson, Former General Counsel, U.S. Equal Employment Opportunity Commission
Mr. Larry H. James, Managing Partner, Crabbe Brown & James LLP; Life Member, Sixth Circuit Judicial Conference
Hon. Peter Kirsanow, Partner, Benesch, Friedlander, Coplan & Aronoff LLP; Former Member, National Labor Relations Board
Mr. Daniel Villao, Chief Executive Officer, Intelligent Partnerships
Moderator: Hon. Paul B. Matey, U.S. Court of Appeals, Third Circuit

The Antitrust Revolution? 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 "The Antitrust Revolution?"
The past year has seen an unprecedented number of political and legislative suggestions for altering nearly every aspect of U.S. antitrust law. If adopted, these proposals may redefine the American economy and consumer marketplace. Hear from leading legislators, antitrust luminaries and policy makers about the potential upcoming antitrust revolution.
Featuring:
Hon. William Baer, Visiting Fellow in Governance Studies, Brookings Institution; Former Assistant Attorney General, U.S. Department of Justice, Antitrust Division
Mr. François-Henri Briard, Supreme Court Attorney, Cabinet Briard LLP
Hon. Makan Delrahim, Adjunct Lecturer in Law, University of Pennsylvania; Former Assistant Attorney General, U.S. Department of Justice, Antitrust Division
Hon. Douglas Ginsburg, Senior Circuit Judge, U.S. Court of Appeals, D.C. Circuit; Former Assistant Attorney General, U.S. Department of Justice, Antitrust Division
Ms. Diana Moss, President, American Antitrust Institute
Moderator: Hon. Chad Readler, U.S. Court of Appeals, Sixth Circuit

IP Law and Culture 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 panel covered "IP Law and Culture."
A perennial debate about intellectual property and culture is how intellectual property laws enhance or restrict the ability of people to contribute to and build a culture. The Supreme Court has described copyright as "the engine of free expression," but criticisms frequently arise when intellectual property law prevents people from using the work of others to express themselves. In the trademark context, recent Supreme Court decisions struck down the prohibition of federal trademark registration for immoral, scandalous, and disparaging marks as a violation of First Amendment speech rights. Some argue that the Court’s reasoning should further be applied to strike down most federal Trademark Dilution claims, which allow brand owners to sue those who use their trademarks in ways that blur or tarnish the trademark. The debate regarding copyright fair use also continues to rage on, pitting the rights of original creators against the ability of appropriation artists and others to use those original works.
This panel will consider these longstanding controversies in light of recent developments.
Featuring:
Prof. Lisa Ramsey, Professor of Law & Founding Member, Center for Intellectual Property Law and Markets, University of San Diego School of Law
Prof. Robert Spoo, Associate Dean for Faculty Development & Chapman Distinguished Professor of Law, University of Tulsa College of Law
Hon. Karyn Temple, Senior Executive Vice President and Global General Counsel, Motion Picture Association; Former Register of Copyrights and Director, U.S. Copyright Office.
Prof. Sandra Aistars, Senior Fellow for Copyright Research and Policy, Senior Scholar at the Center for Intellectual Property x Innovation Policy, Antonin Scalia Law School, George Mason University
Moderator: Hon. Ryan T. Holte, U.S. Court of Federal Claims

A View From In-House 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 panel explored "A View From In-House."
The Federalist Society’s In-House Counsel Working Group presents a panel discussion featuring top in-house attorneys at publicly-traded and privately-owned companies, who will shed light on the current state of corporate law and governance, reflect on challenges they face in day-to-day practice, and present an overview of the in-house legal world to newcomers and experienced lawyers alike.
Featuring:
Ms. Katie Biber, Chief Legal Officer, Brex
Hon. Mary Beth Buchanan, President, Americas and Global Chief Legal Officer, Merkle Science
Ms. Jenny Kim, Vice President of Operations and General Counsel, Philanthropy Roundtable
Ms. Carrie Ryerson, General Counsel, Shamrock Foods
Moderator: Hon. Britt C. Grant, U.S. Court of Appeals, Eleventh Circuit

The Separation of Powers and Political Polarization 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 panel discussed "The Separation of Powers and Political Polarization."
Political polarization is a great problem of our time. This panel would consider the separation of powers deformation that is a factor in polarization. Executive branch administrative decisions tend to be more extreme than legislative solutions, particularly when, as is usually the case, the houses of Congress and the President are divided among the parties. Thus, Congress’s delegation of policy decisions to the executive branch results in extreme regulations that can shift radically between administrations, creating government by whiplash. The panel would consider whether institutional restorations, like the curbing of delegation and Chevron, might help in restoring a constitution of compromise.
Featuring:
Prof. Neal E. Devins, Sandra Day O’Connor Professor of Law & Professor of Government, William & Mary Law School
Prof. Victoria Nourse, Ralph V. Whitworth Professor in Law, Georgetown University Law Center
Hon. Ajit Pai, Nonresident Fellow, American Enterprise Institute; Former Chairman, Federal Communications Commission
Prof. Michael Rappaport, Hugh and Hazel Darling Foundation Professor of Law & Director for the Center for the Study of Constitutional Originalism, University of San Diego School of Law
Moderator: Hon. William H. Pryor Jr., Chief Judge, U.S. Court of Appeals, Eleventh Circuit

Federal Consent Decrees: Good Governance, an Expansion of Federal Power, or Both? 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 "Federal Consent Decrees: Good Governance, an Expansion of Federal Power, or Both?"
In a 1987 article entitled Why Hold Elections?, Professor Michael McConnell noted a trend that had been emerging since the 1970s: the use of consent decrees to settle federal lawsuits against state and local governments. These decrees are entered as judgements enforceable by contempt, but without full litigation. Nonetheless, these decrees often contain hundreds of requirements that dictate the policies, budgets, and personnel of local government agencies for years or even decades. Professor McConnell thus warned: "To the extent that consent decrees insulate today's policy decisions from review and modification by tomorrow's political processes, they violate the democratic structure of government. They should be repudiated before they become a common part of the legal landscape."
In 2018, then-Attorney General Jeff Sessions issued a memo noting that consent decrees "raise sensitive federalism concerns" and announcing a new set of policies governing (and limiting) DOJ’s use of consent decrees.
In April 2021, Attorney General Garland repudiated the Sessions memo, stating that the "Department will return to the traditional process that allows the heads of litigating components to approve most settlement agreements, consent decrees, and the use of monitors in cases involving state and local governmental entities."
This panel will explore the important topic of federal court consent decrees to settle claims against state and local governments. Panelists will explore the history of such decrees and the arguments for and against their use. Panelists will also discuss the dueling approaches to DOJ’s use of such decrees, as outlined in the Sessions and Garland memos.
Featuring:
Mr. Andrew McCarthy, Senior Fellow, National Review Institute; Contributing Editor, National Review
Mr. Jesse Panuccio, Partner, Boies Schiller Flexner LLP; Former Acting Associate Attorney General, U.S. Department of Justice
Prof. Robert Percival, Robert F. Stanton Professor of Law; Director of the Environmental Law Program, University of Maryland Francis King Carey School of Law
Mr. Benjamin S. Wolf, Former Legal Director and Institutional Reform Project Director, ACLU of Illinois
Moderator: Hon. Elizabeth “Lisa” Branch, U.S. Court of Appeals, Eleventh Circuit

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