FedSoc Events

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Stare Decisis in Civil Rights Cases Dec 12, 2019

Show notes

On November 15, 2019, the Federalist Society's Civil Rights Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel covered "Stare Decisis in Civil Rights Cases".
Stare decisis is generally regarded as a stronger force when applied to statutes than it is in constitutional law. The standard rationale is that it is much easier for the legislature to overrule statutory precedents than it is for the people to overrule constitutional precedents. But stare decisis has never been an absolute rule in either context. Has the Supreme Court been excessively reluctant to reconsider high-profile precedents that clearly misinterpreted the original meaning of the Civil Rights Act of 1964 and similar statutes?
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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 speakers.
Featuring:
Mr. Michael A. Carvin, Partner, Jones Day
Mr. William S. Consovoy, Partner, Consovoy McCarthy PLLC and Adjunct Professor, Antonin Scalia Law School, George Mason University
Prof. William N. Eskridge, Jr., John A. Garver Professor of Jurisprudence, Yale Law School
Prof. Neil Kinkopf, Professor of Law, Georgia State University College of Law
Prof. Nelson Lund, University Professor, Antonin Scalia Law School, George Mason University
Moderator: Hon. Diane S. Sykes, United States Court of Appeals, Seventh Circuit

Money and the Constitution Dec 12, 2019

Show notes

On November 15, 2019, the Federalist Society's Financial Services & E-Commerce Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel covered "Money and the Constitution".
Money. We all use it, for exchange, for store of value, for identifying prices, and many other purposes and exercises. In the United States, and under our Constitution, what is money, how is it created, what is its value, who gets to decide, and to whom are such decision makers accountable? Is it an instrument of freedom, or a tool of government policy to affect that freedom? These questions, which touch all of us, will be the topic of discussion of our panelists.
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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 speakers.
Featuring:
Dr. Don Kohn, Robert V. Roosa Chair in International Economics, Senior Fellow, Economic Studies, The Brookings Institute
Mr. Alex J. Pollock, Distinguished Senior Fellow, Finance, Insurance & Trade, R Street
Dr. Paul Sheard, Senior Fellow, Mossavar-Rahmani Center for Business and Government, Harvard Kennedy School
Prof. Richard E. Sylla, Professor Emeritus of Economics, New York University Stern School of Business
Moderator: Hon. Paul B. Matey, United States Court of Appeals, Third Circuit
Introduction: Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Af, American Bankers Association

The Future of the Establishment Clause in the Roberts Court Dec 12, 2019

Show notes

On November 14, 2019, the Federalist Society's Religious Liberty Practice Group held a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panelists discussed "The Future of the Establishment Clause in the Roberts Court".
This panel will address the meaning of the American Legion v. American Humanist Association decision regarding the Bladensburg Peace Cross and where the Court is headed next. Has Lemon been completely or at least partially overruled? And if so, what do we anticipate the guiding principle will be going forward in Establishment Clause cases? This question has particular salience in light of the Court’s upcoming case regarding funding for religious schools in Espinoza v. Montana Department of Revenue. Finally, to what extent do we think the Court will, or should, interpret the Establishment Clause to place strict limits on government’s ability to protect religious exercise that causes harm to third parties, including dignitary harms? Such a question may be relevant to pending cert petitions, including in Fulton v. City of Philadelphia, a case dealing with a faith-based adoption agency’s inability to certify same-sex couples for foster care.
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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 speakers.
Featuring:
Prof. Stephanie H. Barclay, Associate Professor of Law, J. Reuben Clark Law School, Brigham Young University
Mr. Luke Goodrich, Vice President and Senior Counsel, Becket and Adjunct Professor, S. J. Quinney College of Law, University of Utah
Prof. Micah J. Schwartzman, Hardy Cross Dillard Professor of Law; Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law; Director, Karsh Center for Law and Democracy, University of Virginia School of Law
Prof. William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law
Moderator: Hon. Carlos Bea, United States Court of Appeals, Ninth Circuit
Introduction: Mr. William L. Saunders, Professor - Human Rights, Religious Liberty, Bioethics, Catholic University of America

The Wisdom and Legality of Sanctuary Cities Dec 12, 2019

Show notes

On November 14, 2019, the Federalist Society's Criminal Law & Procedure Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel discussed "The Wisdom and Legality of Sanctuary Cities".
The issue of sanctuary cities has increasingly been in the news in recent years. The Trump administration has threatened to cut off funds to sanctuary jurisdictions and to transport aliens who enter our borders to those jurisdictions, and also claims that these jurisdictions are endangering their citizens. Sanctuary jurisdictions have challenged (so far successfully) the administration’s ability to cut off funds, and has cited the 10th Amendment, among other arguments, to support their actions. They also argue that being a sanctuary jurisdiction actually helps their law enforcement efforts by encouraging illegal immigrants (who are often victims or witnesses of criminal conduct) to “come out of the shadows” and cooperate with law enforcement officials. A Massachusetts judge and her bailiff were recently indicted for helping assisting an illegal alien escape the clutches of an ICE agent who was waiting to arrest him, and federal authorities are still contemplating charges against Oakland’s mayor for warning illegal aliens that immigration authorities were about to conduct raids looking for them. We could debate the legal and moral questions surrounding sanctuary cities.
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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 speakers.
Featuring:
Hon. Stephanos Bibas, United States Court of Appeals, Third Circuit
Mr. Mark Fleming, Associate Director of Litigation, National Immigrant Justice Center
Mr. Christopher Hajec, Director of Litigation, Immigration Reform Law Institute
Hon. Jefferson B. Sessions III, Former United States Attorney General
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
Moderator: Hon. Kurt D. Engelhardt, Judge, United States Court of Appeals, Fifth Circuit
Introduction: John G. Malcolm, Vice President, Institute for Constitutional Government, Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow, The Heritage Foundation

Nondelegation after Gundy — Are we Waiting for Godot? Dec 12, 2019

Show notes

On November 14, 2019, the Federalist Society's Administrative Law & Regulation Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The title of the panel was "Nondelegation after Gundy: Are We Waiting for Godot?".
Contrary to the expectations of some, the U.S. Supreme Court’s June decision in Gundy v. United States did not reinvigorate the nondelegation doctrine. Instead, the Court upheld a delegation contained in the Sex Offender Registration and Notification Act (SORNA), a 2006 law which appeared to leave it up to the Attorney General of the U.S. to decide how to apply that statute to prior offenders already in custody. However, because Justice Alito’s concurrence in the judgment expressed willingness to reconsider the Court’s approach to the doctrine and Justice Kavanaugh did not sit on this case, the Gundy decision whetted appetites for what may come in the next nondelegation case to reach the Court.
This panel will examine the Court’s decision in Gundy, dissect the various viewpoints that the justices presented, and—especially—explore what those perspectives (and Justice Kavanaugh’s subsequent participation) could mean for the future of the nondelegation doctrine. The panel will address questions such as: Will the Court alter the doctrine? What would a strengthened nondelegation doctrine look like? Is there a judicially administrable way to redefine what counts as an “intelligible principle”? What would an ideal case for the Court’s consideration look like? What will happen to delegations approved under the current version of the doctrine? Will the modern Administrative State look much different under a reinvigorated nondelegation doctrine?
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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 speakers.
Featuring:
Hon. Ronald A. Cass, President, Cass & Associates, PC; Dean Emeritus, Boston University School of Law
Prof. David Schoenbrod, Trustee Professor of Law, New York Law School
Prof. Kristin E. Hickman, Distinguished McKnight University Professor; Harlan Albert Rogers Professor in Law; Associate Director, Corporate Institute, University of Minnesota Law School
Prof. Alan Morrison, Lerner Family Associate Dean, Public Interest and Public Service Law and Professorial Lecturer in Law, George Washington University Law School
Moderator: Hon. Ryan D. Nelson, Judge, United States Court of Appeals, Ninth Circuit
Introduction: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC

Originalism and Changes in Technology Dec 12, 2019

Show notes

On November 14, 2019, the Federalist Society's Intellectual Property Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel discussed "Originalism and Changes in Technology".
Police track criminal suspects using cell phone data and GPS devices attached to their cars. Social media and other electronic publishing platforms allow every-day citizens to function as the “press.” VCRs and DVRs allow unauthorized recording of copyrighted television programs, while micro-antennas and internet video create an opportunity to re-broadcast these programs. Advances in modern software and biotech/medical methods combined with sometimes abusive enforcement of tech patents (many of which were inadequately examined in the late '90s when advancements in internet and computer technology outpaced the USPTO’s ability to perform robust examinations) has led courts to seek solutions by way of new interpretation of Section 101 to create further subject matter restrictions.
How does originalism handle changes in technology? Do adherents consistently apply its principles across areas of law that range from First and Fourth Amendment to intellectual property cases? Do the narrow spaces between originalism and textualism become larger gaps when it comes to addressing new technologies? How do we judge the performance of originalism against other judicial philosophies in cases involving technological change?
This distinguished panel will look at the history of how originalism has dealt with technology and also look toward a future of advanced robotics, driverless cars, and massive personal data collection to decide whether originalism as it stands is the best tool to decide the coming cases in criminal, tort liability, free speech, intellectual property, and other legal areas, or whether even judges with originalist tendencies should start to look toward other philosophies where technological challenges arise.
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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 speakers.
Featuring:
Mr. Anthony J. Dick, Associate, Jones Day
Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law
Prof. Richard A. Epstein, Director, Classical Liberal Institute and Laurence A. Tisch Professor Emeritus of Law, New York University School of Law; James Parker Hall Distinguished Service Professor of Law and Senior Lecturer, University of Chicago; and Peter and Kirstin Bedford Senior Fellow, Hoover Institution
Prof. F. Scott Kieff, Fred C. Stevenson Research Professor of Law and Director, Planning and Publications, Center for Law, Economics, & Finance, George Washington University Law School
Moderator: Hon. Ryan T. Holte, United States Court of Federal Claims
Introduction: Prof. Mark F. Schultz, Professor of Law, Southern Illinois University School of Law

Arbitration in the #MeToo Era Dec 12, 2019

Show notes

Over the last decade, the U.S. Supreme Court has repeatedly recognized the primacy of the Federal Arbitration Act (FAA) by enforcing the terms of arbitration agreements in the employment, consumer and other contexts – including mandatory and class action waivers. The FAA encourages a mechanism for the resolution of disputes that most recognize as quicker and less expensive than courts. Some argue the benefits of arbitration are waning in the #MeToo era, with confidentiality provisions in arbitration agreements. Students at Harvard, Stanford, Yale and other elite laws schools are pressuring Big Law to dump mandatory arbitration, while some large employers have publicly abandoned legally enforceable arbitration agreements. Yet, at least one study shows employees do as well or better in terms of win rate and recoveries in arbitration as opposed to the judiciary. First introduced after the Epic Systems decision, the Restoring Justice for Workers Act (H.R. 2749) would prohibit mandatory arbitration in employment disputes. What is the future of mandatory arbitration? Is ending mandatory arbitration for all employment claims an over-reaction? Will forcing disputes into the judiciary mean fewer disputes will be brought to resolution? What about non-disclosure provisions in arbitration agreements? Will fewer employment agreements require arbitration of employment claims in the future?
Hon. Paul D. Clement, Former United States Solicitor General and Partner, Kirkland & Ellis
Prof. Alexander J. S. Colvin, Kenneth F. Kahn '69 Dean and Martin F. Scheinman Professor of Conflict Resolution, School of Industrial and Labor Relations, Cornell University
Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC
Mr. Andrew J. Pincus, Partner, Mayer Brown LLP
Moderator: Hon. Joan Larsen, United States Court of Appeals, Sixth Circuit
Introduction: Ms. Tammy D. McCutchen, Principal, Littler Mendelson PC

The Future of Antitrust: New Challenges to the Consumer Welfare Paradigm and Legislative Proposals Dec 12, 2019

Show notes

On November 14, 2019, the Federalist Society's Corporations, Securities, & Antitrust Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The panel discussed "The Future of Antitrust: New Challenges to the Consumer Welfare Paradigm and Legislative Proposals".
Robert Bork’s consumer welfare paradigm, which has influenced the evolution of antitrust enforcement in the United States and globally over the past 40 years, is under attack. Critics, including members of Congress and Presidential candidates from both parties, assert not only that antitrust has been unable to keep up with developments in the high tech, finance, communications, and pharmaceutical fields, but that competition law should be used as a tool to address a much broader range of concerns, from privacy and employment to income inequality and non-discrimination in political viewpoint. In response to these concerns, DOJ and FTC have laid the groundwork for potential investigations of Amazon, Apple, Facebook and Google. Calls to break those companies up have also spurred legislative proposals that would significantly change current merger review policy. It is critical to understand the arguments motivating this debate and why they are gaining traction now. Is it time to abandon or change the “consumer welfare” standard or to reconsider longstanding approaches to merger enforcement?
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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 speakers.
Featuring:
Hon. Makan Delrahim, Assistant Attorney General, Antitrust Division, United States Department of Justice
Prof. Gene Kimmelman, Professorial Lecturer in Law, George Washington University Law School
Hon. Maureen Ohlhausen, Partner, Baker Botts
Dr. Rainer Wessely, Delegation of the European Union to the United States
Moderator: Hon. John B. Nalbandian, United States Court of Appeals, Sixth Circuit

Is It Time to End Life Tenure for Federal Judges? Dec 12, 2019

Show notes

On November 14, 2019, the Federalist Society's Litigation Practice Group hosted a panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The title of the panel was "Is It Time to End Life Tenure for Federal Judges?".
The framers of our Constitution jealously guarded the independence of federal judges, and the principal means they selected for doing so was to confer life tenure upon them. But a great deal has changed since then. At the time of the founding, federal judges were not alone: most state judges enjoyed life tenure as well. But now, federal judges are almost entirely alone—not only in the United States, but in the world—in this respect. In addition, life expectancies are vastly longer today than they were two hundred years ago. Finally, the process for selecting federal judges has arguably become more politicized than ever before—and some point to life tenure as the reason. Recent polls show that over 75% of Americans want to end life tenure.
Is it time to end life tenure? Are there ways to end it that do not require a constitutional amendment? Our panelists will debate these important and timely questions.
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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 speakers.
Featuring:
Dr. Norman J. Ornstein, Resident Scholar, American Enterprise Institute and Chairman, Campaign Legal Center
Prof. James E. Pfander, Owen L. Coon Professor of Law, Northwestern University Pritzker School of Law
Ms. Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network
Hon. David R. Stras, Judge, United States Court of Appeals, Eighth Circuit
Mr. Stuart Taylor, Jr., Journalist and Author
Moderator: Hon. William H. Pryor, Jr., Judge, United States Court of Appeals, Eleventh Circuit

Showcase Panel I: What is Originalism? Dec 12, 2019

Show notes

On November 14, 2019, the Federalist Society hosted a showcase panel for the 2019 National Lawyers Convention at the Mayflower Hotel in Washington, DC. The title of the panel was "What is Originalism?"
While originalism is on the rise today, its content has become fractal with different views of what are the methods of determining a constitutional provision's meaning. This panel would look at the many types of originalism and consider the extent to which the theoretical differences will result in different outcomes.
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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 speakers.
Featuring:
Prof. Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School
Mr. Evan D. Bernick, Law Clerk to the Honorable Diane S. Sykes of the United States Court of Appeals, Seventh Circuit
Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Pritzker School of Law, Northwestern University
Prof. Christina M. Mulligan, Vice Dean for Academic and Student Affairs and Professor of Law, Brooklyn Law School
Prof. Stephen E. Sachs, Professor of Law, Duke University School of Law
Ms. Elizabeth B. Wydra, President, Constitutional Accountability Center
Moderator: Hon. Amul Thapar, United States Court of Appeals, Sixth Circuit

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