FedSoc Events

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The Trump Administration’s Proposed Redefinition of “Navigable Waters” – Too Much, Too Little, or Just Right? May 28, 2019

Show notes

The seventh annual Executive Branch Review Conference took place on May 8, 2019, at the Mayflower Hotel in Washington DC. The seventh and final panel covered "The Trump Administration's Proposed Redefinition of 'Navigable Waters': Too Much, Too Little, or Just Right?"
In December 2018 the Trump Administration released a long awaited proposal to revise the EPA and Army Corps of Engineers regulations that define “navigable waters" under the Clean Water Act. Versions of these regulations have engendered controversy for decades, over whether the Act itself authorizes the agencies to regulate non-navigable wetlands and tributaries. The Obama Administration adopted regulations in 2015 that remain the subject of a number of lawsuits. Upon taking office, President Trump ordered the agencies to reconsider the 2015 regulations. The December 2018 proposal would narrow the coverage of the Act in significant ways, but would continue to regulate categories of non-navigable waters, including some wetlands potentially far afield of flowing streams, and some drainages that carry very little flow over brief periods of time. This panel will provide a high level review of the legal issues and policy trade-offs reflected in the new proposal.
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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. Jeffrey Clark, Assistant Attorney General, U.S. Department of Justice, Environment and Natural Resources Division
Mr. Jon Devine, Director, Federal Water Policy, Water Division, Nature Program, Natural Resources Defense Council, Inc.
Mr. Tony Francois, Senior Attorney, Pacific Legal Foundation
Moderator: Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Director, Center for Business Law & Regulation, Case Western Reserve University School of Law
Introduction: Andrew Varcoe, Partner, Boyden Gray & Associates

Alphabet Soup: EEOC v. OCR v. DOL OFCCP May 28, 2019

Show notes

The seventh annual Executive Branch Review Conference took place on May 8, 2019, at the Mayflower Hotel in Washington DC. The sixth panel discussed "Alphabet Soup: EEOC v. OCR v. DOL OFCCP."
This panel will touch on various agency approaches to civil rights issues within administrative agencies. These issues will include but not be limited to, disparate impact analysis, former Attorney General Jeff Session’s rollback of various guidance documents. The panel will have added emphasis on the different approaches taken by the Equal Employment Opportunity Commission(EEOC), the Office for Civil Rights(OCR), and the Department of Labor’s Office of Federal Contract Compliance Programs(DOL OFCCP). The panel will in one sense serve as an update on the administration decisions made in the first two years of the Trump administration, and in another sense offer a foundation upon which to predict what the next two years will bring for civil rights claims under the current administration.
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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. Gail L. Heriot, Commissioner, United States Commission on Civil Rights; Professor of Law, University of San Diego School of Law
Hon. Kenneth L. Marcus, Assistant Secretary for Civil Rights, U.S. Department of Education
Prof. Theodore M. Shaw, Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights
Timothy Taylor, Deputy Assistant Secretary for Policy at U.S. Department of Labor
Moderator: Mr. Erik S. Jaffe, Schaerr Jaffe LLP

Division of Authority: DOJ Antitrust; the FTC; the FCC; USPTO May 28, 2019

Show notes

The seventh annual Executive Branch Review Conference took place on May 8, 2019, at the Mayflower Hotel in Washington DC. The fourth panel discussed "Division of Authority: DOJ Antitrust; the FTC; the FCC; USPTO."
Several Federal agencies share responsibility for regulating economic competition and intellectual property. Does the division of labor protecting competition and intellectual property result in conflicting or consistent perspectives? How effectively do regulations from the involved agencies coalesce into a framework for businesses and entrepreneurs? When should antitrust and competitive analysis overrule patent protection? Does the development of new technology create confusion or interagency rivalry on who is entitled to regulate? Do quickly-evolving emerging technologies deserve special treatment in antitrust? Join us as we gather with leadership from these agencies to explore these questions and listen to their experiences.
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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, U.S. Department of Justice
Hon. Andrei Iancu, Director, U.S. Patent and Trademark Office
Moderator: Mr. Peter Davidson, General Counsel, U.S. Department of Commerce

Corporate Responsibility: Maximizing Shareholder Benefit v. Social Justice May 28, 2019

Show notes

The seventh annual Executive Branch Review Conference took place on May 8, 2019, at the Mayflower Hotel in Washington DC. The second panel explored "Corporate Responsibility: Maximizing Shareholder Benefit v. Social Justice."
This Panel will focus on the differing theories on the proper duty of corporations. Do corporations only owe their loyalty to their specific shareholders, and should they be bound to conduct that is judged purely on how much it increases the value of shareholder investments? Or, perhaps due to the sheer size and power of corporations, do they also owe a duty to society as whole. Some argue that Corporations are made up of people with individual ideologies and beliefs, and thus corporations making decisions on political motivations is unavoidable. Others argue that since corporations last much longer than individual lives or careers, that they owe a duty to the long term prospects of the company, over the present day shareholders. The debate rages on and the eventual outcome will have wide-ranging implications for American business, and the national economy as a whole.
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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. Paul Atkins, Chief Executive Office, Patomak Global Partners
Prof. Jonathan R. Macey, Sam Harris Professor of Law, Yale Law School
Prof. Andrew Schwartz, Associate Professor of Law, University of Colorado Law School
Moderator: Mr. Matthew R. A. Heiman, Senior Fellow and Associate Director for Global Security, National Security Institute

How the Federal Government Litigates Cases May 28, 2019

Show notes

The seventh annual Executive Branch Review Conference took place on May 8, 2019, at the Mayflower Hotel in Washington DC. The first panel discussed "How the Federal Government Litigates Cases."
The Trump administration has not often reversed its litigation approach completely from that of the prior administration. But the Trump administration made headlines last year when it refused to defend the constitutionality of the Affordable Care Act against a lawsuit brought by the State of Texas. Some commentators argued that this was a significant violation of the Department of Justice's “duty to defend" duly enacted laws. Others noted that the “duty to defend" is a relatively recent creation stemming from an Office of Legal Counsel opinion letter in 1980 that is seldom followed and has little if any basis in the Constitution.Does the President have a constitutionally mandated duty to defend duly enacted laws or government action, if he believes they are unconstitutional? If so, are there limits on that duty—i.e., do government attorneys have any additional obligations as servants of the people to consider the long term implications of the arguments they make in defense of government action, or should they simply try to win like private advocates? On the other hand, if the president does not have an obligation to defend laws he finds unconstitutional, should that effect how the court views the standing of third parties intervening to defend challenged laws or government actions that the president elects not to defend? This panel will dive into how the government does and should argue cases.
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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. Paul D. Clement, Partner, Kirkland & Ellis LLP
Hon. W. Neil Eggleston, Partner, Kirkland & Ellis LLP
Hon. Scott Keller, Partner, Baker Botts LLP
Mr. Gene C. Schaerr, Scaherr Jaffe LLP
Moderator: Mr. Jesse Panuccio, former Acting Associate Attorney General, U.S. Department of Justice

Address by Mick Mulvaney May 28, 2019

Show notes

The seventh annual Executive Branch Review Conference took place on May 8, 2019, at the Mayflower Hotel in Washington DC. Mick Mulvaney, Director of the Office of Management and Budget and acting White House Chief of Staff offered an address.
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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. Mick Mulvaney, Director, Office of Management and Budget; Acting White House Chief of Staff
Introduction: Dean A. Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society

Plenary Roundtable: Regulatory Reform Report Card: Agency General Counsel Perspective May 28, 2019

Show notes

The seventh annual Executive Branch Review Conference took place on May 8, 2019, at the Mayflower Hotel in Washington DC. The first event was a plenary roundtable regarding the "Regulatory Reform Report Card: Agency General Counsel Perspective."
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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.
Featuring:
Hon. Steven G. Bradbury, General Counsel, U.S. Department of Transportation
Mr. George H. Fibbe, Deputy General Counsel, U.S. Department of Energy
Hon. Hon. Matthew Z. Leopold, General Counsel, U.S. Environmental Protection Agency
Hon. Brent J. McIntosh, General Counsel, U.S. Department of the Treasury
Hon. Stephen A. Vaden, General Counsel, U.S. Department of Agriculture
Moderator: Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School, George Mason University
Introduction: Dean A. Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society

Revisiting Judicial Deference May 28, 2019

Show notes

The seventh annual Executive Branch Review Conference took place on May 8, 2019, at the Mayflower Hotel in Washington DC. The luncheon panel was titled "Revisiting Judicial Deference."
The Department of Justice position taken in Kisor v. Wilke seems to acknowledge that Auer deference is in jeopardy and is a marked difference in tone from how DOJ has continued to strongly defend executive authority in its arguments and briefing in the lower appellate courts. Historically, two key defenses in this area have been the now-controversial deference doctrines of Chevron (requiring courts to defer to executive agency interpretations of ambiguous statutes they administer) and Auer/Seminole Rock (requiring courts to defer to executive agency interpretations of their own regulations). Is the administration making a strategic retreat in an attempt to protect those doctrines from a Court where a majority of its members have signaled an openness to revisiting them? Or does this reflect a commitment to the judicial use of traditional tools of textual interpretation to overcome ambiguity, reining in agency autonomy, and discouraging congressional delegations of lawmaking authority to agencies? Furthermore, with cert pending in United Parcel Service, Inc. v. Postal Regulatory Commission, thirteen states in amicus arguments see a new opportunity to reconsider Chevron. As Chevron and Auer/ Seminole Rock form significant parts of the superstructure of the modern administrative state, what does this mean for the future of the constitutional balance?
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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. John Eastman, Henry Salvatori Professor of Law & Community Service and former Dean, Chapman University's Fowler School of Law; Senior Fellow, Claremont Institute
Mr. Roman Martinez, Partner, Latham & Watkins LLP
Prof. David Vladeck, A.B. Chettle Chair in Civil Procedure, Georgetown University Law Center
Prof. Adam White, Assistant Professor and Executive Director, The C. Boyden Gray Center for the Study of the Administrative State, Antonin Scalia Law School at George Mason University
Moderator: Ms. Sarah M. Harris, Partner, Williams & Connolly
Introduction: Dean A. Reuter, General Counsel | Vice President & Director, Practice Groups, The Federalist Society

Shakespeare and the Law 2019 - Belief and the Burden of Proof through the Lens of Six of the Bard's Plays May 20, 2019

Show notes

The Federalist Society, McCarter & English,and Commonwealth Shakespeare Company
present
Shakespeare and the Law 2019 Belief and the Burden of Proof through the Lens of Six of the Bard's Plays
On April 29, 2019, The Federalist Society's Boston Lawyers Chapter cosponsored their sixteenth annual Shakespeare and the Law Program with McCarter & English and the Commonwealth Shakespeare Company. This year's program took on the themes of belief and the burden of proof through the lens of six of Shakespeare’s plays: Cymbeline, Hamlet, Henry IV, Julius Caesar, Measure for Measure, and Othello.
Following a staged reading of brief scenes from each of the plays, judges, prosecutors, attorneys, activists, and commentators discussed how allegations of impropriety should be measured and judged in the courtroom, the workplace, the college campus, and the congressional hearing room.
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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:
Justice Judith Cowin, Massachusetts Supreme Judicial Court (retired)
Samantha Harris, Vice President, Procedural Advocacy for the Foundation for Individual Rights (FIRE)
Judge Timothy Hillman, U.S. District Court, District of Massachusetts
Jeff Jacoby, Columnist, Boston Globe
Wendy Kaminer, Author, Lawyer and Social Critic
Andrew Lelling, U.S. Attorney for the United States District Court for the District of Massachusetts
Joan Lukey, Choate Hall & Stewart LLP
Judge George O’Toole, U.S. District Court, District of Massachusetts
Chief Judge Patti Saris, U.S. District Court, District of Massachusetts
Judge F. Dennis Saylor, IV, U.S. District Court, District of Massachusetts
Judge Douglas Woodlock, U.S. District Court, District of Massachusetts
Judge Rya Zobel, U.S. District Court, District of Massachusetts
Moderated by:
Jennifer Braceras, Senior Fellow, Independent Women’s Forum; Former Commissioner of the United States Commission on Civil Rights (2001-2007)
Judge Nancy Gertner, U.S. District Court, District of Massachusetts (Retired)
Directed by:
Adam Sanders, Associate Artistic Director, Commonwealth Shakespeare Company
Produced by:
Daniel J. Kelly, Partner, McCarter & English; Chairman, Boston Lawyers Chapter
Introduction by:
Steven Maler, Founding Artistic Director, Commonwealth Shakespeare Company