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The Future of Libel Law Nov 21, 2017

Show notes

Libel law leads two lives. Most famously, there is the life of presidential candidates and the New York Times; of celebrities and the National Enquirer; of exposes in Rolling Stone. The rules here seem settled, with the “actual malice" standard and public/private figure distinctions. President Trump seems to be questioning whether they were settled right -- were they?But there is also the life created by the Internet: of Yelp reviews, of gripe blogs, of consumer complaints on RipOffReport and sites such as BadBoyReport.kr and ShesAHomeWrecker.com. People are finding it easier than ever to widely publicize their grievances, whether accurate or not. Here the questions focus more on remedies than on “actual malice" and similar substantive standards. The traditional compensatory, presumed, and punitive damages remedies are often seen as largely pointless. Criminal libel survives, and is in some measure being revived; should it be? Injunctions against libel, long thought by many to be quintessential unconstitutional prior restraints, are routine; is that good? As to either life of libel law, how can the law punish defamatory falsehoods without unduly deterring accurate accusations?
Mr. Paul Alan Levy, Attorney, Public Citizen Litigation Group
Ms. Libby Locke, Partner, Clare Locke LLC
Prof. Rodney A. Smolla, Dean and Professor of Law, Widener University Delaware School of Law
Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, University of California Los Angeles School of Law
Moderator: Hon. Jerry E. Smith, United States Court of Appeals, Fifth Circuit

Comparative Counterterrorism Surveillance and Cooperation Nov 21, 2017

Show notes

Today, every bar, restaurant, sidewalk, road and bridge anywhere in the world has become a terrorist target. Attacks are often conducted by lone wolves or small cells. This makes the acquisition and sharing of intelligence by government agencies an urgent priority. Yet nations must find a balance between surveillance and privacy. The panelists have faced these issues at the highest levels of their governments and will share their views.
Dr. August Hanning, Former State Secretary, The Federal Interior Ministry, Federal Republic of Germany
Mr. Robert Hannigan, Former Director, Government Communications Headquarters, United Kingdom
Hon. Michael Mukasey, Of Counsel, Debevoise & Plimpton LLP and former United States Attorney General
Hon. Nathan A. Sales, Ambassador-at-Large and Coordinator for Counterterrorism, United States Department of State
Moderator: Prof. Jamil N. Jaffer, Adjunct Professor, NSI Founder, and Director, National Security Law & Policy Program, Antonin Scalia Law School, George Mason University

Environmental Law without Congress Nov 21, 2017

Show notes

It has long been understood that broad congressional delegations of rulemaking authority have empowered administrative agencies to play a robust role in setting policy priorities for many subjects, including the environment. This phenomenon is even more evident when realizing that most of the major environmental laws were passed several decades ago and have seen little updating since. Has Congress purposefully, or because of its inattention to passing or amending environmental laws, been ceding its policy-setting authority to others? This panel will consider that question by looking at the role of not just administrative agencies handling environmental issues but also other non-congressional mechanisms for controlling the environmental law and policy agenda.
Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law
Prof. Donald J. Kochan, Professor and Associate Dean for Research and Faculty Development, Chapman University School of Law
Prof. Robert V. Percival, Professor of Law and Director, Environmental Law Program, University of Maryland School of Law
Prof. Michael P. Vandenbergh, David Daniels Allen Distinguished Chair of Law and Director, Climate Change Research Network Co-director, Energy, Environment and Land Use Program, Vanderbilt Law School
Moderator: Hon. Amul Thapar, United States Court of Appeals, Sixth Circuit

Conservative Public-Interest Litigation in the Modern Era Nov 21, 2017

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Using the Licensing Power of the Administrative State: Model Rule 8.4(g) Nov 20, 2017

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At its August 2016 meeting in San Francisco, the American Bar Association approved a major change to its Rules of Professional Conduct that will affect all lawyers if adopted by their licensing states. In pertinent part, the new Rule 8.4(g) would make it professional misconduct for a lawyer to “harass or knowingly discriminate against persons on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status." The new Rule applies to “conduct related to the practice of law" which (1) represents an expansion from the present conduct performed “in the course of representing a client" and (2) new Comment 3 defines conduct to “include[e] the operation and management of a law firm or law practice."
Ms. Paulette Brown, Partner, Locke Lord LLP; Immediate Past President, American Bar Association
Mr. Stephen Gillers, Elihu Root Professor of Law, New York University School of Law
Prof. Ronald D. Rotunda, Professor, Doy and Dee Henley Chair and Distinguished Professor of Jurisprudence, Dale E. Fowler School of Law, Chapman University
Hon. Ken Paxton, State Attorney General, Texas
Moderator: Hon. G. Barry Anderson, Associate Justice, Minnesota Supreme Court
Professor Rotunda's PowerPoint Slides

Tenth Annual Rosenkranz Debate: Lochner v. New York Nov 20, 2017

Show notes

RESOLVED: Lochner v. New York: Still Crazy After All These Years.
The Tenth Annual Rosenkranz Debate was held on November 18, 2017, during The Federalist Society's 2017 National Lawyers Convention.
Prof. Akhil Reed Amar, Sterling Professor of Law, Yale Law School
Prof. Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center
Moderator: Prof. Nicholas Quinn Rosenkranz, Professor of Law, Georgetown University Law Center
Introduction: Mr. Eugene B. Meyer, President, The Federalist Society

Special Session: Scalia Speaks: Reflections on Law, Faith, and Life Well Lived Nov 20, 2017

Show notes

Christopher J. Scalia and Edward Whelan have published a definitive collection of beloved Supreme Court Justice Antonin Scalia's finest speeches. The book, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived, covers a breadth of topics, including law, faith, virtue, the justice's pastimes, and his heroes and friends.
Prof. Rachel E. Barkow, Segal Family Professor of Regulatory Law and Policy; Faculty Director, Center on the Administration of Criminal Law, New York University School of Law
Hon. Amy Coney Barrett, United States Court of Appeals, Seventh Circuit
Mr. Christopher J. Scalia, Editor, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived
Mr. M. Edward Whelan III, President, Ethics and Public Policy Center and Editor, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived
Moderator: Hon. Jeffrey S. Sutton, United States Court of Appeals, Sixth Circuit

Showcase Panel III: The Executive Branch and the Regulatory State Nov 19, 2017

Show notes

In recent decades, the President has sought to control the regulatory state through the Office of Management and Budget and through the office within OMB known as OIRA. This panel will discuss whether that is a positive development, and whether presidential review powers should apply to independent as well as executive branch agencies, which could be accomplished by allowing removal of independent agency heads by the President. Would such implementation of the unitary executive lodge too much power in one man, as clearly the Framers feared? Do views on such matters depend on who is the President at any given moment? The panel will also discuss possible changes to notice and comment rulemaking, and what guidance agencies ought to give to their prosecutorial law enforcement personnel.
Prof. Aditya Bamzai, Associate Professor of Law, University of Virginia School of Law
Prof. Susan Dudley, Director, Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University
Prof. Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University
Hon. Neomi Rao, Administrator, Office of Information and Regulatory Affairs, The Office of Management and Budget
Moderator: Hon. David Barron, United States Court of Appeals, First Circuit
Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The Administrative State and Religious Freedom Nov 18, 2017

Show notes

At both the federal and state levels, bureaucrats wield power to make decisions that substantially impact the exercise of religion. From interpreting and enforcing public accommodations laws to administering vast regulatory regimes and deciding how all of these laws interact with RFRAs, agencies headed by political appointees are often charged with determining --- at least in the first instance --- the extent to which generally applicable law will impinge on religious freedom. Who will be required to provide contraceptive coverage; how will religious accommodations be extended, and to whom? Must bakers and photographers with religious objections service gay weddings? Must doctors perform surgeries on patients that violate their faith and medical judgment? Even without a change in legislation, the answers to such questions often flip after new administrations appoint new agency heads. This panel will discuss whether the administrative state places religious freedom in too precarious a position, and if so, what can and should be done about it.
Prof. William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law
Mr. Mark L. Rienzi, Senior Counsel, The Becket Fund for Religious Liberty and Professor of Law, Columbus School of Law, The Catholic University of America
Ms. Melissa Rogers, Nonresident Senior Fellow in Governance Studies, The Brookings Institute
Mr. Roger Severino, Director, Office for Civil Rights, United States Department of Health and Human Services
Moderator: Hon. Diarmuid O'Scannlain, United States Court of Appeals, Ninth Circuit

Has the Administrative State Usurped the Role of the Federal Courts in Innovation Disputes? Nov 18, 2017

Show notes

In 2011, Congress created a new administrative tribunal in the U.S. Patent Office with the power to cancel previously granted patents, called the Patent Trial & Appeal Board (PTAB). The PTAB has become a flashpoint of controversy. Some companies and organizations defend it as an important tool for eliminating invalidly issued patents. Critics have highlighted a wide range of concerns, including, among others, not providing patent-owners with basic due process protections and a structural bias against patents that has led to inordinately high “kill" rates. In Oil States v. Greene's Energy Group, the Supreme Court will decide whether assigning such power to an administrative agency is consistent with the constitutional requirements of Article III, the Seventh Amendment, and the nature of patents as property rights. At the intersection of patent law, administrative law, and constitutional law, Oil States is a blockbuster case in the October 2017 term that will impact the governmental branches, the law and the innovation economy.
Prof. Gregory Dolin, Co-director of the Center for Medicine and Law, University of Baltimore School of Law
Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law
Prof. Arti K. Rai, Elvin R. Latty Professor of Law, Duke University School of Law
Mr. Robert Greene Sterne, Director, Sterne Kessler Goldstein & Fox PLLC
Moderator: Hon. F. Scott Kieff, Professor of Law, George Washington University Law School, and former Commissioner, United States International Trade Commission

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