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The Battle for the Gig Economy 11-17-2016 Nov 23, 2016

Show notes

The “gig" or “on demand" economy may be the fastest growing segment of our economy, with 22.4 million consumers spending $56.6 billion annually. By 2020, according to some studies, 7.6 million Americans will be working as independent contractors in the gig economy. At the same time, however, the U.S. Department of Labor has narrowed standards for classifying workers as independent contractors, and entered enforcement partnerships with 30 States looking to find misclassified independent contractors in order to increase workers' compensation, unemployment and employment tax revenue. A battle has begun between regulators and entrepreneurs, between independent contractor and employee status. This panel will explore who should win, who will win, and whether there is a third way – creating a new legal category, the “independent worker," for those who occupy the grey area between employee and independent contractor. -- This panel was held on November 17, 2016, during the 2016 National Lawyers Convention in Washington, DC. -- Featuring: Hon. Mark Brnovich, Attorney General, Arizona; Mr. Mark Floyd, Senior Director and Global Relations Lead, Uber Technologies Inc.; Mr. Randel K. Johnson, Senior Vice President, Labor, Immigration and Employee Benefits, U.S. Chamber of Commerce; and Mr. Bill Samuel, Director of Government Affairs, AFL-CIO. Moderator: Hon. Thomas M. Hardiman, U.S. Court of Appeals, Third Circuit.

Courts vs. Congress: What is a Patentable Invention? 11-17-2016 Nov 23, 2016

Show notes

In the past six years, there has been a momentous shift in what can be patented. In four separate cases, the Supreme Court embraced a more muscular approach in enforcing the basic requirement under § 101 of the Patent Act that only certain types of inventions can be patented, impacting inventive activities ranging from biotech to high-tech to business methods. As a result, the Court of Appeals for the Federal Circuit, trial courts, and the Patent Office have responded by sharply restricting the scope of “patentable subject matter," invalidating issued patents and rejecting patent applications at record rates. -- This change has been both consequential and controversial. Inventions that once were patentable in key innovation industries, such as cutting-edge diagnostic tests made possible by the biotech revolution and highly complex computer software in the high-tech sector, are no longer eligible for patent protection. Some welcome this development, seeing it as freeing up basic tools of research and preventing abusive assertions of patents against infringers. Others have criticized this development, identifying lost incentives to invest millions in R&D necessary to produce technological innovation and lost value in existing patents given pervasive uncertainty in the patent system as to what is and is not protectable. -- The lack of certainty is something both sides of this important legal and policy debate have found troublesome. Many agree that the Supreme Court's current patent-eligibility jurisprudence is confusing and murky. The Court's legal test for assessing patentable subject matter has proven unpredictable in its application by courts, by patent examiners, and by the administrative review board at the Patent Office (the Patent Trial and Appeal Board). -- One proposed solution has been to simply abolish § 101, the provision that sets forth the requirement that only an invention comprising a “machine, manufacture, process, or composition of matter" is patentable. The argument is that this provision is an antiquated holdover from the first patent statutes that did not have the granular requirements that now exist in the modern Patent Act, ensuing that only novel, nonobvious, useful and fully disclosed inventions are patentable. This panel will consider whether such a radical move is warranted, whether the Supreme Court's patentable subject matter jurisprudence is on the right track, or perhaps whether any problems in patentable subject matter jurisprudence are fixable by the Court or by Congress. -- This panel was held on November 17, 2016, during the 2016 National Lawyers Convention in Washington, DC. -- Featuring: Mr. David J. Kappos, Partner, Cravath, Swaine & Moore LLP; Prof. Adam Mossoff, Professor of Law and Co-Director of Academic Programs, Senior Scholar, Center for the Protection of Intellectual Property, Antonin Scalia Law School, George Mason University; Mr. Mark A. Perry, Partner, Gibson, Dunn & Crutcher LLP; and Prof. Joshua D. Sarnoff, Professor of Law, DePaul College of Law. Moderator: Hon. Susan G. Braden, U.S Court of Federal Claims.

Justice Scalia's Contributions to Antitrust Law 11-17-2016 Nov 23, 2016

Show notes

In his confirmation hearing, Justice Scalia told the Senators that, as a law school student, he had never really understood antitrust law; later, he learned that he shouldn't have understood it, because it did not make any sense then. It should come as no surprise, that in his subsequent time on the Court, Justice Scalia strove to rectify that problem, and succeeded through clearly written majority decisions that changed the direction of jurisprudence on monopolization (U.S. v. Trinko) and class certification in massive antitrust and other business class actions (Wal-Mart v. Dukes, Comcast v. Behrens), and powerful dissents. As a modern intellectual leader of the "Chicago school" of economics, Justice Scalia played an important role in shaping the Court's approach to antitrust law and hence development of the law in the lower courts. It is a good time to consider the impact of his legacy, including how lasting those decisions will be, whether and how the course of antitrust jurisprudence could change and who will take his place in the Court on these issues. -- This panel was held on November 17, 2016, during the 2016 National Lawyers Convention in Washington, DC. -- Featuring: Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit; Ms. Deborah A. Garza, Partner, Covington & Burling LLP; and Prof. C. Scott Hemphill, Professor of Law, New York University School of Law. Moderator: Hon. Douglas H. Ginsburg, U.S. Court of Appeals, District of Columbia Circuit.

How Justice Scalia's Writing Style Affected American Jurisprudence 11-17-2016 Nov 23, 2016

Show notes

In addition to being a brilliant legal thinker, Justice Scalia was widely regarded as a masterful legal writer, perhaps the best of his generation. His gifted prose and frequent use of humor and sarcasm made Justice Scalia's opinions -- whether majority or dissent -- must-reads for lawyers, judges, professors, and law students alike. Commentators from across the philosophical spectrum admired Justice Scalia's writing skill. Just a year before his passing, for example, the New Republic, dubbed Scalia “the foremost living practitioner of performative legal prose." This panel discussion will examine the impact Justice Scalia's writing had on American jurisprudence. Aside from the force of his arguments, what impact did his writing style have on the opinions written by his colleagues on the Supreme Court and judges on lower courts, the briefs filed by practicing lawyers, and even the way law students learned the law? Our panelists will bring a variety of perspectives to this question: former clerk, judge, professors, and critics. -- This panel was held on November 17, 2016, during the 2016 National Lawyers Convention in Washington, DC. -- Featuring: Prof. Brian T. Fitzpatrick, Professor of Law, Vanderbilt Law School; Prof. Toni M. Massaro, Regents' Professor, Milton O. Riepe Chair in Constitutional Law and Dean Emerita, University of Arizona James E. Rogers College of Law; Mr. Kannon Shanmugam, Partner, Williams & Connolly LLP; and Hon. Jeffrey S. Sutton, U.S. Court of Appeals, Sixth Circuit. Moderator: Hon. Joan L. Larsen, Michigan Supreme Court. Introduction: Hon. Rachel Brand, Member, Privacy and Civil Liberties Oversight Board and Senior Advisor to the U.S. Chamber Litigation Center, United States Chamber of Commerce.

Justice Scalia: Text Over Intent and the Demise of Legislative History [Showcase Panel I] 11-17-2016 Nov 23, 2016

Show notes

Until 1986, most conservative lawyers favored following the original intentions of the Framers of the Constitution rather than the original public meaning of the text of the laws they wrote. Justice Scalia changed all of that with a brilliant speech given at the Justice Department just days before he was nominated to the Supreme Court. Justice Scalia argued that it is the laws that Congress makes, and not the legislative history that accompanies them, that the courts must follow. He argued similarly in constitutional cases that we are bound by the texts that our dead ancestors enacted and not by their unenacted intentions and policy views. Since 1986, Justice Scalia's view has so thoroughly swept the field that few proponents of original intention and of following legislative history remain. The triumph of text over intent and over legislative history is one of Justice Scalia's legacies. -- This panel was held on November 17, 2016, during the 2016 National Lawyers Convention in Washington, DC. -- Featuring: Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School; Prof. Michael S. Paulsen, Distinguished University Chair and Professor, University of St. Thomas School of Law; Prof. Saikrishna Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law; and Prof. Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center. Moderator: Hon. Sandra Segal Ikuta, U.S. Court of Appeals, Ninth Circuit.

Shakespeare & the Law: Julius Caesar 9-28-2016 Oct 21, 2016

Show notes

Julius Caesar is Shakespeare’s classic depiction of the abuse of power, political assassination and intrigue – a plot that would rival any episode of House of Cards or Scandal. The play offers a valuable and timeless springboard for a discussion of the use of executive power in 21st century America – and its future under a Clinton or Trump presidency. -- The Shakespeare & the Law series features a staged reading of the abridged play performed by prominent judges, attorneys, journalists, political strategists and scholars, followed by a panel discussion that explores the implications of the work in the era of Obama, Clinton and Trump. Presented in partnership with the Federalist Society, McCarter & English LLP, and Foley Hoag LLP. -- This event took place at the Wimberly Theatre at the Boston Center of the Arts in Boston, MA on September 28, 2016. -- Participants include: David J. Barron, United States Circuit Judge for the U.S. First Circuit Court of Appeals; Jennifer C. Braceras, Attorney and Editor of NewBostonPost; Martha Coakley, Former Attorney General of Massachusetts; Nancy Gertner, Retired Judge, United States District Court for the District of Massachusetts; Michael S. Greco, Partner at K&L Gates and past present of the American Bar Association; Nathaniel M. Gorton, United States District Judge for the District of Massachusetts; Jeff Jacoby, Op-Ed Columnist for The Boston Globe; Daniel J. Kelly, Chairman of the Boston Lawyers Division of the Federalist Society and a partner at McCarter & English; George A. O’Toole, Jr., United States District Judge for the District of Massachusetts; Dean Reuter, Vice President & Director of the Practice Groups of the Federalist Society; Carol Rose, Executive Director of the ACLU of Massachusetts; F. Dennis Saylor IV, United States District Judge for the District of Massachusetts; Douglas P. Woodlock, United States District Judge for the District of Massachusetts; and Rya W. Zobel, United States District Judge for the District of Massachusetts.

Supreme Court Litigation in the Obamacare Cases 9-27-2016 Oct 05, 2016

Show notes

On September 27, 2016, the Georgetown Student Chapter of the Federalist Society, in conjunction with the national office's Faculty Division, held an event on Supreme Court advocacy and the Affordable Care Act cases. -- Featuring: Prof. Josh Blackman, Associate Professor of Law, Houston College of Law; Mr. Michael Carvin, Partner, Jones Day; Prof. Martin Lederman, Associate Professor of Law, Georgetown University Law Center; and Ms. Erin Murphy, Partner, Bancroft, PLLC. Moderator: Mr. Adam Liptak, Supreme Court Correspondent, New York Times. Introduction: Mr. Michael Munoz, President, Georgetown Student Chapter.

Supreme Court Preview: What Is in Store for October Term 2016? Sep 28, 2016

Show notes

October 4th will mark the first day of oral arguments for the 2016 Supreme Court term. The Court's docket already includes major cases involving insider trading, the Fourth Amendment, the Sixth Amendment, the Eighth Amendment, criminal law, IP and patent law, the Free Exercise and Equal Protection Clauses, the Fair Housing Act, and voting rights. -- The full list of cases granted thus far for the upcoming term can be viewed on SCOTUSblog here. The panelists will also discuss the current composition and the future of the Court. -- This event was held on September 27, 2016, at the National Press Club in Washington, DC. -- Featuring: Mr. Thomas C. Goldstein, Goldstein & Russell PC; Prof. Nicholas Quinn Rosenkranz, Georgetown Law Center; Ms. Carrie Severino, Judicial Crisis Network; and Hon. George J. Terwilliger, McGuireWoods LLP. Moderator: Mr. Robert Barnes, The Washington Post.

Justice Scalia and the Evolution of Chevron Deference 9-17-2016 Sep 22, 2016

Show notes

For over thirty years, the seminal Supreme Court decision in Chevron v. NRDC has provided the principles used to determine the extent to which a court reviewing agency action should defer to the agency’s interpretation of its own rules as well as fill in “blanks” in the text. For much of his career on the Supreme Court, Justice Scalia (and the Court) deferred to this decision. However, late in his tenure, Justice Scalia had begun to reconsider Chevron deference. For the Chevron example, in his opinions in King v. Burwell andUtility Air Regulatory Group v. EPA, Justice Scalia criticized agencies’ assertions of unprecedented power. This panel will explore how judicial deference to agency decision-making has evolved since and whether it is time to revisit the doctrine of “Chevron deference.” How might Justice Scalia have come down on US v. Texas, net neutrality, or the EPA’s “Clean Power Plan”? Might his views have continued to evolve if he had remained on the Court? And what is the future of Chevron deference with the Roberts Court? Is a new balance between courts and agencies needed? -- This panel took place on September 17, 2016, during the Second Annual Texas Chapters Conference in Austin, Texas. The theme for the conference was "The Separation of Powers in the Administrative State". -- Welcome by Hon. Ken Paxton, Texas Attorney General. Introduction by Mr. Prerak Shah, Senior Counsel to the Attorney General. Panel One: Prof. Aditya Bamzai, Associate Professor of Law, University of Virginia School of Law; Prof. Ron Beal, Baylor University Law School; Hon. Charles J. Cooper, Partner, Cooper & Kirk, PLLC and former Assistant U.S. Attorney General for the Office of Legal Counsel; and Prof. Aaron Nielson, Brigham Young University Law School. Moderator: Hon. Edith Jones, U.S. Court of Appeals, Fifth Circuit. Introduction: Ms. Karen Lugo, Director, Center for Tenth Amendment Action, Texas Public Policy Foundation.

Texas and Regulation 9-17-2016 Sep 20, 2016

Show notes

The tension between economic liberty and the state’s power to regulate economic activity has long served as a source for landmark cases and controversies. Post-New Deal jurisprudence opened the floodgates to economic regulation. In Texas, entrepreneurs who have developed cutting-edge innovations have found themselves tangled in regulatory red tape. But one’s right to engage in economic activity free from unreasonable government interference has always been understood as being in lockstep with Texas’s independent spirit. However, critics maintain that consumer protection and maintaining a level playing field are also important goals in crafting their regulatory policies. This tension has given rise to cases and legislative battles in the Lone Star State that have garnered national attention. Will Texas continue to lead the way for entrepreneurs and innovators, and how will the regulatory state affect this trajectory? What is the proper balance between innovation and regulation? -- This panel took place on September 17, 2016, during the Second Annual Texas Chapters Conference in Austin, Texas. The theme for the conference was "The Separation of Powers in the Administrative State". -- Featuring: Mr. Arif Panju, Institute for Justice; Mr. Tim Sandefur, Goldwater Institute and author, The Right to Earn a Living; Mr. Prerak Shah, Office of Texas Attorney General; and Mr. Russell Withers, General Counsel, Texas Conservative Coalition Research Institute. Moderator: Hon. Don Willett, Texas Supreme Court. Introduction: Ms. Diane Kozub, Former Assistant United States Attorney at United States Attorney's Office.

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