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RESOLVED: The FCC Does Not Have the Legal Authority to Implement Net Neutrality 1-8-2016 Jan 16, 2016

Show notes

The FCC derives its legal authority almost entirely from statutes that predate the Internet--primarily from the 1934 Communications Act, which was designed for the regulation of a national telephone monopolist, and the 1996 Telecommunications Act, which was designed to incrementally deregulate the communications industry as the vestiges of that national monopoly gave way to competition. Over the past 20 years, the Internet has become the foundation of the communications industry, playing a role similar to that of the monopoly-provided telecommunications services that the FCC has traditionally regulated. There is unquestionably more competition today than there was in 1934, but perhaps not as much as was hoped in 1996. The FCC’s Open Internet Order, in which the FCC brought Internet Service Providers within the regulatory framework initially created in 1934, presents a compelling example of an agency struggling to find a new role in a changed industry – struggling to imbue old statutes with broad grants of power to govern what the FCC, but perhaps not Congress, believes are issues properly within its ambit. In doing so, the Order thrusts the FCC into current debates about the scope of the administrative state, the potential revival of the major questions doctrine, and the potential demise of Chevron. Framed by these issues, this debate will consider whether the FCC’s Open Internet Order fits within the agency’s statutory authority. -- This debate took place during the 18th Annual Faculty Conference at the Sheraton New York Times Square Hotel in New York, NY on January 8, 2016. -- Featuring: Prof. Adam Candeub, Michigan State University School of Law; Prof. Justin (Gus) Hurwitz, Nebraska College of Law; Mr. Geoffrey Manne, International Center for Law and Economics; and Prof. James Speta, Northwestern University School of Law. Moderator: Prof. Daniel Lyons, Boston College Law School.

The New Chevron Skeptics 1-8-2016 Jan 16, 2016

Show notes

When Chevron was first decided it was generally welcomed on the right side of the political spectrum as a principled method constraining judicial discretion and permitting the executive to exert policy control over the administrative state. But as the administrative state continues to grow, some now see Chevron as removing an important check on government power and an abdication of the judiciary’s authority to say what the law is. Some members of the Supreme Court are now open to reconsidering judicial deference to agency action, at least in certain areas, such as determining their own jurisdictions and interpreting their own regulations. The panel will consider the extent to which the new skepticism toward Chevron in particular and judicial deference to agencies in general is justified. -- This panel took place during the 18th Annual Faculty Conference at the Sheraton New York Times Square Hotel in New York, NY on January 8, 2016. -- Welcome: Dean Blake D. Morant, President, Association of American Law Schools & Dean and Robert Kramer Research Professor of Law, George Washington University Law School and Dean Kellye Y. Testy, President Elect, Association of American Law Schools & Toni Rembe Dean & Professor of Law, University of Washington School of Law. Introduction: Hon. Lee Liberman Otis, Senior Vice President & Faculty Division Director, The Federalist Society -- Panel: The New Chevron Skeptics -- Featuring: Prof. Michael Herz, Yeshiva University Benjamin N. Cardozo School of Law; Prof. Jeffrey Pojanowski, University of Notre Dame Law School; Prof. Peter Strauss, Columbia Law School; and Prof. Christopher Walker, The Ohio State University Moritz College of Law. Moderator: Prof. John McGinnis, Northwestern University School of Law.

The International Law and Policy of Counterterrorism 11-6-2015 Nov 24, 2015

Show notes

As ISIS, al Qaeda and its offshoots, and other groups spread terror across the globe, it is vital to establish a strong framework for the international law and policy of counterterrorism. This includes understandings and cooperation on surveillance, detention, counterterrorism finance, and the law of espionage. These subjects will be addressed by panelists with both real world and academic experience. -- This panel was presented by the American Branch of International Law Association, the International Law Students Association, and the Federalist Society's International & National Security Law Practice Group at the 2015 International Law Weekend at Fordham University School of Law on November 6, 2015. -- Featuring: Prof. Jamil N. Jaffer, Adjunct Professor of Law and Director, Homeland & National Security Law Program at George Mason University School of Law, former Chief Counsel & Senior Advisor at the Senate Foreign Relations Committee, and former Associate Counsel to President George W. Bush; Mr. Matthew Heiman, Vice President, Chief Compliance and Audit Officer, Tyco International; former Attorney Advisor, U.S. Department of Justice National Security Division; former Legal Advisor, Coalition Provisional Authority, Ministry of Justice, Iraq; Mr. Adam R. Pearlman, Associate Deputy General Counsel, U.S. Department of Defense (appearing in his personal capacity and not as a representative of the Department of Defense); Co-Editor of The American Bar Association's publication The U.S. Intelligence Community Law Sourcebook; and Prof. Peter Margulies, Professor of Law, Roger Williams Law School. Moderator: Mr. Vincent Vitkowsky, Partner, Seiger Gfeller & Laurie LLP, member of the Executive Committee of ABILA, and Chairman of the Federalist Society's International & National Security Law Practice Group.

Interview with Kirsten Powers 11-14-2015 Nov 24, 2015

Show notes

On November 14, 2015, during the Federalist Society's 2015 National Lawyers Convention in Washington, DC, Professor Nicholas Quinn Rosenkranz of the Georgetown University Law Center interviewed USA Today Columnist, Daily Beast Columnist, and FOX News Contributor Ms. Kirsten Powers. -- Note: There were technical issues with Prof. Rosenkranz's microphone at the beginning of the video during his introduction, but the issues were resolved by the time the interview begins.

Eighth Annual Rosenkranz Debate- The Constitution and Morality - 11-14-2015 Nov 19, 2015

Show notes

The Eighth Annual Rosenkranz Debate was held on November 14, 2015, during The Federalist Society's 2015 National Lawyers Convention. RESOLVED: The Constitution is designed for a moral and religious people and it's wholly unsuited for the government of any other. -- Featuring: Prof. Robert P. George, McCormick Professor of Jurisprudence, Princeton University and Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law. Moderator: Hon. William H. Pryor Jr., U.S. Court of Appeals, Eleventh Circuit. Introduction: Mr. Eugene B. Meyer, President, The Federalsit Society.

Life on the Bench 11-14-2015 Nov 19, 2015

Show notes

Many attorneys see a judgeship as the pinnacle of professional achievement in the legal world. It could be the visibility of judges, their unquestioned decision-making authority, the absence of clients, life tenure, or some other aspect of being a judge. Our panel of judges will discuss the realities of a career on the bench. The panelists will share their thoughts on topics as diverse as the role of the judiciary, judicial philosophy, stare decisis and precedent, opinions and dissents, the judicial appointment process, the state of the legal profession, and much more. -- This panel was presented at the 2015 National Lawyers Convention on Saturday, November 14, 2015, at the Mayflower Hotel in Washington, DC. -- Featuring: Hon. Brett Kavanaugh, U.S. Court of Appeals, D.C. Circuit; Hon. Alex Kozinski, U.S. Court of Appeals, Ninth Circuit; Hon. Diarmuid F. O'Scannlain, U.S. Court of Appeals, Ninth Circuit; Hon. Jerry Smith, U.S. Court of Appeals, Fifth Circuit; and Hon. David Stras, Associate Justice, Supreme Court of Minnesota. Moderator: Hon. David B. Sentelle, U.S. Court of Appeals, D.C. Circuit. Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society.

Prosecutors Run Amok? 11-14-2015 Nov 19, 2015

Show notes

The Supreme Court has instructed in clear terms that the duty of the Federal prosecutor in a criminal prosecution "is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88 (1935). Yet the news pages are filled with examples of Federal prosecutorial overreach. In its term just ended, the Supreme Court reversed six of seven criminal convictions that reached it, several all involving some form of over criminalization that can lead to prosecutorial overreach. And large categories of prosecutorial overreach never reach the Supreme Court, from dozens of convictions of "insider trading" by non-insiders (now found not to be a crime by the Second Circuit); to civil forfeitures of property of legitimate small businesses never charged with a crime; to multi-billion dollar settlements of the thinnest of charges with large banks, pharmaceutical companies, and individuals that cannot take any risk of a criminal conviction; to what one jurist has described as an “epidemic of Brady violations abroad in the land." -- The panel will explore whether prosecutorial overreach has become epidemic. It will also explore potential remedies ranging from reducing the number of crimes, to sentencing reform, plea bargain reform, civil forfeiture reform, and more. Finally, it will ask who should take action to control prosecutorial overreach? Should it be the state bars? Should the courts be more aggressive? Or, is the task primarily one for Congress? If so, what are the most promising avenues of reform? -- This panel was presented at the 2015 National Lawyers Convention on Saturday, November 14, 2015, at the Mayflower Hotel in Washington, DC. -- Featuring: Hon. Alex Kozinski, U.S. Court of Appeals, Ninth Circuit; Mr. John G. Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation; Hon. George J. Terwilliger III, Partner, McGuireWoods LLP; and Ms. Darpana M. Sheth, Constitutional Litigator, Institute for Justice. Moderator: Hon. Keith R. Blackwell, Associate Justice, Supreme Court of Georgia. Introduction: Mr. John J. Park, Jr., Of Counsel, Strickland Brockington Lewis LLP.

The Role of Congress and Executive Agencies in 21st Century IP Regimes 11-14-2015 Nov 19, 2015

Show notes

The Constitution specifically vests power in Congress to grant authors and inventors exclusive rights in their writings and inventions. The first Congress passed laws setting forth the requirements and procedures for granting patents and copyrights. In these early days, copyrights were granted for registered works, and Thomas Jefferson himself examined patents as a member of President George Washington's cabinet. As IP laws developed, however, they gave substantial deference to both the Patent and Trademark Office (PTO), and the Copyright Office, on matters of reviewing, granting, limiting, and defining IP rights. These agencies have come to wield significant influence over the U.S. IP regime. Recently, and notwithstanding its delegations of power, Congress has been particularly active in passing new patent and copyright legislation. Sometimes Congress specifies how the law shall be interpreted and administered, and other times it delegates this to the relevant agencies, or to the courts. By considering specific examples, this panel will examine the role of Congress, Congressional delegation, and executive agencies in crafting and administering our modern intellectual property systems. -- This panel was presented at the 2015 National Lawyers Convention on Saturday, November 14, 2015, at the Mayflower Hotel in Washington, DC. -- Featuring: Prof. Sandra Aistars, Clinical Professor, George Mason School of Law and Sr. Scholar and Director, Copyright Policy & Research, Center for the Protection of Intellectual Property; Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law; Prof. David S. Olson, Associate Professor, Boston College Law School; and Prof. Arti K. Rai, Elvin R. Latty Professor of Law and co-Director, Duke Law Center for Innovation Policy. Moderator: Hon. Thomas B. Griffith, U.S. Court of Appeals, D.C. Circuit.

The Role of Congress in Environmental Law 11-14-2015 Nov 19, 2015

Show notes

Environmental law and policy raise profound questions about Congress's role and responsibilities. Many environmental regulatory statutes leave the Environmental Protection Agency with broad discretion. Although these grants of discretion create flexibility and take advantage of EPA expertise, they also invite congressional passivity, create administrative problems, and increase special-interest pressures on the EPA and Congress alike. Congressional-EPA relations matter now more than ever because many major federal environmental laws are now more than 40 years old. The EPA is using currently enabling language from old environmental organic acts to regulate global climate change and other cutting-edge problems. What are the proper relations between Congress and the EPA? If these relations are out of alignment, can Congress realign them and how? Panelists will explore these questions with examples ranging from hydrofracturing through clean water and clean air regulation. -- This panel was presented at the 2015 National Lawyers Convention on Saturday, November 14, 2015, at the Mayflower Hotel in Washington, DC. -- Featuring: Prof. Eric R. Claeys, Professor of Law, George Mason University School of Law; Mr. Matt Leggett, Policy Counsel on Energy, Environment, and Agriculture, U.S. Senate Republican Policy Committee; Prof. Nicholas A. Robinson, University Professor on the Environment, and Kerlin Professor Emeritus, Pace University School of Law; and Prof. David Schoenbrod, Trustee Professor of Law, New York Law School. Moderator: Hon. Steven M. Colloton, U.S. Court of Appeals, Eighth Circuit.

Showcase Panel III: ROUNDTABLE: Can Changes in Incentives Significantly Address Congressional Dysfunction? - 11-14-2015 Nov 19, 2015

Show notes

Over the years, and especially recently, it appears as though members of Congress primarily need to avoid offending constituents if they wish to stay in office. There are few rewards for genuine political leadership or the hard-nosed political deals that are oftentimes crucial to good governance. “Passing the buck" to the Executive branch, usually in the form of the Administrative State or even to the Judiciary seems less effective but more prudent. Are the incentives for members of Congress deleterious to its overall function? Is it possible to effectively change them? -- This panel was presented at the 2015 National Lawyers Convention on Saturday, November 14, 2015, at the Mayflower Hotel in Washington, DC. -- Featuring: Hon. Howard L. Berman, Former U.S. Representative, California’s 28th Congressional District, Senior Advisor, Covington & Burling LLP; Prof. James W. Ceaser, Professor of Politics, University of Virginia; Prof. Michael S. Greve, Professor of Law, George Mason University School of Law; Prof. Frances E. Lee, Professor, University of Maryland; Prof. Richard H. Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law; and Mr. Matthew L. Wiener, Executive Director, Administrative Conference of the United States. Moderator: Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit. Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society.

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