Federalist Society Event Audio

October 5th will mark the first day of the 2015 Supreme Court term. Thus far, the Court's docket includes major cases involving the death penalty, affirmative action, unions, civil asset forfeiture, and more. -- Notable cases include Campbell-Ewald Company v. Gomez, which concerns pre-certification mootness; Tyson Foods v. Bouaphakeo, which concerns class certification where statistical methods are used to establish liability and damages; Spokeo v. Robins, which concerns Article III standing and statutory damages; Fisher v. University of Texas at Austin, which concerns affirmative action in admissions; Evenwel v. Abbott, which concerns redistricting law; Friedrichs v. California Teachers Association, which concerns teacher unions; and Kansas v. Gleason, Kansas v. Carr, Montgomery v. Louisiana, Foster v. Humphrey, and Hurst v. Florida, which all concern the death penalty. -- In addition to these cases and others, which may include abortion and contraceptive mandate questions, the panelists will discuss the current composition and the future of the Court. -- Featuring: Prof. Gail Heriot, Professor of Law, University of San Diego School of Law; Mr. John Elwood, Partner at Vinson & Elkins; Mr. Neal K. Katyal, Partner at Hogan Lovells; Prof. John F. Stinneford, Professor of Law and Assistant Director, Criminal Justice Center at Levin College of Law, University of Florida; and Mr. Ed Whelan, President of Ethics & Public Policy Center. Moderator: Mr. Adam Liptak, The New York Times.

With the adoption of the Open Internet Order, the Federal Communications Commission has potentially waded into areas that have historically been within the Federal Trade Commission’s jurisdiction. How are privacy, consumer protection, and technology policy issues currently being handled by the agencies – do their actions complement each other or are they creating regulatory tension and uncertainty? If there is a turf war going on, will Congress step in or will the courts decide? How does it impact competition policies and consumer protection? Join FCC Commissioner Ajit Pai and FTC Commissioner Maureen Ohlhausen as they engage in a moderated discussion about these and other issues relating to the respective roles of their agencies. -- Featuring: Hon. Maureen K. Ohlhausen, Federal Trade Commission and Hon. Ajit V. Pai, Federal Communications Commission. Moderator: Alexander Okuliar, Partner, Orrick, Herrington & Sutcliffe LLP.

On July 10, 2015, Miguel Estrada of Gibson Dunn & Crutcher LLP delivered the Annual Supreme Court Round Up at The Mayflower Hotel in Washington, DC. Introduction by Mr. Douglas R. Cox, Gibson Dunn & Crutcher LLP.

After delegating significant power to the administrative state, is Congress properly discharging its oversight role? Are there tools available to Congress that are underutilized? Would a proper annual budget process help? Are Congress’ oversight hearings meaningful, well-run, and properly focused? Should Congress be requesting more information from agencies through other avenues? -- This panel was presented on June 18, 2015, at the Mayflower Hotel in Washington, DC during the Third Annual Executive Branch Review Conference. -- Featuring: Prof. Jonathan H. Adler, Case Western Reserve University School of Law; Mr. Michael D. Bopp, Gibson Dunn and Crutcher; Prof. Sally Katzen, New York University School of Law; and Mr. Adam J. White, Boyden Gray & Associates. Moderator: Hon. Todd F. Gaziano, Pacific Legal Foundation.

In administrative law the focus has primarily been on how to constrain executive discretion. It may, however, be equally important to consider how to constrain the delegations that create that discretion—not just by telling Congress to “do its job,” but by thinking about how to shift the incentives that members have for delegation. This panel will consider what Congress gains by delegating policymaking authority to the executive. The conventional view holds that delegations only expand the power of the executive, ignoring the myriad reasons that Congress chooses to delegate its power. Members of Congress may realize a variety of benefits from delegation, including control over how agencies exercise their discretion. Panelists will discuss the reasons why Congress delegates so broadly and consider what legal and political solutions might curb such delegations.-- This panel was presented on June 18, 2015, at the Mayflower Hotel in Washington, DC during the Third Annual Executive Branch Review Conference. -- Featuring: Prof. Jack M. Beermann, Boston University School of Law; Prof. Gillian E. Metzger, Columbia Law School; and Prof. Neomi J. Rao, George Mason University School of Law. Moderator: Mr. Dean A. Reuter, The Federalist Society.

Does the judiciary owe Congress presumptive deference in reviewing and considering challenges to federal statutes? If so, what standards should courts impose on those making such challenges? -- The historical practice of such presumptive deference, the canon of constitutional avoidance, has been reflected in decades of judicial decisions upholding much Congressional legislation. However, some believe that, in light of courts' observance of the canon of constitutional avoidance, Congress correspondingly enacts legislation without taking care that such legislation is actually constitutional. -- In recent years, Congress is increasingly likely to pass acts that run to hundreds or even thousands of pages. The bills are typically drafted by staffers, sometimes hastily written and amended at the last moment, and often not read by legislators before votes are cast. Some bills are passed at the midnight hour, sometimes with provisions for expedited judicial review of the bill's constitutionality, as if Congress is leaving wholly to the judiciary the assessment of a law's constitutionality. -- Some now assert that, given how Congress enacts legislation, courts should rethink the canon of constitutional avoidance. -- Our panel will consider this question and the proper applicability of the canon of constitutional avoidance. -- This panel was presented on June 18, 2015, at the Mayflower Hotel in Washington, DC during the Third Annual Executive Branch Review Conference. -- Featuring: Hon. David M. McIntosh, Club for Growth; Mr. Clark Neily, Institute for Justice; and Mr. M. Edward Whelan III, Ethics and Public Policy Center. Moderator: Hon. Thomas B. Griffith, United States Court of Appeals for the District of Columbia Circuit.

The economics profession has long proffered Benefit-Cost Analysis (BCA) as the best tool for making balanced and efficient governmental decisions on spending and regulation. Though some critics object to the tool, presidents from both parties for over four decades have endorsed the BCA paradigm as the preferred way to make sound regulatory decisions, and Congress is considering legislation that would require agencies to support major regulatory initiatives with BCA. -- But is BCA a silver bullet for improving policy decisions? If not, what procedural and analytical changes might improve its usefulness as a policy development tool? This diverse panel of legal and policy experts will explore these questions and examine the appropriate role for congressional and judicial oversight, the proper scope of BCA, and when analysis should be conducted and by whom. -- This panel was presented on June 18, 2015, at the Mayflower Hotel in Washington, DC during the Third Annual Executive Branch Review Conference. -- Featuring: Hon. C. Boyden Gray, Boyden Gray & Associates; Mr. Michael A. Livermore, University of Virginia School of Law; Mr. Richard D. Morgenstern, Resources for the Future; and Hon. Eugene Scalia, Gibson Dunn and Crutcher. Moderator: Hon. Susan E. Dudley, The George Washington University.

The Environmental Protection Agency has proposed new regulations for CO2 emission reductions from existing power plants. The proposal requires states to implement the Agency’s Clean Power Plan. Proponents argue that it is an essential measure to protect vital natural resources; opponents argue that it will be massively costly and logistically difficult to implement (particularly given the timeframes required in the proposed regulations), and that it robs the states of their sovereign power. Our panel of experts will discuss the underlying legal authority for EPA’s proposal, the appropriate federalism model for regulation of CO2 emissions under the Clean Air Act, and the policy implications. -- This panel was presented on June 18, 2015, at the Mayflower Hotel in Washington, DC during the Third Annual Executive Branch Review Conference. -- Featuring: Mr. David Doniger, Natural Resources Defense Council; Mr. Mark W. DeLaquil, Baker & Hostetler LLP; Mr. Robert M. Sussman, Sussman & Associates; and Mr. Misha Tseytlin, West Virginia Attorney General's Office. Moderator: Ms. Elana Schor, Politico.

The communications and technology sectors have seen an explosion of growth and innovation over the last decade, and yet the primary body of law governing these areas, The Communications Act, has not been updated since the days of dial-up internet. In 2013, House Energy and Commerce Committee Chairman Fred Upton (Mich.) and Communications and Technology Subcommittee Chairman Greg Walden (Oreg.) announced that they would commence efforts to “update the law to better meet the dynamic needs of the 21st century.” In January, Senate Commerce Committee Chairman John Thune (S. Dak.) announced similar plans. -- Our panel will discuss recent efforts to update the Communications Act for the modern internet age. What should a new framework look like? With the convergence of technologies, should the current platform-specific regulation be replaced with a more flexible, service-based regulatory scheme? Should special considerations still apply in certain services? How could such regulations impact developing business models and evolving technologies? Should the scope of the FCC’s jurisdiction remain the same? These and other issues will be explored. -- This panel was presented on June 18, 2015, at the Mayflower Hotel in Washington, DC during the Third Annual Executive Branch Review Conference. -- Featuring: Mr. Jonathan Adelstein, President & CEO, PCIA - The Wireless Infrastructure Association; Ms. Kelly Cole, National Association of Broadcasters; Ms. Grace Koh, U.S. House of Representatives Committee on Energy and Commerce; and Mr. David B. Quinalty, U.S. Senate Committee on Commerce, Science, and Transportation. Moderator: Mr. Scott Belcher, Telecommunications Industry Association.

The theme of the Third Annual Executive Branch Review Conference, what role does and should Congress play vis-a-vis the administrative state, will be developed in a series of addresses, debates and panel discussions. Experts will discuss incentives for Congressional action and inaction, reducing delegation from Congress to the agencies through more precise statutory language, the tools of Congressional oversight, and more. The conference will also include breakout sessions by selected practice groups to provide detailed discussion about executive branch activities in particular areas of the law. -- Senate Majority Leader Mitch McConnell delivered the opening address on June 18, 2015, at the Mayflower Hotel in Washington, DC. Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society.

The National Constitution Center, the Federalist Society and the American Constitution Society presented this debate on Citizens United. Professor Anthony Johnstone, argued in favor of the resolution and Professor John McGinnis argued against the resolution. Jeffrey Rosen, President and Chief Executive Officer of the National Constitution Center, moderated the program. -- This debate was made possible through the support of a grant from the John Templeton Foundation. -- Speakers: Prof. Anthony Johnstone, University of Montana School of Law and Prof. John McGinnis, Northwestern University School of Law. Moderator: Prof. Jeffrey Rosen, President and CEO, National Constitution Center. -- The opinions expressed in this debate are those of the participants and do not necessarily reflect the views of the John Templeton Foundation.

National Review Institute Senior Fellow Andrew C. McCarthy delivered this address on "National Insecurity: Is the Law the Enemy's Weapon?" during the 2015 National Security Symposium on April 29, 2015.

Several significant cyber incidents, including the recent Sony hack, have been attributed to nation-states or groups closely associated with nation-states. The Intelligence Community's most recent Worldwide Threat Assessment predicts "an ongoing series of low-to-moderate level cyber attacks from a variety of sources over time, which will impose cumulative costs on U.S. economic competitiveness and national security." It identifies Russia, China, Iran and North Korea as Threat Actors. An expert panel will analyze whether any cyber incidents should be considered acts of war, whether U.S. responses be governed by the Law of Armed Conflict, what kinds of incidents warrant responses, and what those responses might be. -- The Federalist Society's International & National Security Law Practice Group presented this panel during the 2015 National Security Symposium on April 29 in Washington, D.C. -- Featuring: Hon. Stewart A. Baker, Partner, Steptoe & Johnson LLP, former Assistant Secretary of Policy, Department of Homeland Security, and former General Counsel, National Security Agency; Prof. Eric Talbot Jensen, Brigham Young University Law School, and former Chief, International Law, Office of The Judge Advocate General, U.S. Army; Catherine B. Lotrionte, Director, CyberProject, School of Foreign Service, Georgetown University, and former former Counsel to the President's Foreign Intelligence Advisory Board, former Assistant General Counsel, Office of General Counsel, Central Intelligence Agency; and Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California Berkeley School of Law, former Deputy Assistant U.S. Attorney General, Office of Legal Counsel. Moderator: Prof. Jeremy A. Rabkin, George Mason University School of Law.

Since September 11, 2001, the intelligence community has been at the center of key national security events including the wars in Iraq and Afghanistan, the hunt for Osama Bin Laden and other key terrorism figures, leaks by Edward Snowden, and disclosures about the CIA's rendition program. During that same period of time, the management of the intelligence community has been reformed, executive agencies have reorganized themselves to better interact with the intelligence community, and most recently, the CIA has announced a fundamental reorganization of its key functions. Our panel will consider how the government can best manage the intelligence community. We will discuss the role of Congressional oversight, the ability to demand accountability, whether the current structure of the intelligence community is optimal, and if effectiveness measures can be applied to intelligence work. -- The Federalist Society's International & National Security Law Practice Group presented this panel during the 2015 National Security Symposium on April 29 in Washington, D.C. -- Featuring: Michael Allen, Managing Director, Beacon Global Strategies LLC, former Majority Staff Director, House Permanent Select Committee on Intelligence, and former Special Assistant to the President and Senior Director for Counter-proliferation Strategy; Eli Lake, Columnist, Bloomberg View; and Hon. Benjamin A. Powell, Partner, WilmerHale LLP, and former General Counsel to the Director of National Intelligence. Moderator: Matthew R.A. Heiman, Vice President, Chief Compliance & Audit Officer, Tyco. Welcome and Introduction by Dean A. Reuter, Vice President and Director of Practice Groups, The Federalist Society.

We are in an age of accelerating technology but many fear we are also in an age of growing inequality. Does the fast pace of innovation pose a threat to social stability? Many fear that machines will take away jobs from the less skilled and extend the reach of superstars, thus deepening inequality. This panel will address the dangers of innovation to employment and equality and what, if anything, the government should do about it. This program was presented on February 21, 2015, as part of the 2015 Federalist Society National Student Symposium. -- Featuring: Prof. Richard Epstein, NYU School of Law; Ms. Beth Kregor, Director of the Institute for Justice Clinic on Entrepreneurship at the University of Chicago Law School; and Prof. John McGinnis, Northwestern University School of Law. Moderator: Hon. Frank Easterbrook, U.S. Court of Appeals, Seventh Circuit.