Federalist Society Event Audio

This panel was part of the 17th Annual Federalist Society Faculty Conference held on January 3-4, 2015 at the Omni Shoreham Hotel in Washington, DC. -- Featuring: Prof. John Harrison, University of Virginia School of Law; Prof. Gillian Metzger, Columbia Law School; Prof. Zachary Price, University of California Hastings College of Law; and Prof. Nicholas Quinn Rosenkranz, Georgetown University Law Center. Moderator: Prof. Tara Grove, William & Mary Law School. Introduction and Welcome by Hon. Lee Liberman Otis, Senior Vice President & Director, Faculty Division and Prof. Daniel B. Rodriguez, President, Association of American Law Schools & Dean, Northwestern Law School.

What actions are political and what actions are criminal? Where should prosecutors and courts draw the lines? How should we decide what actions should be evaluated at the ballot box and what actions should be evaluated in a court of law? This panel will discuss the recent use of criminal law to pursue public officials and political activity. A presentation of former high level Justice Department attorneys will look to recent prosecutions, such as those of Bob McDonnell and John Edwards, to evaluate whether our criminal law is wading too deeply into political activity. Relying on their expertise, the panelists will address a number of federal crimes, like Honest Services Fraud, used to pursue politicians, and discuss whether it is wise to put politics on trial, or whether the voters should decide. -- The Criminal Law & Procedure Practice Group hosted this event on December 11, 2014, at the National Press Club in Washington, DC. -- Featuring: Mr. Todd P. Graves, Graves Garrett LLC; Mr. Edward T. Kang, Partner, Alston & Bird LLP; and Mr. John C. Richter, Partner, King & Spalding. Moderator: Moderator: Mr. John G. Malcolm, Chairman, Federalist Society Criminal Law & Procedure Practice Group Executive Committee, and Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation.

Prof. Richard Epstein delivered the Keynote Address during a conference titled "Patents and Innovation: Addressing Current Issues". The conference was held on Tuesday, December 2, 2014, at the Mayflower Hotel in Washington, DC. He was introduced by Dean A. Reuter, Vice President & Director of Practice Groups at the Federalist Society.

Policy makers on Capitol Hill are poised to press forward with legislation thatpurports to address what some believe is a litigation crisis, driven by so-called non-practicing entities. Others believe the legislation would ultimately undermine important property rights and patent licensing arrangements. The latter group asserts that a growing body of empirical evidence holds that patent litigation rates have not increased significantly and in fact appear to be on the decline. Will the proposed patent legislation address real litigation abuses, and what effect will it have on legitimate patent holders? Is there a responsible way to address patent litigation abuses without hampering patent-based incentives to invest in innovation? What do the answers to these questions mean for the United States efforts to promote strong IP laws abroad? -- This panel was part of a conference titled "Patents and Innovation: Addressing Current Issues". The conference was held on Tuesday, December 2, 2014, at the Mayflower Hotel in Washington, DC. -- Featuring: Hon. F. Scott Kieff, Commissioner, United States International Trade Commission; Mr. Noah Phillips, Chief Counsel, U.S. Senator John Cornyn at Senate Judiciary Committee; and Prof. Adam Mossoff, Professor of Law and Co-Director of Academic Programs and Senior Scholar of the Center for the Protection of Intellectual Property, George Mason University School of Law. Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society.

Parity between the treatment of intellectual property rights (IPRs) and real property is a core principle of the DOJ/FTC 1995 Guidelines on licensing patents, which provide that the “[a]gencies apply the same general antitrust principles to conduct involving intellectual property that they apply to conduct involving any other form of tangible or intangible property.” Are these guidelines still being followed, or have the Federal Trade Commission and Department of Justice have taken actions that signal a departure, and perhaps a skepticism about patent licensing activity, particularly with respect to technological standards? Under either scenario, what are the implications for innovative U.S. companies at home and abroad, including in China where regulators are using antimonopoly powers to extract commercial concessions from U.S. technology leaders? How can patent rights and competition policiesbest co-exist while preserving incentives for firms to invest in R&D and disseminate patented technologies through licensing, standard setting, and other voluntary arrangements? -- This panel was part of a conference titled "Patents and Innovation: Addressing Current Issues". The conference was held on Tuesday, December 2, 2014, at the Mayflower Hotel in Washington, DC. -- Featuring: Mr. Alden F. Abbott, Deputy Director, Edwin Meese III Center for Legal and Judicial Studies; John, Barbara, and Victoria Rumpel Senior Legal Fellow, The Heritage Foundation; former Director of Patent and Antitrust Strategy, BlackBerry and Hon. Joshua D. Wright, Commissioner, Federal Trade Commission. Moderator: Hon. Paul Michel, former Chief Judge, U.S. Court of Appeals, Federal Circuit. Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society.

Saving Congress from Itself proposes a single reform: eliminate all federal grants-in-aid to state and local governments. This action would reduce federal spending by over $600 billion a year and have a profound effect on how we govern ourselves. The proliferation of federal grants-in-aid programs is of recent vintage: only about 100 such grants existed before Lyndon Johnson took office, and now they number more than 1,100. Eliminating grants to the states will result in enormous savings in federal and state administrative costs; free states to set their own priorities; and improve the design and implementation of programs now subsidized by Washington by eliminating federal regulations that attend the grants. In short, it will free states and their subdivisions to resume full responsibility for all activities that fall within their competence, such as education, welfare, and highway construction and maintenance. And because members of Congress spend major portions of their time creating grants and allocating funds assigned to them (think earmarks), eliminating grants will enable Congress to devote its time to responsibilities that are uniquely national in character. -- The Federalist Society's Practice Groups presented this closing discussion on "Saving Congress from Itself: Emancipating the States & Empowering Their People" on Saturday, November 15, during the 2014 National Lawyers Convention. -- Featuring: Hon. James L. Buckley, U.S. Court of Appeals for the D.C. Circuit (ret.) and former U.S. Senator; Dr. John C. Eastman, Henry Salvatori Professor of Law and Community Service; Former Dean (2007 – 2010); and Director, Center for Constitutional Jurisprudence, Dale E Fowler School of Law, Chapman University; and Prof. Michael S. Greve, Professor of Law, George Mason University School of Law. Moderator: Mr. Robert R. Gasaway, Partner, Kirkland & Ellis LLP.

America has always been a forward-looking country. What is the future for our young – for the best and brightest – and for everyone else? Does the American Dream still apply? Does our current legal and regulatory system offer the young prospects for a more just and better society, or for an overregulated society that stifles enterprise and compromises individual liberty? How do we balance these competing concerns and what role can and should our legal system play? Finally, there has been much discussion recently about income inequality. Are efforts to address that through law or taxes beneficial or harmful to the young and their vision of a better society? -- The Federalist Society's Practice Groups presented this showcase panel on "Is the Future of the American Dream Bright?" on Saturday, November 15, during the 2014 National Lawyers Convention. -- Featuring: Hon. Rachel L. Brand, Member, Privacy and Civil Liberties Oversight Board; Senior Advisor to the U.S. Chamber Litigation Center, United States Chamber of Commerce; and former Assistant U.S. Attorney General for Legal Policy United States Department of Justice; Hon. Lanny J. Davis, Principal, Lanny J. Davis & Associates, former Special Counsel to the President, and former Member, Privacy and Civil Liberties Oversight Board; Prof. Neal K. Katyal, Paul and Patricia Saunders Professor of National Security Law and Director, Center on National Security and the Law, Georgetown University Law Center, Partner, HoganLovells US LLP, and former Acting U.S. Solicitor General; and Dr. Charles A. Murray, W.H. Brady Scholar, American Enterprise Institute. Moderator: Ms. Karlyn Bowman, Senior Fellow and Research Coordinator, American Enterprise Institute.

The Seventh Annual Rosenkranz Debate was held on November 15, 2014, during The Federalist Society's 2014 National Lawyers Convention. RESOLVED: Indiscriminate Collection of American Phone Records Violates the Fourth Amendment. -- Featuring: Hon. Michael B. Mukasey, Partner, Debevoise & Plimpton LLP and former U.S. Attorney General and Prof. Nadine Strossen, Professor of Law, New York Law School, and former President, American Civil Liberties Union, 1991 - 2008. Moderator: Prof. Nicholas Quinn Rosenkranz, Georgetown University Law Center. Introduction: Mr. Eugene B. Meyer, President, The Federalist Society.

Once upon a time, corporations, government departments, and other entities made their own decisions about how long to retain documents created or received in the course of business. Today, document retention policies can present difficult issues for the entities, for the lawyers who advise them, and for the courts that are called on to decide the consequences when documents are no longer available. Particularly in the electronic age, where computers die, people delete their emails, and backups are not always reliable, document retention cannot be counted on. What are an attorney’s obligations? Should a lawyer bringing suit write to the other side and warn that entity not to engage in normal document destruction and to back up particularly important data? Does the company being sued have to comply? These are some of the questions that the panel will address. -- In-house lawyers may face particular difficulties. Does the lawyer represent only the institution, or does the lawyer also have obligations to the employees? Should the lawyer advise the employees to censor themselves in emails sent via the employer’s email system? Should employees be encouraged to communicate about work through their personal email instead? How does an in-house lawyer handle the conflicts between representing individuals who do not want to disclose discoverable emails for emails unrelated to ongoing litigation (perhaps because they made impolitic comments about their supervisors)? -- Finally, the panel will discuss if there are special obligations for counsel representing government entities. Government records have a unique status. They document the conduct of public business and are necessary for transparency and, more formally, are subject to retention and preservation requirements. Should lawyers advise government clients that backups cannot be destroyed for years, contrary to current IRS policy? Should lawyers inform government employees that their personal emails, if discussing issues related to their work, may also be discoverable? How does the government’s duty of transparency to the public affect its disclosure obligations and the lawyer’s corresponding obligations to her client? -- The Federalist Society's Professional Responsibility & Legal Education Practice Group presented this panel on "'The Dog Ate My Emails!': Document Retention Policies, Litigation Holds, and Legal Ethics on Saturday, November 15, during the 2014 National Lawyers Convention. -- Featuring: Ms. Jamie Brown, Global eDiscovery Counsel, UBS AG, and former Associate General Counsel, Commodities Futures Trading Commission; Mr. Daniel Epstein, Executive Director, Cause of Action; Mr. Patrick Oot, Partner, Shook Hardy & Bacon L.L.P., and former Senior Special Counsel for Electronic Discovery Office of the General Counsel, U.S. Securities and Exchange Commission; Mrs. Victoria A. Redgrave, Managing Partner, Redgrave LLP; and Ms. Julie Goldsmith Reiser, Partner, Cohen Milstein Sellers & Toll PLLC. Moderator: Hon. Jerry Smith, U.S. Court of Appeals, Fifth Circuit. Introduction: Jack J. Park Jr., Of Counsel, Strickland Brockington Lewis LLP; and Chairman, Professional Responsibility & Legal Education Practice Group.

On June 2, 2014, the Obama Administration took action that would require a 30 percent cut in carbon emissions at fossil fuel-burning power plants by 2030. Some industry representatives and state officials contend that the goals are unattainable, and the required shut-down of even a fraction of the coal-burning power plants required will put several power grids at risk, particularly during the upcoming winter season. Regulators site cost-benefit claims of seven to one – that is, for every dollar expended on compliance, seven dollars will be saved in other areas, largely health care. Are the rules likely to be finalized? If so, how must such reductions be accomplished? How much latitude will states and private actors have in meeting the new requirements? -- The Federalist Society's Environmental Law & Property Rights Practice Groups presented this panel on "Do the EPA’s CO2 Rules Go Too Far?" on Saturday, November 15, during the 2014 National Lawyers Convention. -- Featuring: Mr. Paul Bailey, Senior Vice President for Federal Affairs and Policy, American Coalition for Clean Coal Electricity; Mr. Elbert Lin, Solicitor General, State of West Virginia; Prof. Robert Percival, Robert F. Stanton Professor of Law and Director, Environmental Law Program, University of Maryland Francis King Carey School of Law; and Mr. Robert M. Sussman, Principal, Sussman & Associates and former Senior Policy Counsel to EPA Administrator and EPA Deputy Administrator. Moderator: Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit.

For a federal court to consider an issue, there must be a case or controversy, and the parties before the court must have standing, i.e., a stake in the outcome of the decision. While standing is important in our system of justice, the courts are not the only avenue for relief (the ballot box, theoretically, being another). This panel will explore the history, development and current status of standing doctrine in regulatory litigation, with particular focus on the extent to which standing and related justiciability requirements have come to serve as a shield against meaningful judicial review of agency actions. -- The Federalist Society's Administrative Law & Regulation Practice Group presented this panel on "Without Standing, Are We All Sitting Ducks?" on Saturday, November 15, during the 2014 National Lawyers Convention. -- Featuring: Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law; Prof. Amanda Cohen Leiter, Associate Professor of Law, American University Washington College of Law; Mr. Robert N. Weiner, Partner, Arnold & Porter LLP; and Mr. Patrick Wyrick, Solicitor General, State of Oklahoma. Moderator: Hon. A Raymond Randolph, U.S. Court of Appeals for the D.C. Circuit. Introduction: Hon. Eileen O'Connor, Partner, Pillsbury Winthrop Shaw Pittman LLP; and Chairman, Administrative Law & Regulation Practice Group.

**Due to technical difficulties, the first 20 minutes of this panel were not recorded.** Success in today’s global economy virtually requires a college or post graduate degree, but colleges and law schools have raised tuition enormously. The government subsidizes students to take huge loans to pay for college and law schools, loans which inflict an increasing burden on students, including law students, in a troubled economy. Do these loans pay as much for faculty research and administrators as for direct student education? Are faculties producing research that justifies these costs? Are students getting a good deal now? Could or will on line education provide students with similar education at a fraction of the cost? Is it time to ask some hard questions about higher education? Does education policy benefit average and below average students or does it merely benefit the top of the class? This panel will focus to a significant degree on law schools. -- The Federalist Society's Practice Groups presented this showcase panel on "Higher Education: Run for the Benefit of Students or Faculty or Administrators?" on Saturday, November 15, during the 2014 National Lawyers Convention. -- Featuring: Prof. Paul F. Campos, University of Colorado Law School; Prof. Daniel Polsby, Dean and Professor of Law, George Mason University School of Law; and Prof. Richard Kent Vedder, Ohio University. Moderator: Prof. Thomas D. Morgan, (retired), The George Washington University Law School.

On September 11, 2001, at the age of 45 and at the height of her professional and personal life, Barbara K. Olson was murdered in the terrorist attacks against the United States as a passenger on the hijacked American Airlines flight that was flown into the Pentagon. The Federalist Society established this annual lecture in Barbara's memory because of her enormous contributions as an active member, supporter, and volunteer leader. Solicitor General Theodore B. Olson delivered the first lecture in November 2001. The lecture series continued in following years with other notable individuals. In 2014, Mr. John Allison, President and CEO of the Cato Institute, delivered the lecture. He was introduced by Mr. Eugene B. Meyer, President of the Federalist Society.

This panel will consider the process for determining the content of international law, including the Law of Armed Conflict and International Humanitarian Law. The International Committee of the Red Cross and other committees established by multilateral human rights conventions are often thought to enjoy a special competence in this process. Should they? The panel will discuss these questions, including the debate between the ICRC and the U.S. on counterterrorism measures and the legality of bulk surveillance for national security purposes. -- The Federalist Society's International & National Security Law Practice Group presented this panel on "Who Defines International Law?" on Friday, November 14, during the 2014 National Lawyers Convention. -- Featuring: Hon. John B. Bellinger, III, Partner, Arnold & Porter LLP, former Legal Adviser to the Department of State, former Senior Associate Counsel to the President, and former Legal Adviser to the National Security Council; Prof. Ryan Goodman, Anne and Joel Ehrenkranz Professor of Law, New York University School of Law; Prof. Michael W. Lewis, Ella A. and Ernest H. Fisher Professor of Law, Ohio Northern University; Prof. Deborah Pearlstein, Yeshiva University, Benjamin N. Cardozo School of Law; and Prof. John Choon Yoo, Emanuel S. Heller Professor of Law, University of California, Berkeley School of Law. Moderator: Hon. Carlos T. Bea, U.S. Court of Appeals for the 9th Circuit. Introduction: Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law.

While the substance of constitutional rights is always important, it is often the procedures surrounding the protection and enforcement of those rights that give them teeth – or defang them. From the landmark case of New York Times v. Sullivan to the recently decided Susan B. Anthony List v. Driehaus, the procedures required before one can burden speech, or raise a successful defense under the First Amendment, are critical to the effective scope of the constitutional right. This panel will explore the various procedural safeguards applied – or not applied – in the context of the Freedom of Speech. What level of proof is required before speech may be restricted based on an otherwise valid interest? When will a private party have standing to challenge a restriction on speech that may not yet be final but that has immediate adverse consequences, such as requiring a party to defend an investigation or rebut a preliminary government finding in the midst of an election campaign? What safeguards should exist in administrative processes, such as IRS tax exemption rulings, where discretion may be used to punish speech or otherwise favor one viewpoint over another? These and other examples all illustrate that even where the substance of First Amendment rights is well established, procedural loopholes or protections can reduce or enhance the effectiveness of those rights. -- The Federalist Society's Free Speech & Election Law Practice Group presented this panel on "How First Amendment Procedures Protect First Amendment Substance" on Friday, November 14, during the 2014 National Lawyers Convention. -- Featuring: Prof. Aaron H. Caplan, Loyola Law School, Los Angeles; Prof. Robert A. Destro, The Catholic University of America Columbus School of Law; Mr. Todd P. Graves, Graves Garrett LLC; Prof. Alan B. Morrison, Lerner Family Associate Dean for Public Interest and Public Service Law; Professorial Lecturer in Law, The George Washington University Law School; and Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, University of California, Los Angeles School of Law. Moderator: Hon. David R. Stras, Associate Justice, Minnesota Supreme Court. Introduction: Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC; and Chairman, Free Speech & Election Law Practice Group.