Federalist Society Event Audio

In 2013 voters in Colorado and Washington legalized the possession of marijuana under state law. Several other states allow the possession and use of marijuana for medicinal purposes. Yet marijuana remains illegal under federal law. The Justice Department has not sought to preempt these decisions, and has outlined a new enforcement policy that largely defers to state law enforcement on the assumption that states will effectively regulate the sale and possession of marijuana. Are the Justice Department’s efforts to accommodate state decisions about marijuana policy prudent or irresponsible? Could it do more? Should the federal government defer to state voters on the desirability of marijuana prohibition? How should principles of federalism inform the federal government’s response to state initiatives on marijuana? Can the federal government allow states to decriminalize marijuana possession and sale without undermining the rule of law? -- Featuring: Mr. Robert D. Alt, President, The Buckeye Institute for Public Policy Solutions; Dr. John C. Eastman , Henry Salvatori Professor of Law & Community Service, Chapman University School of Law; Mr. Michael Francisco , Assistant Solicitor General, Colorado; and Hon. George J. Terwilliger III , Partner, Morgan Lewis & Bockius LLP. Moderator: Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law.

The Federalist Society's Practice Groups presented this panel on "The Electorate and the Courts" on Saturday, November 16, during the 2013 National Lawyers Convention. -- Featuring: Hon. Paul D. Clement, Partner, Bancroft PLLC and former United States Solicitor General; Mr. John Fund, National Affairs Columnist, National Review and Fox News Analyst; and Hon. Seth P. Waxman, Partner, WilmerHale and former United States Solicitor General. Moderator: Hon. David M. McIntosh, Partner, Mayer Brown and Vice Chairman, The Federalist Society.

The Federalist Society's Practice Groups presented this panel on "The Electorate and the Courts" on Saturday, November 16, during the 2013 National Lawyers Convention. -- Featuring: Hon. Paul D. Clement, Partner, Bancroft PLLC and former United States Solicitor General; Mr. John Fund, National Affairs Columnist, National Review and Fox News Analyst; and Hon. Seth P. Waxman, Partner, WilmerHale and former United States Solicitor General. Moderator: Hon. David M. McIntosh, Partner, Mayer Brown and Vice Chairman, The Federalist Society.

In recent years, textualism has come to replace legislative history as the most important tool available to Supreme Court Justices when interpreting statutory text. This panel will examine the new textualism and will debate its merits. What are the arguments for and against textualism? When, if ever, ought a judge consider legislative history? This panel will also address the question of whether theJjustices all share the same approach to statutory interpretation or whether they continue to diverge in predictable ways. What effect does the choice of interpretive techniques have on congressional drafting of legislation in the future? -- The Federalist Society's Practice Groups presented this showcase panel on "Textualism and Statutory Interpretation" on Saturday, November 16, during the 2013 National Lawyers Convention. -- Featuring: Prof. John F. Duffy, Samuel H. McCoy II Professor of Law and Armistead M. Dobie Professor of Law, University of Virginia School of Law; Hon. Frank H. Easterbrook, United States Court of Appeals, Seventh Circuit; Prof. William N. Eskridge, Jr., John A. Garver Prof. of Jurisprudence, Yale Law School; Prof. Abbe R. Gluck, Yale Law School; and Prof. Victoria F. Nourse, Georgetown University Law Center. Moderator: Hon. William H. Pryor Jr., United States Court of Appeals, Eleventh Circuit.

The Sixth Annual Rosenkranz Debate was held on November 16, 2013, during The Federalist Society's 2013 National Lawyers Convention. The topic of the debate was "RESOLVED: Courts are too Deferential to the Legislature" and featured Prof. Randy Barnett of Georgetown University Law Center and Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit. Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit moderated. Introduction: Mr. Eugene B. Meyer, President, The Federalist Society.

In 1990, the Supreme Court unanimously held that an integrated state bar association, which all lawyers licensed in a state must join, could not use the compulsory dues paid by its members to pursue political or ideological activities unrelated to regulating the legal profession or improving the legal system. Keller v. State Bar of California, 496 U.S. 1 (1990). The Court explained, “[T]he extreme ends of the spectrum are clear: Compulsory dues may not be extended to endorse or advance a gun control or nuclear weapons freeze initiative; at the other end of the spectrum petitioners have no valid constitutional objection to their compulsory dues being spent for activities connected to disciplining members of the Bar or proposing ethical codes for the profession.” Id., at 15-16. -- In the nearly 25 years since the Court decided Keller, the entities empowered to promulgate ethical rules binding on the lawyers practicing in a state have imposed a variety of regulations, some of which are more closely and clearly related to the regulation of the legal profession than others. Requirements like continuing legal education and contributions to client security funds are generally seen to fall within the scope of permissible regulation. The imposition of mandatory diversity training in Minnesota and a requirement that law students perform a specified number of hours of pro bono work as a condition to their becoming licensed to practice in New York look different. -- Should state regulation of the bar be limited to imposing rules whose purpose is the protection of client interests? Or, can the regulators impose rules designed to make lawyers “better” people in the belief that “better” people will better serve their clients? How far can the organized bar go in “proposing ethical codes for the profession?” To what extent do programs like mandatory diversity training and requiring law students to perform a specified number of pro bono hours serve the interests of clients? -- The Professional Responsibility & Legal Education Practice Group hosted this panel on "Regulation of the Legal Profession in the 21st Century: Should Professional Regulation Favor Social Policy over Client Protection?" on Saturday, November 16, during the 2013 National Lawyers Convention. -- Featuring: Mr. Scott Johnson, Co-Founder and Contributor, Power Line Blog; Mrs. Margaret A. Little, Partner, Little and Little and Director, Pro Bono Center, The Federalist Society; Prof. Thomas D. Morgan, Oppenheim Professor of Antitrust and Trade Regulation Law, The George Washington University Law School; and Prof. Alan B. Morrison, Lerner Family Associate Dean for Public Interest/Public Service, The George Washington University Law School. Moderator: Hon. David R. Stras, Associate Justice, Minnesota Supreme Court. Introduction: Mr. Jack Park Jr., Of Counsel, Strickland Brockington Lewis LLP.

New Directions in Takings Law - Event Audio/VideoThis past year, the Supreme Court decided three important regulatory takings cases, including Arkansas Game & Fish Commission, Koontz, and Horne. At the state level, several states, including Virginia and Mississippi, recently adopted new constitutional amendments limiting the definition of public use and restricting the power of eminent domain. Many, including Supreme Court Justice Antonin Scalia, have urged the Supreme Court to reconsider its Public Use Clause jurisprudence and overrule or limit cases such as Kelo v. City of New London. At both the state and federal level, takings law is very much in flux. This panel will assess where we are on important constitutional takings issues, and where we should be going. -- The Environmental Law & Property Rights Practice Group hosted this panel on "New Directions in Takings Law" on Saturday, November 16, during the 2013 National Lawyers Convention. -- Featuring: Mr. Paul J. Beard II, Principal Attorney, Pacific Legal Foundation; Prof. James L. Huffman, Dean Emeritus, Lewis & Clark Law School; Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School; and Prof. Stewart E. Sterk, H. Bert and Ruth Mack Professor of Real Estate Law, Cardozo School of Law. Moderator: Hon. Edith Brown Clement, United States Court of Appeals, Fifth Circuit.

Has Congress has over-delegated to agencies and failed to provide meaningful oversight? Should Congress coordinate its oversight responsibility with its appropriations authority? Are the courts, in the wake of the Chevron case, and most recently in City of Arlington, deferring too much to agencies? Are the President and White House able to provide oversight, and does the answer change for cabinet-level departments versus independent agencies? -- The Administrative Law & Regulation Practice Group hosted this panel on "Executive Branch Gone Wild? 21st Century Checks and Balances" on Saturday, November 16, during the 2013 National Lawyers Convention. -- Featuring: Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law and Director, Center for Business Law and Regulation, Case Western Reserve University School of Law; Prof. Rachel E. Barkow, Segal Family Professor of Regulatory Law and Policy, New York University School of Law; Hon. Patrick Morrisey, Attorney General, West Virginia; Prof. David Schoenbrod, Visiting Scholar, American Enterprise Institute and Trustee Professor, New York Law School; and Prof. Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law; Director of the Environmental Law Advocacy Center and Executive Director, Project for Older Prisoners, The George Washington University Law School. Moderator: Hon. Eileen J. O’Connor, Pillsbury Winthrop Shaw Pittman LLP and former Assistant Attorney General, Tax Division, United States Department of Justice.

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) is a landmark case that has changed the face of modern administrative law. This panel will address the rightness and limitations of Chevron deference, especially in the context of agency decisions on the scope of the agencies’ jurisdictional mandates. Should the federal courts defer or should they not defer in this context? Justices Scalia and Thomas recently differed on this issue from Chief Justice Roberts and Justices Kennedy and Alito. Who is right on this issue and why? Does the answer depend, in any measure, on the growth of the administrative state? Are there larger issues of jurisprudential philosophy at stake? -- The Federalist Society's Practice Groups presented this showcase panel on "Formalism and Deference in Administrative Law" on Saturday, November 16, during the 2013 National Lawyers Convention. -- Featuring: Prof. Philip A. Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia University School of Law; Prof. Kristin Hickman, University of Minnesota Law School; Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School; and Prof. Jide O. Nzelibe, Northwestern University School of Law. Moderator: Hon. Jennifer W. Elrod, United States Court of Appeals, Fifth Circuit. Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society.

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 2013, the Honorable Neil M. Gorsuch of the United States Court of Appeals for the Tenth Circuit delivered the lecture. He was introduced by Mr. Eugene B. Meyer, President of the Federalist Society.

Cyber attacks were the first identified global threat in the U.S. Intelligence Community's 2013 Worldwide Threat Assessment. Government officials have warned of a "Cyber Pearl Harbor". Yet there is little consensus on the best measures to prevent and mitigate cyber attacks. This panel will address key questions such as information sharing and related privacy concerns, the effectiveness and burdens of regulation of critical infrastructure, the possibility of preemptive active defense, and the effects of the exposure of the NSA programs on cybersecurity. -- The International & National Security Law Practice Group hosted this panel on "Cybersecurity -- The Policy and Politics of a Leading National Security Threat" on Friday, November 15, during the 2013 National Lawyers Convention. -- Featuring: Mr. Steven G. Bradbury, Partner, Dechert LLP and former head, Office of Legal Counsel, United States Department of Justice; Mr. Joel F. Brenner, Principal, Joel Brenner LLC and former National Counterintelligence Executive, former Inspector General and Senior Counsel, National Security Agency; Ms. Michelle Richardson, Legislative Counsel, American Civil Liberties Union; Mr. Paul Rosenzweig, Red Branch Law and Consulting and former Deputy Assistant Secretary for Policy, U.S. Department of Homeland Security Principal; and Prof. John Choon Yoo, Emanuel S. Heller Professor of Law, University of California, Berkeley Boalt Hall School of Law. Moderator: Mr. Vincent J. Vitkowsky, Chairman, International & National Security Law Practice Group, the Federalist Society.

The government (federal, state, and local) offers a wide range of benefits to groups. Some benefits are monetary subsidies. Some consist of access to government property such as university classrooms and bulletin boards. Some of the most important benefits are income and property tax exemptions, which the Supreme Court has said are tantamount to subsidies. What sorts of speech-restrictive conditions may the government impose on such subsidies? May the government insist that benefited groups refrain from using the benefits for religious commentary, for electioneering and lobbying, for speaking about abortion, or for creating “indecent” or “disrespectful” art? May the government insist that benefited groups not discriminate in their choice of leaders or members? May the government insist that benefited groups affirmatively expressive certain views (such as opposition to prostitution)? -- This issue has divided the Court in a wide range of cases, such as Rust v. Sullivan, Rosenberger v. University of Virginia, NEA v. Finley, Christian Legal Society v. Martinez, and, most recently, USAID v. Alliance for Open Society International. It has also come up in the news, with the IRS’s investigation of Tea Party groups that apply for tax-exempt status – such investigations are closely tied to the statutory restrictions on electioneering and lobbying by tax-exempt groups. And the issue has in recent years sometimes inverted the usual partisan divides: in Rosenberger and Christian Legal Society, for instance, it has been the conservatives who have argued for free speech restriction even when government-provided benefits are involved, and the liberals who have argued that speakers who accept government benefits must also accept the restrictions imposed on those benefits. -- The Free Speech & Election Law Practice Group hosted this panel on "The First Amendment and Government Benefits" on Friday, November 15, during the 2013 National Lawyers Convention. -- Featuring: Prof. Lillian R. BeVier, David and Mary Harrison Distinguished Professor of Law Emeritus, University of Virginia School of Law; Prof. David D. Cole, Professor of Law, Georgetown University Law Center; Dr. John C. Eastman, Professor, Henry Salvatori Professor of Law and Community Service; Former Dean (2007-2010); Director, Center of Constitutional Jurisprudence, Chapman University School of Law; and Prof. Martin S. Lederman, Associate Professor of Law, Georgetown University Law Center. Moderator: Hon. Timothy M. Tymkovich, United States Court of Appeals, Tenth Circuit. Introduction: Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC.

On Friday, November 15, 2013, the Federalist Society hosted a discussion between Former United States Attorney General Michael Mukasey and Professor Jeremy A. Rabkin of George Mason University School of Law on "NSA Data Collection" at the 2013 National Lawyers Convention. Former Acting United States Attorney General George J. Terwilliger moderated.

In the aftermath of the recent economic crisis a remarkable political consensus developed that no financial firm in America should be immune from failure. Operationally, that consensus begins with hostility to providing government bailouts. The Dodd-Frank Act requires mandatory “living wills” for systemically important financial companies in addition to limiting the power of government officials to provide bailouts while granting the FDIC “orderly liquidation authority.” Other proposals have been offered to “bust up” the biggest banks or to require enhanced capital for the largest banks, which most likely would force them to downsize. -- Which of these steps will be effective? Which might have unpleasant side effects or even be counterproductive? Will government officials really stand back when confronted with the failure of a systemically important institution and risk “bad headlines,” or worse? Does TBTF put smaller financial institutions at a competitive disadvantage? What about the lack of due process in Dodd-Frank’s orderly liquidation authority? Is there a bankruptcy procedure that would be fairer and better suited to the liquidation of a large financial firm? How would the ability of the U.S. to be competitive in international finance be affected by some of these proposals? Our panel will address these and other important legal and policy issues that remain unanswered as the economy struggles to return to normal. -- The Financial Services & E-Commerce Practice Group hosted this panel on "Too Big To Fail - What Now?" on Friday, November 15, during the 2013 National Lawyers Convention. -- Featuring: Mr. Martin N. Baily, Bernard L. Schwartz Chair in Economic Policy Development, Brookings Institution; Mr. Timothy P. Carney, Visiting Fellow, Culture of Competition Project, American Enterprise Institute and Senior Political Columnist, Washington Examiner; Mr. Randall D. Guynn, Partner and Head of the Financial Institutions Group, Davis Polk & Wardwell LLP; and Mr. Robert E. Litan, Director of Research, Bloomberg Government, Bloomberg News. Moderator: Hon. Paul S. Atkins, Chief Executive Officer, Patomak Global Partners LLC and former Commissioner, Securities and Exchange Commission.

What are the First Amendment rights of press in the context of criminal investigations, and when national security is at issue? In the modern, digital age, is there even agreement on who qualifies as press? Should institutional or traditional press have greater rights over non-traditional media, including bloggers? What are the rights of media to publish material leaked from the government? Does the answer change if the media solicited the material or otherwise participated in the leak? What are the policy and legal considerations when it comes to a national media shield law? These and other questions will be addressed by our panel of experts. -- The Criminal Law & Procedure Practice Group hosted this panel on "Criminal Law Enforcement versus the Free Press" on Friday, November 15, during the 2013 National Lawyers Convention. -- Featuring: Mr. Adam Liptak, Supreme Court Correspondent, The New York Times; Prof. Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law, Hofstra University School of Law; Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, University of California, Los Angeles School of Law; and Hon. Michael Mukasey, Partner, Debevoise & Plimpton LLP and former United States Attorney General. Moderator: Hon. A. Raymond Randolph, United States Court of Appeals, District of Columbia Circuit. Introduction: Mr. John G. Malcolm, Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation.