Federalist Society Event Audio
Summary: The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. This podcast feed contains audio files of Federalist Society panel discussions, debates, addresses, and other events related to law and public policy. Additional audio and video can be found at www.federalistsociety.org/multimedia.
This panel was held on January 5, 2017 during the 19th Annual Faculty Conference in San Francisco, CA. -- Young Legal Scholars Paper Presentations -- Prof. Daniel Hemel (University of Chicago Law School) & Prof. Aaron Nielson (Brigham Young University School of Law): "Chevron Step One-and-a-Half"; Prof. Ryan Holte (Southern Illinois College of Law) & Prof. Christopher Seaman (Washington & Lee University School of Law): “Patent Injunctions on Appeal: An Empirical Study of the Federal Circuit’s Application of eBay”; Prof. Stephen Sachs (Duke Law School): “Pennoyer Was Right: Jurisdiction and General Law”; Prof. Christopher Walker (Ohio State University College of Law): “Legislating in the Shadows”; and Mr. Ilan Wurman (Winston & Strawn): “As-Applied Nondelegation”. Commenter: Prof. Richard Epstein, New York University School of Law, University of Chicago Law School. Moderator: Prof. Amy Coney Barrett, Notre Dame Law School.
This debate will discuss the proper role of the criminal and civil jury in modern America and as understood at the Founding. It was held on January 5, 2017 during the 19th Annual Faculty Conference in San Francisco, CA. -- Luncheon Debate: The Past and Future of the Criminal and Civil Jury -- Prof. Renee Lettow Lerner, George Washington University Law School and Prof. Suja Thomas, University of Illinois College of Law. Moderator: Prof. Joshua Kleinfeld, Northwestern University Pritzker School of Law.
This panel is about “corpus linguistics,” a technique that involves the use of computer searches of large collections of texts, or corpora, to determine meaning by reference to usage. It will discuss this technique’s potential value and limitations in informing the interpretation of different kinds of legal texts. -- This panel was held on January 5, 2017 during the 19th Annual Faculty Conference in San Francisco, CA. -- Welcome -- Hon. Lee Liberman Otis, The Federalist Society; AALS President Kellye Y. Testy, Dean, University of Washington School of Law; and Prof. Steven G. Calabresi, Northwestern University Pritzker School of Law [on the late Justice Antonin Scalia] -- Panel: Corpus Linguistics and Legal Interpretation -- Justice Thomas Lee, Utah Supreme Court; Mr. Stephen Mouritsen, Willkie Farr & Gallagher LLP; and Prof. Lawrence Solan, Brooklyn Law School. Moderator: Prof. Kurt T. Lash, University of Illinois College of Law.
In the last year, the Department of Justice lost three major cases against Fed Ex, Vascular Solutions and Warner Chilcott. Critics argue that each case was an example of over-enforcement by DOJ and overcriminalization by Congress. Proponents assert that it is a critical role of government to police and dissuade bad acts by private citizens and corporations. Are there too many federal agencies, giving prosecutors too much power over individuals and corporations? Is it good policy to prosecute individual employees of a corporation, as suggested in the Yates memorandum? Panelists, including lawyers in each of these three cases, will discuss the limits of federal criminal law and prosecutions. -- This panel was held on December 8, 2016, at the National Press Club in Washington, DC. -- Speakers: Cristina C. Arguedas, Partner, Arguedas, Cassman & Headley LLP; Leslie R. Caldwell, Assistant Attorney General for the Criminal Division, The United States Department of Justice; Ben Hatch, Partner, McGuireWoods; John Richter, Partner, King & Spalding; and Joseph Savage, Partner, Goodwin Proctor. Moderator: Stuart S. Taylor, Contributing Editor, National Journal.
The final Showcase panel examines Justice Scalia's transformation of five very important areas of Supreme Court doctrine. First, Justice Scalia transformed freedom of expression doctrine by entrenching a rule of viewpoint neutrality in place of different tests for different kinds of speech. In the five to four flag burning cases, Justice Scalia teamed up with Justices Brennan and Marshall to protect political speech. In the five to four decision in Citizens United he did the same thing with a different block of Justices. In another five to four opinion, Justice Scalia recognized constitutional protection for hate speech in RAV v. City of St. Paul. He joined a summary affirmance of a Seventh Circuit opinion by Judge Frank Easterbrook banning Catherine MacKinnon's anti-pornography laws. Second, Justice Scalia revolutionized the law of the religion clauses by largely burying the Lemon test and leading the Supreme Court in affirming the constitutionality of education vouchers for religious schools. Third, Justice Scalia revolutionized the Second Amendment by finding that it protected an individual's right to bear arms to defend himself, and he was very libertarian and protective of criminal defendants' rights in his criminal procedure jurisprudence. Fourth, Justice Scalia surprised some observers with his criminal law and procedure opinions on searches, the Confrontation Clause, and more. Finally, Justice Scalia played what some describe as a unique role in standing, including in his opinion in Lexmark International, Inc. v. Static Control Components, Inc. -- This panel was held on November 19, 2016, during the 2016 National Lawyers Convention in Washington, DC. -- Featuring: Mr. Floyd Abrams, Partner, Cahill Gordon & Reindel LLP; Hon. Michael W. McConnell, Richard and Frances Mallery Professor of Law, Director of the Constitutional Law Center, Stanford Law School; Senior Fellow, Hoover Institute; Hon. David R. Stras, Minnesota Supreme Court; Prof. Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School; former President, American Civil Liberties Union; Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law; and Mr. Edward Whelan, President, Ethics & Public Policy Center. Moderator: Hon. Diarmuid F. O’Scannlain, U.S. Court of Appeals, Ninth Circuit. Introduction: Hon. Lee Liberman Otis, Senior Vice President, The Federalist Society.
RESOLVED: Hostile Environment Law, On and Off Campus, Often Violates the First Amendment. -- The Ninth Annual Rosenkranz Debate was held on November 19, 2016, during The Federalist Society's 2016 National Lawyers Convention. -- Featuring: Prof. Deborah L. Rhode, Ernest W. McFarland Professor of Law; Director, Center on the Legal Profession; Director, Program in Law and Social Entrepreneurship, Stanford Law School and Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law. Moderator: Hon. Jennifer W. Elrod, U.S Court of Appeals, Fifth Circuit. Introduction: Mr. Eugene B. Meyer, President, The Federalist Society.
“Those who won our independence," Justice Brandeis wrote nearly a century ago, “eschewed silence coerced by law – the argument of force in its worst form." They believed that “the fitting remedy for evil counsels is good ones." Holding that belief, the Founding Generation added an amendment to the Constitution that expressly protects the freedom of speech. Today, however, public officials and private citizens facing what they believe to be “evil counsels" have sometimes responded not by offering good counsel but by invoking judicial processes. They use “the argument of force in its worst form" to silence opinions and speech that they disapprove of. -- Recent examples of this phenomenon include District Attorneys in Texas and Wisconsin who investigated and charged a sitting Governor, the whistleblower who exposed the practices of Planned Parenthood, and those whose political views diverged from those of the District Attorney. In two of those cases, investigators broke into homes and seized computers and documents. Significantly, in each case, the charges were dropped, although not without great angst and effort from the targeted. -- Mark Steyn has asserted that the process is, itself, the punishment. Steyn has been sued by a Penn State climatologist who famously claims that he was defamed when his writings were subjected to ridicule. Four years after the suit was filed, it is still in its preliminary stages. -- Most recently, a coterie of Attorneys General, aided by some senators, have declared their intention to stifle dissent on the subject of climate change. The Attorneys General of Massachusetts and the Virgin Islands sent subpoenas for documents to Exxon and a number of think tanks grounding their action on the contention that the dissenters are guilty of fraud. -- Are these actions appropriate uses of the judicial process? -- What, if anything, can be done to curtail the use of judicial processes to target speech? Are measures like Anti-SLAPP (Strategic Lawsuits against Public Participation) laws an appropriate response? Are they constitutional? What about a federal anti-SLAPP law? -- It is noteworthy that the worst abuses have taken place in state courts. Should Congress allow removal to federal court when a defendant makes a plausible case that the relief sought would violate rights under the First Amendment? -- Featuring: Prof. Arthur Hellman, Professor of Law, Sally Ann Semenko Endowed Chair, University of Pittsburgh School Law; Hon. Patrick Morrisey, Attorney General, West Virginia; Prof. Patrick A. Parenteau, Senior Counsel, Professor of Law, Vermont Law School; and Ms. Kimberley A. Strassel, Wall Street Journal Editorial Board Member, Author of The Intimidation Game: How the Left is Silencing Free Speech. Moderator: Hon. Steven M. Colloton, U.S. Court of Appeals, Eighth Circuit. Introduction: Mr. John J. Park, Jr., Of Counsel, Strickland Brockington Lewis LLP.
In his nearly 30 years on the Court, Justice Scalia left a profound mark on many areas of the law, including property rights. From his seminal decisions in Nollan v. California Coastal Commission and Lucas v. South Carolina Coastal Council to his frequent questioning at oral argument, Justice Scalia helped define the relationship between property and the Constitution. While his critics have suggested that Justice Scalia's property rights jurisprudence manifested a willingness to engage in “judicial activism," others have defended Scalia's approach as consistent with original understandings of the text of the Constitution. -- This panel will address Justice Scalia's influence on constitutional understandings of property rights. Professor Ely has written extensively on the historical understandings of property rights including the popular book, The Guardian of Every Other Right: A Constitutional History of Property Rights. Professor Somin's recently published The Grasping Hand: "Kelo V. City of New London" and the Limits of Eminent Domain explores one of the Court's most notorious departures from the protection of property rights. Professor Hills is a renowned expert on the law of land use planning and has taken a more charitable view of the power of government to control the use of property. He is a co-author of Land Use Controls: Cases and Materials. The panel will be moderated by Justice Allison Eid, from the Colorado Supreme Court. -- Featuring: Prof. John Echeverria, Professor of Law, Vermont Law School; Prof. James W. Ely, Jr., Milton R. Underwood Professor of Law Emeritus, Professor of History Emeritus, Lecturer in Law, Vanderbilt Law School; Prof. Roderick M. Hills, Jr., William T. Comfort, III Professor of Law, New York University School of Law; Hon. Adam P. Laxalt, Attorney General, Nevada; and Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University. Moderator: Hon. Allison H. Eid, Colorado Supreme Court. Introduction: Mr. Jeffrey Bossert Clark, Partner, Kirkland & Ellis LLP.
For all of his many contributions to modern American jurisprudence, no area of law bears Justice Scalia's imprint more than administrative law. Indeed, he dedicated his entire career to it: from teaching at Virginia and Chicago, to serving in the Ford Administration, to his regulatory policy and legal writings at the American Enterprise Institute, to his service on the D.C. Circuit and ultimately the Supreme Court, he left a body of work unmatched by any modern Supreme Court justice. Whether writing in defense of particular doctrine or in criticism of it, his opinions and essays fundamentally shaped modern administrative law. Yet even late in his career, he continued to reflect and rethink his views, especially on questions such as Chevron deference and Seminole Rock deference. This panel collects some of the nation's most significant administrative law minds, to reflect on his legacy and evolution. -- This panel was held on November 19, 2016, during the 2016 National Lawyers Convention in Washington, DC. -- Featuring: Hon. Ronald A. Cass, President, Cass & Associates, PC and Dean Emeritus, Boston University School of Law; Hon. Paul D. Clement, Partner, Kirkland & Ellis LLP; Prof. E. Donald Elliott, Senior of Counsel at Covington & Burling, Professor (Adjunct) of Law, Yale Law School; and Prof. Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center. Moderator: Mr. Eugene Scalia, Partner, Gibson Dunn & Crutcher. Introduction: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC.
Justice Scalia also greatly influenced the law of statutory interpretation. By eliminating legislative history as a source of statutory meaning, Justice Scalia forced Congress to say what it meant in the text of the laws it adopted rather than hiding the ball in a forest of contradictory legislative history. Justice Scalia construed statutes by looking at the plain meaning of their texts. He revived the canons of statutory interpretations, which had fallen into disuse since the Legal Realist movement of the 1930's and 1940's. He even wrote a treatise on statutory interpretation, which no justice other than Justice Joseph Story in the early Nineteenth Century had done. In the Warren Court era, statutory cases rarely quoted the text of the statutes being interpreted and focused instead exclusively on the legislative history. Justice Scalia helped change that. Courts today always begin with the text of statutes and rarely look at the legislative history. Justice Scalia also played the key role in developing the doctrine of Chevron deference in Administrative Law, moving the interpretation of ambiguous delegations of legislative power to elected executive branch officials and away from courts. While it is clear why Justice Scalia expressed these views, he was also expressing, in the last years, great concern about how Chevron deference was working in practice. -- This panel was held on November 19, 2016, during the 2016 National Lawyers Convention in Washington, DC. -- Featuring: Prof. William Eskridge, Jr., John A. Garver Professor of Jurisprudence, Yale Law School; Prof. Abbe R. Gluck, Professor of Law and Faculty Director, The Solomon Center for Health Law and Policy, Yale Law School; Prof. Gary S. Lawson, Philip S. Beck Professor of Law, Boston University School of Law; and Prof. Nicholas Quinn Rosenkranz, Professor of Law, Georgetown University Law Center. Moderator: Hon. Diane S. Sykes, U.S. Court of Appeals, Seventh 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 believes that it is most fitting to dedicate an annual lecture on limited government and the spirit of freedom to the memory of Barbara Olson. She had a deep commitment to the rule of law and understood well the relationship between respecting limits on government power and the preservation of freedom. And, significantly, Barbara Olson was an individual who never took freedom for granted in her own life, even in her final terrifying moments-her inspiring and energetic human spirit is a testament to what one can achieve in a world that places a premium on human freedom. Solicitor General Theodore B. Olson delivered the first lecture in November 2001. The lecture series continued in following years with other notable individuals. In 2016, Senator Ben Sasse of Nebraska delivered the lecture. -- This lecture was delivered on November 18, 2016, during the 2016 National Lawyers Convention in Washington, DC. -- Introduction by Mr. Eugene B. Meyer, President, The Federalist Society.
This panel will consider Justice Scalia's legacy in national security law, revisiting his opinions in major national security cases, including Ashcroft v. al-Kidd, Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush. It will also discuss the influence Justice Scalia's jurisprudence has exerted on national security law more broadly and his views on the role of the courts reviewing national security policy. -- This panel was held on November 18, 2016, during the 2016 National Lawyers Convention in Washington, DC. -- Featuring: Prof. Bradford R. Clark, William Cranch Research Professor of Law, The George Washington University Law School; Ms. Elizabeth Goitein, Co-Director, Liberty & National Security Program, Brennan Center for Justice; Mr. Adam Klein, Senior Fellow, Center for a New American Security; and Prof. Stephen I. Vladeck, Professor of Law, The University of Texas at Austin School of Law. Moderator: Hon. Jerry E. Smith, U.S. Court of Appeals, Fifth Circuit.
Has Originalism played a significant role in the Supreme Court's free speech jurisprudence? One scholar has concluded that even Justice Scalia used Originalism in only 30% of his 56 opinions on freedom of expression through the 2010 Term. -- Do landmark freedom of expression opinions square with the original understanding of the First Amendment? The Amendment's protections have been held to cover flag burning, cross burning, commercial advertising, campaign funding, virtual child pornography, violent video games and DVDs, expressive association, protests at military funerals and abortion clinics, false statements of fact, and nude dancing. The Supreme Court has also held that the First Amendment to some extent limits disciplinary measures in public schools, government employment actions, and conditions attached to government benefits. -- This panel will discuss how Originalism has been used in fashioning freedom of expression doctrine, and whether it should be used more (or less). -- This panel was held on November 18, 2016, during the 2016 National Lawyers Convention in Washington, DC. -- Featuring: Prof. David F. Forte, Garwood Visiting Professor, Princeton University; Hon. Michael W. McConnell, Richard and Frances Mallery Professor of Law, Director of the Constitutional Law Center; Stanford Law School, Senior Fellow, Hoover Institute; Prof. David M. Rabban, Dahr Jamail, Randall Hage Jamail and Robert Lee Jamail Regents Chair; University Distinguished Teaching Professor, University of Texas at Austin School of Law; and Prof. Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School; former President, American Civil Liberties Union. Moderator: Hon. Carlos T. Bea, U.S. Court of Appeals, Ninth Circuit. Introduction: Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC.
Justice Scalia first entered public service in 1971, when he was appointed by President Richard Nixon to serve as the General Counsel for the Office of Telecommunications Policy (“OTP") in the White House. From that day in 1971 through his dissent in the Brand X case regarding broadband classification, Justice Scalia brought a deep understanding of technology policy to his career on the Supreme Court. And of course, Justice Scalia was never one to mince words. “It would be gross understatement to say that the Telecommunications Act of 1996 is not a model of clarity. It is in many important respects a model of ambiguity or indeed even self-contradiction," he observed in AT&T Corp. v. Iowa Util. Bd. The Telecommunications & Electronic Media Practice Group has brought together a panel of experts to discuss Justice Scalia's legacy on telecommunications and media issues and discuss current litigation through the lens of his jurisprudence. -- This panel was held on November 18, 2016, during the 2016 National Lawyers Convention in Washington, DC. -- Featuring: Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law, Director, Classical Liberal Institute, New York University School of Law; Mr. Henry Goldberg, Goldberg, Godles, Wiener and Wright LLP; and Mr. Richard E. Wiley, Chairman Emeritus, Wiley Rein LLP. Moderator: Hon. Don Willett, Texas Supreme Court.
The Consumer Financial Protection Bureau (CFPB), in its more than five year existence, has ordered consumer financial service providers to return more than a billion dollars in monetary relief to consumers it believes were victims of practices that it deems unfair, deceptive, abusive, or otherwise violative of its view of regulations and laws. The CFPB has ordered monetary relief for discriminatory lending and proposed regulations that would shutter many low-income lending locations and encourage class actions lawsuits. Proponents of the Bureau point to fines collected and bad practices addressed. Critics assert that Bureau activities actually harm consumers rather than help them. This panel will assess whether the CFPB has been of net benefit or net harm to the people it was created to protect. -- This panel was held on November 18, 2016, during the 2016 National Lawyers Convention in Washington, DC. -- Featuring: Mr. John A. Allison, Chairman, Executive Advisory Council, Center for Monetary and Financial Alternatives, Cato Institute; Mr. Leonard N. Chanin, Of Counsel, Morrison & Foerster LLP; Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC; and Prof. Todd J. Zywicki, Foundation Professor of Law and Executive Director, Law & Economics Center, Antonin Scalia School of Law, George Mason University. Moderator: Hon. Edith Jones, U.S. Court of Appeals, Fifth Circuit. Introduction: Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association.