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.
October 4th will mark the first day of oral arguments for the 2016 Supreme Court term. The Court's docket already includes major cases involving insider trading, the Fourth Amendment, the Sixth Amendment, the Eighth Amendment, criminal law, IP and patent law, the Free Exercise and Equal Protection Clauses, the Fair Housing Act, and voting rights. -- The full list of cases granted thus far for the upcoming term can be viewed on SCOTUSblog here. The panelists will also discuss the current composition and the future of the Court. -- This event was held on September 27, 2016, at the National Press Club in Washington, DC. -- Featuring: Mr. Thomas C. Goldstein, Goldstein & Russell PC; Prof. Nicholas Quinn Rosenkranz, Georgetown Law Center; Ms. Carrie Severino, Judicial Crisis Network; and Hon. George J. Terwilliger, McGuireWoods LLP. Moderator: Mr. Robert Barnes, The Washington Post.
For over thirty years, the seminal Supreme Court decision in Chevron v. NRDC has provided the principles used to determine the extent to which a court reviewing agency action should defer to the agency’s interpretation of its own rules as well as fill in “blanks” in the text. For much of his career on the Supreme Court, Justice Scalia (and the Court) deferred to this decision. However, late in his tenure, Justice Scalia had begun to reconsider Chevron deference. For the Chevron example, in his opinions in King v. Burwell andUtility Air Regulatory Group v. EPA, Justice Scalia criticized agencies’ assertions of unprecedented power. This panel will explore how judicial deference to agency decision-making has evolved since and whether it is time to revisit the doctrine of “Chevron deference.” How might Justice Scalia have come down on US v. Texas, net neutrality, or the EPA’s “Clean Power Plan”? Might his views have continued to evolve if he had remained on the Court? And what is the future of Chevron deference with the Roberts Court? Is a new balance between courts and agencies needed? -- This panel took place on September 17, 2016, during the Second Annual Texas Chapters Conference in Austin, Texas. The theme for the conference was "The Separation of Powers in the Administrative State". -- Welcome by Hon. Ken Paxton, Texas Attorney General. Introduction by Mr. Prerak Shah, Senior Counsel to the Attorney General. Panel One: Prof. Aditya Bamzai, Associate Professor of Law, University of Virginia School of Law; Prof. Ron Beal, Baylor University Law School; Hon. Charles J. Cooper, Partner, Cooper & Kirk, PLLC and former Assistant U.S. Attorney General for the Office of Legal Counsel; and Prof. Aaron Nielson, Brigham Young University Law School. Moderator: Hon. Edith Jones, U.S. Court of Appeals, Fifth Circuit. Introduction: Ms. Karen Lugo, Director, Center for Tenth Amendment Action, Texas Public Policy Foundation.
The tension between economic liberty and the state’s power to regulate economic activity has long served as a source for landmark cases and controversies. Post-New Deal jurisprudence opened the floodgates to economic regulation. In Texas, entrepreneurs who have developed cutting-edge innovations have found themselves tangled in regulatory red tape. But one’s right to engage in economic activity free from unreasonable government interference has always been understood as being in lockstep with Texas’s independent spirit. However, critics maintain that consumer protection and maintaining a level playing field are also important goals in crafting their regulatory policies. This tension has given rise to cases and legislative battles in the Lone Star State that have garnered national attention. Will Texas continue to lead the way for entrepreneurs and innovators, and how will the regulatory state affect this trajectory? What is the proper balance between innovation and regulation? -- This panel took place on September 17, 2016, during the Second Annual Texas Chapters Conference in Austin, Texas. The theme for the conference was "The Separation of Powers in the Administrative State". -- Featuring: Mr. Arif Panju, Institute for Justice; Mr. Tim Sandefur, Goldwater Institute and author, The Right to Earn a Living; Mr. Prerak Shah, Office of Texas Attorney General; and Mr. Russell Withers, General Counsel, Texas Conservative Coalition Research Institute. Moderator: Hon. Don Willett, Texas Supreme Court. Introduction: Ms. Diane Kozub, Former Assistant United States Attorney at United States Attorney's Office.
A growing number of Texas municipalities are passing so-called "nanny state" restrictions and regulations that may interfere with Texans’ personal liberties, property rights, and livelihood. Advocates of these types of regulations defend them by citing a theory of “local control,” which posits that government works best when it is closest to the people. Our republic is founded upon the notion that all powers not granted to the federal government are reserved to the states or to the people. Some say the notion of local control being anything other than a specific grant of authority from the state government is a misunderstanding of federalism. This could lead to "grassroots tyranny" in which individual liberties of Texans are encroached by local government. Should the Legislature enforce strict limits on municipalities or should it defer to the will of a geographical majority? How can the Legislature reassert its primacy as the state’s lawgiver and defender of individual liberty if existing statutes are overlooked by the courts? In short, this panel will discuss a theory of local control and determine whether the Texas Legislature has abdicated too much lawmaking authority to political subdivisions throughout the state. -- This panel took place on September 17, 2016, during the Second Annual Texas Chapters Conference in Austin, Texas. The theme for the conference was "The Separation of Powers in the Administrative State". -- Featuring: Hon. Phil King, Texas House of Representatives, District 61; Dean Andrew P. Morriss, Dean and Anthony G. Buzbee Dean’s Endowed Chair, Texas A&M University School of Law; and Hon. Don Zimmerman, Council Member, District 6, Austin. Moderator: Hon. Michael Massengale, First Court of Appeals, Texas. Introduction: Mr. Roger Borgelt, Principal and CEO, Borgelt Law. Introduction: Mr. Leonard A. Leo, Executive Vice President, The Federalist Society.
Senator Ted Cruz (R-TX) gave the keynote address at our Second Annual Texas Chapters Conference. He discussed the life and legacy of Justice Antonin Scalia before turning his attention to Constitution Day and answering questions from attendees. -- This address took place on September 17, 2016, during the Second Annual Texas Chapters Conference in Austin, Texas. The theme for the conference was "The Separation of Powers in the Administrative State". -- Featuring: Hon. Ted Cruz, U.S. Senator, Texas. Introduction: Mr. Arthur Gollwitzer III, Partner, Michael, Best & Friedrich LLP.
On September 12, 2016, the Federalist Society at Berkeley Law hosted Heather Mac Donald and a panel of law enforcement professionals for a discussion on officer safety and community policing. The panelists reflected on their personal experiences in law enforcement and weighed in on the current crisis in police-community relations. -- Featuring: Kenton Rainey, Chief, BART Police Department; Scott Erickson, Founder, Americans in Support of Law Enforcement; Daryl Jackson, District Attorney Inspector; Harry Stern, Managing Principal, Rains Lucia Stern, PC; and Heather Mac Donald, Author, "The War on Cops". Moderator: Kevin Walker, Berkeley Law.
In August 2015 the President announced the Clean Power Plan, characterized by the Environmental Protection Agency’s website as “a historic and important step in reducing carbon pollution from power plants that takes real action on climate change.” Some six months later, on February 9, 2016, the U.S. Supreme Court stayed implementation of the Plan, pending further judicial review. Later this month, the D.C. Circuit Court of Appeals will hear en banc argument in that case, West Virginia et al. v. EPA. The suing states and power companies assert that the EPA has overstepped its authority in the Clean Air Act, and have acted beyond the bounds of the U.S. Constitution. Our experts will debate the arguments made in the various briefs and expected at oral argument. -- Speakers: David Bookbinder, Founder, Element VI Consulting; David Doniger, Policy Director, Climate & Clean Air Program, Natural Resources Defense Council; Hon. Scott Pruitt, Attorney General, Oklahoma; and David B. Rivkin, Jr., Partner, Baker & Hostetler LLP. Moderator: Adam J. White, Research Fellow, The Hoover Institution.
On July 22, 2016, 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.
Three former SEC Commissioners reflect on their tenures at the SEC and also provide their perspectives on several of today’s most important financial regulatory issues and questions. -- This panel was sponsored by the Federalist Society's Corporations, Securities & Antitrust Practice Group on June 1, 2016, at the National Press Club in Washington, DC. -- Featuring: Hon. Paul S. Atkins, Chief Executive, Patomak Global Partners, LLC (SEC Commissioner 2002-2008); Hon. Annette L. Nazareth, Partner, Davis Polk & Wardwell LLP (SEC Commissioner 2005-2008); and Hon. Troy A. Paredes, Founder, Paredes Strategies LLC (SEC Commissioner 2008-2013). Moderator: Jeffrey T. Dinwoodie, Associate, Davis Polk & Wardwell LLP. Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society.
United States Senator Dan Sullivan of Alaska delivered this address during the Fourth Annual Executive Branch Review Conference on May 17, 2016. Introduction by Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society.
The slogan "Personnel is policy" reflects the principle that hiring the right people is one of the most important things that employers do. An employer with an innovative approach to bringing on board the best people has a critical edge over her competition. But the rise of interpretations of federal employment law that basically give the Equal Employment Opportunity Commission ("EEOC") veto power over nearly any employment decision means that many creative ideas about hiring will be stillborn. Notably, the EEOC interprets federal civil rights law not just to prohibit employers from discriminating on the basis of race, sex, color, national origin, and age, but also on practices that have a "disparate impact" on members of such groups even if the practice is not actually discriminatory. Because virtually any job qualification has a disparate impact on members of some such group, this interpretation confers extraordinary powers on the EEOC. Disparate impact is widely believed to have led many employers to abandon paper and pencil tests of cognitive ability. More recently, employers have been discouraged from using the Internet to recruit because racial minorities were thought to lack access to the internet relative to members of other racial and ethnic groups. Further, the EEOC also has put pressure on employers to abandon the use of credit and criminal background checks because of their alleged disparate impact on racial minorities. This panel will discuss how the metastasis of disparate impact has strangled innovative hiring strategies in these areas as well as others and other perverse consequences of disparate impact's growth. -- This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC. -- Featuring: Hon. Gail Heriot, United States Commission on Civil Rights, and Professor of Law, University of San Diego School of Law; Mr. James Scanlan, Attorney at Law; and Mr. James Sharf, Sharf & Associates. Moderator: Mr. John Irving, Of Counsel, Kirkland & Ellis.
As Congress debates controversial patent legislation that some say will undermine patent rights, has the U.S. Supreme Court been steadily eroding the scope and enforceability of patents for the past decade? The Supreme Court has made it easier to invalidate patents because an invention is “obvious,” not specific enough, or an “abstract idea.” The Court has also made it more difficult for patent owners to stop or “enjoin” ongoing infringement of their rights and riskier to assert their rights in court. Is the Supreme Court striking the right balance or is it undermining an important property right? -- This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC. -- Featuring: Prof. John F. Duffy, Samuel H. McCoy II Professor of Law, University of Virginia School of Law; Mr. Michael R. Huston, Gibson, Dunn & Crutcher; Prof. Adam Mossoff, Professor of Law and Co-Director of Academic Programs and Senior Scholar, Center for the Protection of Intellectual Property, Antonin Scalia Law School, George Mason University; and Mr. Jeff Wall, Sullivan & Cromwell. Moderator: Hon. Randall R. Rader, The George Washington University.
American technological innovation has given birth to entire new segments of economic activity. The sharing economy alone has given rise to a new class of entrepreneurs, where web platforms enable companies like AirBnB and Uber to allow the peer-to-peer sharing of houses, cars ... even lawn mowers. Connectivity and big data is driving the Internet of Things revolution, where ideas once only seen in science fiction movies (think self-driving cars) may soon become an everyday reality. And all of these innovations have been made possible thanks to the Internet, which, until recently, has benefitted from a light regulatory touch. -- Unfortunately, federal and state agencies have not always welcomed innovation and disruption, even when it enhances overall consumer welfare. What can be done to embrace innovation and American leadership? What role should the state and federal governments play as new economies continue to take shape? What role should the FTC play? How will the FCC's current Net Neutrality rules impact growth? These and other issues will be explored. -- This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC. -- Featuring: Mr. Krishna Juvvadi, Senior Counsel, Uber Technologies, Inc.; Mr. Clark Neily, Senior Attorney, Institute for Justice; Prof. John O'Neill, Director, School of Hospitality Management, Penn State; and Mr. Peter Pitsch, Associate General Counsel and Executive Director of Communications Policy, Intel Corporation. Moderator: Hon. Maureen Ohlhausen, Commissioner, Federal Trade Commission.
United States Senator Deb Fischer of Nebraska delivered this address at the Fourth Annual Executive Branch Review Conference on May 17, 2016. Intoductions by Hon. Maureen Ohlhausen, Commissioner, Federal Trade Commission and Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society.
What regulatory approach best fosters commercial innovation? Traditionally, it had been thought that ex post, decentralized approaches that exploit private attorney generals like the common law were best, but many business interests today advocate ex ante, centralized, public sector approaches like federal statutes or federal rulemakings that preempt the common law. This panel will explore which attributes of regulation best serve innovation: ex ante or ex post? Decentralized or centralized? Public sector or private sector? -- This panel was presented during the Fourth Annual Executive Branch Review Conference on May 17, 2016, at the Mayflower Hotel in Washington, DC. -- Featuring: Prof. Brian T. Fitzpatrick, Professor of Law, Vanderbilt University Law School; Prof. Brian Galle, Georgetown University Law Center; Prof. Michael S. Greve, Professor of Law, Antonin Scalia Law School, George Mason University; and Mr. Adam Thierer, Senior Research Fellow, Mercatus Center, George Mason University. Moderator: Hon. Rachel Brand, Chairman, Litigation Practice Group.