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2008 National Lawyers Convention

The People and the Judiciary

November 20 — 22, 2008

American courts, on both the state and federal level, are playing an increasingly visible role in deciding issues of enormous importance.  Using the theme of this year’s Convention, The People and the Judiciary, the Federalist Society will examine the role of the “least dangerous branch.”  How, and by whom, should the judges who populate these various courts be selected?  And for what period of time, and under what conditions, should judges be retained?  Should their decisions be subject to review, revision and even reversal by the populace, or perhaps by the peoples’ elected representatives?  And how can standards of judicial conduct be determined, monitored, and enforced, without impinging on judicial independence?  Our four plenary panel sessions and various addresses will answer these and other questions.

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9:00 a.m. - 9:30 a.m.
Welcome and Opening Address by Senator Mitch McConnell

2008 National Lawyers Convention

Topics: Constitution • Federalism • Federalist Society • Separation of Powers • Federalism & Separation of Powers
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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United States Senator Mitch McConnell delivered the Opening Address at the 2008 National Lawyers Convention on Thursday, November 20, 2008.

  • Hon. Mitch McConnell, United States Senator, Kentucky
  • Introduction: Mr. Leonard Leo, Executive Vice President, The Federalist Society

Speakers

9:30 a.m. - 11:15 a.m.
Showcase Panel I: Judicial Selection: Federal and State

2008 National Lawyers Convention

Topics: Constitution • Federal Courts • Separation of Powers • State Courts • Supreme Court • Federalism & Separation of Powers
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Is the process we use for selecting judges broken at both the federal and the state level?  Acrimony in federal judicial selection intensified with the Robert Bork and Clarence Thomas Hearings, escalated when Republicans delayed some Clinton nominees, and then the confirmation process fell apart completely under President George W. Bush as Senate Democrats refused to hold hearings on nominees for years or filibustered them on the floor of the Senate.  This panel will examine what, if anything, can be done to repair the federal judicial appointment process.  It will also consider the longstanding debate at the state level over election versus appointment of state judges.  Is merit selection an answer, or would it surrender the last vestiges of democratic control over the judiciary to a special interest trial lawyer elite? Audio and video recorded on November 20, 2008.

  • Prof. Meryl J. Chertoff, Sandra Day O’Connor Project on the State of the Judiciary, Georgetown University Law Center
  • Prof. William K. Kelley, Notre Dame Law School
  • Prof. William P. Marshall, University of North Carolina School of Law
  • Hon. Harold F. See, Jr., Supreme Court of Alabama
  • Moderator:  Hon. Diane S. Sykes, United States Court of Appeals, Seventh Circuit

Speakers

11:30 a.m. - 12:00 p.m.
Address by Secretary Michael Chertoff

2008 National Lawyers Convention

Topics: Constitution • Security & Privacy • Separation of Powers • Federalism & Separation of Powers • International & National Security Law
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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United States Secretary of Homeland Security Michael Chertoff delivered this address at the 2008 National Lawyers Convention on Thursday, November 20, 2008.

  • Hon. Michael Chertoff, Secretary, United States Department of Homeland Security
  • Introduction: Hon. Lee Liberman Otis, Senior Vice President and Faculty Director, The Federalist Society

Speakers

12:00 p.m. - 2:00 p.m.
Religious Liberties: The International Religious Freedom Act

2008 National Lawyers Convention

Topics: Foreign Policy • International Law & Trade • Religious Liberty • International & National Security Law • Religious Liberties
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Ten years ago the Congress passed the International Religious Freedom Act. The Act made the promotion of religious freedom an integral part of U.S. foreign policy and set in place various mechanisms, such as an ambassador at the State Department and an independent commission, to ensure that this took place. The panel will examine the situation ten years after the passage of the Act. Is the Act working? How could the Act, or, more broadly, the promotion of religious freedom be improved in US foreign policy? On the other hand, should this be an element of US foreign policy? Was the passage of the Act a bad idea?  Are there better ways to promote international religious freedom?

  • Prof. Thomas F. Farr, Georgetown University
  • Prof. Richard W. Garnett, IV, Notre Dame Law School
  • Dr. T. Jeremy Gunn, American Civil Liberties Union
  • Moderator: Mr. William L. Saunders, Family Research Council

 

Speakers

12:00 p.m. - 2:00 p.m.
Intellectual Property: Specialized Courts: Lessons from the Federal Circuit

2008 National Lawyers Convention

Topics: Federal Courts • Intellectual Property
Chinese Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Proposals for specialized courts are perennial favorites. From time to time, lawyers and scholars become convinced that judging could be improved in a particular area of law if the judges hearing cases had greater specialized experience. This panel considers what the most prominent specialized court, the Federal Circuit, teaches about the virtues and shortcomings of specialized courts generally.

The argument for specialized courts carried the day in patent law when Congress created the Federal Circuit.  The Federal Circuit was supposed to reduce circuit splits and forum shopping in patent cases. Some argue, however, that splits now exist within the Federal Circuit’s own fractured jurisprudence. The Federal Circuit’s recent track record of Supreme Court reversals also raises questions about its efficacy. Nevertheless, some propose even greater specialization in patent law through the use of technical judges and juries in patent cases.

This panel will consider what the Federal Circuit tells us about specialized courts generally. Does the Federal Circuit’s specialization improve the law of patents? Does its track record justify even more specialization? Or does it call the case for specialization into doubt?

  • Prof. F. Scott Kieff, Washington University School of Law
  • Mr. Don Martens, Knobbe Martens Olson & Bear LLP
  • Prof. Arti K. Rai, Duke University School of Law
  • Moderator: Hon. Randall R. Rader, United States Court of Appeals, Federal Circuit

Speakers

12:00 p.m. - 2:00 p.m.
Criminal Law: The Prosecution of Public Corruption

2008 National Lawyers Convention

Topics: Criminal Law & Procedure • Professional Responsibility & Legal Education • Separation of Powers • Federalism & Separation of Powers
East Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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The United States Department of Justice has traditionally ranked the investigation and prosecution of public corruption as one of its highest priorities. Arguably, the nation’s commitment to the rule of law is best exemplified through the unbiased prosecution of public officials who misuse their positions of trust and governmental authority for illegitimate private gain. However, there appears to be a recent effort by the Justice Department to increase its focus on public corruption matters. Since the terror attacks of September 11, 2001, the Justice Department has averaged more than 1,000 public corruption prosecutions of state and federal officials each year, charging nearly 7,000 individuals in total between 2001 and 2006. Notably, for example, are recent cases involving U.S. Congressman Randy “Duke” Cunningham, former Governors George Ryan and Don Siegelman, and former lobbyist Jack Abramoff. These high-profile investigations, among others, have raised a number of pertinent and pressing Constitutional, legal and policy issues. Is the Justice Department’s concentration on public corruption a wise and prudent use of its law enforcement resources? By prosecuting elected political figures, does the Justice Department run the risk of being accused of misconduct through politicization of criminal law? What should be the extent of the federal government’s role in prosecuting corruption on a state level?  Under what circumstances can the prosecution of elected officials undermine the separation of powers and traditional notions of federalism?

  • Dr. John S. Baker, Jr., Louisiana State University Paul M. Hebert Law Center
  • Hon. Alice Fisher, Latham & Watkins, and Former Assistant Attorney General, Criminal Division, United States Department of Justice
  • Mr. Daniel E. Reidy, Jones Day
  • Mr. Robert Trout, Trout Cacheris, PLLC
  • Moderator: Hon. Merrick Garland, United States Court of Appeals, District of Columbia Circuit

Speakers

2:15 p.m. - 3:30 p.m.
Professional Responsibility: The Disciplining of Federal Judges

2008 National Lawyers Convention

Topics: Federal Courts • Professional Responsibility & Legal Education • Separation of Powers • Federalism & Separation of Powers
East & State Rooms
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Suddenly, the subject of federal judicial ethics is making news. At least four federal judges are under investigation for a wide spectrum of alleged ethical transgressions, including bankruptcy fraud and sexual harassment. The federal judiciary has just adopted the first-ever set of nationally binding rules for dealing with complaints of judicial misconduct. And controversy continues over conflict problems caused by judges’ ownership of stock.

These developments raise fundamental questions about the regulation of ethics in the federal judiciary. Among them: do the current arrangements – which date back only to 1980 – strike the right balance between independence and accountability? How much transparency should there be in a system where business is almost always carried on behind closed doors? What kind of discipline should be administered (and by whom) when judges engage in misconduct that is serious, but not serious enough to warrant impeachment?

  • Prof. Charles Gardner Geyh, Indiana University School of Law—Bloomington
  • Prof. Arthur D. Hellman, University of Pittsburgh School of Law
  • Hon. Dennis G. Jacobs, United States Court of Appeals, Second Circuit
  • Moderator: Mr. David Reinhard, formerly of The Oregonian

Speakers

2:15 p.m. - 3:30 p.m.
Environmental Law: The Policy Implications of the Reaction to Climate Change

2008 National Lawyers Convention

Topics: Administrative Law & Regulation • Environmental & Energy Law • Federalism • Federalism & Separation of Powers • Environmental Law & Property Rights
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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The next presidential administration will undoubtedly usher in new policies concerning climate change and global warming. Both Sen. John McCain and Sen. Barack Obama have pledged to combat climate change and have suggested that they will be more aggressive in shaping policies to this end. The EPA has issued a sweeping Advance Notice of Proposed Rulemaking on the expanded regulation of greenhouse gas emissions. This panel seeks to analyze the benefits and pitfalls of several aspects of climate change policy. First, the panelists will address whether there ought to be federal preemption of state laws or if the states are more effective and efficient in implementing their own regulations. Second, the panel will evaluate the effects of international treaties, such as the Kyoto Protocol. Finally, the panel will investigate proposed carbon tax, cap & trade programs, and the EPA ANPR.

  • Prof. Jonathan Adler, Case Western Reserve University School of Law
  • Prof. John C. Dernbach, Widener University Law School
  • Mr. Steven F. Hayward, American Enterprise Institute
  • Prof. Jeremy A. Rabkin, George Mason University School of Law
  • Moderator: Hon. Jeffrey S. Sutton, United States Court of Appeals, Sixth Circuit

Speakers

3:45 p.m. - 5:15 p.m.
International & National Security Law: International Law & the Separation of Powers

2008 National Lawyers Convention

Topics: Constitution • Federal Courts • Federalism • International Law & Trade • Supreme Court • Federalism & Separation of Powers • International & National Security Law
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Just as the modern state is the administrative state, so global governance will inevitably devolve into administrative governance. Because the effective authority of government today is located in the nation state, global administrative governance will in turn depend on delegation of national authority to international agencies or tribunals. Thus, national delegation to international entities will be the defining intersection between national and global constitutionalism.

Such delegations raise peculiarly sensitive issues of United States constitutional law. As a doctrinal matter, how can officials appointed by governments other than the United States exercise authority that binds United States citizens? Such delegations may thus raise questions under both the Appointments Clause and Article III. These issues were left open in the recent Medellín case. As a matter of political economy, such delegations also raise particular dangers of interest group capture, because international agencies are not transparent to the ordinary citizen. Moreover, multilateral institutions create high agency costs, because no single principal is in control.

  • Prof. John O. McGinnis, Northwestern University School of Law
  • Hon. Randy Moss, WillmerHale
  • Mr. David R. Rivkin, Jr., Baker & Hostetler LLP
  • Prof. John C. Yoo, University of California, Berkeley, Boalt Hall School of Law
  • Moderator: Mr. François-Henri Briard, Delaporte, Briard & Trichet and President, The Federalist Society, Paris Chapter

Speakers

3:45 p.m. - 5:15 p.m.
Civil Rights: The Heller Case

2008 National Lawyers Convention

Topics: Civil Rights • Constitution • Federal Courts • Second Amendment • Supreme Court
East & State Rooms
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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For the first time in our history the federal courts have found that a gun control statute violates the Second Amendment. The challenged statute forbade almost all residents of the District of Columbia from possessing a handgun, and required that all firearms be kept in an inoperable condition. This statute had been in place for over 30 years, and was the most restrictive gun-control law in the country. In United States v. Heller, by a vote of 5-4, the Court held that both the handgun ban and the safe-storage regulation violated the Second Amendment, which protects at least the right to keep a handgun in one’s own home and to make it operable for purposes of immediate self defense. This panel will evaluate the decision and consider its practical and jurisprudential implications.

  • Prof. Nelson R. Lund, George Mason University School of Law
  • Mr. Clark Neily, Institute for Justice
  • Prof. Lucas A. Powe, Jr., University of Texas School of Law
  • Prof. Adam Winkler, University of California, Los Angeles School of Law
  • Moderator: Hon. Diarmuid F. O’Scannlain, United States Court of Appeals, Ninth Circuit

Speakers

7:00 p.m. - 10:00 p.m.
Lawyers Convention Annual Dinner Address by U.S. Attorney General Michael B. Mukasey

2008 National Lawyers Convention

Topics: Constitution • Federalism • Separation of Powers • Federalism & Separation of Powers
Marriott Wardman Park
2660 Woodley Road, NW
Washington, DC 20008

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United States Attorney General Michael Mukasey delivered this address during the Annual Dinner on Thursday, November 20, as part of the 2008 National Lawyers Convention.

  • Hon. Michael B. Mukasey, United States Attorney General
  • Introduction: Hon. Theodore B. Olson, Gibson Dunn & Crutcher and former U.S. Solicitor General

Speakers

Event Transcript

Thank you for that introduction and for the opportunity to address this group. I have long had a deep respect for the Federalist Society and for its principles, and so I feel privileged to be here tonight.

For over 25 years, the members of this Society have committed themselves to vigorous and open debate about the pressing legal issues of our day and how they are to be resolved under the constant and durable provisions of our Constitution. The Federalist Society is committed to taking the Constitution seriously and understanding it to be a legal document, rather than an empty vessel to be filled by the policy preferences of those who happen to be wielding the pen at any given moment. On this evening, which I was told might be somber or sober, but which apparently turns out to be neither, I want to applaud your contributions to the Nation’s legal culture, and your efforts, particularly over the past eight years, to elevate the discourse surrounding the most important legal and policy issues facing our Nation.

It is my privilege to be here tonight with such distinguished guests, including members of the Supreme Court and the judiciary. There are also dozens of lawyers here who have served their country during this Administration, some of whom have now returned to the private sector and some of whom I have had the pleasure of working with during my tenure. There are likely others in attendance who will have the opportunity to serve in the new administration. All of which is a testament to those who founded this society and who have a great deal to be proud of. The principles of the Society you founded have inspired a generation of lawyers, and, as evidenced by tonight's attendance, are now inspiring the next generation.

As we near the end of this Administration, and we approach the first transition that our government has seen since the attacks of September 11th 2001, I would like to focus on the successes of this Administration that relate to matters that concern this Society, the legacy that will remain when this Administration leaves office, and on a matter relating to our national security that I think should continue to receive the attention of this Society.

Perhaps of most obvious interest to the members of the Federalist Society are the judges and justices whom the President has appointed to the federal bench. As the President recently explained to the Cincinnati chapter of this Society, he has sought out, as he put it, “judges who would faithfully interpret the Constitution – and not use the courts to invent laws or dictate social policy.” With the help of many in this room, the President has succeeded in this effort and appointed many well-qualified and accomplished judges who understand their role in interpreting—not writing—the laws.

Most notably, the President has appointed two members of the Supreme Court, Chief Justice John Roberts and Justice Samuel Alito. These men are no strangers to the people in this room—indeed, they both spoke to this Society last year. Both of these remarkably accomplished justices will continue to serve the Nation for many years to come, and we are grateful not only for their service, but also for their approach to the difficult questions of constitutional law and statutory interpretation that the Court faces each term. The President is rightfully proud of his selection of both of these men, and the Federalist Society should be proud of the role it played in supporting their nominations.

The President also has nominated – and the Senate has confirmed – many other well-qualified judges throughout the Federal courts. Unfortunately, still other good and well-qualified people were denied the same opportunity. We have seen the nominations of skilled, experienced, and well-respected candidates delayed or frustrated through procedural tactics. Quite frequently, it has been hard for these nominees to receive a vote in the Senate or even a hearing before the Judiciary Committee. For those who never received a vote, or even a hearing, I offer my profound regret—you deserved better.

Tonight, however, we should take note of our successes. Indeed, this Administration’s judicial legacy includes 61 judges appointed to the courts of appeals and 261 judges appointed to the district courts. The President and the members of his Administration will leave office in January, but these good judges will remain in place, many for decades to come.

The Federalist Society should be proud of the role it played in supporting these judges, but it also should be proud of the basis on which it did so. As the members of this Society recognize, the core meaning of judicial independence is independence from the political pressures and fashions of the moment. Otherwise, judges become simply politicians who are independent only in the sense that they have life tenure and so are not subject to the discipline of the political process—namely, elections. Although judges are appointed through a political process, once they take the oath, they are confined to exercising a power that is, under Article III, judicial only. Which is to say, one that should involve a faithful, not a fanciful, reading of the laws and the Constitution.

I want to turn to another subject, which I have taken from Day One to be my most solemn responsibility as Attorney General. That is ensuring that we put into place the institutions we need to keep our country safe from the continuing threat posed by Al Qaeda and other international terrorists.

On September 11th, 2001, nineteen terrorists inflicted the most catastrophic attack on our homeland since Pearl Harbor. What made that attack so devastating was not simply the toll inflicted upon our country, but the idea that nineteen lightly armed terrorists could murder nearly 3,000 Americans. The reality of such asymmetric warfare required us to dramatically reconsider how we should confront the threat of international terrorism.

When the terrorists attacked the World Trade Center in 1993, when Al Qaeda attacked the U.S.S. Cole in Yemen and our embassies in Kenya and Tanzania, the United States deployed the FBI to the scene to collect evidence, pursue leads and; ultimately, indict and prosecute at least some of those responsible.

Following the September 11th attacks, however, it no longer seemed prudent to treat international terrorism solely as a criminal matter where suspects are pursued and prosecuted only after they have perpetrated a crime. Indeed, at the time of the September 11th attacks, Osama bin Laden was already under criminal indictment for his role in the embassy bombings. Instead, the United States recognized the attack of September 11th to be what it was: an act of war -- a war that had been declared years earlier by enemies of the United States, and indeed of civilized people everywhere. In response, this Nation, under our President, committed to a comprehensive offensive strategy against the terrorists abroad using every resource at our disposal—military, intelligence, financial and law enforcement.

The U.S. military deployed to Afghanistan where Al Qaeda had found a safe haven within the confines of the brutal and inhumane regime of the Taliban. When our forces, or those of allies, captured members of the enemy, we detained them so that they could not simply return to the battlefield and, where we thought it appropriate, transferred them for detention to the U.S. naval station at Guantanamo Bay.

At home, the Administration sought to reorganize and modernize our government to reflect the new priorities of the War on Terror. We brought domestic security agencies, which historically had been scattered throughout the Executive Branch, under the umbrella of a Department of Homeland Security, and we established a Director of National Intelligence to ensure that our intelligence agencies would work together in tracking terrorist threats and preventing new attacks.

Within the Department of Justice, the FBI made preventing terrorism its top priority and restructured its resources accordingly. Since September 11th, the FBI has transformed itself into a world-class intelligence agency, designed to detect and prevent attacks before they occur, rather than simply investigating them afterwards. The FBI has doubled the number of intelligence analysts and translators in its ranks, and opened 16 new offices overseas, including in Kabul and Baghdad. We created the FBI’s new National Security Branch to bring together divisions responsible for counterterrorism and intelligence and counterespionage, and we made similar institutional reforms in establishing the National Security Division at the Department of Justice.

The Administration worked with Congress in reorganizing our government and with passing new laws to promote the collection and dissemination of critically important intelligence. Shortly after September 11th, Congress passed the Patriot Act to ensure that analysts and investigators could access the information they needed to protect our Nation, work together to “connect the dots,” and pursue a strategy of prevention. And this year, Congress did the same for our intelligence professionals, passing bi-partisan legislation that modernizes the Foreign Intelligence Surveillance Act to allow the intelligence community to quickly and effectively monitor terrorists’ communications while ensuring respect for our civil liberties.

Taken together, the Administration’s policies in the War on Terror represent nothing less than a fundamental reorganization of our government and will ensure that the next President has the tools he needs to continue to defend the country.

The Administration’s strategy in defending the Nation from terrorist threats has not only been comprehensive, but has also been successful based on what matters the most: Since September 11th, Al Qaeda has not managed to launch a single act of terrorism in the United States. This is a remarkable achievement that no one could have predicted in the days following the September 11th attacks. The credit for that goes to many people, including many brave men and women in our armed forces, and many brave men and women in law enforcement and intelligence services, who put their lives at risk routinely in parts of the world most Americans, to their great comfort, will never encounter. Much of that credit also goes to the President; in this area, as in many others, leadership and resolve matter.

As the end of this Administration draws near, you would expect to hear broad praise for this success at keeping our Nation safe. Instead, I am afraid what we hear is a chorus with a rather more dissonant refrain. Instead of appreciation, or even a fair appraisal, of the Administration’s accomplishments, we have heard relentless criticism of the very policies that have helped keep us safe. We have seen this in the media, we have seen this in the Congress, and we have heard it from the legal academy as well.

In some measure, those criticisms rest on a very dangerous form of amnesia that views the success of our counterterrorism efforts as something that undermines the justification for continuing them. In an odd way, we have become victims of our own success. In the eyes of these critics, if Al Qaeda has not struck our homeland for seven years, then perhaps it never posed much of a threat after all and we didn’t need these counterterrorism policies.

Other critics question the premise—almost universally accepted following the September 11th attacks —that the United States is engaged in a war against Al Qaeda and other groups. Even more common is the casual assumption among many in media, political, and legal circles that the Administration’s counterterrorism policies have come at the expense of the rule of law. I am quite familiar with these criticisms, having heard them myself during my tenure as Attorney General.

Now it is hardly surprising that the questions of how we confront the terrorism threat should generate vigorous debate. These questions are among the most complex and consequential that a democratic government can face. There is, understandably, passionate debate about where the legal lines are drawn in this new and very difficult conflict and, as a matter of policy, how close to those legal lines we should go.

As the members of this Society know, however, answering legal questions often involves a close reading and a critical analysis of a text—the Constitution, statutes, judicial decisions, and the like. Regrettably, this point is much too often lost in the public discourse on the subject. Newspapers, commentators, and even prominent lawyers often discuss critical questions about national security policies with barely any acknowledgement that the answers may depend on the language of, say, the Constitution or a statute. And critics of this Administration’s policies rarely draw distinctions between whether a course of action is permitted as a matter of law, and whether that course of action is prudent as a matter of policy.

For example, earlier this year, the head of a legal organization that prides itself on what it calls its “nonpartisan approach to the law” gave a speech condemning what he called “the oppressive, relentless, and lawless attack by our own government on the rule of law and our liberty.” According to this person, we live now in a -- “time of repression” where the “word ‘Patriot’ names a statute that stifles liberty,” and where we face “assaults by our government on constitutional rights, the Separation of Powers, and the Geneva Conventions.” You can practically hear the rumble of tanks in the background.

It is interesting—and telling—that even in the published, written version of these remarks by a lawyer, the references and footnotes are not to statutory texts, the Constitution, treaties, or laws. Instead, the author relied on such authorities as the New York Times, the Washington Post, and the New York Review of Books. This style of criticism can be called many things—provocative perhaps, or evidence that the author could be regarded by some as well-read —but what it cannot be called is a reasoned legal critique.

Also completely absent from these remarks, and from many remarks like it, is any fair appraisal of the legal issues actually involved or an acknowledgement of the difficulty or novelty of the legal questions confronted by the Administration lawyers who made these decisions. Nor was there any discussion of the atmosphere in which these decisions were made. I was in New York City when the two planes hit the Twin Towers, and I know what it was like to be in the city at that time. But I cannot speak from any experience of my own to what it was like to be a lawyer in the Justice Department at that time. There must have been almost unimaginable pressure, without the academic luxury of endless time for debate. The lawyers called on to make critical legal judgments at that time – and in real time – certainly had no time to consult the New York Review of Books when looking for answers to these difficult and pressing questions.

If you listen only to the critics, you might assume, for example, that this Administration, by asserting that habeas corpus did not apply to alien enemy combatants, had tried to deprive the judiciary of a time-honored role in second-guessing our military commanders’ decisions concerning whom to detain on foreign battlefields. Of course, before this armed conflict, federal judges have never asserted the authority to afford habeas corpus to alien enemy combatants captured and detained abroad.

As even the majority in Boumediene acknowledged, the Supreme Court had “never held that noncitizens detained by our Government” outside the United States had “any rights under our Constitution.” Indeed, following World War II, the Court had specifically rejected that habeas corpus would apply in that context. The Administration’s position in Boumediene thus was at least arguably justified by text, history, and precedent. A majority of the Supreme Court may have disagreed, but the Administration’s position hardly constitutes the attack on habeas corpus asserted, but not explained, by its critics like the author I quoted.

And when people denounce a purported assault on the “Geneva Conventions,” you might expect some level of specificity in the charges. One cannot “assault” a treaty as an abstract concept; one can only violate the treaty by acting contrary to its words. The Geneva Conventions contain 319 articles, of which 315 are plainly addressed to armed conflicts among the nations that signed the Conventions. It is hardly surprising that the United States concluded that those provisions would not apply to the armed conflict against Al Qaeda, an international terrorist group and not, the last time I checked, a signatory to the Conventions.

One common article appearing in each of the four conventions, Article 3, provides rules that govern “conflicts not of an international character,” such as civil wars. The President concluded early on that the global war against Al Qaeda had a decidedly “international character.” In Hamdan v. Rumsfeld, a majority of the Supreme Court disagreed. This narrow legal dispute—again turning on an Administration interpretation that was both reasonable and, indeed consistent with text, history and precedent—hardly warrants the sweeping, dismissive, and entirely conclusory criticisms so frequently heard.

I focus on these types of criticisms not because they are so extraordinary, but because they are unfortunately so typical of people who substitute their policy views for any serious legal analysis and who would turn a good-faith legal disagreement into a battle over the purported existence or non-existence of the rule of law. The irony, of course, is that the law requires a serious analysis of text, precedent, and history, and it does not serve the rule of law to substitute a smug sense of outrage for that kind of analysis.

In fact, this Administration has displayed a strong commitment to the rule of law, with all that entails and I suspect, and I admit it is a suspicion tinged with hope, that the next Administration will maintain far more of this Administration’s legal architecture than the intemperate rhetoric in some quarters would seem to suggest. I remain concerned, however, when relentless criticism of this Administration’s policies moves beyond simply disagreement into a realm where critics, and even public officials, seek to invoke the criminal justice system to vindicate their policy views. For instance, in June of this year, 56 Members of Congress sent me a letter requesting that I appoint a special counsel to conduct a criminal investigation of the actions of the President, members of his cabinet, and other national security lawyers and intelligence professionals into the CIA’s interrogation of captured members of Al Qaeda.

The Members who signed this letter offered no evidence that these government officials acted based on any motive other than a good-faith desire to protect the citizens of our Nation from a future terrorist attack. Nor did they provide any evidence or indication that these government officials sought to authorize any policy that violated our laws. Quite the contrary: as has become well-known, before conducting interrogations, the CIA officials sought the advice of the Department of Justice, and I am aware of no evidence that these DOJ attorneys provided anything other than their best judgment of what the law required.

Casual requests for criminal investigations, as well as the even more prolific conflation of legal disagreements with policy disagreements, reflect a broader trend whose institutional effects may outlast the current Administration and could well endanger our future national security.

I have spoken in more detail about these concerns in several recent speeches, in which I drew substantially on former Assistant Attorney General Jack Goldsmith’s book, The Terror Presidency.

Let’s all remember what Professor Goldsmith has said about what he saw during his time in the Administration. Although he may have disagreed with some of the legal reasoning employed in making those decisions, he made it perfectly clear that despite his disagreement he saw no evidence that those who provided that advice did so in bad faith, for any reason other than to protect the country during a time of war, or with the belief that what they were doing was in any way contrary to the law. It is important for those who are so quick to condemn the attorneys who were working nearly around the clock, for months on end, in the wake of September 11th, to keep that in mind.

In his book, Professor Goldsmith describes what he calls “cycles of timidity and aggression” among political leaders and commentators in their attitudes towards the intelligence community. These cycles have played out before – from the 1960’s through the 1990’s, but those past cycles are now mainly of historic interest. The most recent cycle is of much more than historic interest. As Professor Goldsmith explains, following the September 11th attacks, “The consistent refrain from the [9/11] Commission, Congress, and pundits of all stripes was that the government must be more forward-leaning against the terrorist threat: more imaginative, more aggressive, less risk-averse.”

After going seven years without another terrorist attack, our intelligence professionals and national security lawyers now hear quite a different message. When 56 Members of Congress request a criminal investigation of the professionals and lawyers, they should have no doubt that those lawyers, and certainly their successors, will get the message: if they support an aggressive counterterrorism policy based on their good faith belief that such a policy is lawful, they may one day be prosecuted for it.

The competing imperatives to protect the nation and to safeguard our civil liberties are worthy of public debate and discussion, and congressional oversight and review of our intelligence activities is vitally important. But it is equally important that such scrutiny be conducted responsibly, with appreciation of its institutional implications. We want lawyers to give their best advice to those who must act, and we want those who must act to know that they can rely on that advice.

As this Society knows, the rule of law is not undermined by stating with clarity and precision exactly what the law requires. To the contrary, both our law, and our democracy, gain strength when we separate legal disputes from policy disputes, and when we permit our policy disputes to be aired in good faith.

In a democracy, of course, the appropriate way to resolve policy disputes is through the ballot box. We have just had an election, and a new Administration will soon take the reins in Washington. What I have done as Attorney General has been to try, along with others in our government, to make sure that our counterterrorism efforts stand on sound institutional and legal footing so that the next Attorney General and the new Administration have what they need to assure the safety of the Nation.

The next Administration will have the opportunity to review the institutions and the legal structures that this Administration has relied upon in keeping the nation safe over the past seven years. I am neither so proud as to think that the next Administration will be unable to make improvements, nor so naïve as to think that the policy choices, or even the legal judgments, that they make will be identical to ours.

What I do hope, however, is that the next Administration understands the threat that we continue to face and that it shares the priority we have placed on remaining on the offense to prevent future terrorist attacks. Remaining on the offense includes not simply relying on the tools that we have established, but also encouraging a climate in which both legal and policy issues are debated responsibly, in a way that does not chill the intelligence community and deter national security lawyers from making the decisions necessary to protect us.

And I am hopeful that some time from now, after the next Administration has had the chance to review the decisions made and the legal advice provided, it will acknowledge that despite any policy differences, the national security lawyers in this Administration acted professionally and in good faith and that the country was safer as a result.

The loyal opposition, of course, remains as important a part of democracy as the majority in power. In that regard, I take comfort in the fact that whether in office or not, many members of this Society will remain a part of the public debate and will help ensure that the next Administration acts responsibly and effectively to protect our country and to protect the ideals on which it is based. For that, and for your support based on the principles that support this Society, I am grateful, and I can say with certainty that the Nation is grateful.

Thank you.

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9:00 a.m. - 10:45 a.m.
Showcase Panel II: Judicial Tenure: Life Tenure or Fixed Nonrenewable Terms?

2008 National Lawyers Convention

Topics: Federal Courts • Separation of Powers • State Courts • Supreme Court • Federalism & Separation of Powers
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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The Supreme Court of the United States is the only major court of its kind in the world where justices have life tenure rather than serving for a term of years or subject to a mandatory retirement age.  Not only has every other western democracy rejected life tenure, but forty-nine out of fifty states have rejected it for their state supreme courts as well.  Is life tenure for U.S. Supreme Court justices a good idea, or is it an 18th Century anachronism?  What can or should be done about the fact that the average tenure of Supreme Court Justices has increased from 15 to 27 years since 1970?  Ought we to be concerned if vacancies on the Supreme Court open up only once every four years instead of once every two as happened between 1789 and 1970? Audio and video recorded on November 21, 2008.

  • Prof. Stephen B. Burbank, University of Pennsylvania Law School
  • Hon. Charles J. Cooper, Cooper & Kirk, PLLC
  • Prof. James Lindgren, Northwestern University School of Law
  • Prof. David R. Stras, University of Minnesota School of Law
  • Moderator: Hon. J. Harvie Wilkinson III, United States Court of Appeals, Fourth Circuit

Speakers

11:00 a.m. - 12:00 p.m.
Special Session: Judicial Independence Dialogue

2008 National Lawyers Convention

Topics: Constitution • Federal Courts • Separation of Powers • State Courts • Supreme Court • Federalism & Separation of Powers
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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  • Hon. William H., Pryor Jr., United States Court of Appeals, Eleventh Circuit
  • Mr. H. Thomas Wells Jr., American Bar Association, and Maynard, Cooper & Gale, P.C.
  • Moderator: Mr. M. Edward Whelan III, Ethics and Public Policy Center

Speakers

12:00 p.m. - 2:00 p.m.
Litigation: Civil Litigation under the Roberts Court

2008 National Lawyers Convention

Topics: Corporations, Securities & Antitrust • Labor & Employment Law • Litigation • Supreme Court
Chinese Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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The Roberts Court -- is it pro-business? Many Court watchers say so. But, whether pro-business or not, beneath the surface lies a deeper characteristic of the Supreme Court under Chief Justice Roberts: the pan-ideological concern with respect to the comparative costs and benefits of civil litigation. From punitive damages to preemption, from large class action to the interpretation of federal securities and antitrust laws, the Court seems to be raising a trans-philosophical eyebrow as to the role of American courts in the adjudication of civil disputes. The Supreme Court's expansive interpretation of the federal arbitration laws -- closing the courthouse doors to would-be litigants -- continues to draw sharp criticism from consumer groups and friends of state judicial systems, including Justice Thomas.

This distinguished panel of practitioners and academics will examine, from a variety of perspectives, the Court’s approach to America’s civil justice system.

  • Hon. Gregory G. Katsas, Assistant Attorney General, Civil Division, United States Department of Justice
  • Mr. Robert S. Peck, Center for Constitutional Litigation
  • Mr. Carter G. Phillips, Sidley Austin
  • Dr. Roger Pilon, Vice President for Legal Affairs, B. Kenneth Simon Chair for Constitutional Studies, and Director of the Center for Constitutional Studies, Cato Institute
  • Hon. Jerry E. Smith, United States Court of Appeals, Fifth Circuit
  • Moderator: Hon. Kenneth W. Starr, Dean, Pepperdine University School of Law and former United States Solicitor General

 

Speakers

12:00 p.m. - 2:00 p.m.
Financial Services: The Latest in the Financial Services Crises: Government Control v. the Free Market

2008 National Lawyers Convention

Topics: Administrative Law & Regulation • Federalism • Financial Services • Law & Economics • Federalism & Separation of Powers • Financial Services & E-Commerce
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Bankers and other financial services providers are facing unprecedented challenges as problem loans mount, collateral-backed investment vehicles crater and capital and liquidity vanishes. In recent months, the federal government has taken unprecedented and far-reaching steps to keep the financial system functioning while attempting to restore some sense of normality in the credit markets. From investing in banks to buying troubled financial assets to federal regulation of mortgage providers to the seizure of Freddie and Fannie, the role of the federal government in banking and finance is rapidly becoming extremely pervasive. Is this necessary? Is it wise? What are the moral-hazard risks associated with these bailouts? What “temporary” fixes may endure? What will be consequences – intended or not – of those fixes?

  • Mr. Bert Ely, Ely & Company, Inc.
  • Mr. Scott M. Polakoff, Office of Thrift Supervision, U.S. Department of the Treasury
  • Mr. Alex J. Pollock, American Enterprise Institute
  • Mr. Andrew Redleaf, Whitebox Advisors, LLC
  • Mr. John Taylor, National Community Reinvestment Coalition
  • Hon. Peter J. Wallison, American Enterprise Institute
  • Prof. Todd J. Zywicki, George Mason University School of Law
  • Moderator: Hon. Douglas Ginsburg, U.S. Court of Appeals for the DC Circuit

 

Speakers

12:00 p.m. - 2:00 p.m.
Labor: Labor Initiatives in the New Administration

2008 National Lawyers Convention

Topics: Administrative Law & Regulation • Labor & Employment Law
East Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Labor and employment policy will likely change with the arrival of a new Presidential administration. Several long-pending legislative proposals could gain currency in the weeks and months ahead. These proposals also envision new federal regulations and guidelines, as well as revisions to existing ones. Changes to the makeup of the U.S. Department of Labor, the National Labor Relations Board, and the Equal Employment Opportunity Commission can be expected. Our panel of experts will examine these and other likely changes from the perspective of their expertise and experience.

  • Ms. Holly B. Fechner, Covington & Burling LLP
  • Hon. William J. Kilberg, Gibson, Dunn & Crutcher and Former Solicitor, United States Department of Labor
  • Mr. James A. Paretti, United States House of Representatives Committee on Education & Labor
  • Mr. William Samuel, AFL-CIO
  • Moderator: Hon. Timothy M. Tymkovich, United States Court of Appeals, Tenth Circuit

 

Speakers

2:15 p.m. - 3:00 p.m.
Address by Mark Steyn

2008 National Lawyers Convention

Topics: Constitution • Culture • Foreign Policy • International Law & Trade • Politics • International & National Security Law
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Columnist Mark Steyn delivered this address at the 2008 National Lawyers Convention on Friday, November 21, 2008.

  • Mr. Mark Steyn, Columnist and Author of America Alone: The End of the World as We Know It
  • Introduction: Prof. Steven Calabresi, Northwestern University School of Law and Chairman, The Federalist Society Board of Directors

Speakers

3:15 p.m. - 4:45 p.m.
Free Speech & Election Law: Freedom of Speech vs. Anti-Discrimination Laws

2008 National Lawyers Convention

Topics: Culture • Education Policy • First Amendment • Labor & Employment Law • Politics • Free Speech & Election Law
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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An employer is sued for hostile work environment harassment because it doesn't stop its employees (or customers from saying things that -- in the opinion of the jury -- create a "hostile, abusive, or offensive" environment for reasonable people based on race, religion, sex, or sexual orientation. A university institutes a speech code punishing similar speech by its students. A restaurant is sued for hostile public accommodations environment because its patrons or employees say allegedly offensive things, or post allegedly offensive materials. A student group is denied university funding because it discriminates based on religion or sexual orientation in choosing its officers or members. A nonprofit is denied tax exemptions because it engages in similar discrimination. A wedding photographer is required to photograph same-sex commitment ceremonies.

All these cases involve antidiscrimination principles being used to restrict speech, burden expressive association, or compel speech. Are they constitutionally permissible? Or should First Amendment rights trump antidiscrimination law in some or all of these situations?

  • Prof. David Bernstein, George Mason University School of Law
  • Prof. Andrew Koppelman, Northwestern University School of Law
  • Prof. Kenneth I. Marcus, Baruch College/CUNY School of Public Affairs
  • Prof. Eugene Volokh, University of California, Los Angeles School of Law
  • Moderator: Prof. Lillian R. BeVier, University of Virginia School of Law

Speakers

3:15 p.m. - 4:45 p.m.
Federalism: The Roberts Court and Federalism

2008 National Lawyers Convention

Topics: Constitution • Federalism • State Governments • Supreme Court • Federalism & Separation of Powers
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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  • Hon. Paul D. Clement, Former United States Solicitor General
  • Hon. Walter E. Dellinger III, Duke University School of Law and Former Acting United States Solicitor General
  • Dean John C. Eastman, Chapman University School of Law
  • Prof. Jeffrey Rosen, George Washington University Law School
  • Moderator: Hon. David B. Sentelle, United States Court of Appeals, District of Columbia Circuit

Speakers

5:15 p.m. - 5:45 p.m.
8th Annual Barbara K. Olson Memorial Lecture

2008 National Lawyers Convention

Topics: Constitution • Culture • Federal Courts • Federalist Society • Founding Era & History • Jurisprudence • Philosophy
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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On September 11, 2001, at the age of 45 and at the height of her professional and personal life, Barbara 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 2008, Judge Edith H. Jones of the Court of Appeals for the Fifth Circuit delivered the lecture.

8th Annual Barbara K. Olson Memorial Lecture
When: Friday, November 21, 2008
Where: Mayflower Hotel - Washington, DC
Edith Jones
Hon. Edith H. Jones
United States Court of Appeals, Fifth Circuit

For information about Barbara Olson and this lecture series, click HERE.

For a list of past lecturers, click HERE.

Speakers

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9:00 a.m. - 10:30 a.m.
Showcase Panel III: Second Look Doctrines: Should Congress be Empowered to Override the Court? Should Voters in State Initiatives and Referenda be Able to Override State Supreme Courts?

2008 National Lawyers Convention

Topics: Constitution • Federal Courts • Federalism • Separation of Powers • State Courts • State Governments • Supreme Court • Federalism & Separation of Powers • Free Speech & Election Law
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Some scholars have praised Canada, Britain, and Israel for having a form of judicial review where a legislative majority in a clear statute can override an erroneous high court ruling or suspend it from taking effect.  The argument is that judicial review is inherently counter-majoritarian and undemocratic, so legislative majorities should be able to overrule erroneous Supreme Court decisions.  Should Congress be able to override U.S. Supreme Court decisions the way it can override a presidential veto?  What majority ought to be required for such an override?  Ought state voters in initiatives and referenda be able, by majority vote, to amend state constitutions so as to override state supreme courts? Audio and video recorded on November 22, 2008.

  • Hon. Frank H. Easterbrook, United States Court of Appeals, Seventh Circuit
  • Prof. Richard A. Epstein, University of Chicago Law School
  • Prof. Neal K. Katyal, Georgetown University Law Center
  • Moderator: Hon. Larry D. Thompson, Pepsico, Inc., and Former Deputy United States Attorney General

Speakers

10:45 a.m. - 12:15 p.m.
Corporations: The SEC and the Financial Services Crisis of 2008

2008 National Lawyers Convention

Topics: Administrative Law & Regulation • Corporations, Securities & Antitrust • Separation of Powers • Federalism & Separation of Powers
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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In September, as both the financial crisis and the presidential campaign were heating up, Senator John McCain declared that “If I were president today, I would fire him,” referring to Securities and Exchange Commission Chairman Christopher Cox. Critics complain that a number of SEC actions and inactions contributed to the financial crisis, including failure to enforce rules against naked short selling, failure to promptly restrict all forms of short selling during the crisis, repeal of the uptick rule, liberalizing investment bank and broker-dealer capital requirements, failing to adequately enforce the program of voluntary supervision of investment banks, and imposition of poor accounting rules. Defenders of the Commission point to active enforcement proceedings, regulation of credit rating agencies, adoption of emergency rules prohibiting short selling in financial stocks, and so on. In addition to a retrospective discussion of the Commission’s performance, the panel will look forward to consider possible regulatory reforms that may be undertaken by the Commission and, in particular, changes in the financial bureaucracy that may affect the Commission. In particular, the panel will discuss whether it would be appropriate to merge the Commission and other financial regulators into one or two oversight agencies.

  • Hon. Paul S. Atkins, former Commissioner, United States Securities & Exchange Commission
  • Prof. Edmund Kitch, University of Virginia School of Law
  • Prof. Jonathan R. Macey, Yale Law School
  • Hon. George J. Terwilliger III, White & Case LLP, Former United States Deputy Attorney General
  • Moderator: Prof. Stephen Bainbridge, University of California, Los Angeles School of Law

 

Speakers

10:45 a.m. - 12:15 p.m.
Administrative Law: The 25th Anniversary of Chevron

2008 National Lawyers Convention

Topics: Administrative Law & Regulation • Separation of Powers • Supreme Court • Federalism & Separation of Powers
Chinese Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Twenty-five years ago, in October Term 1983, the Supreme Court issued its opinion in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. Few judicial opinions have generated so much scholarly debate. Some maintain that no other opinion has had such an impact on administrative law and the regulatory state.  Others contend that Chevron merely changed the terminology of judicial review without appreciably changing its substance. This panel reflects on twenty-five years of Chevron: its impact, its evolution, its past, and its future. The panel will also address whether, so far as it changed the scope of judicial review, Chevron made a positive or negative contribution to the law, and whether recent modifications have diminished Chevron or merely recognized other legal doctrines that never went away.  

  • Hon. Ronald A. Cass, Cass & Associates, PC and Dean Emeritus, Boston University School of Law
  • Prof. William N. Eskridge, Jr., Yale Law School
  • Prof. Kristin E. Hickman, University of Minnesota Law School
  • Prof. Thomas W. Merrill, Yale 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

 

Speakers

10:45 a.m. - 12:15 p.m.
Telecommunications: The FCC and the First Amendment

2008 National Lawyers Convention

Topics: Administrative Law & Regulation • Constitution • First Amendment • Supreme Court • Telecommunications & Electronic Media • Free Speech & Election Law
East Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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The Federal Communications Commission is about to grapple with the First Amendment. The Fairness Doctrine is increasingly in the news, as debates about use of the public airways continue. Will and should the Fairness Doctrine be revitalized and, if so, what consequences would flow from that decision? The case, FCC v. Fox Television, has been argued in the U.S. Supreme Court. What liability ought to attach for a “fleeting expletive,” that is, an obscenity typically uttered during a live broadcast by a performer during an awards ceremony. What authority ought the FCC have to regulate or punish such conduct? Are mandatory delays in broadcasts (even of only a few seconds) a reasonable alternative or a First Amendment infringement? Our panel will discuss these and other important issues.  

  • Mr. Miguel A. Estrada, Gibson, Dunn & Crutcher, and Former Assistant to the United States Solicitior General
  • Hon. Gregory G. Garre, United States Solicitor General
  • Hon. Kevin J. Martin, Federal Communications Commission
  • Mr. Adam D. Thierer, The Progress and Freedom Foundation
  • Moderator: Hon. Brett M. Kavanaugh, United States Court of Appeals, District of Columbia

 

Speakers

12:15 p.m. - 2:15 p.m.
1st Annual Rosenkranz Discussion

2008 National Lawyers Convention

Topics: Federal Courts • Jurisprudence • Philosophy • State Courts • Supreme Court
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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The Federalist Society's 1st Annual Rosenkranz Discussion was held on November 22, 2008. The topic of the discussion was "How Judge Think."

  • Hon. Michael W. McConnell, United States Court of Appeals, Tenth Circuit
  • Hon. Richard Posner, United States Court of Appeals, Seventh Circuit
  • Moderator: Prof. Nicholas Quinn Rosenkranz, Georgetown University School of Law
  • Introduction: Mr. Eugene B. Meyer, President, The Federalist Society

Speakers

2:30 p.m. - 4:00 p.m.
Showcase Panel IV: Regulation of Judicial Conduct: Silencing Judges or Avoiding Improper Influence?

2008 National Lawyers Convention

Topics: Federal Courts • Politics • Professional Responsibility & Legal Education • Separation of Powers • Supreme Court • Federalism & Separation of Powers • Free Speech & Election Law
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Is recent congressional interest in curtailing participation of judges in conferences and educational programs a chilling effort to curtail free speech, or is it a necessary insulation of the judiciary from special interest groups and their influence?  What kind of extra-judicial participation in conferences and programs ought judges be allowed to engage in?  Should Congress be concerned about the amount of time some justices of the Supreme Court spend with European and other foreign jurists. What, if anything, should be done to control the foreign or domestic education programs in which federal judges participate? Audio and video recorded on November 22, 2008.

  • Hon. A. Raymond Randolph, United States Court of Appeals, District of Columbia Circuit
  • Mr. Robert F. Schiff, Subcommittee on the Judiciary, United States Senate
  • Prof. Eugene Volokh, University of California, Los Angeles School of Law
  • Moderator: Hon. Carlos T. Bea, United States Court of Appeals, Ninth Circuit

Speakers

4:15 p.m. - 5:15 p.m.
Address by Justice Antonin Scalia

2008 National Lawyers Convention

Topics: Constitution • Founding Era & History • Jurisprudence • Supreme Court
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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United States Supreme Court Justice Antonin Scalia delivered this address at the 2008 National Lawyers Convention on Saturday, November 22, 2008.

  • Hon. Antonin Scalia, United States Supreme Court
  • Introduction: Mr. Leonard Leo, Executive Vice President, The Federalist Society

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