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2009 National Lawyers Convention

The Federal Government's Economic Role in our Constitutional System

November 12 — 14, 2009
9:00 a.m. - 9:45 a.m.
Welcome and Opening Address by Senator Jeff Sessions

2009 National Lawyers Convention

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

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  • Hon. Jeff Sessions, U.S. Senate
  • Introduction: Mr. Leonard A. Leo, Executive Vice President, The Federalist Society

Speakers

9:45 a.m. - 11:30 a.m.
Showcase Panel I: Redistribution of Wealth

2009 National Lawyers Convention

Topics: Civil Rights • Culture • Financial Services • Law & Economics • Philosophy • Politics • Financial Services & E-Commerce • Administrative Law & Regulation
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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There has been much talk over the years, but particularly recently, about inequality of income and resources.  The U.S. has generally rejected the European model. For the most part, Americans have also rejected direct means of reducing that income gap. Most Americans in a Pew-Greenberg poll believe this is a society in which one can move up, and they reject most forms of income redistribution. Our conception of constitutionalism, rights, and entitlements, and of community and personal responsibility differ sharply from Europe and the rest of the world, which worldview has led us to be far less sympathetic to redistribution. But while direct means are rejected, a variety of other regulatory means do find some support. The current administration has proposed multiple measures along these lines. What is appropriate for government to do and what means are appropriate:  taxes, regulatory structures, etc? To what degree is it a proper use of the legal system to use it for such ends? To what degree is it a proper use of the legal system to frustrate such ends?

  • Prof. Richard A. Epstein, James Parker Hall Distinguished Service Professor of Law and Visiting Professor of Law, New York University Law School
  • Mr. Steve Forbes, Chairman and CEO, Forbes Inc. and Editor, Forbes Magazine
  • Prof. Jed Rubenfeld, Robert R. Slaughter Professor of Law, Yale Law School
  • Mr. Andrew L. Stern, President, Service Employees International Union
  • Moderator: Hon. J. Harvie Wilkinson III, U.S. Court of Appeals, Fourth Circuit

Speakers

11:30 a.m. - 1:45 p.m.
Criminal Law: Drug Enforcement Policy

2009 National Lawyers Convention

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

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Signaling a sharp departure from more than 20 years of federal policy, the Obama Administration has urged Congress to equalize the sentencing for crack and powder cocaine dealing.  The Administration also vowed to end raids against medical marijuana clubs that are legally established under state law and called for federal funding on needle exchange programs.

Four former leaders of Latin American nations (Vicente Fox & Ernesto Zedillo of Mexico, Caesar Gaviria of Colombia, and Fernando Henrique Cardoso of Brazil) have called for the decriminalization of marijuana and for a debate about legalizing other drugs.  In 2004, then-Senator Obama called decades of get-tough law enforcement against drugs “an utter failure” and stated that he believes in “shifting the paradigm, shifting the model, so that we focus more on a public health approach.”

Drug enforcement policies are clearly changing under the Obama Administration, but it is unclear by how much.  Some consider this a step backwards that will lead to increased drug use with its attendant social ills and related crime, while others view this as an advancement in the cause of increasing individual liberties and as a more realistic approach to addressing health problems exacerbated through drug use, the violence associated with drug cartels, and racial disparities in enforcement.  Our panel of experts will address these and other issues.

  • Prof. John S. Baker Jr., Dale E. Bennett Professor of Law, Louisiana State University Law Center
  • Prof. Mariano-Florentino “Tino” Cuéllar, Special Assistant to the President for Justice and Regulatory Policy, White House Domestic Policy Council
  • Mr. Aryeh Neier, President, Open Society Institute
  • Hon. John P. Walters, Executive Vice President, Hudson Institute
  • Moderator: Hon. Robert P. Young, Jr., Michigan Supreme Court

Speakers

11:30 a.m. - 1:45 p.m.
Intellectual Property: Intellectual Property and Economic Growth

2009 National Lawyers Convention

Topics: Intellectual Property • Law & Economics
Chinese Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Strong property rights are generally believed to be essential for a healthy (and free) economy.  But do stronger property rights always generate more economic growth? Intellectual property rights decrease competition in the short term in order to promote long-term investment in innovation and future public access once the rights have expired. The current balance between decreased competition and future innovation is currently under debate in the form of calls to effectively weaken some intellectual property rights. Some scholars and activists contend that patents and copyrights should be reformed or restricted out of fear that they are stifling current creativity, innovation, and economic growth. There are signs that courts may find some of these arguments sympathetic. Others contend, however, that intellectual property rights remain central to future economic growth and view as misguided calls for comprehensive reform or abandonment of intellectual property. This panel will address the role of strong intellectual property rights in promoting or inhibiting economic growth.

  • Prof. Richard A. Epstein, James Parker Hall Distinguished Service Professor of Law and Visiting Professor of Law, New York University Law School
  • Prof. F. Scott Kieff, The George Washington University Law School
  • Prof. Michael J. Meurer, Michaels Faculty Research Scholar, Boston University School of Law
  • Mr. Daniel B. Ravicher, President and Executive Director, Public Patent Foundation
  • Moderator: Prof. Mark F. Schultz, Associate Professor of Law, Southern Illinois University School of Law

Speakers

11:30 a.m. - 1:45 p.m.
Litigation: The Future of Federal Pre-Emption

2009 National Lawyers Convention

Topics: Jurisprudence • Litigation • Supreme Court
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Pre-emption issues are a perennial area of concern for the U.S. Supreme Court. Significant cases like Wyeth v. Levine, Riegel v. Medtronic, and Altria v. Good, are decided by the Court each year. These cases are closely watched by regulators and the regulated community. Is there a discernible pattern in the Court’s preemption jurisprudence? Can the Court’s movement in a particular direction favoring or disfavoring preemption in particular circumstances be predicted? How will the Court’s jurisprudence be affected by its changes in personnel in the past several years, replacing three Justices, including the Chief? Our panel of experts will explore these and other issues.

  • Dr. Michael S. Greve, John G. Searle Scholar, American Enterprise Institute
  • Prof. Alan B. Morrison, Lerner Family Associate Dean for Public Interest/Public Service, The George Washington University Law School
  • Prof. Catherine M. Sharkey, New York University School of Law
  • Hon. Daniel E. Troy, Senior Vice President and General Counsel, GlaxoSmithKline
  • Moderator: Hon. William H. Pryor Jr., U.S. Court of Appeals, Eleventh Circuit

Speakers

2:00 p.m. - 3:30 p.m.
Environmental Law: The Future of Cost-Benefit Analysis in Environmental Policy

2009 National Lawyers Convention

Topics: Administrative Law & Regulation • Environmental & Energy Law • Law & Economics • Environmental Law & Property Rights
East and State Rooms
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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In the scheme of regulation, the wisdom of “look before you leap” has always been a stalwart of conservative thought. Far too often, the aspirations of regulation precede the understanding of its consequences for the regulated, the economy, industry practicalities, and actual governmental authority, among other things. Thus, NEPA, Executive Order 12866, and other actions have attempted to require that agencies assess the consequences of their proposed actions. The general debate revolves around when and whether such analyses should be required. The debate also revolves around the utility of the exercise given substantial agency deference and limited judicial review of agency compliance with "cost-benefit" type analyses. Some critics charge cost-benefit attempts to price the priceless and is inherently biased against regulation. Others, including some within the environmentalist community, have sought to rehabilitate the cost-benefit analysis as a progressive policy tool, and argue cost-benefit analyses are not inherently hostile to greater regulation. Should such requirements be imposed upon agencies? What, if any, empirical evidence shows that they have or can lead to greater efficiency? Is it really a question of reasonable assessment or instead a question of legitimate authority to regulate in the first place? Against the background of this debate, in which several members of the Obama Administration have participated, the Office of Information and Regulatory Affairs has announced plans to revise the requirements for White House review of proposed regulations, including the use of cost-benefit and other forms of regulatory analysis. Is the debate on authority conceded with the creation of procedural obligations that, if complied with, are subject to deferential standards that insulate agencies from review? What is the future role for cost-benefit analysis in this and forthcoming administrations?

  • Hon. Susan E. Dudley, Director, George Washington University Regulatory Studies Center
  • Mr. Michael A. Livermore, Executive Director, New York University School of Law Institute for Policy Integrity
  • Mr. Daryl L. Joseffer, Partner, King & Spalding
  • Moderator: Hon. Stephen F. Williams, U.S. Court of Appeals, D.C. Circuit

Speakers

2:00 p.m. - 3:30 p.m.
Professional Responsibility: The Role of Government Attorneys and the Global War on Terror

2009 National Lawyers Convention

Topics: International Law & Trade • Professional Responsibility & Legal Education • 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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In the aftermath of the attacks of September 11, 2001, government attorneys in the White House and the intelligence, defense, and justice communities were called on to advise officials of the legal constraints on their actions. That advice came in the form of memoranda and discussions, and the government officials and employees acted on the basis of that advice. As time passed and military operations proceeded, shifting in focus from Afghanistan to Iraq and back, vocal attacks were made regarding American policy. The criticism of the Guantánamo facility, the interrogations of detainees, the use of military commissions to try certain detainees, and other policies also became criticism of the legal advice that government lawyers had given.

What, if anything, did these government attorneys do wrong? The Obama Administration recently released a number of memoranda that these lawyers wrote, but its Justice Department has said that it will not prosecute them or the intelligence officials who applied their advice. Is there any basis for prosecuting the lawyers but not those they advised? In portions of a leaked confidential – and classified – draft report, the Justice Department’s Office of Professional Responsibility calls for state bar associations to consider investigating and disciplining these Government lawyers. Did these government lawyers violate the Rules of Professional Responsibility? What effects will prosecution, the pursuit of professional discipline, or both, have on the willingness of government attorneys to offer advice in the future and the quality of that advice?

  • Mr. Miguel A. Estrada, Partner, Gibson, Dunn & Crutcher, LLP
  • Prof. W. Bradley Wendel, Cornell University Law School
  • Moderator: Hon. Diane S. Sykes, U.S. Court of Appeals, Seventh Circuit

Speakers

3:45 p.m. - 5:15 p.m.
Federalism: Federalism and the Economic Crisis

2009 National Lawyers Convention

Topics: Federalism • Financial Services • Law & Economics • State Governments • Federalism & Separation of Powers
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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The stimulus bill and other legislation enacted this year has led to a vast expansion of federal grants to state governments. The Obama Administration and others claim that this increase is needed to stimulate the economy and fund vital programs. Critics allege that it undermines competition and diversity in our federal system, and creates an unhealthy fiscal dependence of states on the federal government. The upsurge in federal grants to states also raises important legal and constitutional issues, especially in the wake of declarations by several governors that they intend to refuse some of the proffered funding.

This panel will consider the legal and policy implications of expanded intergovernmental grants for the future of American federalism.

  • Dean John C. Eastman, Dean and Donald P. Kennedy Chair in Law, Chapman University School of Law
  • Prof. Malcolm M. Feeley, Claire Sanders Clements Dean's Chair Professor of Law, University of California Berkeley School of Law, Boalt Hall
  • Prof. Roderick M. Hills, William T. Comfort, III Professor, New York University School of Law
  • Prof. Ilya Somin, George Mason University School of Law
  • Moderator: Hon. Jeffrey S. Sutton, U.S. Court of Appeals, Sixth Circuit

Speakers

3:45 p.m. - 5:15 p.m.
Civil Rights: Affirmative Action in the Obama Era

2009 National Lawyers Convention

Topics: Affirmative Action • Civil Rights • Fourteenth Amendment • Politics • Federalism & Separation of Powers
East Room and State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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  • Ms. Shirley J. Wilcher, Executive Director, American Association for Affirmative Action
  • Prof. Theodore M. Shaw, Professor of Professional Practice, Columbia University School of Law
  • Ms. Linda L. Chavez, Chairman, Center for Equal Opportunity
  • Hon. Peter N. Kirsanow, Commissioner, U.S. Commission on Civil Rights
  • Moderator: Hon. Carlos T. Bea, U.S. Court of Appeals, Ninth Circuit

 

Speakers

7:00 p.m. - 10:00 p.m.
Lawyers Convention Annual Dinner

2009 National Lawyers Convention

Topics: Constitution • Supreme Court
Omni Shoreham Hotel
2500 Calvert Street, NW
Washington, DC 20008

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  • Hon. Samuel A. Alito, Jr., U.S. Supreme Court

Speakers

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9:00 a.m. - 10:00 a.m.
Constitutional Interpretation & the Bill of Rights

2009 National Lawyers Convention

Topics: Constitution • Federal Courts • First Amendment • Founding Era & History • Fourth Amendment • Jurisprudence • Philosophy • Second Amendment • Supreme Court • Civil Rights
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Much has been written in the past 200 years on how to interpret the language of the U.S. Constitution, down to parsing not only phrases and clauses, but the placement of individual commas. First Amendment scholars and advocates are fond of noting that the First Amendment is first for a reason. The Framers were very deliberate in their choice and placement of words, but what is the true consequence of the sequence of the first ten amendments? Does the placement of the First Amendment indicate a heightened level of protection for the rights found within it? And were there deliberate reasons for placement of distinct rights within individual amendments themselves – for example, are the religion clauses more important or significant than are the assembly clause or the petition clause? Are there interpretive guidelines to be found in the words of the Ninth and Tenth Amendments? 

  • Presentation: Prof. Burt Neuborne, Inez Milholland Professor of Civil Liberties, Legal Director, Brennan Center for Justice, New York University School of Law
  • Commentary: Prof. Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center
  • Moderator: Hon. Diarmuid F. O'Scannlain, U.S. Court of Appeals, Ninth Circuit

Speakers

10:15 a.m. - 12:00 p.m.
Showcase Panel II: Bailouts and the Government as Insurer of Last Resort

2009 National Lawyers Convention

Topics: Administrative Law & Regulation • Federalism • Financial Services • Law & Economics • State Governments • Federalism & Separation of Powers
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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What is the best way to handle economic failure at a large scale? Taxing, regulation, bankruptcy law, or hands off are all possible means. The question is, in part, who pays? Bankruptcy has similarities to a bailout, and some would argue that bailouts are more transparent. Others would say that there are serious moral hazard problems. Won’t such bailouts encourage imprudent behavior?  And at what level should government regulate the money used in bailouts? No one thinks it should determine the paper clip order. But what is the logic for stopping short of that once government regulates? Common sense is often not thought to be government’s strong point.  On the other hand, what do we do about too big to fail? Whatever the problems with government solutions, what happens when an AIG goes under? Are the resulting ripples unacceptable? How do we choose which companies to bail out? Do public choice or other problems cause government to have perverse incentives? At the end of the day, do bailouts inevitably lead to a vastly increased regulatory state? More important, does the possibility of bailouts as an option lead to a vastly increased regulatory state across the board? And finally, when does a bailout become a nationalization of an industry?

  • Hon. C. Boyden Gray, Gray & Schmitz LLP and Former U.S. Ambassador to the European Union
  • Mr. Maurice R. Greenberg, Chairman and Chief Executive Officer, C.V. Starr & Co., Inc.
  • Dr. Robert D. McTeer, Distinguished Fellow, National Center for Policy Analysis
  • Hon. Steven Wallman, Chief Executive Officer, Foliofn
  • Moderator: Hon. Janice Rogers Brown, U.S. Court of Appeals, D.C. Circuit

Speakers

12:00 p.m. - 2:00 p.m.
Financial Services: Re-Privatization of the Financial Sector

2009 National Lawyers Convention

Topics: Financial Services • Law & Economics • Financial Services & E-Commerce
East Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Beginning in 2008 the U.S. government began taking unprecedented emergency steps to intervene in the American financial sector. These steps include designating certain financial intermediaries as "systemic". These institutions have accepted government capital subjecting them to additional governance process and rules for when and how the government's investments can be repaid. The amount of credit risk within the American economy borne by the federal government, and therefore taxpayers, has increased dramatically over the last year. Accompanying that increased federalization are more regulations governing the extension of credit to individuals, families, and businesses. As America begins to recover from the financial crisis, how and when should it reprivatize credit risk as well as liquidate government equity investments in private financial firms? How much autonomy should be exercised by the regulated firms before, during and after reprivatization?

  • Mr. John A. Allison, Chairman, BB&T Corporation and Distinguished Professor of Practice, Wake Forest University School of Business
  • Prof. William Black, Associate Professor of Economics and Law, University of Missouri-Kansas City School of Law
  • Mr. Alex J. Pollock, Resident Fellow, American Enterprise Institute
  • Mr. Andrew J. Redleaf, Founding Partner and Chief Executive Officer, Whitebox Advisors LLP
  • Moderator: Hon. Jerry E. Smith, U.S. Court of Appeals, Fifth Circuit

 

Speakers

12:00 p.m. - 2:00 p.m.
Labor: Wall Street, Labor Unions, and the Obama Administration: A New Paradigm for Capital and Labor?

2009 National Lawyers Convention

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

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In the government’s dramatic interventions in the private sector over the last year, labor and employment issues have figured prominently. The government intervened in the compensation of executives and of personnel in the financial sector. It was a driving force in restructurings of Chrysler and General Motors that gave ownership interests to labor unions and that, critics said, put union interests before the priority normally accorded secured creditors. The President and majorities of the House and Senate favor labor law amendments that would empower government appointees to write contracts between companies and unions if collective bargaining failed to produce agreement. The Securities and Exchange Commission proposed rules that would shift to institutional investors – particularly, pension funds – some of the control currently exercised by corporate directors.

Does the Obama Administration aim to alter fundamentally the relationship among the government, private corporations, and workers? If so, what are the outlines of the “new paradigm” the administration seeks?  What are the implications for corporations, workers, and the economy? Are there any constitutional problems with the "new paradigm?"

  • Mr. Harold Meyerson, Editor-at-Large, The American Prospect
  • Ms. Amity Shlaes, Senior Fellow for Economic History, Council on Foreign Relations
  • Mr. Damon A. Silvers, Associate General Counsel, American Federation of Labor-Congress of Industrial Organizations
  • Prof. Todd J. Zywicki, Foundation Professor of Law, George Mason University School of Law
  • Moderator: Hon. Steven J. Law, Chief Legal Officer and General Counsel, U.S. Chamber of Commerce

 

Speakers

12:00 p.m. - 2:00 p.m.
International: International Law: Agreements Between Sovereigns or World Government?

2009 National Lawyers Convention

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

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International law consists of reciprocal agreements on specific and limited matters. For the U.S., these agreements reflect the assent of its constitutional democracy. Yet some in the U.S. and abroad have embraced the view of transnational progressives, who believe that domestic law should incorporate “transnational norms,” paving the way for “transnational governance.” What is the impact of these views on policymakers and courts?

  • Mr. François-Henri Briard, Supreme Court Attorney (France), Delaporte, Briard & Trichet
  • Prof. Oona A. Hathaway, Yale Law School
  • Hon. Brian H. Hook, former Assistant U.S. Secretary of State for International Organization Affairs
  • Prof. Jeremy A. Rabkin, George Mason University School of Law
  • Ms. Laura M. Olson, Senior Counsel, The Constitution Project
  • Moderator: Mr. Bret Stephens, Deputy Editorial Page Editor, Foreign Affairs Columnist, The Wall Street Journal

Speakers

2:15 p.m. - 3:00 p.m.
Address by Michael B. Mukasey

2009 National Lawyers Convention

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

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  • Hon. Michael B. Mukasey, Partner, Debevoise & Plimpton and Former U.S. Attorney General
  • Introduction: Mr. Gerald Walpin, Former Inspector General of the Corporation for National and Community Service

Speakers

3:15 p.m. - 4:45 p.m.
Free Speech: The Fairness Doctrine

2009 National Lawyers Convention

Topics: Administrative Law & Regulation • Constitution • First Amendment • Free Speech & Election Law
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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The Federal Communications Commission (FCC) adopted the Fairness Doctrine as a formal rule in 1949. This required what was commonly known as a "reasonable balance" in the coverage of controversial issues in a station's overall programming. Since its origin, the Fairness Doctrine has alternately fallen in and out of favor. In 1991 Congress tried to revive the Fairness Doctrine, but President George H.W. Bush vetoed the legislation. In February 2005, Congresswoman Louise Slaughter and 23 co-sponsors introduced the "Fairness and Accountability in Broadcasting Act" (H.R. 501), which did not become law. In 2007, Senator Norm Coleman proposed an amendment to a defense appropriations bill that forbade the FCC from "using any funds to adopt a fairness rule.” The amendment was blocked. In 2007, the FCC Chairman stated that the FCC saw no compelling reason to reinstate the Fairness Doctrine in the current broadcast environment.

But as of this writing, there is at least some possibility that the Congress will again attempt to pass the Fairness Doctrine. Should it pass? Should it be considered? What are the potential legal and constitutional issues implicated by the Fairness Doctrine or its kin? Is there a “scarcity problem” with radio and television frequencies and, if so, is that scarcity mitigated by other, recent modes of communication, including the Internet?

  • Prof. Thomas W. Hazlett, Professor of Law & Economics, George Mason University
  • Mr. Seton Motley, Communications Director, Media Research Center
  • Prof. Jamin Ben Raskin, Director, Law and Government Program, American University Washington College of Law
  • Moderator: Hon. David B. Sentelle, U.S. Court of Appeals, D.C. Circuit
 

Speakers

3:15 p.m. - 4:45 p.m.
Religious Liberties: Religious Liberty and the Limits of Government Power

2009 National Lawyers Convention

Topics: Constitution • First Amendment • Religious Liberty • Religious Liberties
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Religious freedom is often referred to as our "first freedom." But while many recognize that the principles of non-establishment and free exercise are listed first among the liberties protected by the Bill of Rights, fewer people are familiar with the relationship between the government's limited control over religion and the concept of limited government generally. This panel will focus on both the historical and theoretical relationship between religious freedom and ordered liberty.

  • Prof. Alan E. Brownstein, Boochever and Bird Chair for the Study and Teaching of Freedom and Equality, University of California, Davis, School of Law
  • Prof. Ira C. “Chip” Lupu, F. Elwood and Eleanor Davis Professor of Law, The George Washington University Law School
  • Hon. Michael W. McConnell, Richard and Frances Mallery Professor of Law, Stanford Constitutional Law Center, Stanford Law School
  • Moderator: Hon. Brett M. Kavanaugh, U.S. Court of Appeals, D.C. Circuit

Speakers

5:15 p.m. - 5:45 p.m.
9th Annual Barbara K. Olson Memorial Lecture

2009 National Lawyers Convention

Topics: Constitution • Culture • Federalist Society
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 2009, Judge Douglas H. Ginsburg of the Court of Appeals for the D.C. Circuit delivered the lecture.

9th Annual Barbara K. Olson Memorial Lecture
When: Friday, November 13, 2009
Where: Mayflower Hotel - Washington, DC
Judge Douglas Ginsburg
Hon. Douglas H. Ginsburg
United States Court of Appeals, D.C. Circuit

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

For a list of past lecturers, click HERE.

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9:00 a.m. - 10:30 a.m.
Showcase Panel III: Regulation of Financial Institutions

2009 National Lawyers Convention

Topics: Administrative Law & Regulation • Financial Services • Law & Economics • Financial Services & E-Commerce
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Quite independent of questions concerning wealth distribution and bailouts, there is the question of whither the regulation of financial institutions. There is widespread agreement that these institutions contributed greatly to the financial crisis. Even conservative free marketers were troubled by what these institutions had done. Was the cause lack of adequate regulation; lack of adequate enforcement? Or, as some free marketers suggest, were already existing government regulation, rules, and pressures leading to the problems in the private sector? How should regulation of such institutions work in a free society? Can we have a free market without greed undermining it? Can we have regulation strong enough to control greed and weak enough to allow entrepreneurs to use their creative energies to produce wealth? What is the proper role of the legal system here?

  • Hon. Paul S. Atkins, Congressional Oversight Panel and Former U.S. SEC Commissioner
  • Ms. Stephanie R. Breslow, Partner, Schulte, Roth & Zabel LLP
  • Dean Paul G. Mahoney, D avid and Mary Harrison Distinguished Professor of Law,  Arnold H. Leon Professor of Law, University of Virginia School of Law
  • Hon. Annette L. Nazareth, Partner, Davis Polk & Wardwell LLP
  • Moderator: Hon. Edith H. Jones, U.S. Court of Appeals, Fifth Circuit
  • Introduction: Dean Reuter, Director of Practice Groups, The Federalist Society

Speakers

10:45 a.m. - 12:15 p.m.
Corporations: Delaware's New Competition: The Creeping Federalization of American Corporate Law

2009 National Lawyers Convention

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

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Competitive federalism aptly has been called the “genius” of American corporate law. States compete in granting corporate charters. After all, the more charters the state grants, the more franchise and other taxes it collects. Although some believe this incentive creates a so-called “race to the bottom,” others argue that state competition tends to produce more efficient corporate laws.

Proponents of the latter view argue that investors will not purchase, or at least not pay as much for, securities of firms incorporated in states that cater too excessively to management. Lenders will not lend to such firms without compensation for the risks posed by management’s lack of accountability. As a result, those firms’ cost of capital will rise, while their earnings will fall. Among other things, such firms thereby become more vulnerable to a hostile takeover and subsequent management purges. Corporate managers therefore have strong incentives to incorporate the business in a state offering rules preferred by investors. Competition for corporate charters thus should deter states from adopting excessively pro management statutes. Although the empirical evidence is mixed and contested, much of it suggests that efficient solutions to corporate law problems do tend to result from state competition for charters. 

In recent years, however, the regulatory front has shifted. Instead of state to state competition, Delaware's chief competitive pressure comes not from the federal government. In the wake of the bursting of the tech stock bubble and the accounting scandals at firms like Enron, for example, Congress passed the Sarbanes-Oxley Act, which dramatically expanded the federal role in corporate governance. More recently, the Obama Administration and members of Congress are using the financial crisis of 2008 and the so-called Great Recession to justify a further expansion of federal regulation into areas traditionally governed by state corporate law. 

Pending legislative and regulatory proposals include:

  1. “shareholder access” — empowering  to nominate directly in a company’s proxy statement alternate director candidates;
  2. elimination of broker discretionary votes in uncontested elections;
  3. requiring disclosure about a company’s board leadership structure and why it is appropriate for the company;
  4. “say on pay” shareholder votes;
  5. requiring independent compensation consultants;
  6. requiring companies to develop and disclose “claw-back” policies;
  7. requiring proxy disclosure of specific performance targets for incentive compensation;
  8. requiring expanded compensation-related proxy disclosure, including regarding compensation paid to lowest and highest paid employees, average to all employees, number of employees paid more than prescribed multiple (e.g., 100x) of average employee compensation and total compensation paid to employees paid more than prescribed multiple;
  9. providing additional requirements with respect to compensation committees regarding (a) enhanced independence standards, (b) direct responsibility for hiring, paying and overseeing compensation consultants, (c) authority to hire and pay outside counsel and advisors, and (d) independence standards to be applied to compensation consultants and outside counsel;
  10. requiring discussion and analysis of risk-related overall compensation policies and practices for employees generally, if the risks arising from those policies and practices “may have” a material affect on the company;
  11. requiring creation of a board risk committee;
  12. disclosing the board’s role in the company’s risk-management process and the effects, if any, that risk management has on the company’s board leadership structure.

The panel will explore these developments, asking whether the increased federal role in corporate governance—whether taken as a whole or when looking at specific proposals—has changed corporate governance for the better or for the worse.

  • Prof. Stephen M. Bainbridge, William D. Warren Professor of Law, University of California, Los Angeles School of Law
  • Mr. Cornish F. Hitchcock, Hitchcock Law Firm PLLC
  • Mr. David A. Katz, Partner, Wachtell, Lipton, Rosen & Katz
  • Prof. Roberta Romano, Oscar M. Ruebhausen Professor of Law and Director, Yale Law School Center for the Study of Corporate Law
  • Moderator: Hon. Thomas M. Hardiman, U.S. Court of Appeals, Third Circuit

Speakers

10:45 a.m. - 12:15 p.m.
Administrative Law: Breakdown of the Public-Private Distinction: Implications for the Administrative State

2009 National Lawyers Convention

Topics: Administrative Law & Regulation • Law & Economics
Chinese Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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This panel will address how increasing government involvement, investment, and control over nominally private firms influences the administrative and regulatory process we’ve become accustomed to over the past century. The basic regulatory model presupposes a private entity being regulated by a government agency. The new model has government owning some or even most of a private entity and exercising influence through both informal and formal mechanisms within the firm while also having the traditional tools of regulatory control. Does this present special problems in figuring out how the laws providing regulatory control fit with those providing for investment and corporate control? Does it portend a shift to more politicized and less transparent forms of control? Does it change the way courts should approach agency review, deference, or preemption questions?

  • Mr. David Berenbaum, Executive Vice President, National Community Reinvestment Coalition
  • Mr. David G. Leitch, Group Vice President and General Counsel, Ford Motor Company
  • Prof. J.W. Verret, Assistant Professor of Law, George Mason University School of Law
  • Prof. David Zaring, Assistant Professor of Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania
  • Moderator: Hon. Ronald A. Cass, President, Cass & Associates, PC

Speakers

10:45 a.m. - 12:15 p.m.
Telecommunications: Broadband Policy -- One Year In

2009 National Lawyers Convention

Topics: Administrative Law & Regulation • Federalism • Healthcare • Law & Economics • Telecommunications & Electronic Media • Federalism & Separation of Powers
East Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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President Obama was elected after running a very technology-savvy campaign and now promises to continue to innovate by harnessing the transformative powers of technology to maximize the free exchange of ideas, increase government transparency, further deploy a modern communications infrastructure, address major problems such as health care, and increase America’s competitiveness in the world. To this end, the American Recovery and Reinvestment Act allocated more than $7.2 billion taxpayer dollars to increase broadband deployment.

Our panelists will reflect on the first 10 months of the Obama Administration’s technology policy and practices. Some of the topics they will address include: What should America's National Broadband policy be? Has Administration policy stimulated or interfered with development of the technology industry? Have our tax dollars been spent effectively?  How are these policies influencing the global market? Our panelists will try to answer these and other questions, and offer opinions on what issues the Administration should focus on for the rest of President Obama’s term.

  • Prof. Marvin Ammori, University of Nebraska-Lincoln College of Law
  • Hon. Robert M. McDowell, Commissioner, Federal Communications Commission
  • Hon. David M. McIntosh, Partner, Mayer Brown Row & Maw, LLP
  • Hon. Kyle E. McSlarrow, President & CEO, National Cable & Telecommunications Association
  • Prof. Gigi B. Sohn, President and Founder, Public Knowledge
  • Moderator: Hon. Jennifer W. Elrod, U.S. Court of Appeals, Fifth Circuit

 

Speakers

12:30 p.m. - 2:30 p.m.
Second Annual Rosenkranz Debate and Luncheon

2009 National Lawyers Convention

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

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RESOLVED: The United States Constitution Requires Federal Courts to Interpret Statutes as Honest Agents of the Enacting Congress

  • Hon. Guido Calabresi, U.S. Court of Appeals, Second Circuit
  • Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit
  • Moderator: Prof. John F. Manning, Bruce Bromley Professor of Law, Harvard Law School
  • Introduction: Mr. Eugene B. Meyer, President, The Federalist Socety

 

Speakers

2:30 p.m. - 4:15 p.m.
Showcase Panel IV: Control of the Bureaucracy

2009 National Lawyers Convention

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

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One problem cited in the financial crisis was the failure of regulatory agencies to do their job. Is that fair? To what degree did they have the power or should they have the power to address such problems? Is a bureaucracy strong enough to address such problems also strong enough to be a faceless bureaucracy beyond the reach of the voters and indeed the President himself? Especially with independent agencies such as the SEC, how do we envision a structure of government should work given the need for actual human beings to run it? The age old question is highlighted: “Where do we want the power to be?” With a bureaucracy, how do we control its efforts? Without one, how do we control private greed? And finally, what is the capacity of the executive to respond to economic emergencies, and can one increase that capacity without giving it huge additional powers?

  • Prof. Geoffrey P. Miller, Stuyvesant P. Comfort Professor of Law, Director, Center for the Study of Central Banks and Financial Institutions, New York University School of Law
  • Hon. Harvey L. Pitt, Chief Executive Officer, Management, Kalorama Partners, LLC
  • Hon. Steven Wallman, Chief Executive Officer, Foliofn
  • Moderator: Hon. A. Raymond Randolph, U.S. Court of Appeals, D.C. Circuit

 

Speakers

4:30 p.m. - 5:30 p.m.
Address by Mark Levin

2009 National Lawyers Convention

Topics: Constitution • Federalism • Founding Era & History • Philosophy • Politics • Separation of Powers • Federalism & Separation of Powers
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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  • Mr. Mark R. Levin, President, Landmark Legal Foundation and Author of Liberty and Tyranny: A Conservative Manifesto
  • Introduction: Mr. Leonard A. Leo, Executive Vice President, The Federalist Society

Speakers

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