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2011 National Student Symposium

Capitalism, Markets, and the Constitution

February 25 — 26, 2011
2011 Student Symposium

America's economy, characterized by capitalism and the free market, has generally provided material prosperity for its citizens since the country was founded. In the last few years, however, that same economy has faced a financial crisis and recession worse than any other since the Great Depression. The federal government took an active role in responding to the downturn, favoring more intervention over less. The results included a bailout of major banks and automobile companies, an $800 billion stimulus package, an overhaul of financial regulations, and a comprehensive health care reform package.

These measures were hotly contested, and a vocal group of citizens responded by forming Tea Party groups across the country. Members of this movement placed a heavy emphasis on the ideas of the founders and the original meaning of the Constitution. Opposition to the federal government's economic approach, primarily led by the Tea Party movement, culminated in historic Republican gains in the 2010 midterm elections. Shortly after taking control, the new majority held a reading of the Constitution on the floor of the House of Representatives for the first time in history.

The battle over the government's role in economic regulation has not only been waged in the halls of Congress, but in the courts as well. In the past year a total of 28 states have filed joint or individual lawsuits challenging the constitutionality of the health care reform bill's individual mandate.

With the state of the economy at a historic low and the popularity of the Constitution at a historic high, now is an apt time to examine the topic of capitalism, markets and the Constitution. This symposium seeks to explore the following questions: What were the economic theories of the founders and how did they influence the Constitution? To what extent does the Constitution protect economic liberties, if at all? What effect does American federalism, embodied in the Constitution, have on the substance and style of government regulation? Is a welfare state consistent with American exceptionalism? What is the role of the courts in times of economic uncertainty? And lastly, what were the causes and consequences of the recent financial crisis?

The University of Virginia School of Law and its Federalist Society chapter are honored to host the 2011 Student Symposium. The setting is the perfect match for this symposium - a law school with a history of focusing on the intersection of law and the economy located just miles from the home of James Madison. We hope that each of you will approach our panels with an open mind and insightful questions and will discuss with each other what you learn over the course of the weekend. Anyone who has attended past Federalist Society symposia knows to expect the highest degree of respectful and cordial debate. Thank you for joining us in Charlottesville for what is sure to be an exciting and engaging event.

Symposium Committee
University of Virginia Federalist Society

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6:15 p.m. - 8:00 p.m.
Debate: Economic Freedoms and the Constitution

2011 National Student Symposium

Topics: Administrative Law & Regulation • Constitution • Contracts • Founding Era & History • Law & Economics • Supreme Court
The University of Virginia School of Law
580 Massie Road
Charlottesville, VA 22903

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Description

Since West Coast Hotel Co. v. Parrish and the end of the Lochner Era, the Supreme Court has adhered to the belief that “[t]he Constitution does not speak of freedom of contract.”  But is this commitment consistent with an original understanding of the Constitution? This panel will address whether the Constitution permits the extensive state regulation of economic affairs. Even if Lochner as a decision was illegitimate, has the Supreme Court retreated too far in protecting economic liberties from state interference? Is the Constitution a thoroughly libertarian document or is it compatible with a high degree of state regulation? Does either understanding come with any limiting principles? If so, what is their source? In any event, is it desirable for a constitution to constrain the power of the state in the area of redistribution and economic regulation?

Welcome and Opening Remarks

  • Mr. Ben Massey, President, University of Virginia Federalist Society
  • Prof. Lillian BeVier, University of Virginia School of Law

Debate: Economic Freedoms and the Constitution

  • Prof. Randy Barnett, Georgetown University Law Center 
  • Prof. Jeffrey Rosen, The George Washington University Law School
  • Moderator: Judge Debra Ann Livingston, U.S. Court of Appeals, Second Circuit
  • Introduction: Mr. Devin DeBacker, Speakers and Panels Vice Chair, University of Virginia Federalist Society

Speakers

8:00 p.m. - 9:30 p.m.
Panel I: Economic Theory, Civic Virtue and the Meaning of the Constitution

2011 National Student Symposium

Topics: Constitution • Culture • Founding Era & History • Law & Economics • Philosophy
The University of Virginia School of Law
580 Massie Road
Charlottesville, VA 22903

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Justice Holmes' dissent in Lochner v. New York is well-known for the statement, "[A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire." But is this belief consistent with the original Constitution? To what extent did the ideas of thinkers such as Adam Smith shape the founders' understanding of human nature and public virtue? In what ways do their economic and philosophical commitments continue to shape our constitutional government today? Are capitalism and a commitment to civic virtue complementary or antagonistic? Does the Constitution promote a virtuous citizenry or is it simply a set of political structures that can accommodate a pluralistic society? At a time when the virtues of capitalism are often called into question, it will be useful to examine the precise place of this theory in the foundational structures of our government. 

  • Prof. James Ely, Vanderbilt University Law School
  • Prof. Renee Lettow Lerner, The George Washington University Law School
  • Prof. Nelson Lund, George Mason University School of Law
  • Prof. G. Edward White, University of Virginia School of Law
  • Moderator: Judge J. Harvie Wilkinson III, U.S. Court of Appeals, Fourth Circuit
  • Introduction: Mr. Brinton Lucas, Symposium Vice Chair, University of Virginia Federalist Society

Speakers

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9:00 a.m. - 10:45 a.m.
Panel II: Federalism and Interstate Competition

2011 National Student Symposium

Topics: Administrative Law & Regulation • Environmental & Energy Law • Federalism • Financial Services • Healthcare • Law & Economics • State Governments • Federalism & Separation of Powers
The University of Virginia School of Law
580 Massie Road
Charlottesville, VA 22903

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This panel will assess American federalism as a competitive institution that offers a marketplace of state regulatory regimes. With the recession impacting some states more heavily than others, it is time to ask whether interstate competition is good for the nation. Should state-by-state approaches to issues such as healthcare, financial regulation, environmental protection, and same-sex marriage be encouraged? Does competition among the states lead to the best outcome or a race to the bottom? How will events such as the recent recession and healthcare reform impact the marketplace of state regulation? 

  • Prof. Jonathan Adler, Case Western Reserve University School of Law
  • Prof. Clayton Gillette, New York University School of Law
  • Prof. John McGinnis, Northwestern University School of Law
  • Prof. Louis Michael Seidman, Georgetown University Law Center
  • Moderator: Hon. Gregory G. Katsas, Partner, Jones Day
  • Introduction: Miss Lauren Prieb, Speakers and Panels Vice Chair, University of Virginia Federalist Society

Speakers

11:00 a.m. - 12:45 p.m.
Speech: The U.S. Financial Crisis: Causes and Consequences

2011 National Student Symposium

Topics: Financial Services • Law & Economics • Philosophy • Financial Services & E-Commerce
The University of Virginia School of Law
580 Massie Road
Charlottesville, VA 22903

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Many politicians have blamed business for the current recession, leading to additional measures by the U.S. government to regulate the market. Some critics argue that the Federal Reserve's missteps in managing the monetary system created an economic bubble. That bubble pervaded the real estate market in part through relaxed lending standards promulgated by the government-sponsored enterprises Freddie Mac and Fannie Mae. When the bubble inevitably deflated, the crisis spread to the general economy, resulting in high unemployment and negative or slow economic growth. But will the measures the government took to stem the crisis and regulate the market reduce economic growth in the long term? John Allison will outline the fundamental economic and philosophical solutions to these problems in his presentation.

  • Mr. John Allison, Former Chairman and CEO, BB&T Corporation
  • Introduction: Mr. Howard Husock, Vice President for Policy Research, Manhattan Institute

Speakers

2:00 p.m. - 3:45 p.m.
Panel III: The Welfare State and American Exceptionalism

2011 National Student Symposium

Topics: Constitution • Culture • Law & Economics • Politics
The University of Virginia School of Law
580 Massie Road
Charlottesville, VA 22903

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With the recent passage of President Barack Obama's health care legislation, it is time to reassess whether it is possible to have a welfare state that meshes with the American constitutional tradition. Is the enduring presence of government entitlements antithetical to our system of government or is there a way to accommodate these programs without changing the historical American relationship between the individual and the government? Will the growing role of government in the United States cause the country to increasingly mirror Europe or can the nation chart an alternate course? If the latter, what would it look like? Does the U.S. Constitution's relative lack of positive rights compared to its counterparts around the world pose problems for proponents of an American welfare state? Is the American suspicion toward state entitlements the product of a longstanding philosophical commitment or the result of historical contingency? Are there currently any constitutional limits on the growth of the welfare state? Should there be?

  • Prof. William P. Marshall, University of North Carolina School of Law
  • Prof. Jeremy Rabkin, George Mason University School of Law
  • Prof. Neomi Rao, George Mason University School of Law
  • Moderator: Judge Brett Kavanaugh, U.S. Court of Appeals, D.C. Circuit
  • Introduction: Mr. Matthew Glover, Speakers and Panels Vice Chair, University of Virginia Federalist Society

Speakers

4:00 p.m. - 5:30 p.m.
Panel IV: Economic Uncertainty and the Role of the Courts

2011 National Student Symposium

Topics: Constitution • Federal Courts • Financial Services • Law & Economics • Property Law • State Courts • Supreme Court
The University of Virginia School of Law
580 Massie Road
Charlottesville, VA 22903

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This panel will assess the role of the courts in an uncertain economic climate. Given the financial troubles plaguing the United States, how much emphasis should the judiciary place on the constitutional protection of private property? In a difficult economic climate, should a judge's empathy for those in financial distress affect his rulings? If a state defaults on its obligations, what is the appropriate role of the courts? Should a refusal to pay constitute a violation of the Takings Clause? On a broader level, to what extent do interpretive methods have financial consequences? How much stock do investors put in stability in judicial reasoning when choosing where to place their money? Does our current law protect private property too much or not enough to maximize social utility, and should that be the standard by which we judge the legal protection of property rights? Does the experience of other countries offer any lessons in this area?

  • Dean Paul G. Mahoney, University of Virginia School of Law
  • Prof. Paul Stephan, University of Virginia School of Law
  • Prof. Todd Zywicki, George Mason University School of Law
  • Moderator: Judge Diane Sykes, U.S. Court of Appeals, Seventh Circuit
  • Introduction: Mr. Joseph D'Agostino, Speakers and Panels Vice Chair, University of Virginia Federalist Society

Speakers

7:00 p.m. - 10:00 p.m.
Banquet and Bator Award Presentation

2011 National Student Symposium

Topics: Federalist Society • Supreme Court
The University of Virginia School of Law
580 Massie Road
Charlottesville, VA 22903

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Bator Award Presentation

  • Prof. Brian Fitzpatrick, Vanderbilt University Law School
  • Introduction by: Mr. Joseph Bingham, University of Chicago Law School Federalist Society

Keynote Speaker

  • Justice Clarence Thomas, United States Supreme Court

Speakers

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