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2016 National Lawyers Convention

The Jurisprudence and Legacy of Justice Scalia

November 17 — 19, 2016

The 2016 National Lawyers Convention was held on Thursday, November 17 through Saturday, November 19 at the Mayflower Hotel in Washington, D.C. The topic the convention was: The Jurisprudence and Legacy of Justice Scalia.

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9:00 a.m. - 9:45 a.m.
Opening

2016 National Lawyers Convention

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

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  • Address: Hon. Samuel A. Alito, U.S. Supreme Court
  • Introduction: Mr. Leonard A. Leo, Executive Vice President, The Federalist Society

Speakers

9:45 a.m. - 11:30 a.m.
Showcase Panel I: Justice Scalia: Text Over Intent and the Demise of Legislative History

2016 National Lawyers Convention

Topics: Constitution • Federalism • Founding Era & History • Jurisprudence • Separation of Powers • Supreme Court • Article I Initiative
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Until 1986, most conservative lawyers favored following the original intentions of the Framers of the Constitution rather than the original public meaning of the text of the laws they wrote. Justice Scalia changed all of that with a brilliant speech given at the Justice Department just days before he was nominated to the Supreme Court. Justice Scalia argued that it is the laws that Congress makes, and not the legislative history that accompanies them, that the courts must follow. He argued similarly in constitutional cases that we are bound by the texts that our dead ancestors enacted and not by their unenacted intentions and policy views. Since 1986, Justice Scalia's view has so thoroughly swept the field that few proponents of original intention and of following legislative history remain. The triumph of text over intent and over legislative history is one of Justice Scalia's legacies.

  • Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School
  • Prof. Michael S. Paulsen, Distinguished University Chair and Professor, University of St. Thomas School of Law
  • Prof. Saikrishna Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law
  • Prof. Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center
  • Moderator: Hon. Sandra Segal Ikuta, U.S. Court of Appeals, Ninth Circuit

Speakers

11:45 a.m. - 1:30 p.m.
Litigation: How Justice Scalia's Writing Style Affected American Jurisprudence

2016 National Lawyers Convention

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

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In addition to being a brilliant legal thinker, Justice Scalia was widely regarded as a masterful legal writer, perhaps the best of his generation. His gifted prose and frequent use of humor and sarcasm made Justice Scalia's opinions -- whether majority or dissent -- must-reads for lawyers, judges, professors, and law students alike. Commentators from across the philosophical spectrum admired Justice Scalia's writing skill. Just a year before his passing, for example, the New Republic, dubbed Scalia “the foremost living practitioner of performative legal prose." This panel discussion will examine the impact Justice Scalia's writing had on American jurisprudence. Aside from the force of his arguments, what impact did his writing style have on the opinions written by his colleagues on the Supreme Court and judges on lower courts, the briefs filed by practicing lawyers, and even the way law students learned the law? Our panelists will bring a variety of perspectives to this question: former clerk, judge, professors, and critics.

 

  • Prof. Brian T. Fitzpatrick, Professor of Law, Vanderbilt Law School
  • Prof. Toni M. Massaro, Regents' Professor, Milton O. Riepe Chair in Constitutional Law and Dean Emerita, University of Arizona James E. Rogers College of Law
  • Mr. Kannon Shanmugam, Partner, Williams & Connolly LLP
  • Hon. Jeffrey S. Sutton, U.S. Court of Appeals, Sixth Circuit
  • Moderator: Hon. Joan L. Larsen, Michigan Supreme Court
  • Introduction: Hon. Rachel Brand, Member, Privacy and Civil Liberties Oversight Board and Senior Advisor to the U.S. Chamber Litigation Center, United States Chamber of Commerce

Speakers

1:45 p.m. - 3:15 p.m.
Corporations, Securities & Antitrust: Justice Scalia's Contributions to Antitrust Law

2016 National Lawyers Convention

Topics: Corporations, Securities & Antitrust • Jurisprudence • Supreme Court
East Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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In his confirmation hearing, Justice Scalia told the Senators that, as a law school student, he had never really understood antitrust law; later, he learned that he shouldn't have understood it, because it did not make any sense then. It should come as no surprise, that in his subsequent time on the Court, Justice Scalia strove to rectify that problem, and succeeded through clearly written majority decisions that changed the direction of jurisprudence on monopolization (U.S. v. Trinko) and class certification in massive antitrust and other business class actions (Wal-Mart v. Dukes, Comcast v. Behrens), and powerful dissents. As a modern intellectual leader of the "Chicago school" of economics, Justice Scalia played an important role in shaping the Court's approach to antitrust law and hence development of the law in the lower courts. It is a good time to consider the impact of his legacy, including how lasting those decisions will be, whether and how the course of antitrust jurisprudence could change and who will take his place in the Court on these issues.

 

  • Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit
  • Ms. Deborah A. Garza, Partner, Covington & Burling LLP
  • Prof. C. Scott Hemphill, Professor of Law, New York University School of Law
  • Moderator: Hon. Douglas H. Ginsburg, U.S. Court of Appeals, District of Columbia Circuit

Speakers

1:45 p.m. - 3:15 p.m.
Labor & Employment Law: The Battle for the Gig Economy

2016 National Lawyers Convention

Topics: Labor & Employment Law • Law & Economics
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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The “gig" or “on demand" economy may be the fastest growing segment of our economy, with 22.4 million consumers spending $56.6 billion annually. By 2020, according to some studies, 7.6 million Americans will be working as independent contractors in the gig economy. At the same time, however, the U.S. Department of Labor has narrowed standards for classifying workers as independent contractors, and entered enforcement partnerships with 30 States looking to find misclassified independent contractors in order to increase workers' compensation, unemployment and employment tax revenue. A battle has begun between regulators and entrepreneurs, between independent contractor and employee status. This panel will explore who should win, who will win, and whether there is a third way – creating a new legal category, the “independent worker," for those who occupy the grey area between employee and independent contractor.

 

  • Hon. Mark Brnovich, Attorney General, Arizona
  • Mr. Mark Floyd, Senior Director and Global Relations Lead, Uber Technologies Inc.
  • Mr. Randel K. Johnson, Senior Vice President, Labor, Immigration and Employee Benefits, U.S. Chamber of Commerce
  • Mr. Bill Samuel, Director of Government Affairs, AFL-CIO
  • Moderator: Hon. Thomas M. Hardiman, U.S. Court of Appeals, Third Circuit

Speakers

1:45 p.m. - 3:15 p.m.
Intellectual Property: Courts vs. Congress: What is a Patentable Invention?

2016 National Lawyers Convention

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

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In the past six years, there has been a momentous shift in what can be patented. In four separate cases, the Supreme Court embraced a more muscular approach in enforcing the basic requirement under § 101 of the Patent Act that only certain types of inventions can be patented, impacting inventive activities ranging from biotech to high-tech to business methods. As a result, the Court of Appeals for the Federal Circuit, trial courts, and the Patent Office have responded by sharply restricting the scope of “patentable subject matter," invalidating issued patents and rejecting patent applications at record rates. 

This change has been both consequential and controversial. Inventions that once were patentable in key innovation industries, such as cutting-edge diagnostic tests made possible by the biotech revolution and highly complex computer software in the high-tech sector, are no longer eligible for patent protection. Some welcome this development, seeing it as freeing up basic tools of research and preventing abusive assertions of patents against infringers. Others have criticized this development, identifying lost incentives to invest millions in R&D necessary to produce technological innovation and lost value in existing patents given pervasive uncertainty in the patent system as to what is and is not protectable. 

The lack of certainty is something both sides of this important legal and policy debate have found troublesome. Many agree that the Supreme Court's current patent-eligibility jurisprudence is confusing and murky. The Court's legal test for assessing patentable subject matter has proven unpredictable in its application by courts, by patent examiners, and by the administrative review board at the Patent Office (the Patent Trial and Appeal Board). 

One proposed solution has been to simply abolish § 101, the provision that sets forth the requirement that only an invention comprising a “machine, manufacture, process, or composition of matter" is patentable. The argument is that this provision is an antiquated holdover from the first patent statutes that did not have the granular requirements that now exist in the modern Patent Act, ensuing that only novel, nonobvious, useful and fully disclosed inventions are patentable. This panel will consider whether such a radical move is warranted, whether the Supreme Court's patentable subject matter jurisprudence is on the right track, or perhaps whether any problems in patentable subject matter jurisprudence are fixable by the Court or by Congress.

  • Mr. David J. Kappos, Partner, Cravath, Swaine & Moore LLP
  • Prof. Adam Mossoff, Professor of Law and Co-Director of Academic Programs, Senior Scholar, Center for the Protection of Intellectual Property, Antonin Scalia Law School, George Mason University
  • Mr. Mark A. Perry, Partner, Gibson, Dunn & Crutcher LLP
  • Prof. Joshua D. Sarnoff, Professor of Law, DePaul College of Law
  • Moderator: Hon. Susan G. Braden, U.S Court of Federal Claims

Speakers

3:30 p.m. - 5:00 p.m.
Criminal Law: Justice Scalia and the Criminal Law

2016 National Lawyers Convention

Topics: Constitution • Criminal Law & Procedure • Fourth Amendment • Supreme Court
East Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Justice Scalia's originalism had an important impact on our nation's criminal law. While sometimes overlooked, his commitment to the rights of criminal defendants, as rooted in the Constitution, is indisputable. He forthrightly addressed new Fourth Amendment issues including technological advances in surveillance, revived the Sixth Amendment's jury and confrontation clauses, remained mindful of both common law and substantive criminal law concerns, and in many instances swayed his fellow justices. This panel will delve into these areas and discuss if and how Justice Scalia's work will continue to affect future Court decisions.

 

  • Prof. Rachel E. Barkow, Segal Family Professor of Regulatory Law and Policy and Faculty Director, Center on the Administration of Criminal Law, New York University School of Law
  • Prof. Stephanos Bibas, Professor of Law and Criminology and Director, Supreme Court Clinic, University of Pennsylvania Law School
  • Prof. Orin S. Kerr, Fred C. Stevenson Research Professor of Law, The George Washington University Law School
  • Mr. Paul J. Larkin, Jr., Senior Legal Research Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation
  • Hon. Stephen J. Markman, Michigan Supreme Court
  • Moderator: Hon. David R. Stras, Minnesota Supreme Court
  • Introduction: Mr. John G. Malcolm, Director, Edwin Meese III Center for Legal and Judicial Studies, and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, The Heritage Foundation

Speakers

3:30 p.m. - 5:00 p.m.
Federalism & Separation of Powers: Justice Scalia on Federalism and Separation of Powers

2016 National Lawyers Convention

Topics: Constitution • Federalism • 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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Justice Scalia often said that, while he always tried to get the Bill of Rights cases correct, he cared most about the structural constitutional cases. Once or twice each summer, he even taught a course called Separation of Powers. His opinions on the structural issues of separation of powers and federalism often cited The Federalist Papers. He routinely urged law students and lawyers to read the whole of The Federalist. The authors of the Federalist Papers placed primordial importance on separated powers, both among branches of the federal government and between federal and state governments. With the separation of powers both horizontal and vertical increasingly in doubt, it is particularly important to understand the Federalist's treatment of constitutional structure. This panel, therefore, looks at Justice Scalia's Federalist focus on the importance of separation of powers and federalism as structural protections of liberty.

 

  • Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center
  • Hon. Ron DeSantis, U.S. House of Representatives, Florida 6th District
  • Mr. Roger Pilon, Vice President, Legal Affairs, Cato Institute
  • Hon. Luther Strange III, Attorney General, Alabama
  • Prof. Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law; Director of the Environmental Law Advocacy Center; Executive Director, Project for Older Prisoners, The George Washington University Law School
  • Moderator: Hon. William H. Pryor Jr., U.S. Court of Appeals, Eleventh Circuit

Speakers

3:30 p.m. - 5:00 p.m.
Religious Liberties: Is the Religious Freedom Restoration Act (RFRA) the Future of Religious Liberty?

2016 National Lawyers Convention

Topics: Religious Liberty • Religious Liberties
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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In his seminal decision in Employment Division v. Smith in 1990, Justice Antonin Scalia held that the First Amendment typically does not authorize courts to grant religious exemptions from generally applicable laws. This decision altered the 1963 Sherbert v. Verner test which had given courts the power to strike down any law that (1) if it substantially burdened religious practice, was not (2) based on a compelling government interest, and (3) narrowly tailored to achieve that interest. Rather, Scalia said that religious adherents should look to the political process for accommodation, and he consistently supported the constitutionality of such accommodations. In response to Smith, a primary means of such accommodation has been the passage of state and federal Religious Freedom Restoration Acts (RFRAs), which codify the Sherbert test. However, in the wake of Obergefell v. Hodges (or Hobby Lobby), RFRAs have become the focus of intense political controversy. What do these laws actually do in practice? Are they a good idea? Would a different approach to protect religious liberty be better?

  • Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University Fowler School of Law; Senior Fellow, The Claremont Institute
  • Prof. Richard W. Garnett, Paul J. Schierl/Fort Howard Corporation Professor, Concurrent Professor of Political Science, Notre Dame Law School
  • Prof. William P. Marshall, William Rand Kenan, Jr. Distinguished Professor of Law, University of North Carolina School of Law
  • Prof. Vincent Phillip Muñoz, Tocqueville Associate Professor of Religion & Public Life, University of Notre Dame
  • Moderator: Prof. Michael M. Uhlmann, Professor of Politics and Policy/SPE, Claremont Graduate University
  • Introduction: Mr. William L. Saunders, Senior Vice President of Legal Affairs and Senior Counsel, Americans United for Life

Speakers

7:00 p.m. - 10:00 p.m.
Annual Dinner: Keynote Address by Justice Clarence Thomas

2016 National Lawyers Convention

Topics: Constitution • Federalist Society • Jurisprudence • Philosophy • Supreme Court
Maryland Ballroom
Gaylord National
201 Waterfront St.
National Harbor, MD 20745

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Justice Clarence Thomas delivered the Keynote Address at the 2016 National Lawyers Convention Annual Dinner on November 17, 2016. In keeping with the theme of the convention, Justice Thomas discussed the jurisprudence and legacy of Justice Antonin Scalia.

Justice Thomas was introduced by Mr. Eugene Scalia, a partner at Gibson Dunn & Crutcher and son of the late Justice Antonin Scalia. Prior to the introduction, Mr. Eugene Meyer, President of the Federalist Society, announced that from now on the Annual Dinner will be known as the Antonin Scalia Memorial Dinner.

  • Hon. Clarence Thomas, U.S. Supreme Court
  • Introduction: Mr. Eugene Scalia, Partner, Gibson & Dunn & Crutcher LLP
  • Introduction: Mr. Eugene B. Meyer, President, The Federalist Society

Speakers

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9:00 a.m. - 11:00 a.m.
Showcase Panel II: Rules Versus Standards in Constitutional and Statutory Interpretation

2016 National Lawyers Convention

Topics: Constitution • Jurisprudence • Supreme Court
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Justice Scalia believed that the rule of law required a law of rules rather than of balancing tests. He favored rules (like the requirement the President be at least 35 years old) over standards (a requirement that the president be “a mature individual") because they lend themselves more to principled judicial enforcement. As a result, Justice Scalia revolutionized the caselaw he inherited from the Burger Court by eliminating as many balancing tests as possible and replacing them with rules. An example is his favoring of a rule of viewpoint neutrality in freedom of expression cases over separate treatment of various categories of speech. He believed that rules over standards promote the rule of law because they guarantee that judges will decide like cases alike rather than deciding each case on its facts using a totality of the circumstances test. Justice Scalia was so committed to rules over standards that he refused to enforce the non-delegation doctrine because to do so he would have had to employ a balancing test standard, however, in his last year on the bench, there were signs that Justice Scalia was moving away from this position. Justice Scalia also favored rules over standards because they limit lower federal and state court discretion in applying Supreme Court precedents as compared to balancing tests. The reemergence of rules over standards in Supreme Court opinions is another of Justice Scalia's legacies.

  • Prof. Akhil Reed Amar, Sterling Professor of Law and Political Science, Yale University
  • Hon. Frank Easterbrook, U.S. Court of Appeals, Seventh Circuit
  • Prof. John C. Harrison, James Madison Distinguished Professor of Law, University of Virginia School of Law
  • Prof. Victoria Nourse, Professor of Law, Georgetown University Law Center
  • Moderator: Hon. William Francis Kuntz II, U.S. District Court, Eastern District of New York
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Speakers

11:15 a.m. - 12:00 p.m.
Address by Governor Nikki Haley

2016 National Lawyers Convention

Topics: Constitution • Jurisprudence • Supreme Court
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Governor Nikki Haley delivered this address at the 2016 National Lawyers Convention on Friday, November 18, 2016. She was introduced by Alan Gocha of ETC Capital. Mr. Leonard A. Leo, Executive Vice President of The Federalist Society, introduced Mr. Gocha.

  • Hon. Nikki Haley, Governor, South Carolina
  • Introduction: Mr. Alan Gocha, Principal, ETC Capital
  • Introduction: Mr. Leonard A. Leo, Executive Vice President, The Federalist Society

Speakers

12:00 p.m. - 12:30 p.m.
Address by Senator Ted Cruz

2016 National Lawyers Convention

Topics: Constitution • Jurisprudence • Supreme Court
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Senator Ted Cruz delivered this address at the 2016 National Lawyers Convention on Friday, November 18, 2016. He was introduced by Dean Reuter, Vice President & Director of Practice Groups at The Federalist Society.

  • Hon. Ted Cruz, U.S. Senate, Texas
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Speakers

12:30 p.m. - 2:45 p.m.
Telecommunications & Electronic Media: Justice Scalia's Telecommunications Legacy

2016 National Lawyers Convention

Topics: Jurisprudence • Supreme Court • Telecommunications & Electronic Media
Chinese Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Justice Scalia first entered public service in 1971, when he was appointed by President Richard Nixon to serve as the General Counsel for the Office of Telecommunications Policy (“OTP") in the White House. From that day in 1971 through his dissent in the Brand X case regarding broadband classification, Justice Scalia brought a deep understanding of technology policy to his career on the Supreme Court. And of course, Justice Scalia was never one to mince words. “It would be gross understatement to say that the Telecommunications Act of 1996 is not a model of clarity. It is in many important respects a model of ambiguity or indeed even self-contradiction," he observed in AT&T Corp. v. Iowa Util. Bd. The Telecommunications & Electronic Media Practice Group has brought together a panel of experts to discuss Justice Scalia's legacy on telecommunications and media issues and discuss current litigation through the lens of his jurisprudence.

  • Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law, Director, Classical Liberal Institute, New York University School of Law
  • Mr. Henry Goldberg, Goldberg, Godles, Wiener and Wright LLP
  • Mr. Richard E. Wiley, Chairman Emeritus, Wiley Rein LLP
  • Moderator: Hon. Don Willett, Texas Supreme Court

Speakers

12:30 p.m. - 2:45 p.m.
Civil Rights: The Second Amendment: Enforcing the Heller Decision

2016 National Lawyers Convention

Topics: Civil Rights • Constitution • Second Amendment • Supreme Court
East Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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The Supreme Court's 2008 decision in District of Columbia v. Heller recognized for the first time in our history that individual Americans have a right to gun ownership. Justice Scalia's opinion in Heller is widely regarded as a signal success for his originalist approach to constitutional interpretation. This panel will assess Heller's contribution to the law. How originalist was the opinion? Have the lower courts been faithful in applying Heller to issues outside its narrow holding? Is the Court likely to read Heller broadly or narrowly in the future?

  • Mr. Noel J. Francisco, Partner, Jones Day
  • Prof. Nelson Lund, University Professor, Antonin Scalia Law School, George Mason University
  • Prof. Michael O'Shea, Professor of Law, Oklahoma City University School of Law
  • Prof. Allan Rostron, University of Missouri - Kansas City Law School
  • Moderator: Hon. Raymond M. Kethledge, U.S. Court of Appeals, Sixth Circuit
  • Introduction: Hon. Gail Heriot, Professor of Law, University of San Diego School of Law

Speakers

12:30 p.m. - 2:45 p.m.
Financial Services & E-Commerce: Has the Consumer Financial Protection Bureau (CFPB) Helped Consumers?

2016 National Lawyers Convention

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

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The Consumer Financial Protection Bureau (CFPB), in its more than five year existence, has ordered consumer financial service providers to return more than a billion dollars in monetary relief to consumers it believes were victims of practices that it deems unfair, deceptive, abusive, or otherwise violative of its view of regulations and laws. The CFPB has ordered monetary relief for discriminatory lending and proposed regulations that would shutter many low-income lending locations and encourage class actions lawsuits. Proponents of the Bureau point to fines collected and bad practices addressed. Critics assert that Bureau activities actually harm consumers rather than help them. This panel will assess whether the CFPB has been of net benefit or net harm to the people it was created to protect.

  • Mr. John A. Allison, Chairman, Executive Advisory Council, Center for Monetary and Financial Alternatives, Cato Institute
  • Mr. Leonard N. Chanin, Of Counsel, Morrison & Foerster LLP
  • Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC
  • Prof. Todd J. Zywicki, Foundation Professor of Law and Executive Director, Law & Economics Center, Antonin Scalia School of Law, George Mason University
  • Moderator: Hon. Edith Jones, U.S. Court of Appeals, Fifth Circuit
  • Introduction: Hon. Wayne A. Abernathy, Executive VP for Financial Institutions Policy and Regulatory Affairs, American Bankers Association

Speakers

3:00 p.m. - 5:00 p.m.
Free Speech & Election Law: Originalism and the First Amendment

2016 National Lawyers Convention

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

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Has Originalism played a significant role in the Supreme Court's free speech jurisprudence? One scholar has concluded that even Justice Scalia used Originalism in only 30% of his 56 opinions on freedom of expression through the 2010 Term.

Do landmark freedom of expression opinions square with the original understanding of the First Amendment? The Amendment's protections have been held to cover flag burning, cross burning, commercial advertising, campaign funding, virtual child pornography, violent video games and DVDs, expressive association, protests at military funerals and abortion clinics, false statements of fact, and nude dancing. The Supreme Court has also held that the First Amendment to some extent limits disciplinary measures in public schools, government employment actions, and conditions attached to government benefits.

This panel will discuss how Originalism has been used in fashioning freedom of expression doctrine, and whether it should be used more (or less).

  • Prof. David F. Forte, Garwood Visiting Professor, Princeton University
  • Hon. Michael W. McConnell, Richard and Frances Mallery Professor of Law, Director of the Constitutional Law Center; Stanford Law School, Senior Fellow, Hoover Institute
  • Prof. David M. Rabban, Dahr Jamail, Randall Hage Jamail and Robert Lee Jamail Regents Chair; University Distinguished Teaching Professor, University of Texas at Austin School of Law
  • Prof. Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School; former President, American Civil Liberties Union
  • Moderator: Hon. Carlos T. Bea, U.S. Court of Appeals, Ninth Circuit
  • Introduction: Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC

Speakers

3:15 p.m. - 5:00 p.m.
International & National Security Law: Justice Scalia’s Jurisprudence and National Security

2016 National Lawyers Convention

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

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This panel will consider Justice Scalia's legacy in national security law, revisiting his opinions in major national security cases, including Ashcroft v. al-Kidd, Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush. It will also discuss the influence Justice Scalia's jurisprudence has exerted on national security law more broadly and his views on the role of the courts reviewing national security policy.

  • Prof. Bradford R. Clark, William Cranch Research Professor of Law, The George Washington University Law School
  • Ms. Elizabeth Goitein, Co-Director, Liberty & National Security Program, Brennan Center for Justice
  • Mr. Adam Klein, Senior Fellow, Center for a New American Security
  • Prof. Stephen I. Vladeck, Professor of Law, The University of Texas at Austin School of Law
  • Moderator: Hon. Jerry E. Smith, U.S. Court of Appeals, Fifth Circuit

Speakers

5:30 p.m. - 6:00 p.m.
16th Annual Barbara K. Olson Memorial Lecture

2016 National Lawyers Convention

Topics: Constitution • Federalist Society • Founding Era & History
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 K. Olson was murdered in the terrorist attacks against the United States as a passenger on the hijacked American Airlines flight that was flown into the Pentagon. The Federalist Society believes that it is most fitting to dedicate an annual lecture on limited government and the spirit of freedom to the memory of Barbara Olson. She had a deep commitment to the rule of law and understood well the relationship between respecting limits on government power and the preservation of freedom. And, significantly, Barbara Olson was an individual who never took freedom for granted in her own life, even in her final terrifying moments-her inspiring and energetic human spirit is a testament to what one can achieve in a world that places a premium on human freedom. Solicitor General Theodore B. Olson delivered the first lecture in November 2001. The lecture series continued in following years with other notable individuals. In 2016, Senator Ben Sasse of Nebraska delivered the lecture.

  • Lecture: Hon. Ben Sasse, U.S. Senate, Nebraska
  • Introduction: Mr. Eugene B. Meyer, President, The Federalist Society

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9:00 a.m. - 10:45 a.m.
Showcase Panel III: Transforming Statutory Interpretation

2016 National Lawyers Convention

Topics: Constitution • Jurisprudence • Supreme Court
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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Justice Scalia also greatly influenced the law of statutory interpretation. By eliminating legislative history as a source of statutory meaning, Justice Scalia forced Congress to say what it meant in the text of the laws it adopted rather than hiding the ball in a forest of contradictory legislative history. Justice Scalia construed statutes by looking at the plain meaning of their texts. He revived the canons of statutory interpretations, which had fallen into disuse since the Legal Realist movement of the 1930's and 1940's. He even wrote a treatise on statutory interpretation, which no justice other than Justice Joseph Story in the early Nineteenth Century had done. In the Warren Court era, statutory cases rarely quoted the text of the statutes being interpreted and focused instead exclusively on the legislative history. Justice Scalia helped change that. Courts today always begin with the text of statutes and rarely look at the legislative history. Justice Scalia also played the key role in developing the doctrine of Chevron deference in Administrative Law, moving the interpretation of ambiguous delegations of legislative power to elected executive branch officials and away from courts. While it is clear why Justice Scalia expressed these views, he was also expressing, in the last years, great concern about how Chevron deference was working in practice.

  • Prof. William Eskridge, Jr., John A. Garver Professor of Jurisprudence, Yale Law School
  • Prof. Abbe R. Gluck, Professor of Law and Faculty Director, The Solomon Center for Health Law and Policy, Yale Law School
  • Prof. Gary S. Lawson, Philip S. Beck Professor of Law, Boston University School of Law
  • Prof. Nicholas Quinn Rosenkranz, Professor of Law, Georgetown University Law Center
  • Moderator: Hon. Diane S. Sykes, U.S. Court of Appeals, Seventh Circuit
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Speakers

11:00 a.m. - 12:30 p.m.
Administrative Law & Regulation: The Evolution of Justice Scalia's Views on Administrative Law

2016 National Lawyers Convention

Topics: Administrative Law & Regulation • Constitution • Jurisprudence • Supreme Court
State Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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For all of his many contributions to modern American jurisprudence, no area of law bears Justice Scalia's imprint more than administrative law. Indeed, he dedicated his entire career to it: from teaching at Virginia and Chicago, to serving in the Ford Administration, to his regulatory policy and legal writings at the American Enterprise Institute, to his service on the D.C. Circuit and ultimately the Supreme Court, he left a body of work unmatched by any modern Supreme Court justice. Whether writing in defense of particular doctrine or in criticism of it, his opinions and essays fundamentally shaped modern administrative law. Yet even late in his career, he continued to reflect and rethink his views, especially on questions such as Chevron deference and Seminole Rock deference. This panel collects some of the nation's most significant administrative law minds, to reflect on his legacy and evolution.

  • Hon. Ronald A. Cass, President, Cass & Associates, PC and Dean Emeritus, Boston University School of Law
  • Hon. Paul D. Clement, Partner, Kirkland & Ellis LLP
  • Prof. E. Donald Elliott, Senior of Counsel at Covington & Burling, Professor (Adjunct) of Law, Yale Law School
  • Prof. Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center
  • Moderator: Mr. Eugene Scalia, Partner, Gibson Dunn & Crutcher
  • Introduction: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC

Speakers

11:00 a.m. - 12:30 p.m.
Environmental Law & Property Rights: Justice Scalia's Property Rights Jurisprudence

2016 National Lawyers Convention

Topics: Constitution • Environmental & Energy Law • Jurisprudence • Property Law • Supreme Court • Environmental Law & Property Rights
East Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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In his nearly 30 years on the Court, Justice Scalia left a profound mark on many areas of the law, including property rights. From his seminal decisions in Nollan v. California Coastal Commission and Lucas v. South Carolina Coastal Council to his frequent questioning at oral argument, Justice Scalia helped define the relationship between property and the Constitution. While his critics have suggested that Justice Scalia's property rights jurisprudence manifested a willingness to engage in “judicial activism," others have defended Scalia's approach as consistent with original understandings of the text of the Constitution.

This panel will address Justice Scalia's influence on constitutional understandings of property rights. Professor Ely has written extensively on the historical understandings of property rights including the popular book, The Guardian of Every Other Right: A Constitutional History of Property Rights. Professor Somin's recently published The Grasping Hand: "Kelo V. City of New London" and the Limits of Eminent Domain explores one of the Court's most notorious departures from the protection of property rights. Professor Hills is a renowned expert on the law of land use planning and has taken a more charitable view of the power of government to control the use of property. He is a co-author of Land Use Controls: Cases and Materials. The panel will be moderated by Justice Allison Eid, from the Colorado Supreme Court.

  • Prof. John Echeverria, Professor of Law, Vermont Law School
  • Prof. James W. Ely, Jr., Milton R. Underwood Professor of Law Emeritus, Professor of History Emeritus, Lecturer in Law, Vanderbilt Law School
  • Prof. Roderick M. Hills, Jr., William T. Comfort, III Professor of Law, New York University School of Law
  • Hon. Adam P. Laxalt, Attorney General, Nevada
  • Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
  • Moderator: Hon. Allison H. Eid, Colorado Supreme Court
  • Introduction: Mr. Jeffrey Bossert Clark, Partner, Kirkland & Ellis LLP

Speakers

11:00 a.m. - 12:30 p.m.
Professional Responsibility & Legal Education: Using Judicial Processes for Political Purposes

2016 National Lawyers Convention

Topics: Constitution • First Amendment • Professional Responsibility & Legal Education • Free Speech & Election Law
Chinese Room
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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“Those who won our independence," Justice Brandeis wrote nearly a century ago, “eschewed silence coerced by law – the argument of force in its worst form." They believed that “the fitting remedy for evil counsels is good ones." Holding that belief, the Founding Generation added an amendment to the Constitution that expressly protects the freedom of speech. Today, however, public officials and private citizens facing what they believe to be “evil counsels" have sometimes responded not by offering good counsel but by invoking judicial processes. They use “the argument of force in its worst form" to silence opinions and speech that they disapprove of. 

Recent examples of this phenomenon include District Attorneys in Texas and Wisconsin who investigated and charged a sitting Governor, the whistleblower who exposed the practices of Planned Parenthood, and those whose political views diverged from those of the District Attorney. In two of those cases, investigators broke into homes and seized computers and documents. Significantly, in each case, the charges were dropped, although not without great angst and effort from the targeted. 

Mark Steyn has asserted that the process is, itself, the punishment. Steyn has been sued by a Penn State climatologist who famously claims that he was defamed when his writings were subjected to ridicule. Four years after the suit was filed, it is still in its preliminary stages. 

Most recently, a coterie of Attorneys General, aided by some senators, have declared their intention to stifle dissent on the subject of climate change. The Attorneys General of Massachusetts and the Virgin Islands sent subpoenas for documents to Exxon and a number of think tanks grounding their action on the contention that the dissenters are guilty of fraud. 

Are these actions appropriate uses of the judicial process? 

What, if anything, can be done to curtail the use of judicial processes to target speech? Are measures like Anti-SLAPP (Strategic Lawsuits against Public Participation) laws an appropriate response? Are they constitutional? What about a federal anti-SLAPP law? 

It is noteworthy that the worst abuses have taken place in state courts. Should Congress allow removal to federal court when a defendant makes a plausible case that the relief sought would violate rights under the First Amendment?

  • Prof. Arthur Hellman, Professor of Law, Sally Ann Semenko Endowed Chair, University of Pittsburgh School Law
  • Hon. Patrick Morrisey, Attorney General, West Virginia
  • Prof. Patrick A. Parenteau, Senior Counsel, Professor of Law, Vermont Law School
  • Ms. Kimberley A. Strassel, Wall Street Journal Editorial Board Member, Author of The Intimidation Game: How the Left is Silencing Free Speech
  • Moderator: Hon. Steven M. Colloton, U.S. Court of Appeals, Eighth Circuit
  • Introduction: Mr. John J. Park, Jr., Of Counsel, Strickland Brockington Lewis LLP

Speakers

12:30 p.m. - 2:30 p.m.
Ninth Annual Rosenkranz Debate & Luncheon

2016 National Lawyers Convention

Topics: Constitution • Education Policy • First Amendment • Labor & Employment Law
Grand Ballroom
The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

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RESOLVED: Hostile Environment Law, On and Off Campus, Often Violates the First Amendment.

The Ninth Annual Rosenkranz Debate was held on November 19, 2016, during The Federalist Society's 2016 National Lawyers Convention.

  • Prof. Deborah L. Rhode, Ernest W. McFarland Professor of Law; Director, Center on the Legal Profession; Director, Program in Law and Social Entrepreneurship, Stanford Law School
  • Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
  • Moderator: Hon. Jennifer W. Elrod, U.S Court of Appeals, Fifth Circuit
  • Introduction: Mr. Eugene B. Meyer, President, The Federalist Society

Speakers

2:45 p.m. - 4:45 p.m.
Showcase Panel IV: ROUNDTABLE: Areas of Constitutional Doctrine Transformed

2016 National Lawyers Convention

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

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The final Showcase panel examines Justice Scalia's transformation of five very important areas of Supreme Court doctrine. First, Justice Scalia transformed freedom of expression doctrine by entrenching a rule of viewpoint neutrality in place of different tests for different kinds of speech. In the five to four flag burning cases, Justice Scalia teamed up with Justices Brennan and Marshall to protect political speech. In the five to four decision in Citizens United he did the same thing with a different block of Justices. In another five to four opinion, Justice Scalia recognized constitutional protection for hate speech in RAV v. City of St. Paul. He joined a summary affirmance of a Seventh Circuit opinion by Judge Frank Easterbrook banning Catherine MacKinnon's anti-pornography laws. Second, Justice Scalia revolutionized the law of the religion clauses by largely burying the Lemon test and leading the Supreme Court in affirming the constitutionality of education vouchers for religious schools. Third, Justice Scalia revolutionized the Second Amendment by finding that it protected an individual's right to bear arms to defend himself, and he was very libertarian and protective of criminal defendants' rights in his criminal procedure jurisprudence. Fourth, Justice Scalia surprised some observers with his criminal law and procedure opinions on searches, the Confrontation Clause, and more. Finally, Justice Scalia played what some describe as a unique role in standing, including in his opinion in Lexmark International, Inc. v. Static Control Components, Inc.

  • Mr. Floyd Abrams, Partner, Cahill Gordon & Reindel LLP
  • Hon. Michael W. McConnell, Richard and Frances Mallery Professor of Law, Director of the Constitutional Law Center, Stanford Law School; Senior Fellow, Hoover Institute
  • Hon. David R. Stras, Minnesota Supreme Court
  • Prof. Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School; former President, American Civil Liberties Union
  • Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
  • Mr. Edward Whelan, President, Ethics & Public Policy Center
  • Moderator: Hon. Diarmuid F. O’Scannlain, U.S. Court of Appeals, Ninth Circuit
  • Introduction: Hon. Lee Liberman Otis, Senior Vice President, The Federalist Society

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