2012 National Lawyers Convention

The Future of U.S. Constitutional Law in the Supreme Court

The Federalist Society's 2012 National Lawyers Convention was held on November 15 through November 17 at the Mayflower Hotel in Washington, D.C. The topic of this year's convention was: The Future of U.S. Constitutional Law in the Supreme Court. The Convention addressed the fact that at the present time, the U.S. Supreme Court is very closely divided on many foundational topics in constitutional law, such as federalism, separation of powers, religious liberties. The panels at this convention focused on these three areas of case law and concluded with a panel on what constitutes judicial activism.


Welcome - Audio/Video
9:00 a.m. – 9:15 a.m.
Grand Ballroom

  • Mr. Leonard A. Leo, Executive Vice President, The Federalist Society

Showcase Panel I: Federalism and Federal Power - Audio/Video
9:15 a.m. – 11:30 a.m.
Grand Ballroom

The Rehnquist Court was famous for its resuscitation of some fairly modest constitutional limits on federal power. One major question with the appointment of new Justices was where the Court was likely to go. In the recent oral arguments on the constitutionality of the law imposing a national health care mandate, the Roberts Court Justices seemed very closely divided. This panel will examine the Supreme Court's federalism jurisprudence in light of what was a close vote on the health care law. This case has reinvigorated the debate over the limits on federal power. Are there significant limits, or are they are a function of a bygone past? If the limits do not apply in economic areas, are they then suspect in other areas of morality where the courts have overturned major legislative decisions? Are such limits just a political function of who benefits? Likewise, is federalism only used by those who stand to benefit? How sustainable in practice are judicially-enforced limits on federal power?

  • Prof. Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center
  • Hon. Paul D. Clement, Partner, Bancroft PLLC and former U.S. Solicitor General
  • Hon. Frank H. Easterbrook, Chief Judge, U.S. Court of Appeals, Seventh Circuit
  • Prof. Heather Gerken, J. Skelly Wright Professor of Law, Yale Law School
  • Prof. Neal K. Katyal, Paul and Patricia Saunders Professor of National Security Law, Director, Center on National Security and the Law, Georgetown University Law Center and former Acting U.S. Solicitor General
  • Prof. Robert G. Natelson, Senior Fellow, Constitutional Jurisprudence Independence Institute
  • Moderator: Hon. Diane S. Sykes, U.S. Court of Appeals, Seventh Circuit

Corporations: Deregulating the Markets: The JOBS Act - Audio/Video
11:45 a.m. – 1:45 p.m.
East Room

  • Hon. Daniel M. Gallagher, Commissioner, U.S. Securites and Exchange Commission
  • Mr. Joseph H. Kaufman, Partner, Simpson Thacher & Bartlett LLP
  • Ms. Joanne T. Medero, Managing Director, BlackRock
  • Prof. Robert T. Miller, The University of Iowa College of Law
  • Prof. Robert B. Thompson, Peter P. Weidenbruch, Jr. Professor of Business Law ,Georgetown University Law Center
  • Moderator: Hon. Frank H. Easterbrook, Chief Judge, U.S. Court of Appeals, Seventh Circuit

Religious Liberties: The Future of Religious Liberty - Audio/Video Not Available
11:45 a.m. – 1:45 p.m.
State Room

  • Prof. Helen M. Alvaré, George Mason University School of Law
  • Dr. Stanley W. Carlson-Thies, President, Institutional Religous Freedom Alliance and former Director, White House Office of Faith-Based & Community Initiatives
  • Prof. Melissa Rogers, Director, Center for Religion and Public Affairs, Wake Forest University School of Divinity and Nonresident Senior Fellow, Governance Studies, Brookings Institution
  • Dr. Michael M. Uhlmann, Claremont Graduate University
  • Moderator: Hon. Diarmuid F. O'Scannlain, U.S. Court of Appeals, Ninth Circuit

Intellectual Property: Undermining or Preserving Property Rights? The New Administrative Patents - Audio/Video
2:00 p.m. – 3:30 p.m.
State Room

  • Prof. Jorge L. Contreras, American University Washington College of Law
  • Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law
  • Prof. Adam Mossoff, George Mason University School of Law
  • Ms. Ryan Triplette, Franklin Square Group
  • Moderator: Hon. Randall R. Rader, Chief Judge, U.S. Court of Appeals, Federal Circuit

Labor & Employment: Arizona v. U.S.: Immigration Policy & the Economy - Audio/Video
2:00 p.m. – 3:30 p.m.
Grand Ballroom

  • Ms. Ana Avendaño, Assistant to the President and Director of Immigration and Community Action, AFL-CIO
  • Mr. H. Christopher Bartolomucci, Partner, Bancroft PLLC
  • Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law
  • Prof. Margaret D. Stock, Counsel, Lane Powell PC and Adjunct Instructor, University of Alaska, Anchorage
  • Moderator: Hon. Stephen F. Williams, U.S. Court of Appeals, D.C. Circuit

Professional Responsibility: Prosecutorial Misconduct - Audio/Video
2:00 p.m. – 3:30 p.m.
East Room

  • Mr. James C. Dunlop, Jones Day
  • Ms. Sidney K. Powell, Sidney Powell, PC
  • Prof. Ronald D. Rotunda, The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University School of Law
  • Hon. Kenneth L. Wainstein, Partner, Cadwalader, Wickersham & Taft LLP and former U.S. Homeland Security Advisor
  • Moderator: Hon. Merrick B. Garland, U.S. Court of Appeals, D.C. Circuit

Federalism: The Spending Clause After the Health Care Decision - Audio/Video
3:45 p.m. – 5:15 p.m.
Grand Ballroom

  • Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law
  • Mr. Lee A. Casey, Partner, Baker & Hostetler LLP
  • Mr. Robert R. Gasaway, Kirkland & Ellis LLP
  • Prof. Edward L. Rubin, Vanderbilt Law School
  • Moderator: Hon. Jerry E. Smith, U.S. Court of Appeals, Fifth Circuit

Litigation: Business Cases in the Roberts Court: Perception and Reality - Audio/Video
3:45 p.m. – 5:15 p.m.
East Room

  • Mr. Jeffrey S. Jacobson, Partner, Debevoise & Plimpton LLP
  • Prof. Alan B. Morrison, Lerner Family Associate Dean for Public Interest/Public Service, The George Washington University Law School
  • Mr. Martin J. Newhouse, President, New England Legal Foundation
  • Mr. Mark A. Perry, Partner, Gibson Dunn & Crutcher LLP
  • Mr. John Vail, Vice President and Senior Counsel for Constitutional Litigation, Center for Constitutional Litigation, PC
  • Moderator: Hon. Don R. Willett, The Supreme Court of Texas


30th Anniversary Gala Dinner - Audio/Video Not Available
7:00 p.m.
Marriott Wardman Park
2660 Woodley Road, N.W.

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



Showcase Panel II: Separation of Powers - Audio/Video
9:15 a.m. – 11:15 a.m.
Grand Ballroom

The present Supreme Court was also closely divided in the recent separation of powers case, Free Enterprise Fund v. Public Company Accounting Oversight Board. While the opinion ruled that part of the structure of the Board ran afoul of the separation of powers, it is not clear how significant the decision is beyond the precise facts of the case. This question is likely to arise soon, perhaps in a case involving the constitutionality of the Dodd-Frank legislation. The current Court has also split five to four on sovereign immunity and standing. For example, recently, Justice Kennedy provided the critical fifth vote to find standing and force the Environmental Protection Agency to regulate carbon emissions by new cars sold in the U.S. It is quite likely that major separation of powers cases presenting a number of these issues will reach the Supreme Court in the next couple of years. This panel will examine the direction the Supreme Court might take when such a case gets to the high Court.

  • Prof. Akhil Reed Amar, Southmayd Professor of Law and Political Science, Yale Law School
  • Prof. David Barron, Honorable S. William Green Professor of Public Law, Harvard University Law School
  • Hon. C. Boyden Gray, Boyden Gray & Associates, former White House Counsel and former U.S. Ambassador to the European Union
  • Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law
  • Prof. Victoria Nourse, Georgetown University Law Center
  • Moderator: Hon. A. Raymond Randolph, U.S. Court of Appeals, D.C. Circuit

Address - Audio/Video
11:30 a.m. – 12:00 noon
Grand Ballroom

  • Hon. Rick Scott, Governor, Florida

Civil Rights: Who Benefits from Affirmative Action and Race and Gender Consciousness? - Audio/Video
12:00 noon – 2:15 p.m.
Chinese Room

  • Hon. Martin “Marty” Castro, President and CEO, Castro Synergies, LLC, and Castro Rioja Enterprises, LLC; Chairman, Illinois Human Rights Commission and the U.S. Commission on Civil Rights; Co-Founder, New Futuro, LLC
  • Hon. Gail Heriot, University of San Diego School of Law, and Commissioner, U.S. Commission on Civil Rights
  • Prof. Theodore M.“Ted” Shaw, Columbia Law School
  • Mr. Stuart S. Taylor, Jr., Contributing Editor, National Journal
  • Moderator: Hon. Carlos Bea, U.S. Court of Appeals, Ninth Circuit

Criminal Law: The Foreign Corrupt Practices Act - Audio/Video
12:00 noon – 2:15 p.m.
State Room

  • Hon. Lanny A. Breuer, Assistant Attorney General, U.S. Department of Justice
  • Mr. Mark F. Mendelsohn, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP
  • Hon. Michael B. Mukasey, Partner, Debevoise & Plimpton and Former U.S. Attorney General
  • Hon. George J. Terwilliger III, Partner, Morgan Lewis & Bockius LLP
  • Moderator: Hon. William H. Pryor Jr., U.S. Court of Appeals, Eleventh Circuit

Financial Services: Dodd-Frank: Act Two and What's Next in Financial Services Laws and Regulations? - Audio/Video
12:00 noon – 2:15 p.m.
East Room

  • Mr. John A. Allison, President and CEO, Cato Institute
  • Prof. Michael S. Barr, University of Michigan Law School
  • Hon. Phil Gramm, Former U.S. Senator, Texas
  • Mr. William S. Haraf, Managing Director, Promontory Financial Group, LLC
  • Moderator: Hon. Neil M. Gorsuch, U.S. Court of Appeals, Tenth Circuit

Address - Audio/Video
2:15 p.m. – 2:45 p.m.
Grand Ballroom

  • Hon. Michael S. Lee, U.S. Senator, Utah

Address - Audio/Video
2:45 p.m. – 3:15 p.m.
Grand Ballroom

  • Hon. R. Edward "Ted" Cruz, U.S. Senator-Elect, Texas

Free Speech: The Electoral College vs. The National Popular Vote Plan - Audio/Video
3:30 p.m. – 5:00 p.m.
State Room

  • Dr. John S. Baker, Jr., Emeritus Professor of Law, Louisiana State University Law School
  • Dr. John R. Koza, Chairman, National Popular Vote
  • Mrs. Tara Ross, Author, Enlightened Democracy: The Case for the Electoral College
  • Moderator: Hon. David R. Stras, The Supreme Court of Minnesota

International: National Security vs. International Law? - Audio/Video
3:30 p.m. – 5:00 p.m.
Grand Ballroom

  • Prof. Kenneth Anderson, American University Washington College of Law
  • Prof. Rosa Brooks, Georgetown University Law Center
  • Prof. Julian Ku, Professor of Law and Faculty Director of International Programs, Hofstra University School of Law
  • Prof. Gregory S. McNeal, Associate Professor of Law, Pepperdine University School of Law
  • Moderator: Prof. John O. McGinnis, Northwestern University School of Law

Barbara K. Olson Memorial Lecture - Audio/Video
5:30 p.m. – 6:00 p.m.
Grand Ballroom

  • Mr. Peter A. Thiel, Technology Entrepreneur, Investor, and Philanthropist



Showcase Panel III: Religion Clauses - Audio/Video
9:00 a.m. – 10:30 a.m.
Grand Ballroom

The current Supreme Court divided five to four in Arizona Christian School Tuition Organization v. Winn – a case in which some Arizona taxpayers sued to prevent public funds from going to scholarships at religious schools on the same terms as they went to pay for scholarships at secular schools. The Court also split five to four in another taxpayer religion suit Hein v. Freedom from Religion Foundation in 2007. Meanwhile in Christian Legal Society v. Martinez, decided in 2010, the Supreme Court voted five to four that, under what the Court described as a “reasonable, viewpoint-neutral condition on access to [recognition as a student organization],” state universities can force religious groups to accept members and officers who do not subscribe to their belief that gay sex is wrong or lose their official status and school funds. At the same time, in Hosanna-Tabor Evangelical Church and School v. EEOC, the Court unanimously reaffirmed and gave a fairly generous construction to its longstanding ministerial exception to employment discrimination laws as applied to religious organizations. The recent controversy over the requirements to pay for contraceptives and abortifacients in violation of the religious beliefs of some who would be forced to pay shows us other possible cases involving religious belief and conscience concerns. Religion has long had a special place in our society and in the Constitution. Is that evolving? If so, how? Are we rethinking the question of whether religion is in some ways different? What does the Constitution say about this?

  • Prof. Corey L. Brettschneider, Brown University
  • Prof. Philip Andrew Hamburger, Maurice and Hilda Friedman Professor of Law, Columbia Law School
  • Prof. William P. Marshall, University of North Carolina School of Law
  • Hon. Michael W. McConnell, Richard and Frances Mallery Professor of Law, Stanford Constitutional Law Center, and former Judge, United States Court of Appeals, Tenth Circuit
  • Moderator: Hon. William Francis Kuntz, II, U.S. District Court, Eastern District of New York

Administrative Law: The Administrative State After the Health Care Cases - Audio/Video
10:45 a.m. – 12:15 p.m.
East Room

  • Hon. Ronald A. Cass, President, Cass & Associates, PC
  • Hon. Christopher C. DeMuth, Distinguished Fellow, Hudson Institute
  • Prof. Timothy S. Jost, Robert L. Willett Family Professor of Law, Washington and Lee University School of Law
  • Hon. Brett M. Kavanaugh, U.S. Court of Appeals, D.C. Circuit
  • Moderator: Hon. Thomas M. Hardiman, U.S. Court of Appeals, Third Circuit

Environmental Law: Federalism and the Energy Revolution: Can State and Federal Regulators Adapt to Innovations? - Audio/Video
10:45 a.m. – 12:15 p.m.
Chinese Room

  • Mr. Joel R. Burcat, Saul Ewing LLP
  • Mr. Jason B. Hutt, Partner, Bracewell & Giuliani LLP
  • Prof. James R. May, Environmental Law Center, Widener University School of Law
  • Mr. Craig Segall, Associate Attorney, Sierra Club Environmental Law Program
  • Moderator: Hon. Timothy M. Tymkovich, U.S. Court of Appeals, Tenth Circuit

Telecommunications: Communications Law Reform - Audio/Video
10:45 a.m. – 12:15 p.m.
State Room

  • Prof. Jonathan B. Baker, American University Washington College of Law
  • Prof. Daniel Crane, University of Michigan Law School
  • Hon. Robert M. McDowell, Federal Communications Commission
  • Hon. Maureen K. Ohlhausen, Federal Trade Commission
  • Hon. Ajit V. Pai, Federal Communications Commission
  • Moderator: Hon. Jennifer W. Elrod, U.S. Court of Appeals, Fifth Circuit

Fifth Annual Rosenkranz Debate and Luncheon - Audio/Video
RESOLVED: Natural Law Should Inform Constitutional Law

12:30 p.m. – 2:30 p.m.
Grand Ballroom

  • Prof. Hadley P. Arkes, Edward N. Ney Professor in American Institutions, Amherst College
  • Hon. Alex Kozinski, Chief Judge, U.S. Court of Appeals, Ninth Circuit
  • Moderator: Hon. Thomas B. Griffith, U.S. Court of Appeals, D.C. Circuit

Showcase Panel IV: An Examination of Substantive Due Process and Judicial Activism - Audio/Video
2:30 p.m. – 4:15 p.m.
State Room

After it became clear at the oral argument the health care mandate law might be in trouble, President Obama suggested that the Justices would be engaging in judicial activism if they overturned the law. This is a particularly high profile example, but charges of judicial activism have been a key part of the discussion of the role of the courts for quite some time, in earlier times from people generally identified as conservatives, but more recently by liberals and progressives. Is there real meaning to the term? Would the term apply to overturning the Affordable Care Act? The Defense of Marriage Act? The three most common ways of understanding judicial activism are that it refers to when judges invalidate legislation, when they do so based on their individual preferences rather than the requirements of the Constitution, and when they overrule a prior precedent. This panel will consider these various possibilities as well as whether the term continues to be a useful one.

  • Prof. Steven G. Calabresi, Northwestern University School of Law and Chairman, The Federalist Society
  • Hon. Walter E. Dellinger, III, Partner, O’Melveny & Myers LLP, Duke University School of Law and former Acting U.S. Solicitor General
  • Prof. Nelson R. Lund, Patrick Henry Professor of Constitutional Law and the Second Amendment, George Mason University School of Law
  • Mr. William H. “Chip” Mellor, President and General Counsel, Institute for Justice
  • Prof. Mark V. Tushnet, William Nelson Cromwell Professor of Law, Harvard Law School
  • Hon. J. Harvie Wilkinson, III, U.S. Court of Appeals, Fourth Circuit
  • Moderator: Hon. Edith H. Jones, U.S. Court of Appeals, Fifth Circuit

Closing Address - Audio/Video Not Available
4:15 p.m. – 5:00 p.m.
State Room

  • Hon. Antonin Scalia, U.S. Supreme Court

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