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25th Annual Federalist Society Faculty Conference

January 4 — 5, 2024
Westin Washington DC Downtown
999 9th St NW
Washington, DC 20001

25th Annual Federalist Society Faculty Conference


The 25th Annual Federalist Society Faculty Conference held on January 4-5, 2024 in Washington, DC. The conference took place under the general aegis of the AALS Annual Meeting, with our events and speakers cross-listed in the AALS Annual Meeting Program. Panels and meals were held in the Westin Washington DC Downtown.

Conference Schedule

Thursday, January 4th

Welcome 11:50 am  - 12:00 pm

Luncheon Discussion: Free Speech vs. Non-Discrimination: A Discussion on 303 Creative 12:00 pm  - 1:00 pm

  • Prof. Mark Movsesian, Frederick A. Whitney Professor of Contract Law and Director, Mattone Center for Law and Religion, St. John's University School of Law
  • Prof. Amy Sepinwall, Associate Professor of Legal Studies and Business Ethics, University of Pennsylvania, The Wharton School
  • Moderator: Prof. Dale Carpenter, Judge William Hawley Atwell Chair of Constitutional Law, Southern Methodist University Dedman School of Law

7 Minute Presentations of Works in Progress Panel 1-A 3:00 pm - 4:15 pm

  • Prof. Steven Collis, "The Forgotten Dignity of the First Amendment," Clinical Professor, University of Texas at Austin School of Law
  • Prof. Sean J. Griffith, "Shareholder Proposals and the Negative Speech Rights of Corporations," T. J. Maloney Chair of Business Law and Director, Fordham Corporate Law Center, Fordham Law School
  • Prof. Ben Johnson, "Federal Court Question Jurisdiction," Associate Professor of Law, University of Florida Levin College of Law
  • Mr. Tyler B. Lindley, "The Trial Court on Appeal," Law Clerk for Judge Gregory Katsas, United States Court of Appeals for the DC Circuit 
  • Prof. Dwight Newman, "Freedom of Thought as an Independent Freedom: Philosophical Bases and Expanding Contemporary Applications," Professor and Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan College of Law
  • Moderator: Prof. Michael Moreland, University Professor of Law and Religion and Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy, Villanova University Charles Widger School of Law

7 Minute Presentations of Works in Progress Panel 1-B 3:00 pm - 4:15 pm

  • Prof. Haley Jankowski, "Home is Where the Corporate Heart Is: The Need for New Fairness Factors," Assistant Professor of Law, South Texas College of Law Houston
  • Mr. Anthony Marcum, "Modest Restrictions for Federal Judges Returning to Private Practice," Clinical Teaching Fellow, Georgetown University Law Center
  • Prof. Tamar Meshel, "The Gatekeepers of the Federal Arbitration Act: An Empirical Analysis of the FAA in the Lower Courts," Associate Professor and CN Professor of International Trade, University of Alberta Law Centre
  • Prof. David Snyder, "Measuring Contractual Commitment: A Comparative Inquiry into 'Best Efforts' and Other Promises to Try," Professor of Law and Director, Business Law Program, American University Washington College of Law
  • Prof. Stephen Ware, "Arbitrating Bankruptcies," Frank Edwards Tyler Distinguished Professor of Law, University of Kansas School of Law
  • Moderator: Michael McGinniss, Professor and J. Philip Johnson Faculty Fellow, University of North Dakota School of Law

Welcome Remarks by AALS President-Elect Melanie Wilson 4:30 pm - 4:45 pm

Panel: The Future of Student Loan Cancellation, State Standing, and the Major Questions Doctrine after Biden v. Nebraska 4:45 pm - 6:30 pm

  • Prof. Tara Leigh Grove, Vinson & Elkins Chair in Law, University of Texas at Austin School of Law
  • Prof. Julia Mahoney, John S. Battle Professor of Law and Joseph C. Carter, Jr., Research Professor of Law, University of Virginia School of Law
  • Prof. Brian Slocum, Stearns Weaver Miller Professor, Florida State University College of Law
  • Prof. Daniel Walters, Associate Professor of Law, Texas A&M University School of Law
  • Moderator: Christopher J. Walker, Professor, University of Michigan Law School

Reception 6:30 pm - 7:45 pm

Friday, January 5th

Breakfast and Business Meeting 8:00 am - 9:00 am

Panel: Consideration of Race After SFFA v. Harvard 9:00 am - 10:45 am

  • Prof. David Bernstein, University Professor of Law and Executive Director, Liberty & Law Center, Antonin Scalia Law School George Mason University
  • Prof. Stacy Hawkins, Professor of Law, Rutgers Law School–Camden
  • Prof. Gail Heriot, Professor of Law, University of San Diego School of Law
  • Prof. Wilfred Reilly, Assistant Professor of Political Sciences, Kentucky State University School of Criminal Justice and Political Science
  • Prof. Kimberly Robinson, Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law and Director, Center for the Study of Race and Law, University of Virginia School of Law
  • Moderator: Mr. Cory Liu, Attorney, Butler Snow

7 Minute Presentations of Works in Progress Panel 2-A 11:00 am - 12:15 pm

  • Prof. Josh Blackman, "Sweeping and Forcing the President into Section 3: A Response to William Baude and Michael Stokes Paulsen," Professor of Law and Centennial Chair of Constitutional Law, South Texas College of Law Houston
  • Prof. Andrew DeLoach, "Keepers of Conscience: Originalism, Common Good, and Supervision of Morality in the Law," Associate Professor, Trinity Law School
  • Prof. Renée Lettow Lerner, "Of the Freedom of the Artificially Intelligent Press," Donald Phillip Rothschild Research Professor, George Washington University Law School
  • Prof. Earl Maltz, "The Costs of Originalist Activism," Distinguished Professor of Law, Rutgers Law School–Camden
  • Prof. Kenneth Rosen, "Practical Textualism," Professor of Law, University of Alabama School of Law
  • Prof. David Upham, "American Citizenship—Its Privileges—Its Immunities," Director of Legal Studies and Associate Professor, University of Dallas Constantin College of Liberal Arts
  • Mr. Derek Webb, The Origins, Scope, and Development of Judicial Restraint in America, 1780-1900, Research Scholar, Yale Law School
  • Moderator: Prof. Jud Campbell, Professor of Law and Helen L. Crocker Faculty Scholar, Stanford Law School

7 Minute Presentations of Works in Progress Panel 2-B 11:00 am - 12:15 pm

  • Prof. Kevin Douglas, "ESG’s Unborn-Hand Problem and U.S. Securities Regulation," Assistant Professor of Law, Michigan State University College of Law
  • Prof. Charles Keckler, "The One and the Many: Bipartisan Leadership as Second-Best Bureaucracy," Adjunct Professor, George Mason University Schar School of Policy and Government
  • Prof. Mario Loyola, "Inadequate Demonstration: EPA’s Latest Effort to Force a Clean Energy Transition on The Power Sector Rests on Technologies That Have Not Been Adequately Demonstrated," Research Assistant Professor and Director, Environmental Finance & Risk Management, Institute of Environment, Florida International University College of Arts, Sciences & Education
  • Prof. Bashar Malkawi, "Business Judgment Rule in the Jurisdiction of Gulf Cooperation Council Countries in Comparison with the Law and Practice in the U.S.," Global Professor of Practice in Law, University of Arizona James E. Rogers College of Law
  • Prof. Zvi Rosen, "Who Framed Mickey Mouse? The Myths of Copyright Term Extension," Assistant Professor of Law, Southern Illinois University School of Law
  • Prof. Todd Zywicki, "Regulatory Robustness," George Mason University Foundation Professor of Law, Antonin Scalia Law School George Mason University
  • Moderator: Prof. Adam Mossoff, Professor of Law, Antonin Scalia Law School George Mason University

Luncheon Panel: The Role of Markets in an Era of Climate Change and Grid Reliability Challenges 12:30 pm - 2:30 pm

  • Prof. James Coleman, Professor of Law, Southern Methodist University Dedman School of Law
  • Mr. Travis Kavulla, Lecturer, University of Chicago Harris School of Public Policy and Vice President of Regulatory Affairs, NRG Energy
  • Mr. Ari Peskoe, Lecturer on Law and Director of the Electricity Law Initiative, Harvard Law School
  • Moderator: Prof. Joshua Macey, Assistant Professor of Law, Univeristy of Chicago Law School 

Young Legal Scholars Paper Presentations 2:45 pm - 4:45 pm

  • Prof. Stephanie Barclay, "Constitutional Rights as Protected Reasons," Associate Professor of Law, Notre Dame Law School
  • Prof. Caleb Griffin, "The Weighting Game," Assistant Professor, University of Arkansas-Fayetteville School of Law
  • Mr. Tyler B. Lindley, "Interpretive Lawmaking," Law Clerk for Judge Gregory Katsas, United States Court of Appeals for the DC Circuit 
  • Prof. Chad Squitieri, "Administrative Virtues," Assistant Professor, Catholic University Columbus School of Law
  • Prof. Ilan Wurman, "The Opinions Clause," Associate Professor, Arizona State University Sandra Day O'Connor College of Law
  • Commenter: Prof. John Harrison, James Madison Distinguished Professor of Law, University of Virginia School of Law
  • Commenter: Prof. Robert Miller, F. Arnold Daum Chair in Corporate Finance and Law, University of Iowa College of Law
  • Moderator: Prof. Renée Lettow Lerner, Donald Philip Rothschild Research Professor, George Washington University Law School

Panel 4: Independent Agencies and Financial Regulation 5:00 pm - 6:30 pm

  • Mr. Aaron Klein, Miriam K. Carliner Chair, Economic Studies and Senior Fellow, Center on Regulation and Markets, The Brookings Institution
  • Prof. Jeremy Kress, Assistant Professor of Business Law, University of Michigan, Stephen M. Ross School of Business
  • Prof. Jennifer MascottAssistant Professor of Law, Antonin Scalia Law School, George Mason University and Co-Executive Director, C. Boyden Gray Center for the Study of the Administrative State, NBC News Supreme Court contributor
  • Prof. Ilan Wurman, Associate Professor, Arizona State University Sandra Day O'Connor College of Law
  • Prof. Todd Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School George Mason University
  • Moderator: Prof. Christina Parajon Skinner, Assistant Professor of Legal Studies & Business Ethics, University of Pennsylvania, The Wharton School
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11:50 a.m. - 12:00 p.m.
Welcome
River Birch Ballroom
Westin Washington DC Downtown
999 9th St NW
Washington, DC 20001

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12:00 p.m. - 1:00 p.m.
Luncheon Discussion: Free Speech vs. Non-Discrimination: A Discussion on 303 Creative
River Birch Ballroom
Westin Washington DC Downtown
999 9th St NW
Washington, DC 20001

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Event Video

Description

303 Creative v. Elenis, which the U.S. Supreme Court decided last term, is the most recent case in the ongoing conflict between First Amendment freedoms and public accommodations laws. To what extent does a business owner's freedom of expression, including religious expression, preempt rules about not discriminating against persons in the marketplace? Can one differentiate between discrimination based on message and discrimination based on the customer? Should vendors whose work is expressive receive more protection than those who do not work in an expressive vein? The panelists will discuss 303 Creative itself and address broader issues that have arisen in other cases in the US and abroad.

Featuring

  • Prof. Mark Movsesian, Frederick A. Whitney Professor of Contract Law and Director, Mattone Center for Law and Religion, St. John's University School of Law
  • Prof. Amy Sepinwall, Associate Professor of Legal Studies and Business Ethics, University of Pennsylvania The Wharton School
  • Moderator: Prof. Dale Carpenter, Judge William Hawley Atwell Chair of Constitutional Law, Southern Methodist University Dedman School of Law

Speakers

3:00 p.m. - 4:15 p.m.
7 Minute Presentations of Works in Progress Panel 1-A
Meeting Room 2
Westin Washington DC Downtown
999 9th St NW
Washington, DC 20001

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Description

Featuring

  • Prof. Steven Collis, "The Forgotten Dignity of the First Amendment," Clinical Professor, University of Texas at Austin School of Law
  • Prof. Sean J. Griffith, "Shareholder Proposals and the Negative Speech Rights of Corporations," T. J. Maloney Chair of Business Law and Director, Fordham Corporate Law Center, Fordham Law School
  • Prof. Ben Johnson, "Federal Court Question Jurisdiction," Associate Professor of Law, University of Florida Levin College of Law
  • Mr. Tyler B. Lindley, "The Trial Court on Appeal," Law Clerk for Judge Gregory Katsas, United States Court of Appeals for the DC Circuit 
  • Prof. Dwight Newman, "Freedom of Thought as an Independent Freedom: Philosophical Bases and Expanding Contemporary Applications," Professor and Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan College of Law
  • Moderator: Prof. Michael Moreland, University Professor of Law and Religion and Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy, Villanova University Charles Widger School of Law

Speakers

3:00 p.m. - 4:15 p.m.
7 Minute Presentations of Works in Progress Panel 1-B
Meeting Room 3
Westin Washington DC Downtown
999 9th St NW
Washington, DC 20001

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Description

Featuring

  • Prof. Haley Jankowski, "Home is Where the Corporate Heart Is: The Need for New Fairness Factors," Assistant Professor of Law, South Texas College of Law Houston
  • Mr. Anthony Marcum, "Modest Restrictions for Federal Judges Returning to Private Practice," Clinical Teaching Fellow, Georgetown University Law Center
  • Prof. Tamar Meshel, "The Gatekeepers of the Federal Arbitration Act: An Empirical Analysis of the FAA in the Lower Courts," Associate Professor and CN Professor of International Trade, University of Alberta Law Centre
  • Prof. David Snyder, "Measuring Contractual Commitment: A Comparative Inquiry into 'Best Efforts' and Other Promises to Try," Professor of Law and Director, Business Law Program, American University Washington College of Law
  • Prof. Stephen Ware, "Arbitrating Bankruptcies," Frank Edwards Tyler Distinguished Professor of Law, University of Kansas School of Law
  • Moderator: Michael McGinniss, Professor and J. Philip Johnson Faculty Fellow, University of North Dakota School of Law

Speakers

4:30 p.m. - 4:45 p.m.
Welcome Remarks by AALS President-Elect Melanie Wilson
Westin Washington DC Downtown
999 9th St NW
Washington, DC 20001

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Event Video

4:45 p.m. - 6:30 p.m.
Panel: The Future of Student Loan Cancellation, State Standing, and the Major Questions Doctrine after Biden v. Nebraska
River Birch Ballroom
Westin Washington DC Downtown
999 9th St NW
Washington, DC 20001

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Event Video

Description

In response to the COVID-19 pandemic, the Secretary of Education created a nationwide student loan cancellation program for certain borrowers under the HEROES Act of 2003. In Biden v. Nebraska, the Supreme Court invalidated the Biden Administration's student loan cancellation program. In the course of doing so, it found that the State of Missouri had standing to challenge the program and invoked the major questions doctrine, with a notable concurrence by Justice Amy Barrett seeking to explain the major questions doctrine as a linguistic canon. This panel will discuss various questions raised by this decision, including the future of state and Article III standing, the scope, basis and future of the major questions doctrine, and the Administration’s ongoing efforts to craft a new student loan forgiveness program administratively.

Featuring:

  • Prof. Tara Leigh Grove, Vinson & Elkins Chair in Law, University of Texas at Austin School of Law
  • Prof. Julia Mahoney, John S. Battle Professor of Law and Joseph C. Carter, Jr., Research Professor of Law, University of Virginia School of Law
  • Prof. Brian Slocum, Stearns Weaver Miller Professor, Florida State University College of Law
  • Prof. Daniel Walters, Associate Professor of Law, Texas A&M University School of Law
  • Moderator: Christopher J. Walker, Professor, University of Michigan Law School

Speakers

6:45 p.m. - 7:45 p.m.
Reception
Rock Creek Ballroom B
Westin Washington DC Downtown
999 9th St NW
Washington, DC 20001

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8:00 a.m. - 9:00 a.m.
Breakfast
River Birch Ballroom
Westin Washington DC Downtown
999 9th St NW
Washington, DC 20001

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9:00 a.m. - 10:45 a.m.
Panel: Consideration of Race After SFFA v. Harvard
River Birch Ballroom
Westin Washington DC Downtown
999 9th St NW
Washington, DC 20001

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Event Video

Description

The Supreme Court’s SFFA v. Harvard decision signals a major change in university admissions and beyond.  But what exactly will the change be?  The answer depends in part on what university administrators and other organizational leaders think the case means for their practices, and in part on future litigation extending, cabining, or enforcing the decision.  This panel will focus on the ramifications of SFFA for race-conscious practices in universities and other organizations, the patterns of compliance and resistance unfolding in the wake of the case, and what future litigation might bring.

Featuring:

  • Prof. David Bernstein, University Professor of Law and Executive Director, Liberty & Law Center, Antonin Scalia Law School George Mason University
  • Prof. Stacy Hawkins, Professor of Law, Rutgers Law School–Camden
  • Prof. Gail Heriot, Professor of Law, University of San Diego School of Law
  • Prof. Wilfred Reilly, Assistant Professor of Political Sciences, Kentucky State University School of Criminal Justice and Political Science
  • Prof. Kimberly Robinson, Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law and Director, Center for the Study of Race and Law, University of Virginia School of Law
  • Moderator: Mr. Cory Liu, Attorney, Butler Snow

Speakers

11:00 a.m. - 12:15 p.m.
7 Minute Presentations of Works in Progress Panel 2-A
Meeting Room 2
Westin Washington DC Downtown
999 9th St NW
Washington, DC 20001

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Description

Featuring:

  • Prof. Josh Blackman, "Sweeping and Forcing the President into Section 3: A Response to William Baude and Michael Stokes Paulsen," Professor of Law and Centennial Chair of Constitutional Law, South Texas College of Law Houston
  • Prof. Andrew DeLoach, "Keepers of Conscience: Originalism, Common Good, and Supervision of Morality in the Law," Associate Professor, Trinity Law School
  • Prof. Renée Lettow Lerner, "Of the Freedom of the Artificially Intelligent Press," Donald Phillip Rothschild Research Professor, George Washington University Law School
  • Prof. Earl Maltz, "The Costs of Originalist Activism," Distinguished Professor of Law, Rutgers Law School–Camden
  • Prof. Kenneth Rosen, "Practical Textualism," Professor of Law, University of Alabama School of Law
  • Prof. David Upham, "American Citizenship—Its Privileges—Its Immunities," Director of Legal Studies and Associate Professor, University of Dallas Constantin College of Liberal Arts
  • Moderator: Prof. Jud Campbell, Professor of Law and Helen L. Crocker Faculty Scholar, Stanford Law School

Speakers

11:00 a.m. - 12:15 p.m.
7 Minute Presentations of Works in Progress Panel 2-B
Meeting Room 3
Westin Washington DC Downtown
999 9th St NW
Washington, DC 20001

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Description

Featuring:

  • Prof. Kevin Douglas, "ESG’s Unborn-Hand Problem and U.S. Securities Regulation," Assistant Professor of Law, Michigan State University College of Law
  • Prof. Charles Keckler, "The One and the Many: Bipartisan Leadership as Second-Best Bureaucracy," Adjunct Professor, George Mason University Schar School of Policy and Government
  • Prof. Mario Loyola, "Inadequate Demonstration: EPA’s Latest Effort to Force a Clean Energy Transition on The Power Sector Rests on Technologies That Have Not Been Adequately Demonstrated," Research Assistant Professor and Director, Environmental Finance & Risk Management, Institute of Environment, Florida International University College of Arts, Sciences & Education
  • Prof. Bashar Malkawi, "Business Judgment Rule in the Jurisdiction of Gulf Cooperation Council Countries in Comparison with the Law and Practice in the U.S.," Global Professor of Practice in Law, University of Arizona James E. Rogers College of Law
  • Prof. Zvi Rosen, "Who Framed Mickey Mouse? The Myths of Copyright Term Extension," Assistant Professor of Law, Southern Illinois University School of Law
  • Prof. Todd Zywicki, "Regulatory Robustness," George Mason University Foundation Professor of Law, Antonin Scalia Law School George Mason University
  • Moderator: Prof. Adam Mossoff, Professor of Law, Antonin Scalia Law School George Mason University

Speakers

12:30 p.m. - 2:30 p.m.
Luncheon Panel: Climate Change and the Free Market
River Birch Ballroom
Westin Washington DC Downtown
999 9th St NW
Washington, DC 20001

Event Video

Description

The energy sector is undergoing a period of profound change. In the 1990s and 2000s a bipartisan group of FERC commissioners and state utility commissioners pioneered numerous policy changes that introduced competitive forces into the gas and electricity sectors. Recently, however, Republicans and Democrats alike have argued that competition has turned out to be a mistake. This panel will consider the role of competition in a changing energy sector. Panelists will discuss what role competition should play as the United States seeks to address reliability challenges and reduce emissions.

Featuring:

  • Prof. James Coleman, Professor of Law, Southern Methodist University Dedman School of Law
  • Mr. Travis Kavulla, Lecturer, University of Chicago Harris School of Public Policy and Vice President of Regulatory Affairs, NRG Energy
  • Mr. Ari Peskoe, Lecturer on Law and Director of the Electricity Law Initiative, Harvard Law School
  • Moderator: Prof. Joshua Macey, Assistant Professor of Law, Univeristy of Chicago Law School

 

Speakers

2:45 p.m. - 4:45 p.m.
Young Legal Scholars Paper Presentations
River Birch Ballroom
Westin Washington DC Downtown
999 9th St NW
Washington, DC 20001

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Event Video

Description

Featuring:

  • Prof. Stephanie Barclay, "Constitutional Rights as Protected Reasons," Associate Professor of Law, Notre Dame Law School
  • Prof. Caleb Griffin, "The Weighting Game," Assistant Professor, University of Arkansas-Fayetteville School of Law
  • Mr. Tyler B. Lindley, "Interpretive Lawmaking," Law Clerk for Judge Gregory Katsas, United States Court of Appeals for the DC Circuit 
  • Prof. Chad Squitieri, "Administrative Virtues," Assistant Professor, Catholic University Columbus School of Law
  • Prof. Ilan Wurman, "The Opinions Clause," Associate Professor, Arizona State University Sandra Day O'Connor College of Law
  • Commenter: Prof. John Harrison, James Madison Distinguished Professor of Law, University of Virginia School of Law
  • Commenter: Prof. Robert Miller, F. Arnold Daum Chair in Corporate Finance and Law, University of Iowa College of Law
  • Moderator: Prof. Renée Lettow Lerner, Donald Philip Rothschild Research Professor, George Washington University Law School

Speakers

5:00 p.m. - 6:30 p.m.
Independent Agencies and Financial Regulation
River Birch Ballroom
Westin Washington DC Downtown
999 9th St NW
Washington, DC 20001

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Event Video

Description

The constitutionality of independent agencies has long been a matter of controversy within the conservative legal movement.  At the same time, the view that regulatory power is executive power is ascendant.  Has the legal and political settlement that financial regulatory agencies need to be outside of political control become unstable?  There are long-recognized risks when financial agencies are not independent, particularly the central bank.  Should we treat the Fed—the central bank—differently?  Does the Constitution allow financial exceptionalism?

Featuring:

  • Mr. Aaron KleinMiriam K. Carliner Chair, Economic Studies and Senior Fellow, Center on Regulation and Markets, The Brookings Institution
  • Prof. Jeremy Kress, Assistant Professor of Business Law, University of Michigan, Stephen M. Ross School of Business
  • Prof. Jennifer MascottAssistant Professor of Law, Antonin Scalia Law School, George Mason University and Co-Executive Director, C. Boyden Gray Center for the Study of the Administrative State, NBC News Supreme Court contributor
  • Prof. Ilan WurmanAssociate Professor, Arizona State University Sandra Day O'Connor College of Law
  • Prof. Todd Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School George Mason University
  • Moderator: Prof. Christina Parajon Skinner, Assistant Professor of Legal Studies & Business Ethics, University of Pennsylvania, The Wharton School

 

 
 

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