FedSoc Blog

The Federalist Society has posted videos of nearly the entire 14th annual Faculty Conference, which was held January 5-6, 2012, in Washington, D.C.

Below please find the schedule with links to the videos.

Thursday, January 5, 2012

Panel 1: The Sovereign Shareholder? Government Ownership and Corporate Law Post-Bailout  

• Prof. Lynn Stout, UCLA School of Law
• Prof. J.W. Verret, George Mason University School of Law
• Prof. David Zaring, The Wharton School, University of Pennsylvania
• Moderator: Dean Donald Weidner, Florida State University College of Law
• Introduction: Hon. Lee Liberman Otis, Senior Vice President & Faculty Division Director, The Federalist Society

Friday, January 6, 2012

Panel 2: Public Sector Unions  

• Prof. Samuel Estreicher, New York University School of Law
• Prof. John McGinnis, Northwestern University School of Law
• Prof. Joseph Slater, University of Toledo College of Law
• Moderator: Prof. James Lindgren, Northwestern University School of Law

Young Legal Scholars Paper Presentations  

• Mr. William Baude, Stanford Constitutional Law Center, "Beyond DOMA"
• Prof. Dan Markel, Florida State University College of Law, "Retributive Justice and the Demands of Democratic Citizenship"
• Prof. Andrew Schwartz, University of Colorado Law School, "The Perpetual Corporation"
• Prof. Houman Shadab, New York Law School, "Credit Risk Transfer Governance: The Good, the Bad, and the Savvy"
• Commenter: Prof. Eugene Volokh, UCLA School of Law
• Commenter: Prof. Todd Henderson, University of Chicago Law School
• Moderator: Prof. Nicholas Quinn Rosenkranz, Georgetown University Law Center

Luncheon Debate: The Alien Tort Statute, International Law, and the Judiciary  
Co-sponsored by the American Society of International Law

• Prof. Eugene Kontorovich, Northwestern University School of Law
• Prof. Stephen Vladeck, American University Washington College of Law
• Moderator: Ms. Elizabeth Andersen, Executive Director & Executive Vice President, American Society of International Law

Panel 3: Judicial Ethics  

• Prof. Charles Geyh, Indiana University Maurer School of Law
• Prof. Stephen Gillers, New York University School of Law
• Hon. A. Raymond Randolph, U.S. Court of Appeals, District of Columbia Circuit
• Prof. Ronald Rotunda, Chapman University School of Law
• Moderator: Hon. Deanell Tacha, Pepperdine University School of Law

At FedSoc's 14th Annual Faculty Conference, George Mason University law professor J. W. Verret responds to the question, What do you think of Professor Lynn Stout's claim that derivative contracts are a form of gambling and thus should not be enforced by the government?

This morning at FedSoc's Annual Faculty Conference, Professor John McGinnis offered his criticisms of public sector unions. Pointing to the opposition to public sector unions from Franklin D. Roosevelt and Fiorello LaGuardia, McGinnis claimed that it was an axiom of Progressive politics that, while private sector unions serve a beneficial purpose, public sector unions do not.  McGinnis agreed with that view and argued that for structural reasons, public sector unions exacerbate what is an inherent problem of politics: the diffuse lose out to the concentrated.  Public sector unions bargain against politicians, who are already responsible to taxpayers. McGinnis sees two main costs of public sector unions: 1) Greater compensation and job security for the employees, along with larger pensions (which politicians like because they are less transparent exactions, the effects of which are often not felt for years); and, more important, 2) Public sector unions degrade the quality of public goods, particularly services that help the less well off members of society.  Public sector unions prevent the experimentation and innovation that would ultimately improve the delivery of public goods.  This, he explained, was at the root of the Progressive opposition to public sector unions.

Today at the Federalist Society's 14th Annual Faculty Conference, Professors David Zaring, Lynn Stout, and J. W. Verret discussed the federal government's taking an ownership stake in private companies as part of the financial bailout.  Zaring said he was "more sanguine" than many regarding the sovereign as shareholder. As for the government's managing the compensation of executives of companies it came to control, Zaring argued that it makes sense that executives should pay a price for putting their company in such a poor position.  He asked: Is the government's behavior in this regard really so different from what a private equity firm would do after it took over a company?

Stout claimed that derivatives are nothing but bets in the strict sense of the term: mutual promises made regarding a future prediction.  She argued that such gambling is at best a zero-sum game, and "adds risk by definition." She said that in the 1800s, the government would not enforce the derivative contracts of the day (called "difference contracts").  These were matters of state, not federal, law and the common law did not enforce gambling contracts.  Instead, private institutions such as commodity exchanges would enforce the agreements among their members, in the same way that gambling clubs in ancient Rome would enforce bets among their members. Such institutions, like casinos of today, made sure their members could not place bets they could not pay.  Stout concluded that better than the Dodd Frank legislation would be returning to the prior system: let state courts and the common law handle the enforcement (or lack thereof) of derivatives contracts.

Verret said in response to Stout, "I have trouble distinguishing between derivatives and everyday stocks and bonds," explaining that he viewed them all as bets of a kind.  He argued that derivatives do have an economically useful function by allowing parties to take advantage of their comparative advantage in handling different kinds of risk.  He was skeptical that the government would be able to accurately identify the difference between investment and mere speculation.

For those who missed it, here is the video of the engaing panel on "Will Consumers and the Economy Benefit from the Consumer Financial Protection Bureau?" from FedSoc's 2011 Nationa Lawyers Convention.  It took place on November 11, 2011, in Washington, D.C.

The discussants were:

• Mr. David Berenbaum, Chief Program Officer, National Community Reinvestment Coalition
• Mr. Leonard J. Kennedy, General Counsel, Consumer Financial Protection Bureau
• Mr. Alex J. Pollock, Resident Fellow, American Enterprise Institute
• Prof. Todd J. Zywicki, Foundation Professor of Law, George Mason University School of Law
• Moderator: Hon. Timothy M. Tymkovich, U.S. Court of Appeals, Tenth Circuit

The Fourth Annual Rosenkranz Debate and Luncheon was held on November 12 at The Federalist Society's 2011 National Lawyers Convention. The topic was "RESOLVED: Congress Acted Within Its Authority in Enacting the Patient Protection and Affordable Care Act."  Debating were Prof. Laurence H. Tribe of Harvard Law School and former U.S. Solicitor General Paul D. Clement of Bancroft PLLC.  Prof. Nicholas Quinn Rosenkranz of the Georgetown Law Center moderated. Gene Federalist Society President Gene Meyer introduced the debate.

Senator Marco Rubio of Florida spoke at The Federalist Society's 2011 National Lawyers Convention on Thursday, November 10, 2011. He was introduced by Leonard A. Leo, Executive Vice President of The Federalist Society.

Last month, The Federalist Society sponsored a debate at Harvard Law School between Professors Eugene Volokh and Noah Feldman on the topic of slippery slopes.  Harvard has now posted a video of the event, which drew an audience of over 200. 

The inspiration for the debate was "Mechanisms of the Slippery Slope," a paper in which Volokh analyzed the common metaphor, including its proper and improper uses.  Volokh told the crowd:

A classic slippery slope argument is, "If you take Step A, you will soon find yourself taking step B, and we can all agree that B would be bad. We can avoid the bottom of the slope by avoiding the first step." When people say that, they’re making an exaggeration, and that gives slippery slope arguments a bad name...

Slippery slope arguments are actually about looking at public policy in a dynamic way, and recognizing that every decision changes the political and economic conditions under which future decisions are made.

In his response, Feldman distinguished traditional conservatives, who he accept the status quo and are afraid of change, from contermporary conservatives, who use the language of cost-benefit analysis. He claimed that slippery slope arguments properly belong to traditional conservatism:

The one word that captures traditional conservatism is ‘cautious'... By contrast, contemporary conservatism has no a priori commitment to caution, just to figuring out what the most rational way to do something is. What’s striking about that in historical terms is that it’s close to the position of the Enlightenment, which is that the idea that just because something has happened previously isn’t a reason we should care about it.

On July 12, Miguel Estrada of Gibson Dunn & Crutcher delivered the Annual Supreme Court Roundup of the Federalist Society's D.C. Lawyers Chapter at the Mayflower Hotel.

After an introduction by Douglas R. Cox of Gibson, Dunn & Crutcher, Mr. Estrada began his remarks by continuing the tradition of highlighting an "inexplicable, stupid, embarrassing, or otherwise incomprehensible act by a public figure." This year's winner was former New York Congressman Anthony Weiner (pictured here in full Mets gear), who resigned last month amidst a Twitter and Facebook sex scandal.

Mr. Estrada went on to summarize some statistics and to highlight several interesting cases from what he deemed to be, overall, a particularly "boring" Term, including Snyder v. Phelps, Brown v. Entertainment Merchants Assn., Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, American Electric Power Co. v. Connecticut, and Wal-Mart Stores, Inc. v. Dukes.

Click on the video above to listen to Mr. Estrada's remarks.

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The Washington Post reports today that the Obama Administration has responded to criticism and a lawsuit from a bipartisan group of lawmakers over its military operation in Libya with a 32-page report stating that, under the 1973 War Powers Resolution (WPR), such authorization is unnecessary.

The U.S. has been participating in the operation to oust Libyan leader Moammar Gaddafi from power for three months, surpassing the sixty-day deadline set under the WPR for the President to obtain congressional approval for military operations. The Republican House leadership and some Democrats have criticized the President for not obeying the WPR or adequately consulting with Congress about the operation. In a letter to President Obama on Tuesday, House Speaker John Boehner wrote:

(T)he ongoing, deeply divisive debate originated with a lack of genuine consultation prior to commencement of operations and has been further exacerbated by the lack of visibility and leadership from you and your administration.

The report issued today states that the President will not seek any extra funding for the operation in Libya and that "there has not been a significant operational impact on United States activities in Iraq and Afghanistan." Responding to arguments that the operation is illegal under the WPR because the President did not seek congressional operations, the report states that the operation does not constitute the kind of "hostilities" contemplated by the WPR.

For more on the President's authority in the Libyan operation, be sure to dial in next Wednesday, June 22, at 1 PM to a Federalist Society Teleforum Conference Call featuring David Rivkin of Baker & Hostetler and Prof. Ilya Somin of George Mason University School of Law discussing this topic. The number is 1-888-752-3232.

Also, click here to listen to a Practice Groups Podcast on the President's authority in Libya by Prof. Saikrishna Prakash of the University of Virginia School of Law, Mr. Rivkin, Prof. Peter Spiro of Temple University Beasley School of Law, and Edwin Williamson of Sullivan & Cromwell, with Ronald Cass of Cass & Associates moderating.

And click above to watch the video of an event co-hosted by the Fordham Student Chapter and the International & National Security Law Practice Group on "Domestic and Legal Issues Arising from American Intervention in Libya."

The House Committee on the Judiciary's Subcommittee on Courts, Commercial and Administrative Law will be holding a hearing today at 4 PM on the Regulations From the Executive in Need of Scrutiny (REINS) Act of 2011. Click here to go to audio/video of the hearing.

For a survey of the Act and some of the issues to be covered in the hearing today, click here to read Jonathan Adler's paper for the Federalist Society's New Federal Initiatives Project (NFIP) on the REINS Act.

On January 18, The Federalist Society's New York City Lawyers Chapter hosted an event with Prof. Richard Epstein and Prof. Joshua D. Wright at the Cornell Club on "The FTC and the Internet." Click above for the audio/video of the event.

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The Federalist Society has posted a luncheon debate at its 13th Annual Faculty Conference between Prof. Randy E. Barnett of Georgetown University Law Center and Prof. Orin S. Kerr of The George Washington University Law School over the constitutionality of the individual mandate. Click above to watch.

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Hayley Tsukayama at The Washington Post's Post Tech Blog writes about the proposal the Federal Communications Commission is considering Tuesday on net neutrality, under which the FCC would regulate broadband access (click here to see the earlier FedSoc Blog post on the upcoming vote). FCC Chairman Genachowski's proposal has generated a variety of responses, ranging from calls for more regulation to challenges to the legal authority of the FCC to regulate the Internet.

Yesterday, FCC Commissioner Robert M. McDowell wrote an op-ed in The Wall Street Journal arguing that the increase in regulation proposed by Chairman Genachowski is the result of "quixotic pressure to fight an imaginary problem" and that the FCC, which appears ready to approve the measure, has not listened to industry analysts and companies who say "the new rules are likely to have the perverse effect of inhibiting capital investment, deterring innovation, raising operating costs, and ultimately increasing consumer prices."

Meanwhile, The New York Times published an editorial calling for stronger rules, arguing that "(a)ny new rules must prevent broadband service providers from foreclosing on competition." The rules, the editorial says, would not stop some companies from paying in order to prioritize the Internet traffic to their websites, and they do not adequately address new markets for broadband access, like wireless broadband.

The Federalist Society hosted a debate last week on the FCC's proposed regulation of the Internet with an address from FCC Commissioner Meredith Attwell Baker and a discussion by Prof. John F. Blevins of Loyola Univ. New Orleans College of Law, Christopher Libertelli of Skype, and Prof. Christopher S. Yoo of the Univ. of Pennsylvania Law School. Mr. Scott J. Wallsten of the Technology Policy Institute moderated. You can click above to watch the video on FedSoc Blog.

Click above to see audio/video from The Federalist Society event "Changing the Federal Rules of Civil Procedure: Has the Time Come?" at the National Press Club on Dec. 9, 2010. Participating on this panel were Prof. Ronald J. Allen of Northwestern Law, Prof. E. Donald Elliott of Yale Law, Prof. Richard M. Esenberg of Marquette Law, and Prof. Martin H. Redish of Northwestern Law. Hon. Merrick B. Garland of the U.S. Court of Appeals for the D.C. Circuit moderated.

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