FedSoc Blog

Today in 1775: “Give me liberty, or give me death!”

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by Publius
Posted March 23, 2015, 9:02 AM

Today in 1775: On this day in 1775, Patrick Henry spoke to the second Virginia Convention and urged his colleagues to support the revolution, ending his speech with seven immortal words. The entire speech, though, is worth reading and remembering:

St. John's Church: Richmond, Virginia
March 23, 1775

MR. PRESIDENT: No man thinks more highly than I do of the patriotism, as well as abilities, of the very worthy gentlemen who have just addressed the House. But different men often see the same subject in different lights; and, therefore, I hope it will not be thought disrespectful to those gentlemen if, entertaining as I do, opinions of a character very opposite to theirs, I shall speak forth my sentiments freely, and without reserve. This is no time for ceremony. The question before the House is one of awful moment to this country. For my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfil the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offence, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the majesty of heaven, which I revere above all earthly kings.

Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst, and to provide for it.

I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years, to justify those hopes with which gentlemen have been pleased to solace themselves, and the House? Is it that insidious smile with which our petition has been lately received? Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with these war-like preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled, that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort. I ask, gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us; they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging. And what have we to oppose to them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done, to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne. In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free² if we mean to preserve inviolate those inestimable privileges for which we have been so long contending²if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained, we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of Hosts is all that is left us!

They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. Three millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations; and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable and let it come! I repeat it, sir, let it come.

It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace²but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty, or give me death!

Categories: Federalist Society

And the Finalists Are…

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by Publius
Posted February 05, 2015, 11:54 AM

And the Finalists Are...

 

The Federalist Society's 34th National Student Symposium is only weeks away. In addition to the exciting speakers, interesting panels, and lots of friends, we will present this year's Feddie Awards at the banquet dinner, celebrating the best of our student chapters.  The finalists are:

James Madison Award for Chapter of the Year

Columbia
Florida
Florida State
Harvard
Kentucky
Michigan
Nebraska
Texas
Virginia
Washington & Lee
Yale

Alexander Hamilton Award for Most Improved Chapter

Concordia
McGeorge
Minnesota
Nebraska
Northwestern
Savannah
South Texas

Samuel Adams Award for Membership Growth

Brigham Young
Chicago
George Washington
Harvard
Kentucky
Notre Dame
Savannah
Virginia

Thomas Paine Award for Creative Publicity

Arizona
Baltimore
Colorado
Florida
Michigan
Nebraska
Pepperdine
UCLA
UC-Davis
Virginia

The winners in each category will be announced at the dinner Saturday evening, which will also feature an exciting panel with Colin Stretch, General Counsel of Facebook, Katie Biber Chen, Senior Counsel of Airbnb, and Hon. Theodore Ullyot, Palantir. Good luck to all of our Finalists, we will see YOU on the red carpet!

Here are a few important reminders:

  • Register now for the Symposium and don't forget to buy a ticket to the Banquet as it does sell out.
  • Download the free Symposium App for up to date information about the symposium.
  • Don't forget we can reimburse 50% of your airfare and your taxis to/from the airports in addition to your taxis to/from the hotel if you are a national member.
  • Make sure to check out and invite your friends to the Symposium Facebook event.

Categories: Federalist Society

In Memoriam

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by Publius
Posted January 13, 2015, 10:34 AM

The Federalist Society mourns the passing of Walter Berns and Harry Jaffa. In a coincidence reminiscent of the deaths of John Adams and Thomas Jefferson, these two towering figures in American political thought died on the same day, January 10, 2015. 

Walter Berns was a particularly close friend of the Federalist Society, having participated in our first student symposium at Yale Law School in 1982--the first of many--and leant his voice and credibility to the then-fledgling student organization. His and Harry Jaffa's debate over the role of the Declaration of Independence in understanding the Constitution remains a topic of lively discussion among Federalist Society members to this day, one that has enriched our understanding of both documents and of the American Founding. RIP.

Categories: Federalist Society

17th Annual Faculty Conference

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by Publius
Posted November 25, 2014, 9:56 AM

17th Annual Faculty ConferenceRegistration is now open for the 17th Annual Faculty Conference at the Omni Shoreham Hotel in Washington, DC. Jaunary 3 & 4, 2015.

The purpose of our Annual Faculty Conferences is to provide an opportunity for those interested in the Society to share ideas and scholarship with each other.

Featured panels and events:

  • The Executive Power to Not Enfore the Law
  • Debate: Resolved, that the Affordable Care Act does not authorize subsidies for individuals purchasing health insurance through federal exchanges
  • Private Enforcement versus Government Regulation
  • The Administrative State: Within the Bounds of Law?

For more information or to register, please visit our website

Categories: Federalist Society

Happy Constitution Day

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by Publius
Posted September 17, 2014, 1:21 PM

Happy Constitution Day from The Federalist Society

A great day to read or re-read the supreme law of the United States of America.

Categories: Federalist Society

The BP Deepwater Horizon Case [VIDEO]

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by Publius
Posted September 10, 2014, 8:44 AM

Putting aside criminal cases, the stakes for all sides are perhaps never higher than in a class action case – mere certification of a class can increase the pressure to settle exponentially. But, of course, the class must be properly composed in order to be certified. In the recently-decided Wal-Mart v. Dukes case, the U.S. Supreme Court revisited some of the basic requirements for certification of a class of plaintiffs, including commonality. Other requirements of Rule 23 certification may surface in ongoing litigation stemming from the 2010 BP Deepwater Horizon oil spill, where defense attorneys are arguing, among other things, that the settlement agreement is being administered and interpreted overly broadly to include numerous class members who have not suffered any injury caused by BP. Our experts will discuss recent developments in class action litigation, including a pending petition for cert in the BP case. The Federalist Society presented this panel on September 4, 2014.

Featuring:

--Prof. Neal K. Katyal, Partner, Hogan Lovells, and Paul and Patricia Saunders Professor of National Security Law, Georgetown University Law Center
--Hon. Theodore B. Olson, Partner, Gibson Dunn & Crutcher LLP
--Moderator: Mr. Stuart S. Taylor, Jr., Nonresident Senior Fellow in Governance Studies, The Brookings Institution

Categories: Federalist Society

Support The Federalist Society with Your Back to School Shopping

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by Publius
Posted August 14, 2014, 1:39 PM

You can support The Federalist Society with your back to school shopping--at no additional cost to you!

Just shop through AmazonSmile and they'll donate a small percent to us.

AmazonSmile is the same Amazon you know. Same products, same prices, same service.

Categories: Federalist Society

2014 Graduates: Sign Up for a Free Year of Membership in the Lawyers Division

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by Publius
Posted August 12, 2014, 2:08 PM

2014 Graduates: Sign Up for a Free Year of Membership in the Lawyers Division

As you are about to finish law school and embark on a new journey, we would like to remain an active part of your professional career and continue to be your link to the legal and public policy worlds.

As a student member about to graduate, we are offering you 1 year of free membership in the Lawyers Division and membership in two Practice Groups. You will receive a number of benefits with your lawyer membership, including discounts to chapter events, CLE credit, and the opportunity to closely network with prominent policy officials, judges, scholars, and business leaders.

Categories: Federalist Society

Senators, Experts Discuss Overcriminalization at Meeting Sponsored by FedSoc, ABA, and ACS

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by Publius
Posted May 29, 2014, 10:10 AM

The Flint-Genesee Country Legal News reports:

Two U.S. senators and criminal justice experts reflected on the problem of overcriminalization in the United States resulting from the overlapping relationship between criminal and administrative law during an American Bar Association joint meeting last week on Capitol Hill.
Panelists at the program, “Criminal Law and the Administrative State: Defining and Enforcing Regulatory Crimes,” spoke about the regulatory frameworks that include civil and criminal penalties, and critics on both sides presented arguments about the proliferation of federal criminal violations and regulatory offenses.
“I believe federal overcriminalization, in particular, is detrimental in terms of the financial, social and human cost it imposes on our country,” said Sen. Mike Lee, R-Utah. “I’m far from alone in this regard; in fact, we are seeing increasing bipartisan sensitivity to overcriminalization issues and an increasing openness on the part of members of Congress to re-evaluate federal criminal laws and regulations with an eye toward making some common-sense incremental changes.”

According to some critics, including Lee, many of these offenses are established through extremely broad legal language and minimal “mens rea” (intent) requirements that leave too much authority for determining what constitutes criminal conduct in the hands of regulatory agencies and prosecutors.

“Federal overcriminalization is a serious problem of which something must be done,” Lee said. “We must take account of the lack of sufficient intent requirements in federal laws and regulations and ensure that innocent persons are not held criminally liable for otherwise innocent conduct.”

On the other hand, supporters of the current regulatory approach counter overcriminalization concerns with those of underenforcement.

“Let me open with a word of gratitude for regulation,” said Sen. Sheldon Whitehouse, D-R.I. “Medicines are not snake oil mysteries any longer, people are rarely burned or killed in boiler explosions, automobiles have airbags, smoke stacks have pollution controls, stock jobbers have a harder time gulling innocent investors, most insurance companies and policies actually pay when the insured hazard occurs, quacks and barbers can’t be doctors. We take for granted the safety and reliability that a regulated world has built.”

Regulation supporters, such as Whitehouse, argue that broadly worded laws and strong criminal penalties, combined with agency and prosecutorial discretion, are a reasonable and cost-effective way to get the level of deterrence needed to ensure compliance with important federal laws, including consumer protection safeguards and environmental protection.

“Regulation helps channel America’s competitive enterprise into valuable, helpful innovations instead of into new tricks and traps for consumers or new ways of cutting safety corners,” Whitehouse said. “Ask yourselves, would the American pharmaceutical industry be the world powerhouse that it is if patent medicine hucksters were still allowed to operate? Regulation helps set a positive frame for economic progress.”

Whitehouse agreed that regulation can sometimes be out of date or unduly burdensome, but he criticized the political corruption that occurs to advance interest groups’ commercial or special agendas in regards to regulations.
“To maximize the economic benefit of regulation, we have to keep regulations efficient and up to date, but my experience is this: When the deregulatory crowd comes to operationalize this principle, the target is rarely some obsolete technical regulation that properly needs updating,” Whitehouse said. “On the other side of the coin, there is a threat at least as great as burdensome regulation: the threat of regulatory capture, when powerful interests gain improper influence over regulatory agencies.”

Rachel E. Barkow, commissioner on the U.S. Sentencing Commission, offered remarks on the administration of criminal justice, noting that the criminal justice system is a regulatory system in itself, but that it lacks proper oversight mechanisms.

“The administration of criminal justice largely takes place outside courtrooms and is done by agencies,” Barkow said. The criminal justice system is “administrative in every important way, except it is not subject to any of the same legal and structural oversight mechanisms, which is something I think should change.”

The program was hosted by the ABA Criminal Justice Section, ABA Section of Administrative Law and Regulatory Practice, Administrative Conference of the United States, American Constitution Society and  Federalist Society.

At FedSoc Conference, Ted Cruz Releases List of 76 “Lawless” Obama Actions

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by Publius
Posted May 07, 2014, 2:37 PM

The Daily Caller reports on the Federalist Society's Second Annual Executive Branch Review Conference:

Republican Sen. Ted Cruz released a definitive list Wednesday of 76 “lawless” Obama administration actions and abuses of power.

Cruz’s “The Legal Limit Report No. 4,” obtained by The Daily Caller, delves into little-known and little-reported details of President Obama’s executive actions. Cruz [discussed] his report at the Federalist Society in the Promenade Ballroom of the Mayflower Hotel in Washington [on] Wednesday.

“Of all the troubling aspects of the Obama presidency, none is more dangerous than the President’s persistent pattern of lawlessness, his willingness to disregard the written law and instead enforce his own policies via executive fiat,” Cruz stated in the report’s introductory remarks.

“President Obama has openly defied [rule of law] by repeatedly suspending, delaying, and waiving portions of the laws that he is charged to enforce. When President Obama disagreed with federal immigration laws, he instructed the Justice Department to cease enforcing the laws. He did the same thing with federal welfare law, drug laws, and the federal Defense of Marriage Act,” Cruz wrote. “In the more than two centuries of our nation’s history, there is simply no precedent for the White House wantonly ignoring federal law and asking others to do the same.”

Cruz details 76 specific actions over eight chapters. We’ve listed eight of them, as chronicled by Cruz, below:

1. “Obama implemented portions of the DREAM Act by executive action”

2. “Ended some terror asylum restrictions”

3. “Recognized same sex marriage in Utah despite a Supreme Court stay on a court order allowing the institution”

4. “Illegally revealed the existence of sealed indictments in the Benghazi investigation”

5. “Illegally delayed Obamacare verification of eligibility for healthcare subsidies”

6. “Ordered Boeing to fire 1,000 employees in South Carolina and shut down a new factory because it was non-union”

7. “Terminated the pensions of 20,000 non-union Delphi employees in the GM bankruptcy.”

8. “Government agencies are engaging in ‘Operation Choke Point,’ where the government asks banks to ‘choke off’ access to financial services for customers engaging in conduct the Administration does not like—such as ‘ammunition sales.’”

You can watch the video of Cruz's remarks here.

In Memoriam Laura Anne LaPlante

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by Publius
Posted May 05, 2014, 4:36 PM

The Federalist Society offers its sincere condolences to the friends and family of Laura Anne LaPlante, who passed away Friday, May 2, 2014. The Federalist Society joins her family, friends, and the University of Chicago Law community in mourning her loss.

Laura served as the 2013-2014 Federalist Society Student Chapter president at the University of Chicago Law School. Originally from Hancock, New Hampshire, she is survived by her parents and three siblings. Laura and her classmate Michael Wasil were passengers in a taxi which was struck head on by another vehicle. Michael remains in the hospital at this time, and our thoughts and prayers are with him as well.

Laura was a strong leader for our student chapter, as well as the Edmund Burke Society and St. Thomas Moore Society. She was also an accomplished student, a talented athlete, and she was graceful and kind to others. Laura was set to graduate this spring and move to Boston to work as an associate at Wilmer Hale. Several weeks ago, we were happy to announce that the University of Chicago student chapter, led by Laura and her team, won their bid to host our 34th Annual National Student Symposium in February of 2015.

We are immensely thankful for the leadership Laura provided to the Student Chapter of the Federalist Society at the University of Chicago. She had a rare combination of talent and goodness and made a difference in the lives of others in her too short life. We are the better for having known her.

The Dean of the University of Chicago Law School, Michael Schill, wrote the following:

“I cannot make sense of the passing of such a wonderful, vital young woman who would surely have done so much in her life to make the world a better place. At the same time, during Laura’s short time on earth she made an impact. Laura left each of us better human beings than we would have been in her absence. Her friendship, engagement and love enriched us.”

Our thoughts and prayers are with Laura and Michael’s families during this difficult time. Law student and lawyer members of the Federalist Society across the country join Laura’s family in grieving this loss, a testament to Laura’s lasting impact on those who knew her.

We do not currently have the details for arrangements or an address for condolences, but will share such information, as appropriate, when it is made available.

Categories: Federalist Society

Updated Info for Second Annual Executive Branch Review Conference

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by Publius
Posted April 21, 2014, 9:16 AM

Location:
The Mayflower Renaissance Washington, DC Hotel
1127 Connecticut Ave NW
Washington, DC 20036
(202) 347-3000

A key element of the Practice Groups' Executive Branch Review project is our annual conference. This year's Executive Branch Review Conference is scheduled for Wednesday, May 7th as a full day conference at the Mayflower Hotel in Washington, D.C.

We will offer up to 4 CLE credits for this conference.

Agenda:

Last updated on April 17 at 4:00 p.m.
Updates in red.

Welcome & Opening Address
9:00 – 9:30 a.m.
East Room

  • Hon. David M. McIntosh, Partner, Mayer Brown LLP and Vice-Chairman, Board of Directors, The Federalist Society
  • Hon. Tom Cotton, U.S. House of Representatives, Arkansas

Suspension of Laws: What are the Limits of Executive Authority?
9:30 – 10:45 a.m.
East Room

  • Ms. Brianne Gorod, Appellate Counsel, Constitutional Accountability Center
  • Prof. Nicholas Quinn Rosenkranz, Georgetown University Law Center
  • 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: Mr. Stuart S. Taylor, Jr., Nonresident Senior Fellow in Governance Studies, The Brookings Institution

Policy without Process?
9:30 – 10:45 a.m.
Promenade Ballroom

  • Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law; Director, Center for Business Law and Regulation, Case Western Reserve University School of Law
  • Mr. William L. Kovacs, Senior Vice President, Environment, Technology & Regulatory Affairs, U.S. Chamber of Commerce
  • Prof. Stephen I. Vladeck, Professor of Law, American University Washington College of Law
  • Moderator: Hon. Susan E. Dudley, Research Professor of Public Policy and Public Administration and Director, Regulatory Studies Center, The Trachtenberg School of Public Policy and Public Administration, The George Washington University

Disparate Impact Analysis
11:00 a.m. – 12:15 p.m.
Promenade Ballroom

  • Hon. Gail Heriot, Professor of Law, University of San Diego School of Law and Commissioner, U.S. Commission on Civil Rights
  • Hon. Peter N. Kirsanow, Benesch, Friedlander, Coplan & Aronoff LLP and Commissioner, U.S. Commission on Civil Rights and former Member, National Labor Relations Board
  • Prof. Theodore M. Shaw, Professor of Professional Practice in Law, Columbia University School of Law
  • Moderator: Mr. Adam Liptak, Supreme Court Correspondent, The New York Times

The Internal Revenue Service
11:00 a.m. – 12:15 p.m.
East Room

  • Mr. Michael A. Carvin, Partner, Jones Day
  • Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law
  • Dr. Craig Holman, Government Affairs Lobbyist, Public Citizen
  • Mr. Robert N. Weiner, Partner, Arnold & Palmer LLP

The Contraceptive Mandate
11:00 a.m. – 12:15 p.m.
Senate Room

  • Mr. Kyle Duncan, Duncan PLLC
  • Prof. Martin S. Lederman, Georgetown University Law Center
  • Ms. Elizabeth B. Wydra, Chief Counsel, Constitution Accountability Center
  • Moderator: Mr. Robert Barnes, Supreme Court Correspondent, The Washington Post

Luncheon Panel: Executive Power and the Role of the Coordinate Branches
12:30 p.m. – 2:00 p.m.
State Room

  • Prof. Steven G. Calabresi, Class of 1940 Professor of Law, Northwestern University School of Law and Chairman, Board of Directors, The Federalist Society
  • Mr. Charles J. Cooper, Partner, Cooper & Kirk, PLLC
  • Prof. William N. Eskridge, Jr., John A. Garver Professor of Jurisprudence, Yale Law School
  • Prof. Neomi Rao, Assistant Professor of Law, George Mason University School of Law

Keynote Address
2:15 p.m. – 3:00 p.m.
Promenade Ballroom

  • Hon. Ted Cruz, U.S. Senator, Texas 

Last updated on April 17 at 4:00 p.m.
Updates in red.

Registration details:

There is no cost to attend this event,
but there is a $50 charge if you wish to obtain CLE credits.

Lunch will be included.
Please register online to reserve your spot.

LODGING:

Contact the Mayflower Hotel directly for room reservations: (202) 347-3000.

 

Student Symposium Video: Balancing Privacy and Security

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by Publius
Posted April 08, 2014, 4:53 PM

In an era where individuals increasingly entrust their data to third parties, how can the right balance be struck between the government’s need to collect information, and the individual’s right to privacy in that information? Does the Fourth Amendment adequately protect an individual’s rights in an era of rapidly advancing technology, or should Congress play a more active role in regulating this space? The University of Florida Law School FedSoc Chapter hosted this roundtable discussion at the 2014 Annual Student Symposium on Friday, March 7, 2014.

Introductory Remarks

  • Mr. Devon Westhill, Chairman, Symposium Executive Committee
  • Dean Robert H. Jerry II, University of Florida Levin College of Law

Roundtable Discussion: “BALANCING PRIVACY AND SECURITY”
 

  • Mr. Steven G. Bradbury, Partner, Dechert LLP
  • Hon. Rachel L. Brand, Vice President & Chief Counsel for Regulatory Litigation, National Chamber Litigation Center, U.S. Chamber of Commerce; Member, Privacy & Civil Liberties Oversight Board
  • Mr. Julian Sanchez, Research Fellow, The Cato Institute
  • Prof. John Stinneford, Associate Professor of Law, University of Florida Levin College of Law
  • Mr. Ted Ullyot, Former General Counsel, Facebook
  • Moderator: Hon. William H. Pryor Jr., U.S. Court of Appeals, Eleventh Circuit

Podcast: Do State Attorneys General Have a Duty to Defend State Laws?

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by Publius
Posted April 08, 2014, 8:41 AM

Recently U.S. Attorney General Eric Holder, citing the Supreme Court's 5-4 decision in United States v. Windsor, urged the members of the National Association of Attorneys General to exercise their discretion to decline to defend state-level Defense of Marriage Acts (DOMA). State attorneys general of California, Pennsylvania, and Virginia, among others, have followed the Justice Department's lead in declining to defend such state laws. Colorado Attorney General John Suthers urged state attorneys general not to employ a "litigation veto" to nullify popularly enacted laws with which state attorneys general might disagree. What is the scope of a state attorney general's power to decline to execute or enforce state law on the basis that the law is or is thought to be unconstitutional and inconsistent with the oath to uphold the U.S. Constitution? What lessons, if any, may properly be drawn from the federal context and any Presidential authority to decline to enforce federal statutes that he views as unconstitutional? Do such instances of executive non-defense and non-enforcement amount to executive arrogation of legislative prerogative? Colorado Attorney General John Suthers and William & Mary Professor Neal Devins discussed these questions and engaged with the audience's comments and questions.

Listen to the podcast here.

 

Supreme Court Steps Into Software-Patent Debate

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by Publius
Posted March 31, 2014, 8:35 AM

The Wall Street Journal reports:

The U.S. Supreme Court is wading into a messy debate over when software deserves a patent—an issue that is important to big technology companies such as Microsoft Corp. and Google Inc. yet has so far flummoxed the federal judiciary.

The high court will hear oral arguments Monday in an appeal brought by Alice Corp., whose patents on a computer program to reduce risk in financial transactions were ruled invalid by lower courts.

The thorny issue for the justices: how to distinguish innovative software designs from those that merely describe common ideas configured for a computer.

The issue arose from a 2007 lawsuit against Australia-based Alice by CLS Bank International, which sells risk-hedging services to foreign-exchange traders. New York's CLS Bank said Alice's patents did little more than describe a way of moving an ancient idea—the concept of escrow—to a computer, so shouldn't be eligible for patent protection.

Some patent experts say a ruling in favor of Alice could open the door to more software patents. That, in turn, could lead to more lawsuits involving ideas that should never have won protection in the first place.

Other people say a broad ruling on behalf of CLS Bank could force budding software developers to the sidelines by limiting protections for their work and shortchange others who have devoted hours and money to developing inventions.

Either way, a ruling could provide long-awaited guidelines on when computer programs qualify for patent protection.

Ten judges of the U.S. Court of Appeals for the Federal Circuit, which specializes in patent law, heard the case last year, raising hopes among inventors, tech-industry executives and patent lawyers that they would get some clarity. But the judges delivered more than 120 pages of opinions that only muddied the issue, triggering a collective groan through the patent world.

In the subsequent months, the debate over software patents has raged on.

Allowing patents on many computer programs will only block innovation, says Suzanne Michel, a senior patent counsel at Google. "You don't want [to allow patents] that pre-empt someone from writing a better program, one that's faster or more secure or more efficient," she says.

Google and other prominent tech companies have been hit with a rash of software-patent lawsuits in recent years, many on behalf of firms that license and litigate over patents but typically don't develop their patents into products.

Google says a glut of bogus software patents is largely to blame for the proliferation of such firms, which often are described by detractors as "patent trolls." . . .

In May 2013, the Federalist Society held a panel discussion on "Is the Patent System Working or Broken? A Discussion with Four Distinguished Federal Judges." It was co-sponsored by FedSoc's Intellectual Property Practice Group and the Center for the Protection of Intellectual Property at George Mason University School of Law. Participating were:

  • Hon. Arthur J. Gajarsa, former Judge, U.S. Court of Appeals, Federal Circuit
  • Hon. Paul R. Michel, former Chief Judge, U.S. Court of Appeals, Federal Circuit
  • Hon. Richard A. Posner, Judge, U.S. Court of Appeals, Seventh Circuit
  • Hon. Douglas H. Ginsburg, Senior Circuit Judge, U.S. Court of Appeals, D.C. Circuit and Professor of Law, George Mason University School of Law - Moderator

You can watch a video of the event here.

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