FedSoc Blog

Writing in the Chronicle of Higher Education, Michael Avery and Danielle McLaughlin summarize their new book The Federalist Society: How Conservatives Took the Law Back From Liberals:

. . . The history of the Federalist Society is a story of how disaffection, bold ideas, commitment to principle, and enlightened institution-building have created a significant conservative shift in the legal, policy, and political landscape of America over the past 30 years. The society reports that more than 45,000 lawyers and law students are involved in its various activities, with approximately 13,000 dues-paying members. With a national budget of about $10-million, in 2010 its 75 lawyer chapters sponsored nearly 300 events for more than 25,000 lawyers, and the society sponsored 1,145 events at law schools for more than 70,000 students, professors, and others. Through conferences, debates, publications, litigation, education, and by holding key positions in government and the judiciary, the society has changed law and policy in areas like property rights, access to courts, affirmative action, privacy rights including abortion and same-sex marriage, and the influence of international law on the domestic legal system.

The Federalist Society's membership includes many brilliant and sincere theorists who raise important and interesting issues. On the other hand, the society's critics say, its overall impact is reactionary. By glorifying private property, demonizing government intervention (particularly at the federal level), insisting that originalism is the only legitimate method of constitutional interpretation, embracing American exceptionalism as a reason to remain apart from global governance, and pushing related policies, these critics say, the society advocates a form of social Darwinism that has been discredited by mainstream American legal thought since the 1930s.

Membership includes economic conservatives, social conservatives, Christian conservatives, and libertarians, many of whom disagree with one another on significant issues, but who cooperate in advancing a broad conservative agenda. They generally support individual rights and a free market, and prefer states' rights to action by the federal government.

Members have held senior policy making positions in the Reagan, George H.W., and George W. Bush administrations; have a commanding presence on the federal bench; and, as private lawyers, advocates in public-interest law firms, and government lawyers, challenge laws that are anathema to their worldview. The dockets of the federal and state courts (including the Supreme Court) are brimming with test cases brought or defended by Federalist Society members to challenge government regulation of the economy; roll back affirmative action; invalidate laws providing access to the courts by aggrieved workers, consumers, and environmentalists; expand state support for religious institutions and programs; oppose marriage equality; increase statutory impediments to women's ability to obtain an abortion; and otherwise advance conservative ideas.

Academics associated with the Federalist Society have educated a new generation of conservative law students, played a role in the rise of openly conservative law schools like Pepperdine's and George Mason's, and succeeded in gaining respect and traction for conservative legal ideas. Those stem in large part from an originalist interpretation of the Constitution, exemplified by the jurisprudence of Justice Scalia. That view posits that to interpret the Constitution, one must search for the original meaning of its provisions. The argument is that the original meaning of words may be objectively determined by recourse to historical sources that reveal how the words were used at the time, and that the original meaning is the only legitimate method of interpreting the document. . . .

Jeffrey Rosen--president of the National Constitution Center, a law professor at George Washington University and the legal affairs editor of The New Republic--reviewed the book in The New York Times:

More than two decades ago, when I was a law student, I used to sneak into meetings of the conservative Federalist Society for lunchtime conversations about constitutional issues. Although neither conservative nor a Republican, I had libertarian leanings and appreciated the society’s openness to debating its political opponents. I felt slightly illicit in crossing ideological lines: once, when the dean spotted me leaving a meeting, I felt as if I’d been caught walking out of an X-rated movie. But the discussions themselves were always intellectually engaging, and my fellow law students seemed more interested in converging around a shared approach to interpreting the Constitution than in squabbling about partisan differences. . . .

“[E]very single federal judge” appointed by the two Presidents Bush “was either a member or approved by members of the society,” including four Supreme Court justices: Antonin Scalia, Clarence Thomas, John Roberts and Samuel Alito. The Federalist Society model has been so successful that other organizations have adopted it — societies named after Benjamin Rush, Alexander Hamilton and Adam Smith have been started to promote conservative and free market ideas in medical education, foreign policy and business school.

How was the society able to achieve this remarkable feat? According to the authors, by persuading the competing factions of the modern conservative movement to set aside their ideological differences and to converge around a constitutional methodology known as “originalism” — the idea that judges should interpret the Constitution as understood by its framers and ratifiers. . . .

In 2010, Steven Teles published a book convering much of the same ground: The Rise of the Conservative Legal Movement: The Battle for Control of the Law.

Tamara Tabo, a graduate of the Thurgood Marshall School of Law at Texas Southern University, comments at Above the Law:

In this new column, I’ll occasionally be weighing in on legal issues from a conservative, right-of-center political perspective. My aim for my contributions is to balance the liberal heft that regularly gets thrown around on the pages of Above the Law. . . .

Where am I coming from that I might alter the usual ATL ideological balance?

In virtually all things, I advocate for limited government, though perhaps not quite as limited as I did back before law school, when I thumped my dog-eared copy of Robert Nozick’s Anarchy, State, and Utopia  as a philosophy grad student. I had a copy of the Eleventh Amendment posted on my last office wall. The jalopy I drove for years proudly displayed a “Ludwig von Mises Is My Hero” bumper sticker. I’m ferociously defensive of individual liberties, the separation of powers, and federalism.

During law school I interned with, and after graduation clerked for, the Hon. Edith H. Jones on the U.S. Court of Appeals for the Fifth Circuit. Judge Jones, reputed to be one of the nation’s most prominent conservative judges — and most conservative prominent ones — is a mentor and inspiration for me, though I don’t agree with her on everything. (I can’t say that I agree with anyone on anything, for that matter.)

I routinely identify myself as both a libertarian and a conservative. I have registered as a member of the Libertarian Party when living in states where I could, and I have almost exclusively voted with the GOP in most elections. I “caucus with the Republicans,” you might say. I have had many a conservative complain that I would better be described as a conservative libertarian, not a conservative. I have had even more liberals complain that I ought to describe myself as a libertarian conservative, not a libertarian. Whatever. The Right has room for plenty of debate within its territory, and whatever label might fit me best, it is most certainly not “liberal.” So, quibble over semantics if you’d rather do that than debate the issues. It’s fine. I’ll wait.

Some of you may not like my positions, but I didn’t adopt them through knee-jerk reactions. Though I’m a (blindingly pale!) white woman, I’m also a proud graduate of a historically black law school at a historically black university. While a student, I was a TA and a tutor, I served as editor-in-chief of my school’s law review, and I was active in student leadership, partnering with the SBA president, serving on committees, attending faculty meetings, and generally not blending in for three years.

Race certainly need not mean political or ideological homogeneity, but I can safely say that I encountered more Democrats than Republicans at my law school, likely even more so than I would have at a majority-white institution. (Suffice to say, I may well have been the most devout Clarence Thomas fan at my law school. “Ironic,” I say, but unsurprising among liberal black Americans.) Learning the law from mostly black professors and with mostly black classmates was a rich part of my law school experience, a part that I prize. Part of that experience, though, was knowing what it felt like to be a minority — not just racially but also politically. Voting Republican as a 1L at an HBCU law school when the first black President of the United States was elected to his first term will do that to you, I guess.

In furtherance of my “some of my best friends are liberals” street cred line, I dated and lived with a SCOTUS clerk who worked in the chambers of one of the more unabashedly liberal justices on the Court. While the law and policy battles that raged between us over a routine Tuesday night dinner or while sorting laundry on a Sunday morning could be epic, I never had the luxury of hearing my conservative voice reverberate in an echo chamber. That relationship didn’t change my party affiliation or cause me to disavow my Federalist Society loyalties. Nevertheless, it is impossible to glibly dismiss the other end of the ideological spectrum when you are sharing a grocery list with one of the opposition’s most brilliant and tireless minds.

Continually conversing with a fierce and gifted liberal interlocutor meant that I could never just snicker about how obviously clever Scalia’s latest dissent was or make hand-wave-y gestures about how nobody takes John Rawls seriously. Not unless I wanted my ass promptly handed to me, along with an invitation to sleep on the couch. No. I love debate, and I don’t fear disagreement, but respect for the opposition and the principle of charity govern. Even when I’m, you know, really, really, obviously right.

All that to say: I’m conservative and, yes, I have thought about it a lot.

So, ATLers, I hope you’ll follow me in the coming weeks as my column explores the, ahem, righter side of law and legal culture. For you conservative and libertarian readers, I hope that my musings do our side justice. For the lefties among us, I hope I’ll at least piss you off just enough that you will keep reading. To borrow the immortal words of the great Dave Chappelle, “Haters wanna hate. Lovers wanna love.” In either case, I’m game.

According to Bloomberg News:

The U.S. Supreme Court insulated multinational corporations from at least some lawsuits over atrocities abroad, scaling back a favorite legal tool of human rights activists.

The justices threw out a suit accusing two foreign-based units of Royal Dutch Shell Plc (RDSA) of facilitating torture and execution in Nigeria. The majority said the 1789 Alien Tort Statute generally doesn’t apply to conduct beyond U.S. borders.

In the Shell case, “all the relevant conduct took place outside the United States,” Chief Justice John Roberts wrote for the court. The justices were unanimous on the outcome in the Shell case, while dividing in their reasoning.

The ruling may help a number of companies defeat similar lawsuits. Exxon Mobil Corp. (XOM), Cisco Systems Inc. (CSCO), Chiquita Brands International Inc. (CQB), Siemens AG, Daimler AG and Rio Tinto Group (RIO) are all fighting Alien Tort Statute claims.

Without specifically addressing those cases, Roberts said a company couldn’t be sued under the Alien Tort Statute simply because it had a “corporate presence” in the U.S.

Roberts pointed to the “presumption against extraterritoriality,” saying that legal principle limits the reach of the Alien Tort Statute. The court’s four Democratic appointees -- Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan -- wrote separately to say they would have reached the same result using different reasoning.

Three other justices -- Anthony Kennedy, Samuel Alito and Clarence Thomas -- said in separate opinions that the ruling was a narrow one. Kennedy said the court “is careful to leave open a number of significant questions.”

Human-rights advocates said before the Supreme Court decision that a ruling favoring Shell would undermine the ability of atrocity victims to hold their perpetrators accountable. Alleged victims have invoked the law more than 150 times in the past 20 years.

“A majority of our highest court has chosen to make it easier for big corporations complicit in human rights abuses to evade responsibility and vastly more difficult for their victims to get justice,” said Nan Aron, president of the Washington- based Alliance for Justice, in an e-mailed statement.

The suit before the high court was pressed by Nigerians who said two Shell units were complicit in torture and execution in the country’s Ogoni region from 1992 to 1995.

The justices heard arguments twice in the case, first in their 2010-11 term on contentions that the Alien Tort Statute doesn’t permit suits against corporations.

The court then expanded its review, ordering re-argument in October on a potentially more sweeping question: whether the statute applies beyond the U.S. borders.

The court’s decision to focus on that question means its ruling may apply to corporate officers as well as the companies.

The 33-word statute, enacted in 1789, was in part a reaction to an attack on a French diplomat in Philadelphia. The Alien Tort Statute then lay largely dormant for almost two centuries before being revived in the 1970s as a means of pressing human-rights lawsuits. . . .

In October 2012, the Federalist Society produced a post-argument SCOTUScast on the case.  You can listen to it here.

On May 1, 2013, the Federalist Society and the American Enterprise Institute are co-hosting a debate on shareholder value theory. Conventional wisdom holds that corporations should maximize shareholder value. In her new book The Shareholder Value Myth: How Putting Shareholders First Harms Investors, Corporations, and the Public, Lynn Stout argues that this is a harmful myth. According to Stout, shareholder value thinking leads managers to focus exclusively on short-term earnings to the detriment of investors, corporations, and the public.

According to Jonathan Macey, however, while shareholder value maximization may be a myth, it helpfully constrains corporate managers. Leaving corporate managers with unconstrained choices — the real result of Stout's argument — would be far more dangerous.   

Join Macey and Stout as they debate shareholder value thinking and its implications for the corporate community, public policy arena, and public. Here are the details:

On April 1, 2013, the Federalist Society co-hosted a discussion at Yale Law School on the new book Blood of Tyrants: George Washington & the Forging of the Presidency by Logan Beirne, an an Olin Scholar at Yale Law. According to the book's description:

Blood of Tyrants reveals the surprising details of our Founding Fathers’ approach to government and this history’s impact on today. Delving into the forgotten—and often lurid—facts of the Revolutionary War, Logan Beirne focuses on the nation’s first commander in chief, George Washington, as he shaped the very meaning of the United States Constitution in the heat of battle.

Key episodes illustrate how the Founders dealt with thorny wartime issues: Who decides war strategy? When should we use military tribunals over civilian trials? Should we inflict harsh treatment on enemy captives if it means saving American lives? How do we protect citizens’ rights when the nation is struggling to defend itself? Beirne finds evidence in previously-unexplored documents such as General Washington’s letters debating torture, an eyewitness account of the military tribunal that executed a British prisoner, Founders’ letters warning against government debt, and communications pointing to a power struggle between Washington and the Continental Congress.

Vivid stories from the Revolution frame Washington’s pivotal role in the drafting of the Constitution. The Founders saw the first American commander in chief as the template for all future presidents: a leader who would fiercely defend Americans’ rights and liberties against all forms of aggression.

You can watch C-SPAN's video of the discussion here.

On Tuesday, April 9, 2013, a memorial service was held for Judge Robert H. Bork, who passed away in December 2012, at the Mayflower Hotel in Washington, D.C. Below is the program.

Welcome

• Robert H. Bork, Jr.

Speakers

• John O'Sullivan, CBE, is a journalist, author and Senior Fellow at the Hudson Institute and editor at large for National Review. He was senior policy writer and speechwriter for Prime Minister Margaret Thatcher, former executive editor of Radio Free Europe/Radio Liberty.
• George Priest is the Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship at Yale Law School.

Music

• Ann Schein Carlyss, a concert pianist, was raised in Washington, D.C. and has performed in Washinton's concert halls since her first recital there at the age of seven. Her teachers were Mieczyslaw Munz, Arthur Rubinstein, and Dame Myra Hess. She considers Washington to be her spiritual "home", although her life as a performer has taken her to every continent.

Rachmaninoff Prelude in D Major
Rachmaninoff Prelude in B flat minor

Speakers

• John Harrison is the James Madison Distinguished Professor of Law and Joseph C. Carter, Jr. Research Professor of Law at the University of Virginia Law School. He clerked for Judge Bork on the U.S. Court of Appeals for the District of Columbia Circuit.
• A. Raymond Randolph has served on the U.S. Court of Appeals for the District of Columbia Circuit since 1990. After clerking for the Judge Henry J. Friendly on the U.S. Court of Appeals for the Second Circuit, he served as an Assistant to the U.S. Solicitor General from 1970 to 1973 and, from 1975 to 1977, as Deputy Solicitor General.

Closing

• Mary Ellen Bork

According to the Harvard Gazette:

At Harvard Law School (HLS) on Friday, a panel of four leading legal scholars examined a single question: Is there a lack of intellectual diversity at law schools?

James Lindgren, a law professor at Northwestern University, began with numbers, citing a study in which only 13.2 percent of faculty at the country’s 100 largest law schools reported being “Republican or Republican leaning.” Of law school faculty that have donated more than $200 to a political party, 81 percent have donated to Democrats (91 percent at HLS), according to the study. “My opinion is that there is some discrimination in law school hiring,” Lindgren said.

Moderator David Barron, a Harvard Law professor, then gave the floor to HLS colleague Jack Goldsmith, who served as special counsel to the Department of Defense during the presidency of George W. Bush. Conservatives are sometimes caricatured at Harvard as people “who would turn back the clock in various ways,” Goldsmith said. And conservative views are often scorned, he said, adding, “Most of my colleagues think originalism [and other conservative legal theories] are bunk.”

Goldsmith said that many of his colleagues make questionable intellectual assumptions for their progressive-leaning arguments. “Most conversations here begin from deeply progressive premises, often unreflected” upon, said Goldsmith, who described conservative opinions as having “second-class status” at HLS.

Conservative students at HLS also feel a progressive bias, Goldsmith said. Students have described “open hostility to conservative views in classrooms” and “condescending dismissals of decisions from [Supreme Court Justice Antonin] Scalia” and other conservative justices, he said. “Intellectual intolerance is bad for our community,” Goldsmith told the audience.

Still, the tough intellectual atmosphere has helped him professionally, he said. “I think my scholarship has benefited enormously from having my premises questioned” at HLS, while “my progressive colleagues are harmed by the lack of intellectual diversity.” As for solutions, Goldsmith doesn’t believe a quota system for hiring conservative and libertarian faculty is the answer. The best solution is to find faculty who will teach with a balanced, inclusive approach.

HLS’s Mark Tushnet spoke about the difficulties in hiring conservative faculty from both the supply side and the demand side. On the supply side, he described two problems: First, “evangelicals are underrepresented because they have a general skepticism about law itself,” and second, “conservatives look more favorably upon big firm practice,” he said. On the demand side, continued Tushnet, “law schools are predominantly center-left and do center-left hiring.”

Tushnet contended that law schools in hiring mode “have a greater willingness to look to the far right than the far left,” because those on the far left are sooner viewed as “unsound” compared with those on the far right. Goldsmith pointedly disagreed: “There aren’t any views left of center that are disqualifying,” he said, “but there are views on the right that are.”

Joel Alicea [pictured above], president of the Harvard Federalist Society, co-sponsor of the event with the Milbank Tweed Student Conference Fund, elaborated on the issues raised, in a conversation with the Gazette.

“What’s lost is the opportunity for students to encounter the best arguments on all sides of a legal issue, articulated in the strongest form by those who actually hold those beliefs,” he said. Without intellectual diversity, “students are not challenged to think deeply about their own views,” so “they will never have had the opportunity to really test their own beliefs. It’s the students who hold the dominant ideology who are hurt most, not conservatives.”

You can watch videos of all of the panels here.

At the Volokh Conspiracy, Professor Nick Rosenkranz of Georgetown Law draws attention to an exciting event tomorrow:

On March 27, the Supreme Court heard oral arguments in Windsor v. U.S., the challenge to the constitutionality of the federal Defense of Marriage Act (DOMA), signed into law by President Bill Clinton in 1996, and which bars the federal government from recognizing the validity of, or extending attendant benefits to, any marriage conferred by any of the states other than those consisting of only one man and one woman. The Court considered whether DOMA violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are recognized to be married under the laws of their state, whether the Executive Branch’s assertion that DOMA is unconstitutional deprives the Court of jurisdiction to decide this case, whether the Bipartisan Legal Advisory Group of the United States House of Representatives has standing in this case to defend DOMA. Carrie Severino of Judicial Crisis Network attended the oral arguments and then offered her analysis of the arguments, the merits, and the likely outcome of the case in a FedSoc podcast available here.

Featuring:

• Ms. Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network
• Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

On March 26, the Supreme Court heard oral arguments in Hollingsworth v. Perry, the challenge to the constitutionality of California’s Proposition 8, which amended the California constitution to define marriage as existing only between one man and one woman. The Court considered whether the Equal Protection Clause of the Fourteenth Amendment prohibits California from defining marriage as the union of a man and a woman and whether petitioners have standing under Article III, § 2 of the Constitution in this case. Carrie Severino of Judicial Crisis Network attended the oral arguments and then offered her analysis of the arguments, the merits, and the likely outcome of the case in a podcast available here.

Featuring:

• Ms. Carrie Severino, Chief Counsel and Policy Director, Judicial Crisis Network
• Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The Associated Press reports:

A federal judge has struck down a Missouri law exempting moral objectors from mandatory birth control coverage because it conflicts with an insurance requirement under President Barrack Obama's health care law.

The ruling by U.S. District Judge Audrey Fleissig cites a provision in the U.S. Constitution declaring that federal laws take precedence over contradictory state laws. But Fleissig emphasized that she was taking no position on the merits of the Obama administration policy, which requires insurers to cover contraception at no additional cost to women.

Missouri Attorney General Chris Koster did not say on Monday whether he would appeal the ruling, which was dated Thursday but not publicized.

The anti-abortion group Campaign Life Missouri distributed an email Monday denouncing the ruling as "a radical departure from America's tradition of religious freedom" and imploring people to contact Koster's office in support of an appeal. Some backers of Missouri's law said the court ruling could result in churches and other religious organizations having to accept insurance policies that include contraception coverage.

The Missouri law requires insurers to issue policies without contraception coverage if individuals or employers assert that the use of birth control violates their "moral, ethical or religious beliefs." The state's Republican-led Legislature overrode the veto of Democratic Gov. Jay Nixon last September to enact the law, which appeared to be the first in the nation to directly rebut the Obama administration's contraception policy.

Fleissig had issued a temporary restraining order against Missouri's law last December. The law had been challenged by insurance providers, who feared they could be caught in legal quagmire by the differing federal and state requirements.

In her ruling, Fleissig wrote that the state law "is in conflict with, and pre-empted by, existing federal law" and "could force health insurers to risk fines and penalties by choosing between compliance with state or federal law."

The judge noted that the federal law includes penalties of $100 per day per employee and an annual tax surcharge of $2,000 per employee for violations of its provisions. The state insurance department already issued orders seeking civil penalties against two insurers for not offering plans excluding contraception coverage as required by the Missouri law.

The ruling "clears up what law they have to write the policies under, and that's all we were asking," said Brent Butler, the government affairs director for the Missouri Insurance Coalition, an industry trade group that was one of the plaintiffs.

Although she struck it down, Fleissig did not issue a permanent injunction against Missouri's law because she said the state insurance department had agreed not to enforce it and to withdraw its administrative complaints against the health insurers.

Among those supporting the Missouri law was Our Lady's Inn, a St. Louis area nonprofit that provides homes and counseling for pregnant women. The organization had filed a court document saying it wanted to use the Missouri law to opt out of contraception coverage for its employees' insurance policies.

"The point of the law was to tell health insurance companies that they're supposed to honor the wishes - pro or con - of people who have religious or ethical objections to what's in the policy," said Timothy Belz, a St. Louis attorney who represented Our Lady's Inn.

Under the Obama administration policy, churches are exempt from the contraception coverage requirement, but it would extend to insurers who provide policies to religiously affiliated nonprofits such as hospitals, colleges or charities. . . .

In October 2012, the Federalist Society produced a podcast on the litigation update:

On August 1 of this year, the Department of Health and Human Services mandate went into effect. The mandate, issued under the authority of the Affordable Care Act, requires employers to provide their employees with free coverage for all FDA-approved contraceptives and sterilization methods.  While the mandate includes a “religious employer” exemption--which is essentially limited to houses of worship--many employers who do not qualify for the exemption have filed suit in courts across the nation, claiming that the mandate violates their First Amendment rights, as well as their rights under federal statutory law.  Who are these employers who say their consciences do not allow them to cover the mandated drugs?  What arguments have they raised? How have the courts ruled thus far? Hasn't the government promised to accommodate these employers? On this previously recorded conference call, Mr. Duncan discusses the legal issues at stake and provides a litigation update.

Featuring:

• Mr. Kyle Duncan, General Counsel, The Becket Fund for Religious Liberty

• Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

You can listen to the audio recording here.

George Mason University School of Law today announced:

Judge Douglas H. Ginsburg will join the George Mason law faculty as professor of law beginning in July of 2013. Judge Ginsburg, who is currently a professor of law at New York University School of Law, will continue also to serve as senior circuit judge of the United States Court of Appeals for the District of Columbia Circuit.

Judge Ginsburg is a leading authority on competition law and policy, administrative law, and law and economics. In his distinguished career, he has been a professor of law at Harvard University (1975-1983); held a number of posts in the executive branch of federal government (1983-1986), including assistant attorney general for antitrust in the U.S. Department of Justice; and was then appointed to the United States Court of Appeals in 1986, serving as chief judge from 2001 to 2008. Judge Ginsburg taught as an adjunct professor at George Mason over a number of years, as well as having appointments as a visiting lecturer at the University of Chicago Law School and a visiting professor at University College London, Faculty of Laws. For the past two years he has been on the faculty of New York University.

“It’s an honor and delight to welcome Judge Ginsburg back to George Mason,” said Dean Daniel Polsby. “He is a teacher of long experience and matchless depth who understands his subjects from both practical and theoretical perspectives. Our students could not have a better teacher, and we could not have a better colleague.”

Judge Ginsburg is a graduate of Cornell University and the University of Chicago Law School. In addition to courses in antitrust and other subjects, he will teach and lecture in the programs of the school’s Law & Economics Center.

Judge Ginsburg has spoken at a number of Federalist Society events. You can find videos of his talks here.

With the recent passing of Judge Robert Bork, the Federalist Society hosted on March 15, 2013 a special D.C. Luncheon featuring Senator Michael Lee, who celebrated Judge Bork’s life and legacy, and discussed his final and just-issued book Saving Justice: Watergate, the Saturday Night Massacre, and Other Adventures of a Solicitor General.

On March 2, 2013, at its Annual Student Symposium, the Federalist Society hosted a panel discussion on the federalization of criminal law. After Judge Jerry E. Smith of the Fifth Circuit introduced the speakers, Professor John S. Baker of Catholic University Law School began by warning about the expansion of federal criminal law.  While libertarians oppose all criminal expansion since they oppose government expansion generally, he said, the real issue is faced by conservatives, who do not oppose federal criminal law per se. Baker distinguished between kinds of crimes. At the state level, there are common law crimes that, when certain additional features are present, permit federal involvement.  For instance, the federal government has the power to protect itself against theft. It likewise has jurisdiction over federal zones.

The genuine issue, Baker claimed, is the expansion of federal criminal law via the Commerce Clause (something that originally occurred via the Postal Power). With authority grounded in “jurisdictional hooks,” these crimes are actually regulatory in nature. Indeed, the body of law is as unclear and vague as the tax code. There are 4,000 federal criminal laws, with 500 to 600 new ones added every year. He said that half of all federal crimes have been enacted since the 1970s, and in large part due to Republicans (for example, President Nixon’s “War on Crime”). The irony is that Republicans oppose federal expansion in general—unless there is a criminal penalty. Given the complexity and sheer number of federal criminal laws, we have a hard time knowing what consists of a violation. This leaves enormous discretion to prosecutors. “There is literally no one in this room who cannot be found guilty of a federal crime,” Baker said, pointing to the law against honest services fraud, which makes it a federal crime, for instance, to falsely call in sick for work.

Baker then turned to the issue of the role of the police power in federal criminal law. At the state and local level, that power is about shaping the mores of the community, he explained.  If someone does not like those mores (for example, a law prohibiting gambling), he or she is free to move to another jurisdiction. By contrast, employing the police power at the federal level attempts to make mores uniform across the country. This is often tied up with the politicization of criminal law, as in the controversy over abortion.

According to Baker, the expansion of federal criminal law violates the Separation of Powers required by the Constitution. Despite the fact that the lawmaking power is supposed to be solely vested in Congress, the criminal statutes are so vague that it is effectively up to judges to interpret and essentially rewrite them. Similarly, the Justice Department de facto writes criminal laws as it chooses to prosecute some persons and enforce some laws rather than others. Baker regretted that Republicans oppose activist judges except in the area of federal criminal law.

Speaking next was Julie Rose O’Sullivan, Associate Dean and professor at Georgetown University Law Center. She said that everyone agrees that there is no definitive count of how many crimes there are in the federal code, in part because Congress delegates its regulating power to agencies and then prospectively says that such regulations will be enforceable. There could be hundreds of thousands of federal criminal regulations at present, she said. However, this is not as bad as it might seem since the allocation of cases has been constant over 100 years. Due to the federal government’s limited resources, it can do only so much. As a result, it has consistently focused on four areas: guns, immigration, drugs, and fraud. As evidence of the success of such discretion, she said that 95% of federal criminal cases result in a guilty plea. In other words, prosecutors basically ignore most of the federal criminal law. She admitted there is no requirement of mens rea (“guilty mind”) in regulatory offences, and many of the laws are vague, but judges are able to address those problems.  The statistics on guilty pleas show that prosecutors are in fact choosing to bring mainly strong cases.

O’Sullivan was followed by R. Alex Acosta, Dean of the Florida International University College of Law and former U.S. Attorney for the Southern District of Florida. In his presentation, he said he wished to “back up” and isolate two issues. The first is our frustration with overcriminalization in society as a whole. The fact is, he said, we are increasingly criminalizing behavior at all levels. Many of these laws should be void for vagueness—for example, one that makes it unlawful to “loaf.” Acosta said he actually prosecuted several cases under the federal honest services statute, and that doing so sent shivers down his spine. He believed the federal prosecutors a frightening amount of discretion that is far beyond the power to prosecute the classic case of a politician’s taking bribes to sell a vote.

The second issue he addressed is that of federalism: criminalization resulting from the powerful regulatory state. He claimed that until that regulatory state is restrained, there will not be any change in the area of criminal law.

When it comes to reality on the ground, he explained, the federal system does admittedly have more resources than state and local law enforcement, which are overburdened.  Thus there is a practical benefit for the federal prosecution of heinous crimes, even if this is not the ideal situation. Federal involvement starts a vicious cycle, however. The more local police rely on the feds, the fewer resources the former receive.  Acosta said the vital challenge is to figure out how to empower local district attorneys, who have a better understanding of the community, yet who have long relied on the feds as a safety valve.

The final speaker was William G. Otis, adjunct professor at Georgetown University Law Center and a former assistant U.S. Attorney. He said we must look to James Madison’s vision of small government over Lyndon Baines Johnson’s giant one. Focusing on the limits of the federal police power, Otis argued, is not a feasible way to scale back federal overcriminalization.  It is akin to asking courts to overturn the New Deal.  The best that can be hoped for in criminal law is to contain sprawl, not to roll things back.

Turning to the absence of the requirement of mens rea in much federal criminal law, he commented that the breaking of the link between intentional behavior and criminal punishment is not as novel as one might think. It is the flip side of an old coin: On the head side there is handwringing hesitation by “progressives” to punish bad behavior by appealing to psychobabble, claiming that criminals are the victims, etc. The tail side is the imposition of punishment on good behavior, such as producing energy.

As an example of what is wrong with federal criminal law, he pointed to the current clamor for gun control, which is based, he said, on a juvenile and diversionary view of law. It is juvenile since it examines the issue only superficially. There is no sober inquiry into actual causes of terrible crimes because that would require seriousness of purpose and actual work. It is telling, he said, that this matter was handed off to Vice President Biden. The demand for gun control is diversionary since it is premised on the idea that if we can blame the object, we can ignore the actual problem. Thus, we refer to “gun violence” as opposed to “finger violence.” This is yet another instance of progressives’ push to eliminate criminals’ responsibility for their acts. Otis said he was surprised it has taken progressives so long to move this push from the defense side to the prosecution side. It is the latter that threatens us all.

The Federalist Society concluded its 2013 Annual Student Symposium tonight with a keynote address by Senator Ted Cruz of Texas. The senator said it was great to be at the event since 21 years ago, when in his first year of law school, he attended his first FedSoc gathering. He credited the organization with “transforming law school, the federal bench, the legal academy, American law, and the federal government.” FedSoc, he explained, revived something that was on the verge of being forgotten: the text of the Constitution. “The Federalist Society brought us back to the founding principles that made us great.”

He then turned to his experience as a new senator.  “It has been an interesting eight weeks,” he remarked ironically. “The Senate? I received an oh-so-warm welcome. Washington, D.C. acts surprised when you actually do what you said you would do.” Obama, he said, thinks he is unstoppable right now. He and the Democratic senators are confident they will be able to crush anyone who gets in their way.

“How did we get here?” he asked. “We Republicans lost our way. We didn’t stand for limited government, the Constitution, for basic fiscally responsible principles.” He said that a cynical friend of his wrote a bumper sticker that reads, “Republicans. We waste less.” He recalled a line from Margaret Thatcher, “First you win the argument, then you win the election.”

The good news, he claimed, is that staring in 2010 we are seeing a new generation of leaders stepping forward. He named Marco Rubio, Paul Ryan, Mike Lee, Rand Paul, and Scott Walker—and someone in the audience shouted out, “Ted Cruz!” He estimated that the average age in the Senate has dropped a decade.

Senator Cruz said he proud of the fact that in his mere eight weeks in the Senate, The New York Times has written hysterically about him four times. It must mean he is doing something right, he commented. “When it comes to my stand on gun rights, why aren’t there 98 other senators standing with me?” He continued, “I don’t worry much about what the press thinks; my job is to follow the Constitution.”

Answering a question from the audience about immigration, the senator said he thought that the current system is broken, and that he was not optimistic about what is going to come out of D.C. This is despite the fact that there is bipartisan agreement that we need to get serious about policing our borders, just as there is bipartisan agreement that we should not just welcome but celebrate legal immigrants, who Ronald Reagan called “Americans by choice.” He claimed that Obama and the Democrats do not want to pass an immigration bill. Rather, they want to create a political issue: to pile on so much to a proposed bill that Republicans will be forced to walk away, to appear to be the bad guys. At the heart of this cynical ploy is Obama’s insistence that there be a path to citizenship for those who are already here.  Such a path is unfair to the millions of legal immigrants who have waited or are waiting, he said.

Another member of the audience asked how Republicans should respond to the biased coverage of the (liberal) mainstream media. Senator Cruz responded, “You can’t change the media. You have to go around them.  As Reagan did, we must go directly to the people—via the internet, social media.” He admitted that the chief model for his primary campaign strategy was Obama’s first primary campaign: “a grassroots guerilla campaign using social media.”

On a separate note, the senator said that Obama, like many second-term presidents, was overreaching—in particular, overreaching “on steroids” in his “stupid” press on guns. Senator Cruz noted that in his memoirs, Bill Clinton said he thought the Democrats lost the House because of the assault weapons ban they. Obama is making a similar mistake, he claimed.

As for his recent “controversial” vote against the Violence Against Women Act (VAWA), the senator noted that he spent much of his life in law enforcement pushing to punish violent criminals, including those who are violent against women. He said he was happy that Congress shared this passion, and he hoped that they would keep it in mind when reviewing potential federal judges that have a history of letting off guilty violent criminals. He explained the reason for the widespread congressional support for VAWA: “How do politicians show they care? By spending money.”

In his conclusion, he said, “I love the Tea Party. It’s one of the most inspiring things I’ve seen in my life.” He criticized the media for intentionally portraying it falsely. “If you have 5,000 people at a rally, of course there are going to be some crazies, but the media interviews only the guy in the tin hat.”

Senator Cruz said he sees a new generation of leaders arising: “I refer to them as ‘the children of Reagan.’ You can see Reagan’s leadership in how they communicate: They are not bitter or divisive. They know that Reagan never beat his chest and said, ‘I’m the most conservative man alive.’”