FedSoc Blog

Univ. Florida Law School Hosts Federalist Society’s 2014 National Student Symposium

Avatar

by Publius
Posted March 18, 2014, 9:41 AM

Florida Law Online reports:

For 33 years the Federalist Society has held its national student symposium exclusively at law schools ranked in the top 15.

But that changed March 7-8, when law students, lawyers and professors from around the nation traveled to Gainesville for the 33rd National Federalist Society Student Symposium, hosted by UF Law’s Federalist Society’s chapter.

The conference focused on the balance between freedom and national security, with the help of myriad expert speakers. It received stellar reviews from attendees, said Devon Westhill (3L), president of UF Law’s Federalist Society, who noted how humbled he was by the turnout of nearly 500 people. “We had many guests who traveled thousands of miles to (get here),” Westhill added, “(and) we want to thank them for trusting in us to deliver.”

Perhaps the most anticipated event of the two-day symposium was a speech from keynote Judge Michael Mukasey, who served as 81st attorney general of the United States under George W. Bush. During a Saturday night dinner banquet, Mukasey addressed what he called a “crisis in U.S. intelligence gathering.”

“It’s a multifaceted crisis in which information about our electronic intelligence gathering capability has been leaked to the public — not only by Edward Snowden and (Chelsea) Bradley Manning, but also by government officials,” Mukasey said. “And the process, of course, has been disclosed also to those who mean us harm, including not only terrorist groups but also state actors like China and Iran.”

The cost of a “risk-averse” attitude toward intelligence gathering, he continued, was decided to be greater than risks to intrusions on freedom and privacy after 9/11 occurred. Now that is in question once more, thanks to “horn-tooters” Snowden and Manning, Mukasey said before the attentive crowd in the Reitz Union’s Grand Ballroom.

“There’s been a cascade of misinformation about the NSA’s intelligence-gathering capability that has generated pressure from both the left and the right of the political spectrum to severely restrict the gathering of intelligence that is this country’s first and in some cases its only line of defense,” Mukasey said.

Prior to Mukasey’s closing speech at the banquet, Friday kicked off with a roundtable discussion on “Balancing Privacy and Security.” Panelists discussed issues and solutions surrounding privacy and security in a technological world. A debate immediately followed the talk and addressed the question, “Should we better protect government secrets and punish leaks more severely?”

Some of the featured panelists included: Ted Ullyot, former general counsel of Facebook; Steven G. Bradbury, of Dechert LLP; Rachel L. Brand, of Privacy and Civil Liberties Oversight Board; UF Law Professor John Stinneford; Julian Sanchez, of the Cato Institute; and moderator Judge Bill Pryor, of the U.S. Court of Appeals for the 11th Circuit; and debaters: New York Law School Professor Nadine Strossen and Roger Pilon, of the Cato Institute; and Judge Jerry Smith, U.S. Court of Appeals for the 5th Circuit, as moderator.

Friday evening closed with a reception at the University of Florida President’s House, where Congressman Ted Yoho was present to greet participants, and Marco Rubio spoke via video.

On Saturday, attendees chose among panels and debates including “Cybersecurity and the NSA,” “Is the FISA court too secret,” “Detained suspected terrorists try in military courts or civilian courts,” and “Drones and presidential authority.”

Saturday’s speakers included Stewart Baker, of Steptoe & Johnson; Professor Randy Barnett, of Georgetown University Law Center; Professor Jeremy Rabkin, of George Mason University School of Law; Alex Abdo, of the American Civil Liberties Union; Gregory McNeal, of Pepperdine University School of Law; Florida Supreme Court Justice Charles T. Canady; Professor Laura Donohue, of Georgetown University Law Center; and Florida Supreme Court Chief Justice Ricky Polston, among others.

“I am proud to announce that the Federalist Society national office considers this student symposium to be the very best in the history of the organization,” Westhill wrote in an email. “It is refreshing to know that we have now set the standard among an elite group of schools to have ever hosted this prestigious event in its 33 years. I think our success serves to demonstrate the University of Florida’s position as a preeminent national institution.”

To view more photos, view the album on UF Law’s Facebook page.

Irina Manta on the Constitutional Flaws of Intellectual Property Prosecutions

Avatar

by Publius
Posted February 19, 2014, 4:20 PM

Will Baude, assistant professor at the University of Chicago Law School, comments at the Volokh Conspiracy:

A while ago, over at our old site, I posted about a technical but important question at the intersection of constitutional law and criminal procedure: when some fact is necessary in order for a federal criminal statute to be constitutional (sometimes called, a “jurisdictional fact”), does the government have to prove it, and to whom?

A new article by my friend Irina Manta provides an excellent example of how this can come up. Manta argues that current criminal prosecutions for copyright and trademark violations fall short of the constitutional standard. From the abstract:

Our current methods of imposing criminal convictions on defendants for copyright and trademark infringement are constitutionally defective. Previous work has argued that due process under the Sixth Amendment requires prosecutors to prove every element of a crime beyond a reasonable doubt, including the jurisdictional element. Applying this theory to criminal trademark counterfeiting results in the conclusion that prosecutors should have to demonstrate that an infringing mark needs to have traveled in or affected interstate commerce, which is currently not mandated. Parallel to this construction of the Commerce Clause, criminal prosecutors would also have to prove that Congress has the power to reach individual copyright infringers under the Intellectual Property Clause. This presents little difficulty under the traditional understanding of the clause as prosecutors would only need to show that convicting a defendant serves to secure the rights of authors. Some contemporary scholars have argued, however, that the text of the Intellectual Property Clause must be understood to mean that Congress can only enact copyright legislation if it serves to promote progress. If this notion is correct and is combined with this article’s theory of the requirements of the Sixth Amendment, prosecutors would have to prove that individual convictions will serve to promote progress before courts can impose sentences in given cases. While this could raise costs and has the potential to reduce the number of cases brought, prosecutors may have little choice but to introduce expert testimony to demonstrate an effect on progress, similar to the use of expert evidence in antitrust litigation and related contexts.

In January 2014, Manta delivered a talk on intellectual property at the Federalist Society's 16th Annual Faculty Conference. She participated in a a panel discussion on the question “Is IP Property or Government-Conferred Monopoly?” You can read about the event and watch a video of it here.

George W. Dent: Toward Improved Intellectual Diversity in Law Schools

Avatar

by Publius
Posted February 19, 2014, 11:06 AM

In April 2013, the Harvard Federalist Society and the Milbank Tweed Conference Fund hosted a conference on “Intellectual Diversity and the Legal Academy.” (You can find video of the event here.) The Harvard Journal of Law & Public Policy recently published the remarks of several participants, including George W. Dent, Jr., professor at Case Western Reserve University School of Law. In a paper (PDF here) adapted from his presentation, Dent writes:

The organizers and supporters of the conference on “Intellectual Diversity and the Legal Academy”—the Federalist Society,  Harvard Law School, and Milbank, Tweed, Hadley & McCloy LLP—deserve great credit. Law school faculties tilt heavily to the political left, and there is no plausible explanation for this tilt other than discrimination against scholars who are politically incorrect. This is a serious problem for students, who do not get the full range of views in important current debates. The problem is of special concern because advocates must understand the positions of their opponents, beginning with their fundamental premises.

Some participants in the Harvard Federalist Society’s conference argued that the views of the instructor are unimportant because good teachers explain both sides of each case. No doubt many teachers try to do so, but, as Professor Robert George has observed, opponents usually cannot justify a viewpoint as well as its supporters can. Moreover, the experience of students suggests that many instructors do not even try to give both sides. Many students say that they rarely hear conservative or libertarian viewpoints from their instructors and that, indeed, those viewpoints are often ridiculed in class.

The ideological imbalance of law faculties is also a problem for legal education and legal scholarship. Our adversarial judicial system is built on the premise that the truth is best discovered through a structured contest between parties to a dispute, and the free speech commitment of the First Amendment rests in part on the belief that the truth best emerges through competition in the marketplace of ideas. In law faculties, however, views are largely limited to a fairly narrow range on the left of our national political spectrum. The ideological imbalance produces a kind of partisan chain reaction or echo chamber. . . .

Upcoming FedSoc Symposium Feb. 24: The NSA, Security, Privacy, and Intelligence

Avatar

by Publius
Posted February 12, 2014, 1:08 PM

The NSA, Security, Privacy, and Intelligence

International & National Security Law Practice Group Symposium

In the 12 years since 9/11, as the national security threat matrix has become increasingly complex, technological advances have expanded intelligence gathering capabilities significantly. Recently, public concern about government monitoring of individuals has come to the forefront of the discussion. To address the intersection of security, privacy, and intelligence, the President has proposed several reforms, and is studying others in consultation with Congress. This Symposium will analyze and offer observations on those proposals.

Agenda:

Registration
10:30 – 10:50 a.m.

Welcome and Introduction
10:50 a.m.

Panel I: Foreign Intelligence Collection and the FISA Court
11:00 a.m – 12:30 p.m.

  • Mr. Harley Geiger, Senior Counsel and Deputy Director, Freedom, Security and Surveillance Project, Center for Democracy & Technology
  • Prof. Peter S. Margulies, Roger Williams University School of Law
  • Mr. Julian Sánchez, Research Fellow, The Cato Institute
  • Hon. Honorable Kenneth L. Wainstein, Partner, Cadwalader, Wickersham & Taft LLP, former U.S. Homeland Security Advisor, and former Assistant U.S. Attorney General for National Security
  • Moderator: Mr. Vincent J. Vitkowsky, Chairman, International & National Security Law Practice Group, The Federalist Society

Luncheon
12:30 – 1:45 p.m.

  • Hon. Michael Chertoff, Co-founder and Managing Principal, The Chertoff Group, and former Secretary, United States Department of Homeland Security

Panel II: The NSA Telephone Metadata Program
2:00 p.m. – 3:30 p.m.

  • Mr. Steven G. Bradbury, Partner, Dechert LLP, and former head of the Office of Legal Counsel, U.S. Department of Justice
  • Mr. Jim Harper, Director of Information Policy Studies, Cato Institute
  • Mr. Benjamin Wittes, Senior Fellow, Governance Studies, The Brookings Institution
  • Moderator: Prof. Nathan A. Sales, George Mason University School of Law

 

 

Registration details:

Lunch will be served. There is no cost to attend this event.

Please register online.

Can California Public-Employee Pensions Be Reformed?

Avatar

by Publius
Posted February 11, 2014, 5:05 PM

PublicCEO reports:

Almost everyone acknowledges that California’s public pension system needs reform. Gov. Jerry Brown brought up reform in his his Jan. 2014 budget proposal for fiscal year 2014-15, which begins on July 1:

“Future liabilities — to schools, public employees’ pensions and retirement health benefits, infrastructure debt, deferred maintenance, and unemployment insurance — total $355 billion. These liabilities were built up over decades, and likewise, it will take decades to pay them off.”

Now, a new view on fixing the pensions comes from Alexander “Sasha” Volokh, a professor at the Emory University Law School in Atlanta.

Volokh has been writing a series of “white papers” for the Federalist Society on public pension and public employee compensation (see here and here).  The Federalist Society is a group of conservatives and libertarians that favors decentralized government and local control.

In his recent white paper, “Can We Fix the ‘California Rule’ for Public Employee Pensions?” he moves from descriptions to prescriptions for fixing the state’s perpetual deficit spending on pensions.

California rule

Volokh defines the “California Rule” as:

“[The] constitutional protection not only to the amount of public employees’ pensions that has been earned by past service, but also to employees’ right to keep earning a pension based on rules that are at least as generous for as long as they stay employed.” (emphasis in original)

A problem Volokh identifies is that public employees and retirees consider their pensions to be a form of private property guaranteed by the taxpayers not only for today, but tomorrow. That is, if the pension payouts are raised, they never can be cut. And if taxes are needed to be raised to continue the payouts, then so be it. As he wrote:

"n California (and some other states), the courts give constitutional protection not only to the amount of public employees’ pensions that has been earned by past service, but also to employees’ right to keep earning a pension based on rules that are at least as generous for as long as they stay employed. I argue that protecting pensions accrued based on past work is reasonable; protecting the current rules into the future is far less so.”

A proposal is one thing. But do such reforms stand a chance in a state where the unions hold so much clout?

Fixes

First, Volokh rules out some fixes, such as local emergency reforms to resolve a fiscal crisis or looking to the U.S. Supreme Court for relief.

But here are the fixes Volokh considers possible:

1.  A flexible definition of benefits.  Volokh believes that pensions can be modified based on “actuarial advice” as provided in the legal case of International Association of Firefighters vs. City of San Diego in 1983. This would get around the current problem of pensions being considered inflexible and inviolate.

2. Short-Term Contracts.  Instead of a life-long, lease-like pension, Volokh proposes short-term employment contracts. “If pension terms are enshrined in memoranda of understanding … that expire at a certain time, it seems hard to argue that the employees have acquired any vested right to compensation, benefits, pensions, or anything else beyond the term provided.” This would be difficult to get by unions unless their power is reduced.

3. State Constitutional Amendment.  Volokh brings up San Jose Mayor Chuck Reed’s Pension Reform Act of 2014, which could be on the November ballot.

Volokh acknowledges that, even if passed, the reform would only apply to employees hired after passage.  The prospects for passage of such an amendment may partially hang on State Attorney General Kamela Harris’ ballot argument, which was called biased not only by conservatives, but even by the left-leaning editorial page of the Los Angeles Times. The courts will decide the initiative’s final wording. But the San Jose Mercury News wrote that Harris’ tactics may be a way to stall the initiative  so it can’t gain enough signatures to appear on the ballot this year.

4. Changing State Case Law By Stacking the State Supreme Court. How this would ever happen in these times of Democratic dominance in the state is a good question. Democrats backed by unions likely will win future elections for the post of governor, who appoints court justices, and the members of the state Senate, which confirms the justices.

However, Supreme Court justices also have to be confirmed by state voters. And in 1986, voters removed from the court three justices, including Chief Justice Rose Bird, for refusing to allow executions under the state death penalty. So justices that rule against pension reform might be vulnerable.

5. Privatization. Volokh writes that “firing state employees is constitutional and providing pensions and retirement plans for the contractors’ employees will be left to the private employers.” The problem, again, is whether union power would allow this.

6. Defined Contribution Plans. Volokh proposes switching from a defined (assured) benefit plan to a defined contribution plan.  The California Rule on pensions does not protect contributions by government employers, only the benefits.

Crisis

Another trump card for Volokh, Reed and other reformers is that California’s pension crisis isn’t going away. The recent bankruptcies of the cities of Stockton, San Bernardino and Vallejo all were caused at least in part by an inability to meet hefty pension obligations.

Union power also may have peaked, as shown by the dissatisfaction even many progressives showed last year when union workers twice went on strike and shut down the Bay Area Rapid Transit system. As the U-T San Diego noted:

“Even in the strongly Democratic Bay Area, residents have very little sympathy for BART workers. In August, Sen. Mark DeSaulnier, D-Concord, said he was considering legislation that would deny transit workers the right to strike, which is the norm in most large U.S. metropolitan areas.

If pension costs rise even higher and threaten bankruptcy for more California cities, some of Volokh’s “fixes” could start popping up as potential solutions.

Michael Stokes Paulsen: The Uneasy Case for Intellectual Diversity in Legal Academia

Avatar

by Publius
Posted February 11, 2014, 10:56 AM

In April 2013, the Harvard Federalist Society and the Milbank Tweed Conference Fund hosted a conference on “Intellectual Diversity and the Legal Academy.” (You can find video of the event here.) The Harvard Journal of Law & Public Policy recently published the remarks of several participants, including Michael Stokes Paulsen, Distinguished University Chair and Professor at the University of St. Thomas School of Law. In a paper (PDF here) adapted from his presentation, Paulsen writes:

Might I suggest that intellectual diversity in legal academia is an overrated commodity? That it is overvalued in theory as well as undervalued in practice? Might I suggest that the value of intellectual diversity is distinctly secondary and instrumental? That intellectual rigor and quality, and the search for intellectual “Truth,” (with a capital T) are the true prime values, and that these values are not necessarily furthered by the quest for “diverse views,” simpliciter, but flow more reliably from other academic values, virtues, and attributes? And that the primary value of the argument for intellectual diversity, today, is that it serves as a good and effective rhetorical trope with which to bludgeon the currently entrenched Illiberal Academic Orthodox Establishment in the terms of a value they pretend to embrace?

Announcing the Launch of the Richard Epstein University

Avatar

by
Posted February 03, 2014, 11:15 AM

According to the new "Epstein University" website:

Epstein University is a complete education in classical liberal theory by its greatest expositor, Richard Epstein. Its format is a series of audio recordings culled from videos and podcasts freely available online. They focus on the key concepts that are essential to understanding the Epsteinian approach to the social sciences.

Fans of Milton Friedman, Hayek, and the like will find that Epstein fine-tunes familiar ideas to perfection. If this is your first exposure to classical liberal ideas, expect to be challenged by the most rigorous version of arguments that are far from the mainstream.

This project is organized by Epstein fans who found each other through the Richard Epstein fan site. We are not associated with Mr. Epstein, and he would probably be embarrassed to learn that he has a fan site. Our mission is to promote Epstein's work as an authority, a kind of OED for high-end "right wing" political theory that works out the most difficult questions with unmatched precision.

Epstein speaks quickly, so pay close attention and rewind frequently. We encourage you to share your thoughts and questions by commenting on the posts, but no trolling, please. These sections are only an introduction to Richard Epstein and are by no means comprehensive. We hope that they will inspire you to explore the inexhaustible genius of the world's greatest thinker.

Here are some of Epstein's recent collaborations with the Federalist Society:

Marvin M. Brandt Revocable Trust v. United States Post-Argument SCOTUScast
SCOTUScast 1-22-14 featuring Richard Epstein
January 22, 2014

 

Patent Re-Reform in Congress - Podcast
Intellectual Property Practice Group Podcast
November 21, 2013
 
Intellectual Property, Free Markets and Competition Policy - Event Audio/Video
2013 National Lawyers Convention
November 20, 2013
 
Showcase Panel I: Textualism and the Bill of Rights - Event Audio/Video
2013 National Lawyers Convention
November 20, 2013

Snowden: What’s the Harm?

Avatar

by Publius
Posted January 30, 2014, 1:58 PM

Joel Brenner comments at Lawfare:

What harm has Edward Snowden done to his country?

When Snowden asserts that the National Security Agency listens to encrypted Russian diplomatic traffic, it takes the Russians about twenty minutes to shut it down.  An operation like that can take many years to put in place.  When he explains exactly how NSA can implant devices that make it possible to extract information even from isolated networks of hostile governments, those operations will die on the vine.  When he identifies specific networks of adversaries that we have penetrated and the exact locations from which we have done it, he effectively shuts those operations down.  When he and his backers assert that NSA penetrates Google and Yahoo and Facebook servers overseas—when the truth is that NSA may target the foreign terrorist-linked users of those services—he wounds the businesses of creative, successful American companies.  When he identifies legitimate, and legitimately secret, arrangements by which foreign governments cooperate with the United States in pooling resources to track foreign terrorists, he sows pandemonium among Western allies.  When you educate terrorists day after day with these and other revelations, they learn their lessons, and indeed collection against terrorist networks has fallen off sharply.  These are the hostile actions of a self-righteous megalomaniac—hostile to the United States, hostile to liberal democracy, hostile to the West—and it is impossible to avoid the conclusion that their results were intended.

That Snowden also started an overdue public discussion of a metadata collection program authorized by Congress and more than a dozen federal judges—but not understood by many Americans—cannot be denied.  But those disclosures comprise only a fraction of his program of stealing and broadcasting classified information that otherwise has nothing to do with the privacy and civil liberties of citizens of the United States and allied nations. . . .

In November 2013, at FedSoc's National Lawyers Convention, Brenner participated in a panel discussion on "Cybersecurity – The Policy and Politics of a Leading National Security Threat." Also participating were:

  • Mr. Steven G. Bradbury, Partner, Dechert LLP and former head, Office of Legal Counsel, United States Department of Justice
  • Ms. Michelle Richardson, Legislative Counsel, American Civil Liberties Union
  • Mr. Paul Rosenzweig, Red Branch Law and Consulting and former Deputy Assistant Secretary for Policy, U.S. Department of Homeland Security Principal
  • Prof. John Choon Yoo, Emanuel S. Heller Professor of Law, University of California, Berkeley Boalt Hall School of Law
  • Moderator: Mr. Vincent J. Vitkowsky, Chairman, International & National Security Law Practice Group, the Federalist Society

You can watch a video of the discussion here.

FedSoc Faculty Conference Hosts Panel on “Is IP Property or Government-Conferred Monopoly?”

Avatar

by Publius
Posted January 28, 2014, 5:39 PM

On Friday January 3, 2014, the Federalist Society opened its 16th Annual Faculty Conference with a panel discussion on the question “Is IP Property or Government-Conferred Monopoly?” Randy Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, served as the moderator.

The first panelist was David S. Olson, Associate Professor of Law at Boston College Law School, who began by noting that we have property rights for very good reasons, whether utilitarian or Natural Law: the world works best with such laws. Intellectual property (IP) is something different, however. True property has the property of rivalrousness: you can’t eat an apple that someone else is eating. It is a statement about physical reality. IP, by contrast, is not rivalrous. “If I come up with a new way to plough my crops, someone else can copy that on their land at the same time,” he said.

Defenders of IP, whether regarding patent or copyright law, claim that we will get fewer inventions if inventors do not have rights to exclude others from their inventions. Likewise for authors and their writings. There is a moral component to that argument, he claimed. It is not a matter of placing a tax on other users. There is a different mindset, however, if one takes a utilitarian perspective, as opposed to an argument from inherent rightness. In the former case, there would be an optimum level of IP protection, but the reality is that people create many positive externalities they can never reclaim. Typically we have not given IP protection to fashion and to natural phenomena (for example, discovering that a tree bark has an aspirin-like property). The question should always be: do we need to assign this particular right? If not, we should stop doing so.

Irina Manta, associate professor at Hofstra Law School, spoke next. She explained that she does not ground property rights in natural rights: Supporters of natural rights argue that the government must grant property rights yet she said the government does not own the right it is supposed to give. Rather, she said she sees property rules as maximizing social welfare. She stressed, however, that rhetoric does matter. When we liken IP to property in Congress or courts, more rights tend to be accorded. This is unfortunate since it contains an inaccurate understanding of non-IP property law. For instance, the doctrine that a man’s home is his castle has been modified over the years. We all agree there is a middle ground when it comes to property rights, she claimed. Nothing is achieved by making IP law more like property law or less like it. In her conclusion, she denied the claim that IP is nonrivalrous by offering the counterexample of trademarks in status goods: the value of owing a genuine Louis Vuitton bag is diminished if knockoffs are permitted.

Following Manta was Adam Mossoff, professor at George Mason University School of Law. He said his view was that IP is in fact a kind of property right. And it is so for both conceptual and normative reasons. As a preliminary matter he explained it is important to recognize that law can protect what people possess based on what those rights refer to: new values were secured as property rights as new kinds of things of value were created over the eons. For instance, the notion that property is not land per se but the disposition to use that land to the exclusion of other people. Other examples of new values are air rights, a water well (which is built), corporate forms of property (which we take for granted), and patents and inventions. IP is thus a legitimate example of the protection of values that have been created by individuals.

The final speaker was Gregory Dolin, Co-director of the Center for Medicine and Law at the University of Baltimore School of Law. He explained that his position falls between that of Manta and Mossoff but he disagrees with both. Beginning where Manta left off, he said he agreed that nomenclature matters in a visceral sense but what we should ultimately care about are the rules.  Courts assume foxes and whales can become property and thus apply certain sets of rules. Yet property is not a thing but a relation between individuals via legal rules. Calling it government privilege or property versus calling it IP does not matter.

He said that there do exist certain moral claims if IP is property. The classic assumption is that an owner of property has obtained the ownership by his labor at some point in the chain of possession. Suppose, for instance, that someone steals someone else’s Ph.D. dissertation. We think such copying is wrong even if there was no trespassing. There is no such moral implication, however, if we view IP as a matter government-conferred monopoly.

FedSoc Junior Faculty Workshops: Request for Proposals

Avatar

by Publius
Posted January 28, 2014, 11:10 AM

The Federalist Society's Faculty Division is pleased to announce its sponsorship of a new round of Junior Faculty Workshops.  These workshops are intended to provide a structured—but relatively informal—environment in which six or so faculty members from different law schools can gather to spend a day workshopping each others’ papers, followed by a group meal.  The workshops can focus on a particular subject area or cover a broad range of interests, depending on the organizer’s preference.

We envision workshop participants consisting primarily of junior tenure track faculty (defined as people who have been in tenure track positions less than seven years), but also encompassing fellowship recipients or doctoral candidates in appropriate cases.  A junior faculty member will be responsible for organizing and directing the workshop, and will receive a budget for the event.  Wherethe participants are in relatively close geographical proximity, the maximum budget will generally be $1,000.  Where some degree of air/rail travel and lodging will be necessary, we may increase the budget to as much as $3,000 to help defray travel costs. Organizers should plan to hold the workshop sometime in 2014.

We invite interested junior faculty members to submit a workshop proposal setting forth a topic, date, location, schedule, list of potential participants, and description of anticipated expenditures. Proposals should be sent via email to anthony.deardurff@fed-soc.org no later than Friday, March 7, 2014.

 

Journal Publishes Remarks from FedSoc Conference on Intellectual Diversity in Legal Academy

Avatar

by Publius
Posted January 27, 2014, 6:24 PM

Nicholas Rosenkranz, professor at Georgetown University Law Center, writes at the Volokh Conspiracy:

Back in April, I posted about an excellent conference hosted by the Harvard Federalist Society about intellectual diversity in the legal academy.  I am pleased to report that the Harvard Journal of Law & Public Policy has just published the remarks of several participants, including Michael Stokes Paulsen, George W. Dent Jr., Paul Campos and Sherif Girgis, all of which can be found here.  In my own remarks at the conference, I argued that, “because elite American faculties are so far to the left of the American judiciary, these faculties can be startlingly poor at analyzing the actual practice of American law.”  My brief remarks can be downloaded here.

Sen. Cruz Publishes Harvard Law Review Article on the Limits on the Treaty Power

Avatar

by Publius
Posted January 08, 2014, 5:15 PM

The latest edition of the Harvard Law Review features an article by Senator Ted Cruz (R-TX) on the limits of the treaty power. The article begins:

During Justice Sotomayor's Senate Judiciary Committee confirmation hearing, she rightly stated that "American law does not permit the use of foreign law or international law to interpret the Constitution." But she also correctly recognized that some U.S. laws rely upon certain international law sources. For instance, the Alien Tort Statute "allows federal courts to recognize certain causes of action based on sufficiently definite norms of international law."

Treaties are probably the most prevalent mechanism by which domestic law adopts international law. A treaty is "primarily a compact between independent nations." Article II, Section 2 of the Constitution gives the President the power "to make Treaties, provided two thirds of the Senators present concur." And the Supremacy Clause provides that "treaties," like statutes, count as "the supreme law of the land." Some treaties "automatically have effect as domestic law" — these are called self-executing treaties. Other treaties "constitute international law commitments," but they "do not by themselves function as binding federal law" — these are called non-self-executing treaties.

Because treaties are the supreme law of the land, they could potentially become a vehicle for the federal government either to give away power to international actors or to accumulate power otherwise reserved for the states or individuals. Either possibility can be prevented if sufficient limits are placed on the federal government's authority to make and implement treaties. Some treaties, like the Arms Trade Treaty, the United Nations Convention on the Law of the Sea, and the Convention on the Rights of Persons with Disabilities, purport to let international actors set policy in areas already regulated by the federal government. These and other treaties could be used to infringe on state sovereignty. Many commentators are chomping at the bit for the federal government to make or implement treaties as a way of enacting laws that the Supreme Court has otherwise held as exceeding the federal government's powers. As Professor Nicholas Rosenkranz noted, scholars have even suggested that the International Covenant on Civil and Political Rights could resuscitate the Religious Freedom Restoration Act partially invalidated in City of Boerne v. Flores or the Violence Against Women Act partially invalidated in United States v. Morrison.

With treaties potentially supplanting federal and state governmental authority, the President and Senate should carefully scrutinize all treaties, as a policy matter. We must jealously guard the separation of powers and state sovereignty if we are to preserve the constitutional structure our Framers gave us.

At the same time, our courts must scrutinize the federal government's powers to make and implement treaties. Our federal government is one of enumerated, limited powers, and the courts should not let the treaty power become a loophole that jettisons the very real limits on the federal government's authority.

Luckily, the Roberts Court has signaled that it will recognize the limits on the federal government's treaty power. As Solicitor General of Texas, I had the privilege of arguing Medellín v. Texas, which recognized critical limits on the federal government's power to use a non-self-executing treaty to supersede state law. . . .

Senator Cruz delivered an address in November 2013 at the Federalist Society's Annual National Lawyers Convention. You can watch a video of his remarks here.

Tech Industry Watches Whether SCOTUS Will Take Up Limelight Patent Case

Avatar

by Publius
Posted January 07, 2014, 12:24 PM

The technology industry is watching to see whether, at its January 10th conference, the Supreme Court decides to hear Limelight Networks v. Akamai Technologies, a patent dispute that could fundamentally alter the law governing patents of methods. In early December, responding to the Court’s request, the Solicitor General recommended granting Limelight’s petition and denying a conditional cross-petition filed by Akamai.

Limelight started out as a typical fight between competitors. Akamai charged Limelight with infringement of its patent on a method for delivering video content to consumers via the Internet.

Two lower courts ruled for Limelight, which in its own process performed some but not all of Akamai’s steps. Its customers performed the other steps, a decoupling that courts had historically agreed did not constitute infringement.  But in en banc review, a one-vote majority of the Federal Circuit overturned the lower courts in what the Solicitor General later warned could lead to “a significant expansion of the scope of inducement liability (and a corresponding increase in burdensome litigation)….”

The case has drawn three amicus briefs, all primarily from the tech world.  All urged the Court to hear the case:

  • Google, Cisco Systems, Oracle, Red Hat, SAP America, Symantec, and Xilinx: If the Federal Circuit’s decision is allowed to stand, it would “exacerbate the growing problem of high-cost and abusive patent litigation.”
  • Altera Corporation, HTC Corporation, HTC America, Smugmug, and Weatherford International: The new precedent has “substantially impacted” the ability “to make reasoned business decisions.” Businesses “are left to speculate at their peril about how their products or services might be used by multiple third parties outside of an agency relationship.”
  • CTIA—The Wireless Association, Consumer Electronics Association, and MetroPCS Wireless:  Wireless service providers and makers of wireless devices “are now vulnerable to a host of potential patent infringement charges and lawsuits arising out of the combination of their own non-infringing—simply interconnecting—conduct with the non-infringing conduct of multiple third parties over which they exercise neither control nor authority. Indeed, in just the few short months since the Federal Circuit's decision, numerous district courts have permitted plaintiffs to amend their complaints to add inducement claims.”

Two newspaper editorial boards have also weighed in, both backing Limelight:

  • The Washington Times: The Federal Circuit’s ruling was “an example of how the patent system has lost sight of the constitutional principle that patents exist ‘to promote the Progress of Science and useful Arts.’” 
  • Investors Business Daily: “The inventors and innovators of the digital age, who routinely put together the software and hardware inventions of others for creative new uses, will be discouraged and deterred, knowing their work will end up unprotected….  Akamai's patented method itself, in fact, is composed of techniques invented by other firms.” ()

The Supreme Court will release its decision on Monday, January 13th.

Categories: Federalist Society

John McGinnins: Why the Federalist Society Matters

Avatar

by Publius
Posted January 06, 2014, 10:34 AM

John McGinnins, George C. Dix Professor in Constitutional Law at Northwestern University School of Law, comments at the Liberty Law blog:

I had the pleasure of attending the Federalist Society’s faculty convention in New York last weekend. I learned, as always, a great deal about issues, including those outside my field, like intellectual property. But it was also an occasion to recall why the Federalist Society is so important to the cause of law and liberty in the United States.

Lawyers, as Alexis de Tocqueville noted almost two centuries ago, play a crucial role in the political order of the United States. He observed that United States lacked an aristocracy, and lawyers filled that void, because they were experts in the democracy’s mode of governance.

When society reflects the spontaneous ordering of private law and a limited role for government, lawyers tend to be a force for property and legal stability. Under those circumstances, it is private law, after all, that provides much of their living. Thus, lawyers by and large at the beginning of our republic protected the constitutional structures that both promoted commerce and sustained the rights of property.

But since the rise of the modern regulatory state and social democracy, the role of lawyers has changed. They often act as technocrats and enablers of regulation and redistribution. The more a nation intervenes in economic affairs, the greater the slice of compliance costs and transfer payments lawyers can expect to receive. As a result, as a group lawyers no longer support property rights or even a stable rule of law. Their interest lies frequently in dynamic forms of legal transformation and the uncertainty it brings.

Of course, as individuals many lawyers hold ideals that are distinct from the general financial interests of their profession. But trade associations, like the ABA, will not provide a network to nurture these sentiments and harness these lawyers into a force for a stable rule of law and limited government. The Federalist Society performs this essential function, creating an organization that acts as a counterbalance to the natural ideological tendencies of the most important social class in our contemporary democratic society.

But the world is always changing with new issues that need analysis under the prism of well tested principles. The Federalist Society thus constantly offers forums, like the one I attended, for lawyers and law students to discuss the issues of the day both among themselves and with lawyers of opposing views. With its combination of organizational acumen and openness to debate, the Society has proved the most important voluntary association begun in the last quarter of the last century.

 

The Snowden Affair and Control of the Internet

Avatar

by Publius
Posted December 18, 2013, 4:17 PM

Vincent J. Vitkowsky, Chairman of FedSoc's International & National Security Law Practice Group, published a detailed commentary for Advisen on the Snowden affair's relation to control of the internet. It begins:

There is a serious conflict over future control of the Internet, as nations seek to influence its delivery mechanisms, protocols, economics, security, content, and governance. Until now, key functions have been managed through a multi-stakeholder approach, using technical organizations such as the Internet Corporation for Assigned Names and Numbers (ICANN), with oversight conducted by the US. But the last several years have seen a growing challenge to this system and the US role. Now a tipping point may have been reached. The public disclosures of the scope of the NSA surveillance programs have led to widespread international criticism, focusing and catalyzing the call for changes in Internet governance. The Internet is the most dynamic engine for economic growth in the world today, as well as the vital mechanism for dissemination of ideas. So the outcome of the conflict for control will have profoundly important commercial and political consequences. . . .

In November 2013, at FedSoc's National Lawyers Convention, Vitkowsky moderated a panel discussion on "Cybersecurity – The Policy and Politics of a Leading National Security Threat." Also participating were:

  • Mr. Steven G. Bradbury, Partner, Dechert LLP and former head, Office of Legal Counsel, United States Department of Justice
  • Mr. Joel F. Brenner, Principal, Joel Brenner LLC and former National Counterintelligence Executive, former Inspector General and Senior Counsel, National Security Agency
  • Ms. Michelle Richardson, Legislative Counsel, American Civil Liberties Union
  • Mr. Paul Rosenzweig, Red Branch Law and Consulting and former Deputy Assistant Secretary for Policy, U.S. Department of Homeland Security Principal
  • Prof. John Choon Yoo, Emanuel S. Heller Professor of Law, University of California, Berkeley Boalt Hall School of Law

You can watch a video of the discussion here.

Search

Categories

Archives

Originally Speaking Debate Archive

Blog Roll