FedSoc Events

The administrative state - the agencies comprising the Executive Branch of the U.S. federal government - has exploded in size and reach since 1946 when President Truman signed the Administrative Procedure Act into law. The APA has been amended a bit since then, but has it kept up with current challenges? While the Executive Branch has been growing, the other two branches of government have been changing as well. Congress has increasingly tended to delegate authority to agencies. And courts are changing their views not only of how much leeway agencies have in interpreting and applying statutes, but also of what methodology courts themselves should employ when interpreting statutes, including the APA. This panel will discuss how these changes impact the government and the governed.
Featuring:

Hon. Steven Bradbury, Distinguished Fellow, Executive Vice President’s Office, The Heritage
Prof. Emily Bremer, Associate Professor of Law, University of Notre Dame Law School
Prof. Ronald M. Levin, William R. Orthwein Distinguished Professor of Law, Washington University in St. Louis School of Law
Mr. Andrew Tutt, Senior Associate, Arnold & Porter
Moderator: Hon. Steven J. Menashi, United States Court of Appeals, Second Circuit

Overflow: Chinese Room

Featuring:

Hon. Lina M. Khan, Chair, Federal Trade Commission
Prof. Todd J. Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia, Law School, George Mason University

No one maintains that the Court has always and forever been originalist in its orientation. By any definition of "originalism," there is a vast body of case law that does not conform to it.
How do and should modern originalists - and here one might specifically include lower-court judges who consider themselves originalist - handle this case law? Do non-originalist precedents count for nothing, no matter the expectations built upon them? If they count, how much do they count? Given the interconnectedness of the Constitution's provisions and structure, does it make sense to be "originalist" in some respects and some contexts but not others? Does originalism itself provide means to answer, or even address, these questions or does one necessarily have to step outside originalism to establish its relationship to precedent?
Featuring:

Prof. Tara Leigh Grove, Vinson & Elkins Chair in Law, University of Texas at Austin School of Law
Prof. Randy Kozel, Fritz Duda Family Professor of Law, University of Notre Dame Law School
Prof. Gary Lawson, William Fairfield Warren Distinguished Professor, Boston University School of Law
Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University Pritzker School of Law
Moderator: Hon. William H. Pryor Jr., United States Court of Appeals, Eleventh Circuit

Overflow: Chinese Room

The Supreme Court’s decisions in 303 Creative LLC v. Elenis and in Groff v. DeJoy posed issues about religious freedom in the workplace and religiously motivated speech in the marketplace. This panel will consider the cases and their implications for religious freedom, especially how future cases might apply the tests articulated by the Court for “substantial costs” to a business for making an accommodation in Groff, and for what counts as expressive messages protected against the application of state anti-discrimination laws under 303 Creative. The panel will also consider the broader question of if there is value in accommodating religion in the workplace despite conflicts with employer preferences, and likewise, if there is a value in accommodating businesses (especially small businesses, where this typically arises) in light of broader societal preferences (such as non-discrimination law). Observers indicate that Title VII represents statutory values and 303 Creative raises Free Exercise constitutional values, but both cases pose questions about making room for faith in public life.
Featuring:

Prof. William Eskridge, Alexander M. Bickel Professor of Public Law, Yale Law School
Ms. Erin M. Hawley, Senior Counsel, Alliance Defending Freedom
Mr. Aaron Streett, Chairman, Supreme Court and Constitutional Law Practice, Baker Botts LLP
Mr. Adam Unikowsky, Partner, Jenner & Block LLP
Moderator: Hon. S. Kyle Duncan, United States Court of Appeals, Fifth Circuit

Overflow: Cabinet & Senate Rooms

In recent years, the U.S. Supreme Court has emphasized the federalist nature of our national Constitution and the importance of preserving state sovereignty. This trend is evident in several of the Court's decisions – Dobbs most notable among them – that have recognized and reinforced the authority of individual states in matters of health, safety, and morals. As a result of this return to federalism, some of the nation’s most interesting and groundbreaking legal work is being done at the state level. In particular, state constitutional and statutory provisions that used to be subsumed by federal law or judicial precedent – restrictions on abortion, requirements for post-conviction review, grants for religious schooling, and so on – now matter in their own right. On this panel, several state supreme court justices will discuss what the ascendance of federalism means for their states and state courts, as well as how this shift will impact the teaching and practice of law across the nation.
Featuring:

Hon. Rebecca Bradley, Wisconsin Supreme Court
Hon. David N. Wecht, Pennsylvania Supreme Court
Hon. Evan A. Young, Supreme Court of Texas
Moderator: Hon. Carlos T. Bea, United States Court of Appeals, Ninth Circuit

Stare Decisis, a Latin term meaning “let it stand,” is a key element of how American law is interpreted, applied, and adjudicated. When applied, it leads courts to stand by decided cases, to uphold precedents, and/or to maintain former adjudications. How exactly that principle should be applied, however, is a topic of some debate. In Dobbs v. Jackson Women’s Health Organization, the Supreme Court held that a proper application of stare decisis required an assessment of the strength of the grounds on which the prior precedent was based. That articulation has led some to question: what are the implications of applying that conception of stare decisis to the Court’s constitutional criminal jurisprudence under the Fourth, Fifth, Sixth, and Eighth Amendments? What might be its effect on those rights and remedies?
Featuring:

Hon. John F. Bash, III, Partner, Quinn Emanuel
Mr. Michael Caruso, Federal Public Defender, Southern District of Florida
Prof. Meghan J. Ryan, Co-Director, Tsai Center for Law, Science and Innovation, Altshuler Distinguished Teaching Professor, and Professor of Law, Southern Methodist University Dedman School of Law
Prof. John Stinneford, Edward Rood Eminent Scholar Chair, Professor of Law, & Senior Fellow, Hamilton Center for Classical and Civic Education, Levin College of Law, University of Florida
Moderator: Hon. Amul Thapar, United States Court of Appeals, Sixth Circuit

Overflow: Chinese Room

Article III of the Constitution vests the “judicial Power” in “one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Our founding document recognizes that the Supreme Court stands apart from the rest of the federal judiciary. Yet, Congress has long regulated several aspects of the high court, including its appellate jurisdiction, rules for establishing a quorum, and standards for recusal. Some critics argue that Congress should go further to regulate ethics on the Supreme Court. Some proposals would require the Justices to adopt an ethics code. Other proposals would impose one on the Justices. This panel will explore originalist perspectives on ethics and the Supreme Court, in particular considering these questions: When it comes to establishing or even enforcing ethical standards for Supreme Court justices, is there a role under the Constitution for Congress? Is it true that Congress has the power (or even without that explicit power) regulate the high court's quorum and recusal standards? And, as a matter of prudence, should Congress take these steps? In Federalist No. 78, Hamilton described the judiciary as the “least dangerous branch.” While the Executive holds the sword” and the Legislature “commands the purse,” the courts have “merely judgment.” But can the courts faithfully exercise that judgment when threatened by the sword and pinched by the purse?
Featuring:

Mr. David Lat, Founder, Original Jurisdiction
Hon. Jay Mitchell, Associate Justice, Alabama Supreme Court
Mrs. Carrie C. Severino, President, Judicial Crisis Network
Moderator: Hon. David R. Stras, United States Court of Appeals. Eighth Circuit

Although a creature of statute, American antitrust law functions in practice as a field of common law. Courts have had the preeminent role in shaping the contours of its application, imposing the “rule of reason” and defining concepts like competition and the use of economic evidence. While antitrust precedents are closely examined by practitioners and academics alike, less attention is paid to whether the developments in antitrust law over the last century are consistent with the text of the antitrust laws. This panel will discuss the meaning of the antitrust texts, how or whether current law is consistent with the plain meaning of the statutes, and what that means for antitrust policy going forward.
Featuring:

Prof. Daniel A. Crane, Richard W. Pogue Professor of Law, University of Michigan Law School
Mr. Ashley Keller, Partner, Keller Postman
Ms. Doha Mekki, Principal Deputy Assistant Attorney General, Antitrust Division, United States Department of Justice
Mr. Bilal Sayyed, Senior Competition Counsel, TechFreedom
Moderator: Hon. Stephanos Bibas, United States Court of Appeals, Third Circuit

Overflow: Cabinet & Senate Rooms

The United States adopted its modern environmental statutes in the 1970s. Among other innovations, Congress incorporated citizen suit provisions into the Clean Air, Clean Water Act, and Endangered Species Act. These created causes of action allowing individuals and interested entities to sue to enforce the environmental laws. At the same time, courts took an increasingly expansive view of the private citizen standing to challenge agency actions through the Administrative Procedures Act.
For many years, public interest groups seeking more environmental regulation and government control took the headlines. Lately, public interest groups opposed to expanding government regulation and interested in defending the rights of property holders have achieved numerous litigation successes from district courts up to the Supreme Court. These include limitations on the enforcement reach of the Clean Water Act.
This panel will examine the impact the public interest litigation has had on environmental, natural resources, and property law. It will review its place in our system and consistency with an originalist Constitution, examine some of the notable accomplishments by public interest organizations in the past several years, and discuss upcoming environmental and other administrative law cases now being pursued by public interest groups that may significantly impact environmental and administrative law going forward.
Featuring:

Mr. David D. Doniger, Senior Strategic Director and Attorney, Climate and Clean Energy Program, National Resources Defense Council
Ms. Stephanie A. Maloney, Chief of Staff & Associate Chief Counsel, United States Chamber Litigation Center
Prof. Robert V. Percival, Robert F. Stanton Professor of Law and Director, Environmental Law Program, Francis King Carey School of Law, University of Maryland
Mr. Damien M. Schiff, Senior Attorney, Pacific Legal Foundation
Moderator: Hon. Kathryn Kimball Mizelle, U.S. District Court, Middle District of Florida

Overflow: Chinese Room

Over the last two decades, states have played an important and increasing role in federal policymaking through state-led litigation. Unsurprisingly, a state’s Article III standing is often a hotly contested question—with increasing attention from the Supreme Court and what some might argue are scattershot results. Are states subject to traditional standing analysis, as the Court said in Biden v. Nebraska (2023)? Do they get “special solicitude,” as the Court observed in Massachusetts v. EPA (2007)? Or are there concrete injuries that the Court simply will not remedy, as in United States v. Texas (2023)? Is there a common thread to the Court’s standing analysis and—more importantly—what does the original public meaning of Article III have to say about state-led litigation?
Featuring:

Mr. Kyle George, Principal, Kyle George Law Group; Former First Assistant Attorney General, State of Nevada
Mr. Eric Hamilton, Solicitor General, Nebraska Department of Justice
Prof. Christopher J. Walker, Professor of Law, University of Michigan Law School
Moderator: Hon. Jennifer Walker Elrod, United States Court of Appeals, Fifth Circuit

Overflow: Cabinet & Senate Rooms