FedSoc Events

Conventional wisdom holds that the original meaning of the "due process of law," as used in the Fifth and Fourteenth Amendment, is procedural - forbidding deprivations of life, liberty or property without appropriate procedural safeguards and unless they are pursuant to a duly enacted law governing the conduct giving rise to the deprivation. Recent originalist scholarship, however, calls this view into question, arguing that a thicker and indeed "substantive" understanding of due process is justified by a careful reading of the constitutional text and history. This panel will explore and critique these new arguments.
Welcome:

Hon. Lee Liberman Otis, The Federalist Society
Incoming AALS President Vicki C. Jackson, Harvard Law School

Featuring:

Randy Barnett, Georgetown University Law Center
John Harrison, University of Virginia School of Law
Nathan Chapman, University of Georgia School of Law
Ryan Williams, Boston College Law School
Moderator: Christina Mulligan, Brooklyn Law School

When Congress delegates to a federal agency the responsibility for implementing, administering, and enforcing a law, it also authorizes the agency to make and promulgate rules about how it will do that. These rules will often be issued first as a notice of proposed rulemaking, giving the public the opportunity to comment before the regulation becomes final and goes into effect. Many agencies, however, also avail themselves of another, less well-known rule-making tool: adjudication. Rather than promulgate a regulation, these agencies often announce and apply new policies - even ones that will have broad applicability – in the form of decisions resolving disputes with the agency. These decisions are then applied as precedent by the agency. Some agencies including the National Labor Relations Board, the Federal Elections Commission, the Equal Employment Opportunity Commission, and other federal agencies, essentially announce and implement all policies this way. That agencies use adjudication to announce and implement policy is not new, but critics contend that it eliminates fair notice of the rule and avoids public participation in its development.
Policy implemented through notice-and-comment rulemaking is generally applied prospectively only, and has the benefit of the agency having solicited and, ideally, responded to public comments. Policy implemented through adjudication, however, has not had the benefit of public input. Further, the application is generally retroactive. To avoid retroactive application of a rule, regulated parties can be inclined to simply comply with an agency's demands, thus depriving the public of a fair test of the agency’s position. Finally, agency adjudication – performed by an agency’s administrative law judge, and appealable to agency leadership who may wish to use the case to make new policy - can be seen to be biased.
How weighty are these concerns? What is the proper role of agency adjudication? What deference, if any, should courts give policies agencies announce through adjudication? What safeguards could be designed and implemented to prevent the misuse of agency adjudication?

Prof. Jack Beermann, Professor of Law, Boston University School of Law
Mrs. Allyson N. Ho, Partner, Gibson, Dunn & Crutcher
Mr. Stephen A. Vaden, Principal Deputy General Counsel, United States Department of Agriculture
Prof. Christopher J. Walker, Associate Professor of Law, The Ohio State University Moritz College of Law
Moderator: Hon. Gregory G. Katsas, U.S. Court of Appeals, District of Columbia Circuit

When can the government require you to speak, or to host speech on your property, or to pay for speech you dislike? Three of the Court’s 2018 cases – the Masterpiece Cakeshop wedding cake/same-sex wedding case, the Janus union dues case, and the National Institute of Family and Life Advocates pregnancy crisis center case -- all involved this question. So do many other matters that are in the news: For instance, the controversy over whether people can be required to use particular pronouns to refer to others is in large measure a controversy about compelled speech. But the law in this area is surprisingly complicated, ambiguous, and unsettled. This panel will consider what the law is, and what the law ought to be.

Prof. Mark L. Rienzi, Professor of Law, Columbus School of Law, The Catholic University of America
Prof. Amanda Shanor, Assistant Professor, Legal Studies & Business Ethics, The University of Pennsylvania Wharton School
Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, University of California Los Angeles School of Law
Moderator: Hon. Sandra Segal Ikuta, United States Court of Appeals, Ninth Circuit

RESOLVED: District courts do not have the authority to enter universal injunctions.

Prof. John Harrison, James Madison Distinguished Professor of Law, University of Virginia School of Law
Mr. Neal Katyal, Partner, Hogan Lovells US LLP
Moderator: Hon. Beth A. Williams, Assistant Attorney General, Office of Legal Policy, United States Department of Justice
Introduction: Mr. Eugene B. Meyer, President, The Federalist Society

With the election of the 116th Congress there are many interesting aspects of the intersection between the Executive and Legislative branches to consider. Perhaps there is no topic more volatile or intriguing than how the new Congress will interact with the Executive in the realm of oversight.

What does the Constitution and the track record of prior Congresses tell us about the coming months and how should both Branches respond? For both Democrats and Republicans, what is the role of the majority and minority parties when Congress conducts oversight? How should the executive branch respond to congressional oversight and what impact, if any, should changing political tides have?


Featuring:



Steve Castor, Chief Investigative Counsel, U.S. House of Representatives Committee on Oversight and Government Reform
Prof. John C. Yoo, Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law
Moderator: Amanda Neely, General Counsel for Senator Rob Portman, and Deputy Chief Counsel, U.S. Senate Permanent Subcommittee on Investigations
Introduction: Nathan Kaczmarek, Director, Ariticle I Initiative, The Federalist Society

On December 10, 2018, Senator Jon Kyl (AZ) spoke to the DC Young Lawyers Chapter of the Federalist Society. Senator Kyl reflected on his time in the Senate and the role of Congress.
As always, the Federalist Society takes no particular legal or public policy positions. All opinions expressed are those of the speaker.
Featuring:

Senator Jon Kyl, United States Senator, Arizona
Moderator: Lisa Ezell, Vice President & Director of Lawyers Chapters, The Federalist Society
Introduction: Leonard A. Leo, Executive Vice President, The Federalist Society



This event was co-sponsored by the Article I Initiative and the Capitol Hill Chapter of the Federalist Society.

Technology progress in recent years has been driven in large part by the continuous generation of massive amounts of data (“Big Data”) and its processing by means of Artificial Intelligence (“AI”). Self-driving cars, personalized advertising, and automated medical diagnostics are examples of a technology trend that will accelerate in the future, creating unseen before opportunities for innovation, along with serious legal and regulatory pitfalls. This panel will focus on practical matters concerning AI and Big Data related innovation, including (a) protecting of related intellectual property (“IP”) and (b) handling of data ownership and privacy issues. It will tackle problems such as: who owns AI-generated IP?; who owns personal or test data?; who is liable if something goes wrong?; and what role, if any, should the government(s) have in regulating the flow and use of data-driven information?

Address: Hon. Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent Trademark Office


Mr. James C. Cooper, Deputy Director for Economic Analysis, Bureau of Consumer Protection, Federal Trade Commission
Mr. Shawn D. Hamacher, Assistant General Counsel, Steelcase
Hon. Michelle K. Lee, Former Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office
Dr. Ognian “Oggie” Shentov, Of Counsel, Jones Day
Moderator: Hon. David J. Porter, United States Court of Appeals, Third Circuit

Justice Scalia put it bluntly in Morrison v. Olson: “There are now no lines.” Morrison, 478 at 726 (Scalia, J., dissenting). This is, perhaps, an unsurprising observation, considering the majority in Humphrey's Executor v. United States recognized that, “between the decision in the Myers v. United States case, which sustains the unrestrictable power of the President to remove purely executive officers, and our present decision that such power does not extend to an office such as that here involved, there shall remain a field of doubt." Humphrey's Ex'r, 295 U.S. at 632. How do courts navigate this field?
In Humphrey's Executor, for-cause removal was approved as applied to the five-member FTC, which exercises powers the Court described as "neither political nor executive, but predominantly quasi-judicial and quasi-legislative." Id. at 624. In Morrison, the Court approved for-cause removal—by the Attorney General—as applied to an independent counsel. In so doing, it walked back its emphasis on the character of an agency's or officer's functions and expressly noted there was "no real dispute that the functions performed by the independent counsel [were] 'executive.'" Morrison, 487 at 691. But "the real question," the Court reasoned, "is whether . . . removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty" to take care that the laws be faithfully executed. Id. Then, in Free Enterprise Fund v. PCAOB, the Court invalidated a two-layer system of for-cause removal that over-insulated PCAOB members. Free Enter. Fund, 561 U.S. at 495–508. Combining the lessons of Humphrey's Executor and Morrison, the problem was that the act in question "grant[ed] the Board executive power without the Executive's oversight, [thereby] subvert[ing] the President's ability to ensure that the laws are faithfully executed." Id. at 498.
While Myers and Free Enterprise teach that limits do exist on Congress's ability to isolate executive functions from executive oversight, a clear articulation of those limits has so far eluded the Court's jurisprudence in this area. And with an active Special Counsel and several recent lawsuits challenging the structural design of various independent agencies, the question remains: how independent is too independent? Is there any unifying principle for lower courts to apply? Does the character of an agency's/officer's functions matter? May an agency's director be removable only for cause if it is a single director? The D.C. Circuit said yes to the latter while sitting en banc in PHH Corp. v. Consumer Financial Protection Bureau, but what if there were no Financial Stability Oversight Council with veto power over the CFPB's policies? Or, what if there is such a veto-wielding council but the agency is not subject to funding via the normal budgeting process over which the President holds veto power?
Different agencies are structured differently, so certainly we are stuck with an ad hoc inquiry. But how is a judge to know when Congress has placed one straw too many on the camel's back?

Prof. William W. Buzbee, Professor of Law, Georgetown University Law Center
Prof. John Eastman, Henry Salvatori Professor of Law & Community Service and former Dean, Chapman University's Fowler School of Law; Senior Fellow, Claremont Institute
Hon. Henry Kerner, Special Counsel, Office of the Special Counsel
Prof. Jennifer Mascott, Assistant Professor, Antonin Scalia Law School, George Mason University
Moderator: Hon. Diane Sykes, United States Court of Appeals, Seventh Circuit

The vast web of federal and state laws protecting employees stands or falls on a single concept: Is there an employment relationship? Payment of overtime, responsibility for employment taxes, union obligations, responsibility for workplace discrimination, workers compensation – every employment law obligation depends on the existence of an employment relationship.
Thus, it may be surprising to some that most employment laws do not define who is an employer or who is an employee. The Fair Labor Standards Act, for example, defines an “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee,” and an “employee” is “any individual employed by an employer.” The National Labor Relations Act also makes us dizzy with circular definitions: an “employer” is “any person acting as an agent of the employer, directly or indirectly” and an “employee” is “any employee.”
The result: Whether an employment relationship exists has been left to the vagaries of agency guidance and decisions. In its 2015 Browning-Ferris decision, the NLRB expanded the definition of “joint employment” to include employers who share direct, indirect, potential or even “ultimate” control over a worker. In a 2016 Administrator’s Interpretation, the Labor Department similarly expanded the definition of joint employment, declaring that “employment generally should be defined expansively” under the FLSA, unrestrained by the concept of control found in the common law concepts of employment. Suddenly, many businesses faced investigations regarding activities of subcontractors, and franchisors were named as defendants for alleged violations by franchisees.
DOL has withdrawn its 2016 Administrator’s Interpretation, but has yet issued no replacement guidance. Browning-Ferris still stands, although the NLRB has announced its intention to issue regulations regarding joint employment. This panel will explore whether and how the key concepts of employment, employer and employee should be defined under our nation’s employment laws: By Congress, the Courts, or agencies? Adopting one definition or many? Based on statutory definitions or the common law?

Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University Law School
Mr. Richard F. Griffin, Jr., Of Counsel, Bredhoff & Kaiser, PLLC
Hon. Philip A. Miscimarra, Partner, Morgan & Lewis
Moderator: Hon. Timothy M. Tymkovich, United States Court of Appeals, Tenth Circuit

The administrative state, with roots over a century old, was founded on the premise that Congress lacked the expertise to deal with the many complex issues facing government in a fast-changing country, and that it was unhelpfully mired in and influenced by politics, leading to bad outcomes when it did act. The alternative was to establish administrative agencies, each with assigned areas of responsibility, housing learned experts qualified to make policy decisions, deliberately insulated from political accountability. The Administrative Procedure Act (APA), passed in 1946, both governs the manner in which agencies may adopt and enforce regulations, and provides for judicial review of agency action. Supporters of the administrative state point to the successes of agency actions leading to a cleaner environment, more sensible use of finite resources, healthier foods, safety on the roads and rails, and many other areas of improved quality of life. But even looking past structural separation of powers issues written into the bones of the administrative state, critics assert that in the ensuing 70 years the APA has become an ineffective limitation an agency power, as agencies bypassed its requirements by issuing sub-regulatory guidance, letters, FAQs, and more. Compounding the problem, the critics continue, the courts have adopted a policy of deference to agency actions that grant agencies even more latitude. Is it time to revisit the APA? If so, how should it be updated?

Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
Prof. Philip Hamburger, Maurice & Hilda Friedman Professor of Law, Columbia Law School
Prof. Kathryn Kovacs, Professor of Law, Rutgers Law School
Prof. Jon Michaels, Professor of Law, UCLA School Of Law
Moderator: Hon. Britt Grant, United States Court of Appeals, Eleventh Circuit