FedSoc Events

We live in a system where regulators make the rules, investigate alleged violations of the rules, and then adjudicate those violations before Administrative Law Judges. If the matter ever gets to court, courts generally defer to the agency on questions of law “and fact.” As a result, agencies know that their regulations are unlikely to face challenge and, if they are challenged, will likely be upheld. In this system, critics argue, the predictable result is more and more irrational regulations and enforcement actions. Arizona has first-of-its-kind legislation to “reverse” Chevron and to instruct courts to give no deference to agency decisions on questions of law. On a related note, Arizona also passed the Right to Earn a Living Act, creating a cause of action to challenge occupational licensing decisions under a heightened standard of review. Some contend that the result of this new law has been significant in that regulators are reviewing and improving rules, or repealing them outright, rather than face litigation. Could these measures serve as a model other states and the federal government in reducing the size and scope of, and otherwise improving the Administrative State?

Prof. Nestor Davidson, Albert A. Walsh Chair in Real Estate, Land Use, and Property Law; Faculty Director, Urban Law Center, Fordham University School of Law
Prof. Chris Green, Associate Professor of Law and H.L.A. Hart Scholar in Law and Philosophy, University of Mississippi School of Law
Prof. Miriam Seifter, Professor of Law, University of Wisconsin Law School
Hon. Jeffrey Sutton, United States Court of Appeals, Sixth Circuit
Moderator: Hon. Michael Scudder, United States Court of Appeals, Seventh Circuit

Over the past several decades, the workload of federal district courts has changed significantly. On the civil side, perhaps as litigants seek to avoid the expense of elaborate discovery and prolonged motions practice and trials, more and more cases are resolved through alternative dispute resolution. On the criminal side, more and more cases are resolved through plea bargaining. The result is fewer and fewer trials. Our panel will discuss these phenomena, and their implications. What are the causes of these evolutions? Is there a lasting impacts on judges themselves? Are lawyers now required to hone different skills? Is there a lasting effect on the administration of justice, and civil society more generally?

Hon. Thomas Hardiman, United States Court of Appeals, Third Circuit
Hon. Michael B. Mukasey, Of Counsel, Debevoise & Plimpton, LLP
Hon. William E. Smith, Chief Judge, United States District Court, District of Rhode Island
Hon. Amul Thapar, United States Court of Appeals, Sixth Circuit
Moderator: Hon. Carlos T. Bea, United States Court of Appeals, Ninth Circuit

It is difficult to find anyone today who is satisfied with how CRA currently works. Its clear and terse statutory purpose is to assess a bank’s record of meeting the credit needs of its entire community. Subsequent regulation and enforcement practices have expanded Community Reinvestment Act requirements and layered on significant compliance obligations, beyond a view of lending, while narrowing its focus to segments of the community, particularly low- and moderate-income neighborhoods. The geographic assumption of the statute appear increasingly out of step with the expansion of banking through the Internet, mobile banking, and ACH and the apparent lessening importance of brick- and mortar- branch offices as sources of deposits. What is the relevance of the CRA today, and what reforms are appropriate? Or should it be repealed altogether?

Mr. Bert Ely, Principal, Ely & Company, Inc
Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC
Mr. Keith Noreika, Partner, Simpson Thacher
Mr. Jesse Van Tol, Chief Executive Officer, National Community Reinvestment Coalition
Moderator: Hon. Joan Larsen, United States Court of Appeals, Sixth Circuit

The Trump administration has emphasized the importance of ensuring existing regulations are not stifling innovation or foreclosing economic opportunities. Earlier this year, under Chairman Ajit Pai’s leadership, the FCC modified several of its internal processes to further promote transparency and public engagement. The FCC has also continued on a path of eliminating outdated regulations. During this event, Chairman Pai will deliver remarks about his work to-date at the Commission and his plans for the coming year. He will give his take on the current telecommunications marketplace and how federal, state, and local governments can best respond to ever-changing technologies. A panel discussion will follow Chairman Pai’s remarks with reactions. Panelists will also share their views of the current telecommunications landscape and the regulatory path to continued American industry leadership.

Keynote: Hon. Ajit Pai, Chairman, U.S. Federal Communications Commission
Ms. Kathleen Ham, Senior Vice President, Government Affairs, T-Mobile
Ms. Nuala O'Connor, President and CEO, Center for Democracy and Technology
Mr. K. Dane Snowden, Chief Operating Officer, NCTA - The Internet & Television Association
Ms. Jamie Susskind, Chief of Staff and Legal Advisor, Office of Commissioner Carr, Federal Communications Commission
Moderator: Hon. Jerry E. Smith, United States Court of Appeals, Fifth Circuit

In 2014, Students for Fair Admissions (SFFA) sued Harvard University, alleging that Harvard was violating Title VI of the Civil Rights Act by, among other things, discriminating against Asian Americans in the admissions process. In its recent motion for summary judgment, SFFA presented statistical evidence that Harvard discriminates both in subjective scoring and selection for admission to limit the number of Asian Americans that attend the college. Harvard’s filing denies all of these claims, stating that the statistical model put forth by SFFA is deeply flawed. They argue that the model ignores essential factors, such as personal essays and teacher recommendations, and omits large sections of the applicant pool, such as recruited athletes and legacy applicants. Harvard explains in their rebuttal that once all relevant information is included, there is no evidence of discrimination. The trial began on October 15th in Boston’s Federal District Court. Harvard officials, as well as past and present students, have testified in support of Harvard. This panel will examine the implications of the case, which many believe is destined for the Supreme Court. The resulting decision will set the precedent for college admission processes nationwide and could transform the nation’s higher education landscape.

Prof. Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law
Dr. Althea Nagai, Research Fellow, Center for Equal Opportunity
Mr. Patrick Strawbridge, Partner, Consovoy McCarthy Park PLLC
Prof. John Yoo, Professor of Law, University of California, Berkeley
Moderator: Hon. James C. Ho, United States Court of Appeals, Fifth Circuit

Many federal government decisions that affect Americans’ day-to-day lives are made by agencies. Agency decisions, therefore, should maximize net benefits to society. For over 37 years, every president has directed executive agencies to do that through a cost-benefit decisional rule. However, regulatory agencies have sometimes interpreted their authorizing statutes to limit or prohibit this approach, and they may enjoy deference from courts when doing so. Many regulatory experts, including the current Administrator of the Office of Information and Regulatory Affairs, have expressed concern over agencies’ failure to ensure that their decisions do more good than harm.
How do we guarantee that all executive and independent agencies are accountable for their actions, while preserving needed insulation from overbearing political pressure? Does the answer change depending on the mission of the particular agency? Are there problems with the cost-benefit analysis model that create opportunities for agencies to manipulate and justify their actions?

Hon. Steven G. Bradubury, General Counsel, United States Department of Transportation
Dr. Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science; Director, Penn Program on Regulation, University of Pennsylvania Law School
Prof. Susan Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice Trachtenberg School of Public Policy & Public Administration, George Washington University
Prof. Catherine M. Sharkey, Crystal Eastman Professor of Law, New York University Law
Moderator: Hon. Michael B. Brennan, United States Court of Appeals, Seventh Circuit

The Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission was unexpectedly based on religious free exercise (rather than free speech) and the evidence of bias in the proceedings of the state commission. This panel will explore the opinions in Masterpiece Cakeshop and the implications of the case for the First Amendment’s religion and speech guarantees. Among the topics discussed will be the differences among the majority and concurring opinions on the free exercise and free speech issues, whether the free exercise holding will have wider reach beyond the specific facts about the Colorado commission’s handling of the case, and implications of Masterpiece Cakeshop for other cases involving freedom of speech or religion and anti-discrimination laws, such as Arlene’s Flowers Inc. v. Washington, which was remanded for consideration in light of the Masterpiece decision.

Prof. Thomas C. Berg, James L. Oberstar Professor of Law and Public Policy, University of St. Thomas, Minnesota School of Law
Prof. Gerard V. Bradley, Professor of Law, University of Notre Dame Law School
Ms. Louise Melling, Deputy Legal Director and Director of Center for Liberty, ACLU
Moderator: Hon. Andrew S. Oldham, United States Court of Appeals, Fifth Circuit

The Black’s Law Dictionary defines Plea Bargaining as: “[t]he process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge.” Plea Bargaining as a concept dates farther back than the American justice system itself. However, over the past few decades it has occurred with more and more frequency to reach its’ current unprecedented level in our criminal justice system.
Today, over 95 percent of criminal convictions are a result of Plea Bargaining, which has contributed to an evolving and controversial national debate over whether Plea Bargaining has gone too far. The positives of Plea Bargaining are apparent. It is a much more efficient process than juries, and a much more inexpensive process than trials. However, some opponents of plea bargaining point to the dangerous potential for coercion, insisting that the imbalance of power between prosecutor and defendant can often lead to a miscarriage of justice. Additionally, some criticize Plea Bargaining because it infringes upon the right of the American citizen to participate in the jury process. The debates over the correct response to the frequency of Plea Bargaining will continue to grow as the effects are felt by the entirety of the American Criminal Justice System.

Hon. Stephanos Bibas, United States Court of Appeals, Third Circuit
Mr. Greg Brower, Shareholder, Brownstein, Hyatt, Farber, Shreck
Prof. Carissa Hessick, Anne Shea Ransdell and William Garland "Buck" Ransdell, Jr. Distinguished Professor of Law, University of North Carolina School of Law
Mr. Clark Neily, Vice President for Criminal Justice, Cato Institute
Moderator: Hon. Lisa Branch, United States Court of Appeals, Eleventh Circuit

American trade policy has been the subject of much interest and media attention over the last two years. The Constitution grants the legislative branch full authority over trade policy, including the power to impose and collect taxes, duties, tariffs, and to regulate international commerce. By contrast, the Constitution gives the President authority to negotiate international agreements and it assigns him no specific power over international commerce and trade.
However, Congress has consistently delegated much of its power to regulate trade to the executive branch. From global trade initiatives to trade barriers and agreements, should Congress more fully assert its role? Our expert panel will address these topics and more.
Featuring:

Stephen J. Claeys, Partner, Wiley Rein LLP
Daniel McCarthy, Editor, Modern Age
Brian A. Pomper, Partner, Akin Gump LLP
Moderator: Molly Boyl Fromm, General Counsel and Parliamentarian, Financial Services Committee, U.S. House of Representatives
Introduction: Nathan Kaczmarek, Director, Article I Initiative, The Federalist Society for Law and Public Policy Studies

On October 29, 2018, the Federalist Society's Kentucky lawyers chapters hosted the second annual Kentucky Chapters Conference. The third panel discussed "Judicial Selection in Kentucky."

Meryl Justin Chertoff - Executive Director, Justice and Society Program, The Aspen Institute
Prof. Brian T. Fitzpatrick - Vanderbilt University School of Law
Chad Meredith - Deputy General Counsel, Governor Matt Bevin
Moderator: Hon. John Roach - Ransdell Roach & Royse PLLC; former Kentucky Supreme Court Justice