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Constitutional Law

Article I Initiative Conference

Article I Initiative Thursday, January 12, 09:30 AMCapitol Visitor Center
First St NE
Washington, DC 20515
Article I Initiative

The overarching objective of the Federalist Society's Article I Initiative is to provide an explanatory theory of Congress and its role in the American constitutional system as envisioned by the Framers. To that end, the Society has brought together top academics in the field to discuss their ideas in a forum accessible to those who have the most influence over the institutional health of the US Congress.

ROUNDTABLE: Areas of Constitutional Doctrine Transformed - Event Audio/Video

2016 National Lawyers Convention
Floyd Abrams, Michael W. McConnell, David Stras, Nadine Strossen, Eugene Volokh, M. Edward Whelan, Diarmuid F. O'Scannlain, Lee Liberman Otis November 24, 2016

The final Showcase panel examines Justice Scalia's transformation of five very important areas of Supreme Court doctrine. First, Justice Scalia transformed freedom of expression doctrine by entrenching a rule of viewpoint neutrality in place of different tests for different kinds of speech. In the five to four flag burning cases, Justice Scalia teamed up with Justices Brennan and Marshall to protect political speech. In the five to four decision in Citizens United he did the same thing with a different block of Justices. In another five to four opinion, Justice Scalia recognized constitutional protection for hate speech in RAV v. City of St. Paul. He joined a summary affirmance of a Seventh Circuit opinion by Judge Frank Easterbrook banning Catherine MacKinnon's anti-pornography laws. Second, Justice Scalia revolutionized the law of the religion clauses by largely burying the Lemon test and leading the Supreme Court in affirming the constitutionality of education vouchers for religious schools. Third, Justice Scalia revolutionized the Second Amendment by finding that it protected an individual's right to bear arms to defend himself, and he was very libertarian and protective of criminal defendants' rights in his criminal procedure jurisprudence. Fourth, Justice Scalia surprised some observers with his criminal law and procedure opinions on searches, the Confrontation Clause, and more. Finally, Justice Scalia played what some describe as a unique role in standing, including in his opinion in Lexmark International, Inc. v. Static Control Components, Inc. 

This panel was held on November 19, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Showcase Panel IV: ROUNDTABLE: Areas of Constitutional Doctrine Transformed
2:45 p.m. – 4:45 p.m.
State Room

  • Mr. Floyd Abrams, Partner, Cahill Gordon & Reindel LLP
  • Hon. Michael W. McConnell, Richard and Frances Mallery Professor of Law, Director of the Constitutional Law Center, Stanford Law School; Senior Fellow, Hoover Institute
  • Hon. David R. Stras, Minnesota Supreme Court
  • Prof. Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School; former President, American Civil Liberties Union
  • Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
  • Mr. Edward Whelan, President, Ethics & Public Policy Center
  • Moderator: Hon. Diarmuid F. O’Scannlain, U.S. Court of Appeals, Ninth Circuit
  • Introduction: Hon. Lee Liberman Otis, Senior Vice President, The Federalist Society

The Mayflower Hotel
Washington, DC

The Evolution of Justice Scalia's Views on Administrative Law - Event Audio/Video

2016 National Lawyers Convention
Ronald A. Cass, Paul D. Clement, E. Donald Elliott, Lisa Heinzerling, Eugene Scalia, Eileen J. O'Connor November 24, 2016

For all of his many contributions to modern American jurisprudence, no area of law bears Justice Scalia's imprint more than administrative law. Indeed, he dedicated his entire career to it: from teaching at Virginia and Chicago, to serving in the Ford Administration, to his regulatory policy and legal writings at the American Enterprise Institute, to his service on the D.C. Circuit and ultimately the Supreme Court, he left a body of work unmatched by any modern Supreme Court justice. Whether writing in defense of particular doctrine or in criticism of it, his opinions and essays fundamentally shaped modern administrative law. Yet even late in his career, he continued to reflect and rethink his views, especially on questions such as Chevron deference and Seminole Rock deference. This panel collects some of the nation's most significant administrative law minds, to reflect on his legacy and evolution.

This panel was held on November 19, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Administrative Law & Regulation: The Evolution of Justice Scalia's Views on Administrative Law
11:00 a.m. – 12:30 p.m.    
State Room

  • Hon. Ronald A. Cass, President, Cass & Associates, PC and Dean Emeritus, Boston University School of Law
  • Hon. Paul D. Clement, Partner, Kirkland & Ellis LLP
  • Prof. E. Donald Elliott, Senior of Counsel at Covington & Burling, Professor (Adjunct) of Law, Yale Law School
  • Prof. Lisa Heinzerling, Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center
  • Moderator: Mr. Eugene Scalia, Partner, Gibson Dunn & Crutcher
  • Introduction: Hon. Eileen J. O'Connor, Law Office of Eileen J. O'Connor, PLLC

The Mayflower Hotel
Washington, DC

Transforming Statutory Interpretation - Event Audio/Video

2016 National Lawyers Convention
William N. Eskridge, Jr., Abbe R. Gluck, Gary S. Lawson, Nicholas Quinn Rosenkranz, Diane S. Sykes, Dean A. Reuter November 24, 2016

Justice Scalia also greatly influenced the law of statutory interpretation. By eliminating legislative history as a source of statutory meaning, Justice Scalia forced Congress to say what it meant in the text of the laws it adopted rather than hiding the ball in a forest of contradictory legislative history. Justice Scalia construed statutes by looking at the plain meaning of their texts. He revived the canons of statutory interpretations, which had fallen into disuse since the Legal Realist movement of the 1930's and 1940's. He even wrote a treatise on statutory interpretation, which no justice other than Justice Joseph Story in the early Nineteenth Century had done. In the Warren Court era, statutory cases rarely quoted the text of the statutes being interpreted and focused instead exclusively on the legislative history. Justice Scalia helped change that. Courts today always begin with the text of statutes and rarely look at the legislative history. Justice Scalia also played the key role in developing the doctrine of Chevron deference in Administrative Law, moving the interpretation of ambiguous delegations of legislative power to elected executive branch officials and away from courts. While it is clear why Justice Scalia expressed these views, he was also expressing, in the last years, great concern about how Chevron deference was working in practice.

This panel was held on November 19, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Showcase Panel III: Transforming Statutory Interpretation
9:00 a.m. – 10:45 a.m.
Grand Ballroom

  • Prof. William Eskridge, Jr., John A. Garver Professor of Jurisprudence, Yale Law School
  • Prof. Abbe R. Gluck, Professor of Law and Faculty Director, The Solomon Center for Health Law and Policy, Yale Law School
  • Prof. Gary S. Lawson, Philip S. Beck Professor of Law, Boston University School of Law
  • Prof. Nicholas Quinn Rosenkranz, Professor of Law, Georgetown University Law Center
  • Moderator: Hon. Diane S. Sykes, U.S. Court of Appeals, Seventh Circuit
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The Mayflower Hotel
Washington, DC