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The State of State and Municipal Debt - Podcast

Federalism & Separation of Powers Practice Group Podcast
David Skeel, Sanford Levinson May 30, 2014

money lawIn recent years, many state and local governments have encountered severe fiscal problems, partly because of the recession and financial crisis, and partly because of long-term pension and other obligations that outstrip revenue. This raises a number of important policy and legal questions, such as the extent to which it is desirable for federal and state governments to "bail out" fiscally troubled jurisdictions, and whether or not such governments can default on any of their obligations. If state or local governments become more dependent on federal funding, that may also have implications for the long-term future of American federalism. Our panelists, Prof. Sanford Levinson and Prof. David Skeel considered these issues.

  • Professor Sanford V. Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair, University of Texas School of Law
  • Professor David A. Skeel, S. Samuel Arsht Professor of Corporate Law, University of Pennsylvania Law School

The First Amendment and Government Benefits - Event Audio/Video

2013 National Lawyers Convention
Lillian R. BeVier, David D. Cole, John C. Eastman, Martin S. Lederman, Timothy M. Tymkovich, Erik S. Jaffe November 22, 2013

The First Amendment and Government Benefits - Event Audio/Video

The government (federal, state, and local) offers a wide range of benefits to groups.  Some benefits are monetary subsidies.  Some consist of access to government property such as university classrooms and bulletin boards.  Some of the most important benefits are income and property tax exemptions, which the Supreme Court has said are tantamount to subsidies.  What sorts of speech-restrictive conditions may the government impose on such subsidies?  May the government insist that benefited groups refrain from using the benefits for religious commentary, for electioneering and lobbying, for speaking about abortion, or for creating “indecent” or “disrespectful” art?  May the government insist that benefited groups not discriminate in their choice of leaders or members?  May the government insist that benefited groups affirmatively expressive certain views (such as opposition to prostitution)?

This issue has divided the Court in a wide range of cases, such as Rust v. SullivanRosenberger v. University of VirginiaNEA v. FinleyChristian Legal Society v. Martinez, and, most recently, USAID v. Alliance for Open Society International.  It has also come up in the news, with the IRS’s investigation of Tea Party groups that apply for tax-exempt status – such investigations are closely tied to the statutory restrictions on electioneering and lobbying by tax-exempt groups.  And the issue has in recent years sometimes inverted the usual partisan divides: in Rosenberger and Christian Legal Society, for instance, it has been the conservatives who have argued for free speech restriction even when government-provided benefits are involved, and the liberals who have argued that speakers who accept government benefits must also accept the restrictions imposed on those benefits.

The Free Speech & Election Law Practice Group hosted this panel on "The First Amendment and Government Benefits" on Friday, November 15, during the 2013 National Lawyers Convention.

Free Speech: The First Amendment and Government Benefits
3:30 p.m. – 5:00 p.m.

State Room

  • Prof. Lillian R. BeVier, David and Mary Harrison Distinguished Professor of Law Emeritus, University of Virginia School of Law
  • Prof. David D. Cole, Professor of Law, Georgetown University Law Center
  • Dr. John C. Eastman, Professor, Henry Salvatori Professor of Law and Community Service; Former Dean (2007-2010); Director, Center of Constitutional Jurisprudence, Chapman University School of Law
  • Prof. Martin S. Lederman, Associate Professor of Law, Georgetown University Law Center
  • Moderator: Hon. Timothy M. Tymkovich, United States Court of Appeals, Tenth Circuit
  • Introduction: Mr. Erik S. Jaffe, Sole Practitioner, Erik S. Jaffe, PC

Mayflower Hotel
Washington, DC

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FOIA Update - Podcast

Administrative Law & Regulation Practice Group Podcast
Daniel Z. Epstein, Kip Evan Steinberg, Anne L. Weismann, Margaret D. Stock, Dean A. Reuter July 29, 2013

FOIA UpdateThe Freedom of Information Act has been the subject of several recent developments, each of which raise interesting questions.  On April 2, 2013, the U.S. Court of Appeals for the D.C. Circuit ruled in Citizens for Responsibility and Ethics in Washington v. FEC that an agency FOIA determination must include disclosure of the relevant time period and scope of the documents it will produce as well as exemptions claimed for any withheld documents.  Will agencies now refuse to disclose the scope of documents and exemptions unless and until a FOIA requester brings a lawsuit?  If so, does the decision really enhance transparency?  In McBurney et al v. Young, the Supreme Court held that the Virginia Freedom of Information Act (FOIA) grants only citizens of Virginia the right to access the state of Virginia’s public records.  Does McBurney harm transparency?  On April 15, 2009, Gregory Craig, Counsel to the President, sent  a memorandum to all executive department and agency general counsels, concerning the need to consult the White House regarding FOIA, GAO, congressional and judicial subpoena requests concerning “white house equities”.  To what extent does this memo conflict with the current Administration’s policy on FOIA?

Featuring:

  • Mr. Daniel Epstein, Executive Director, Cause of Action
  • Mr. Kip Steinberg, Principal, Law Office of Kip Evan Steinberg
  • Ms. Anne L. Weismann, Chief Counsel, Citizens for Responsibility and Ethics in Washington
  • Moderator: Ms. Margaret Stock, Counsel to the Firm, Cascadia Cross-Border Law Group
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

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Is the Administrative State on the Rise? - Event Audio/Video

First Annual Executive Branch Review Conference
R. Ted Cruz, David M. McIntosh, Jonathan R. Turley, Dean A. Reuter June 13, 2013

Is the Administrative State on the Rise? - Event Audio/VideoOn June 11, 2013, the Federalist Society's Executive Branch Review Project held its First Annual Executive Branch Review Conference at the National Press Club in Washington, DC. Kicking off the conference was this introductory panel.

Introductory Panel - Is the Administrative State on the Rise?
9:00 a.m. - 10:00 a.m.
Center Ballroom

  • Hon. Ted Cruz, United States Senate
  • Hon. David M. McIntosh, Mayer Brown and Founder, The Federalist Society
  • Prof. Jonathan R. Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law, and Director of the Environmental Law Advocacy Center; Executive Director, Project for Older Prisoners, The George Washington University Law School
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

National Press Club
Washington, DC

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FTC v. Phoebe Putney Health System, Inc. - Post-Decision SCOTUScast

SCOTUScast 2-26-13 featuring Aaron Nielson
Aaron Nielson February 26, 2013

Aaron NielsonOn February 19, 2013 the Supreme Court announced its decision in FTC v. Phoebe Putney Health System, Inc.  The question in this case was whether a government hospital authority that created a private corporation, which then acquired the only competing hospital in the county, can invoke the “state action doctrine” as a shield against federal antitrust laws.  Under the state action doctrine, federal antitrust laws do not apply to public actions taken pursuant to a clearly articulated and affirmatively expressed state policy of displacing competition.

In an opinion delivered by Justice Sotomayor, the Court held unanimously that the “state action doctrine” did not not apply because the state had not clearly articulated and affirmatively expressed a policy allowing hospital authorities to make acquisitions that substantially reduce competition.  The lower appellate court was reversed and the case remanded for further proceedings.

To discuss the case, we have Aaron Nielson, who is an Associate Professor of Law at Brigham Young University and Of Counsel in the Washington, D.C. Office of Kirkland & Ellis LLP.

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