Professional Responsibility & Legal Education

ABA Rule 8.4

Professional Responsibility & Legal Education and Free Speech & Election Law Practice Groups Teleforum Monday, December 12, 01:00 PMFederalist Society Teleforum Conference Call

Professor Eugene Volokh of the UCLA School of Law will be joining us Monday, December 12 to discuss the ABA’s new Rule 8.4 on professional misconduct. The Rule states that it is professional misconduct for a lawyer to “engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” The ABA goes further in Comments, stating that “Such discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others,” and that the Rule applies in any situation, even social, that is “connected to the practice of law.”

Professor Volokh will discuss the First Amendment implications and reaction to the new rule.


  • Professor Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law

Using Judicial Processes for Political Purposes - Event Audio/Video

2016 National Lawyers Convention
Arthur D. Hellman, Patrick Morrisey, Patrick A. Parenteau, Kimberley A. Strassel, Steven Colloton, John J. Park, Jr. November 24, 2016

“Those who won our independence," Justice Brandeis wrote nearly a century ago, “eschewed silence coerced by law – the argument of force in its worst form." They believed that “the fitting remedy for evil counsels is good ones." Holding that belief, the Founding Generation added an amendment to the Constitution that expressly protects the freedom of speech. Today, however, public officials and private citizens facing what they believe to be “evil counsels" have sometimes responded not by offering good counsel but by invoking judicial processes. They use “the argument of force in its worst form" to silence opinions and speech that they disapprove of. 

Recent examples of this phenomenon include District Attorneys in Texas and Wisconsin who investigated and charged a sitting Governor, the whistleblower who exposed the practices of Planned Parenthood, and those whose political views diverged from those of the District Attorney. In two of those cases, investigators broke into homes and seized computers and documents. Significantly, in each case, the charges were dropped, although not without great angst and effort from the targeted. 

Mark Steyn has asserted that the process is, itself, the punishment. Steyn has been sued by a Penn State climatologist who famously claims that he was defamed when his writings were subjected to ridicule. Four years after the suit was filed, it is still in its preliminary stages. 

Most recently, a coterie of Attorneys General, aided by some senators, have declared their intention to stifle dissent on the subject of climate change. The Attorneys General of Massachusetts and the Virgin Islands sent subpoenas for documents to Exxon and a number of think tanks grounding their action on the contention that the dissenters are guilty of fraud. 

Are these actions appropriate uses of the judicial process? 

What, if anything, can be done to curtail the use of judicial processes to target speech? Are measures like Anti-SLAPP (Strategic Lawsuits against Public Participation) laws an appropriate response? Are they constitutional? What about a federal anti-SLAPP law? 

It is noteworthy that the worst abuses have taken place in state courts. Should Congress allow removal to federal court when a defendant makes a plausible case that the relief sought would violate rights under the First Amendment?

Professional Responsibility & Legal Education: Using Judicial Processes for Political Purposes
11:00 a.m. – 12:30 p.m. 
Chinese Room

  • Prof. Arthur Hellman, Professor of Law, Sally Ann Semenko Endowed Chair, University of Pittsburgh School Law
  • Hon. Patrick Morrisey, Attorney General, West Virginia
  • Prof. Patrick A. Parenteau, Senior Counsel, Professor of Law, Vermont Law School
  • Ms. Kimberley A. Strassel, Wall Street Journal Editorial Board Member, Author of The Intimidation Game: How the Left is Silencing Free Speech
  • Moderator: Hon. Steven M. Colloton, U.S. Court of Appeals, Eighth Circuit
  • Introduction: Mr. Jack Park, Jr., Of Counsel, Strickland Brockington Lewis LLP

The Mayflower Hotel
Washington, DC

Justice Scalia: Text Over Intent and the Demise of Legislative History - Event Audio/Video

2016 National Lawyers Convention
Thomas W. Merrill, Michael S. Paulsen, Saikrishna B. Prakash, Lawrence B. Solum, Sandra Segal Ikuta November 23, 2016

Until 1986, most conservative lawyers favored following the original intentions of the Framers of the Constitution rather than the original public meaning of the text of the laws they wrote. Justice Scalia changed all of that with a brilliant speech given at the Justice Department just days before he was nominated to the Supreme Court. Justice Scalia argued that it is the laws that Congress makes, and not the legislative history that accompanies them, that the courts must follow. He argued similarly in constitutional cases that we are bound by the texts that our dead ancestors enacted and not by their unenacted intentions and policy views. Since 1986, Justice Scalia's view has so thoroughly swept the field that few proponents of original intention and of following legislative history remain. The triumph of text over intent and over legislative history is one of Justice Scalia's legacies.

This panel was held on November 17, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Showcase Panel I: Justice Scalia: Text Over Intent and the Demise of Legislative History
9:45 a.m. – 11:30 a.m.
Grand Ballroom

  • Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School
  • Prof. Michael S. Paulsen, Distinguished University Chair and Professor, University of St. Thomas School of Law
  • Prof. Saikrishna Prakash, James Monroe Distinguished Professor of Law, University of Virginia School of Law
  • Prof. Lawrence B. Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center
  • Moderator: Hon. Sandra Segal Ikuta, U.S. Court of Appeals, Ninth Circuit

The Mayflower Hotel
Washington, DC

The Morality of Consent - Podcast

Professional Responsibilities Practice Group Podcast
Erwin Chemerinsky, James A. Haynes, John J. Park, Jr. November 22, 2016

The Federalist Society's Legal Classics Revisited series returns to the writing of Professor Alexander Bickel and his last work, The Morality of Consent. In a July 11, 2016 Teleforum, we discussed Bickel's Least Dangerous Branch. The Morality of Consent is far shorter and was in manuscript form when Bickel died. Based on notes of magazine articles and lectures rather than on the author's plan for a single text, the book is unified by its larger themes rather than a conventional outline.

Professor Bickel viewed the mid-20th century as a time when the American legal system was challenged by the civil rights movement, the Vietnam protests, and a national reaction led by Richard Nixon. Each raised questions about obedience to the law as it existed. These events from generations ago led Bickel to consider the process by which Americans made law and came to accept and obey it. He worked hard to define the paradox presented by civil disobedience which seemed to be established within American law and yet carried the potential to destroy both law and ordered society. Contemporary readers will find the effort instructive and successful, at least in part. But questions remain. Bickel addressed other topics which "touch and concern" his questions, his misgivings, and his faith in the enterprise of Law. Bickel grappled with questions that resist final answers in each chapter of his book, a legal classic worth a visit in our own day.


  • Dean Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine
  • James A. Haynes, Former Attorney and Alternate Judge, U.S. Dept of Labor, Employees Compensation Appeals Board
  • John J. Park, Jr., Of Counsel, Strickland Brockington Lewis LLP

Alexander Hamilton on Judicial Independence

Short video featuring Adam White
Adam J. White October 20, 2016

What is the proper role of the Supreme Court in the government and in society? Adam White, research fellow at the Hoover Institution, explains Federalist No. 78, Alexander Hamilton's take on the role of the Supreme Court, and what judicial independence means for America today.