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Rule of Law

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

16th Annual Barbara K. Olson Memorial Lecture - Event Audio/Video

2016 National Lawyers Convention
Ben Sasse, Eugene B. Meyer November 23, 2016

On September 11, 2001, at the age of 45 and at the height of her professional and personal life, Barbara K. Olson was murdered in the terrorist attacks against the United States as a passenger on the hijacked American Airlines flight that was flown into the Pentagon. The Federalist Society believes that it is most fitting to dedicate an annual lecture on limited government and the spirit of freedom to the memory of Barbara Olson. She had a deep commitment to the rule of law and understood well the relationship between respecting limits on government power and the preservation of freedom. And, significantly, Barbara Olson was an individual who never took freedom for granted in her own life, even in her final terrifying moments-her inspiring and energetic human spirit is a testament to what one can achieve in a world that places a premium on human freedom. Solicitor General Theodore B. Olson delivered the first lecture in November 2001. The lecture series continued in following years with other notable individuals. In 2016, Senator Ben Sasse of Nebraska delivered the lecture.

This lecture was delivered on November 18, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Barbara K. Olson Memorial Lecture
5:30 p.m. – 6:00 p.m.
Grand Ballroom

  • Lecture: Hon. Ben Sasse, U.S. Senate, Nebraska
  • Introduction: Mr. Eugene B. Meyer, President, The Federalist Society

The Mayflower Hotel
Washington, DC

Rules Versus Standards in Constitutional and Statutory Interpretation - Audio/Video

2016 National Lawyers Convention
Akhil Reed Amar, Frank H. Easterbrook, John C. Harrison, Victoria Nourse, William Kuntz, Dean A. Reuter November 23, 2016

Justice Scalia believed that the rule of law required a law of rules rather than of balancing tests. He favored rules (like the requirement the President be at least 35 years old) over standards (a requirement that the president be “a mature individual") because they lend themselves more to principled judicial enforcement. As a result, Justice Scalia revolutionized the caselaw he inherited from the Burger Court by eliminating as many balancing tests as possible and replacing them with rules. An example is his favoring of a rule of viewpoint neutrality in freedom of expression cases over separate treatment of various categories of speech. He believed that rules over standards promote the rule of law because they guarantee that judges will decide like cases alike rather than deciding each case on its facts using a totality of the circumstances test. Justice Scalia was so committed to rules over standards that he refused to enforce the non-delegation doctrine because to do so he would have had to employ a balancing test standard, however, in his last year on the bench, there were signs that Justice Scalia was moving away from this position. Justice Scalia also favored rules over standards because they limit lower federal and state court discretion in applying Supreme Court precedents as compared to balancing tests. The reemergence of rules over standards in Supreme Court opinions is another of Justice Scalia's legacies.

This panel was held on November 18, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Showcase Panel II: Rules Versus Standards in Constitutional and Statutory Interpretation
9:00 a.m. – 11:00 a.m.
Grand Ballroom

  • Prof. Akhil Reed Amar, Sterling Professor of Law and Political Science, Yale University
  • Hon. Frank Easterbrook, U.S. Court of Appeals, Seventh Circuit
  • Prof. John C. Harrison, James Madison Distinguished Professor of Law, University of Virginia School of Law
  • Prof. Victoria Nourse, Professor of Law, Georgetown University Law Center
  • Moderator: Hon. William Francis Kuntz II, U.S. District Court, Eastern District of New York
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The Mayflower Hotel
Washington, DC

Justice Scalia on Federalism and Separation of Powers - Audio/Video

2016 National Lawyers Convention
John S. Baker, Jr., Ron DeSantis, Roger Pilon, Luther Strange, Jonathan R. Turley, William H. Pryor Jr. November 23, 2016

Justice Scalia often said that, while he always tried to get the Bill of Rights cases correct, he cared most about the structural constitutional cases. Once or twice each summer, he even taught a course called Separation of Powers. His opinions on the structural issues of separation of powers and federalism often cited The Federalist Papers. He routinely urged law students and lawyers to read the whole of The Federalist. The authors of the Federalist Papers placed primordial importance on separated powers, both among branches of the federal government and between federal and state governments. With the separation of powers both horizontal and vertical increasingly in doubt, it is particularly important to understand the Federalist's treatment of constitutional structure. This panel, therefore, looks at Justice Scalia's Federalist focus on the importance of separation of powers and federalism as structural protections of liberty.

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

Federalism & Separation of Powers: Justice Scalia on Federalism and Separation of Powers
3:30 p.m. – 5:00 p.m.
Grand Ballroom

  • Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center
  • Hon. Ron DeSantis, U.S. House of Representatives, Florida 6th District
  • Mr. Roger Pilon, Vice President, Legal Affairs, Cato Institute
  • Hon. Luther Strange III, Attorney General, Alabama
  • Prof. Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law; Director of the Environmental Law Advocacy Center; Executive Director, Project for Older Prisoners, The George Washington University Law School
  • Moderator: Hon. William H. Pryor Jr., U.S. Court of Appeals, Eleventh Circuit

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