Rule of Law

Showcase Panel II: The Living Congress: Adaptation or Decline? - Event Audio/Video

2015 National Lawyers Convention
Christopher C. DeMuth, Neal E. Devins, David Mayhew, Gillian E. Metzger, Neomi Rao, Jerry E. Smith, Dean A. Reuter November 18, 2015

Clearly, we live in a very different society from that of the founding period. Size of both population and territory, speed of communication, and America's role in the world are but three examples of many differences. Equally clear is that these changes require adaptation, even if the original design was perfect. But how true have those changes been to the structure and spirit of that design? Have the required changes in practice been consciously or unconsciously used as a way to alter the original conception? What has been lost that would be valuable today? Are there better ways to adjust the Congressional role to major changes in society? Hypothetically, how would Congress handle a greatly increased volume of work in the unlikely event that the size of the government was halved, and could it do so without excessive reliance on the Administrative State? Is Congress dysfunctional today? If so, how can we improve it?

Showcase Panel II: The Living Congress: Adaptation or Decline?
10:15 a.m. – 12:00 noon
Grand Ballroom

  • Mr. Christopher C. DeMuth, Distinguished Fellow, Hudson Institute
  • Prof. Neal E. Devins, Sandra Day O'Connor Professor of Law, Cabell Research Professor, Professor of Government, and Director, Institute of Bill of Rights Law, William & Mary Law School
  • Prof. David Mayhew, Sterling Professor of Political Science, Yale University
  • Prof. Gillian E. Metzger, U.S. Constitutional Law Scholar and Professor of Law, Columbia Law School 
  • Prof. Neomi Rao, Associate Professor of Law, George Mason University School of Law
  • Moderator: Hon. Jerry Smith, U.S. Court of Appeals, Fifth Circuit
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

The Mayflower Hotel
Washington, DC

Criminalizing Reasonable Interpretations of Regulatory Schemes: Clay v. United States - Podcast

Criminal Law & Procedure Practice Group Podcast
Paul D. Kamenar, John F. Lauro, John G. Malcolm July 29, 2015

Is Clay v. United States, currently pending in the 11th Circuit, a case study of overcriminalization and abusive federal prosecution? The case raises basic notions of due process, fair notice, the rule of lenity, mens rea, and actus reus. What began as a highly publicized raid by some 200 FBI agents on a Florida health care company over an accounting dispute of how to interpret a provision in Florida’s Medicaid reimbursement statute with no clarifying administrative regulations, ended in the indictment, conviction, and prison sentences for the company’s top executives for fraud. This case is particularly important for all regulated industries, where there are numerous and ambiguous laws and complex regulations governing conduct subject to administrative, civil, and criminal enforcement. John Lauro, counsel in the case, discussed the lawsuit, with Paul Kamenar joining to offer questions and comments.

  • Paul D. Kamenar, Washington, D.C. Attorney and Senior Fellow, Administrative Conference of the United States
  • John F. Lauro, Principal, Lauro Law Firm
  • Moderator: John G. Malcolm, Director and Ed Gilbertson and Sherry Lindberg Gilbertson Senior Legal Fellow, Edwin Meese III Center for Legal and Judicial Studies, The Heritage Foundation

“The Case of the Speluncean Explorers" -- The Classic Law Review Article Revisited - Podcast

Professional Responsibility & Legal Education Practice Group Pocast
James Allan, James A. Haynes, Dan Priel, Frederick Schauer June 24, 2015

It is the year 4300 in an imaginary jurisdiction named Newgarth. Old questions dominate the deliberations of the Supreme Court as Chief Justice Truepenny and his four colleagues present their opinions in the appeal of a notorious murder verdict. Each Justice presents and defends his analysis and disposition of the appeal. The opinions offer considered views of law, justice, judges' work and larger public opinion. No pale pastels for the Truepenny Court, as its members alternately resort to the broad brush and the fine scalpel. The final effect is one of a well written teaching tool and also an essay on our flawed human condition.

Prof. Lon L. Fuller, in his article, “The Case of the Speluncean Explorers,” presented his ideas in the form of a dialogue, without footnotes. The Harvard Law Review published it in February 1949. In a sense it is a work of moral imagination. In another sense it is so dated as to be almost antiquarian. The members of Supreme Court of Newgarth are male and the legal analysis they offer and the language they use are distinctly old-fashioned. In some quarters it would be regarded as a discredited tool of oppression. That said, Prof. Fuller still entertains and teaches the reader, 65 years later. The questions and worries that lawyers and judges share with the Justices of Newgarth still loom in the 21st century.

Our discussion panel was composed of legal scholars from Canada, Australia, and the United States. In a real sense, its diversity shows the continuing relevance and appeal of this legal classic.

  • Prof. James Allan, Garrick Professor of Law, University of Queensland, TC Beirne School of Law
  • James A. Haynes, Attorney and Alternate Judge, U.S. Department of Labor, Employees Compensation Appeals Board
  • Prof. Dan Priel, York University Osgoode School of Law
  • Prof. Frederick Schauer, David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law

The Texas Immigration Case: What Does it Mean, What Happens Next? - Podcast

Litigation and International & National Security Law Practice Groups Podcast
John C. Eastman, Brianne Gorod March 25, 2015

In February of 2015, federal District Court Judge Andrew Hanen (Southern District of Texas) temporarily blocked President Obama’s executive actions on immigration, which would have shielded as many as five million people from deportation proceedings. Judge Hanen subsequently refused the federal government’s request to reconsider, and last week the government filed an emergency motion in the Fifth Circuit Court of Appeals asking that court to overturn the injunction. This week, Judge Hanen and federal government lawyers reportedly sparred over representations made in court by government attorneys on details of waivers already granted under the executive actions. What is the basis of Judge Hanen’s injunction? Is it likely to be overturned or upheld by the Fifth Circuit? What are the next steps in the proceedings?

  • Prof. John C. Eastman, Director, Center for Constitutional Jurisprudence, Henry Salvatori Professor of Law and Community Service, Chapman University Dale E. Fowler School of Law
  • Brianne Gorod, Appellate Counsel, Constitutional Accountability Center