Civil Rights Practice Group Podcast
The Common Core State Standards attempts to define what K-12 students should know at the end of each school year in key subject areas. The initiative garnered strong and broad support, but has come under increasingly heavy criticism from state and local officials, and parents. Supporters argue that uniform standards are an essential part of assuring quality education throughout the nation. Criticisms range from concerns about top-down, federal control of a traditionally state and local government function, to attempts to impose a nationwide curriculum, to a lack of field testing of the standards. Our experts discussed the standards and who has the better argument.
17th Annual Faculty Conference
- Jimmy R. Faircloth, Jr., Managing Partner, Faircloth, Melton & Keiser, LLC
- D. John Sauer, Partner, Clark & Sauer, LLC
This debate was part of the 17th Annual Federalist Society Faculty Conference held on January 3-4, 2015 at the Omni Shoreham Hotel in Washington, DC.
Debate: Resolved, that the Affordable Care Act does not authorize subsidies for individuals purchasing health insurance through federal exchanges
- Prof. Jonathan Adler, Case Western Reserve University School of Law
- Prof. Nick Bagley, University of Michigan School of Law
- Moderator: Prof. Nicholas Quinn Rosenkranz, Georgetown University Law Center
Washington, DC 2014 National Lawyers Convention
January 3, 2015
Saving Congress from Itself proposes a single reform: eliminate all federal grants-in-aid to state and local governments. This action would reduce federal spending by over $600 billion a year and have a profound effect on how we govern ourselves. The proliferation of federal grants-in-aid programs is of recent vintage: only about 100 such grants existed before Lyndon Johnson took office, and now they number more than 1,100. Eliminating grants to the states will result in enormous savings in federal and state administrative costs; free states to set their own priorities; and improve the design and implementation of programs now subsidized by Washington by eliminating federal regulations that attend the grants. In short, it will free states and their subdivisions to resume full responsibility for all activities that fall within their competence, such as education, welfare, and highway construction and maintenance. And because members of Congress spend major portions of their time creating grants and allocating funds assigned to them (think earmarks), eliminating grants will enable Congress to devote its time to responsibilities that are uniquely national in character.
The Federalist Society's Practice Groups presented this closing discussion on "Saving Congress from Itself: Emancipating the States & Empowering Their People" on Saturday, November 15, during the 2014 National Lawyers Convention.
- Hon. James L. Buckley, U.S. Court of Appeals for the D.C. Circuit (ret.) and former U.S. Senator
- Dr. John C. Eastman, Henry Salvatori Professor of Law and Community Service; Former Dean (2007 – 2010); and Director, Center for Constitutional Jurisprudence, Dale E Fowler School of Law, Chapman University
- Prof. Michael S. Greve, Professor of Law, George Mason University School of Law
- Moderator: Mr. Robert R. Gasaway, Partner, Kirkland & Ellis LLP
Mayflower Hotel Litigation Practice Group Podcast
The North Carolina State Board of Dental Examiners is the state agency responsible for regulating the practice of dentistry in North Carolina. Under state law, six of the Board's eight members are practicing dentists elected by the state’s licensed dentists. In response to the Board's enforcement actions against non-dentist teeth-whitening providers, the FTC issued an administrative complaint charging that the Board had engaged in concerted action to exclude competition from those non-dentist providers.
The Board moved to dismiss under the state-action antitrust doctrine, which exempts a State’s anticompetitive actions from federal antitrust scrutiny. The doctrine also exempts the activities of private actors if their conduct is (1) authorized by a clearly articulated state policy to displace competition, and (2) “actively supervised” by state officials. Municipal actors are exempt so long as they act pursuant to a clearly articulated state policy.
The FTC determined that the state-action doctrine did not exempt the Board’s conduct. According to the FTC, a state regulatory body that is controlled by participants in the market that it regulates must be actively supervised by the State—it is treated as a private actor rather than a municipality. Thus, the FTC concluded, even assuming that the Board’s actions were authorized by a clearly articulated state policy, because no state official had “actively supervised” the Board’s enforcement activities, the state-action doctrine did not apply. The Board petitioned for review, which the Fourth Circuit denied. The Fourth Circuit agreed with the FTC that a state agency operated by market participants elected by other market participants is a private actor for purposes of the state-action exemption. And for such agencies, the court reasoned, the State must "exercise sufficient independent judgment and control" to address the “danger” that they are acting “to benefit [their] own membership,” even where their conduct is authorized by a clearly articulated state policy.
The Supreme Court heard oral arguments on October 14. The Court will consider whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants.
- Prof. Rebecca Haw Allensworth, Vanderbilt University Law School
- Misha Tseytlin, Deputy Attorney General, Office of West Virginia Attorney General