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FACULTY DIVISION

Litigation and Labor & Employment Practice Groups Podcast

In May, the Department of Labor announced a new overtime regulation, which would require all employers to pay overtime to their salaried employees who make under $47,476 annually. The rule was set to take effect on December 1, 2016. However, 21 states filed suit against the federal government claiming that the rule violated the Fair Labor Standards Act (FLSA) and states’ rights by increasing the overtime threshold, which was $23,660 under the FLSA, so drastically and by setting automatic increases to the threshold every three years. The states argue the rule will decrease full-time employment while increasing unemployment and will burden state governments unlawfully under the 10th Amendment by forcing them to conform to the new regulations. The U.S. Chamber of Commerce and a coalition of business groups also filed their own suit against the law. The cases were consolidated.

On November 16, Judge Mazzant of the District Court for the Eastern District of Texas heard the states' motion for a preliminary injunction to temporarily block the rule. On November 22, Judge Mazzant granted the states’ motion and issued a preliminary injunction prohibiting the Department of Labor from implementing and enforcing the new rule. Solicitor General Lawrence VanDyke, Michael Hancock of Cohen Milstein, and Jesse Panuccio of Foley & Larner LLP joined us to discuss the court's ruling and the future of the overtime rule under the new administration.

Featuring:

  • Mr. Lawrence Van Dyke, Solicitor General of Nevada
  • D. Michael Hancock, Of Counsel, Cohen Milstein
  • Jesse Panuccio, Partner, Foley & Lardner LLP
Short video featuring Gus Hurwitz

Can price discrimination be good Internet policy? Professor Gus Hurwitz of the Nebraska College of Law explains the arguments for and against regulating the average cost of internet access, and how the economics of price discrimination can be used to increase Internet access.

2016 National Lawyers Convention

The final Showcase panel examines Justice Scalia's transformation of five very important areas of Supreme Court doctrine. First, Justice Scalia transformed freedom of expression doctrine by entrenching a rule of viewpoint neutrality in place of different tests for different kinds of speech. In the five to four flag burning cases, Justice Scalia teamed up with Justices Brennan and Marshall to protect political speech. In the five to four decision in Citizens United he did the same thing with a different block of Justices. In another five to four opinion, Justice Scalia recognized constitutional protection for hate speech in RAV v. City of St. Paul. He joined a summary affirmance of a Seventh Circuit opinion by Judge Frank Easterbrook banning Catherine MacKinnon's anti-pornography laws. Second, Justice Scalia revolutionized the law of the religion clauses by largely burying the Lemon test and leading the Supreme Court in affirming the constitutionality of education vouchers for religious schools. Third, Justice Scalia revolutionized the Second Amendment by finding that it protected an individual's right to bear arms to defend himself, and he was very libertarian and protective of criminal defendants' rights in his criminal procedure jurisprudence. Fourth, Justice Scalia surprised some observers with his criminal law and procedure opinions on searches, the Confrontation Clause, and more. Finally, Justice Scalia played what some describe as a unique role in standing, including in his opinion in Lexmark International, Inc. v. Static Control Components, Inc. 

This panel was held on November 19, 2016, during the 2016 National Lawyers Convention in Washington, DC.

Showcase Panel IV: ROUNDTABLE: Areas of Constitutional Doctrine Transformed
2:45 p.m. – 4:45 p.m.
State Room

  • Mr. Floyd Abrams, Partner, Cahill Gordon & Reindel LLP
  • Hon. Michael W. McConnell, Richard and Frances Mallery Professor of Law, Director of the Constitutional Law Center, Stanford Law School; Senior Fellow, Hoover Institute
  • Hon. David R. Stras, Minnesota Supreme Court
  • Prof. Nadine Strossen, John Marshall Harlan II Professor of Law, New York Law School; former President, American Civil Liberties Union
  • Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
  • Mr. Edward Whelan, President, Ethics & Public Policy Center
  • Moderator: Hon. Diarmuid F. O’Scannlain, U.S. Court of Appeals, Ninth Circuit
  • Introduction: Hon. Lee Liberman Otis, Senior Vice President, The Federalist Society

The Mayflower Hotel
Washington, DC

2016 National Lawyers Convention

RESOLVED: Hostile Environment Law, On and Off Campus, Often Violates the First Amendment.

The Ninth Annual Rosenkranz Debate was held on November 19, 2016, during The Federalist Society's 2016 National Lawyers Convention.

Ninth Annual Rosenkranz Debate & Luncheon
12:30 p.m. – 2:30 p.m.         
Grand Ballroom

  • Prof. Deborah L. Rhode, Ernest W. McFarland Professor of Law; Director, Center on the Legal Profession; Director, Program in Law and Social Entrepreneurship, Stanford Law School
  • Prof. Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law
  • Moderator: Hon. Jennifer W. Elrod, U.S Court of Appeals, Fifth Circuit
  • Introduction: Mr. Eugene B. Meyer, President, The Federalist Society

The Mayflower Hotel
Washington, DC

2016 National Lawyers Convention

“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