In the last year, the Department of Justice lost three major cases against Fed Ex, Vascular Solutions and Warner Chilcott. Critics argue that each case was an example of over-enforcement by DOJ and overcriminalization by Congress. Proponents assert that it is a critical role of government to police and dissuade bad acts by private citizens and corporations. Are there too many federal agencies, giving prosecutors too much power over individuals and corporations? Is it good policy to prosecute individual employees of a corporation, as suggested in the Yates memorandum? Panelists, including lawyers in each of these three cases, will discuss the limits of federal criminal law and prosecutions.
This panel was held on December 8, 2016, at the National Press Club in Washington, DC.
Cristina C. Arguedas, Partner, Arguedas, Cassman & Headley LLP
Leslie R. Caldwell, Assistant Attorney General for the Criminal Division, The United States Department of Justice
Ben Hatch, Partner,McGuireWoods
John Richter, Partner, King & Spalding
Joseph Savage, Partner, Goodwin Proctor
Moderator: Stuart S. Taylor, Contributing Editor, National Journal
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
“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
In his nearly 30 years on the Court, Justice Scalia left a profound mark on many areas of the law, including property rights. From his seminal decisions in Nollan v. California Coastal Commission and Lucas v. South Carolina Coastal Council to his frequent questioning at oral argument, Justice Scalia helped define the relationship between property and the Constitution. While his critics have suggested that Justice Scalia's property rights jurisprudence manifested a willingness to engage in “judicial activism," others have defended Scalia's approach as consistent with original understandings of the text of the Constitution.
This panel will address Justice Scalia's influence on constitutional understandings of property rights. Professor Ely has written extensively on the historical understandings of property rights including the popular book, The Guardian of Every Other Right: A Constitutional History of Property Rights. Professor Somin's recently published The Grasping Hand: "Kelo V. City of New London" and the Limits of Eminent Domain explores one of the Court's most notorious departures from the protection of property rights. Professor Hills is a renowned expert on the law of land use planning and has taken a more charitable view of the power of government to control the use of property. He is a co-author of Land Use Controls: Cases and Materials. The panel will be moderated by Justice Allison Eid, from the Colorado Supreme Court.
Environmental Law & Property Rights: Justice Scalia's Property Rights Jurisprudence
11:00 a.m. – 12:30 p.m. East Room
Prof. John Echeverria, Professor of Law, Vermont Law School
Prof. James W. Ely, Jr., Milton R. Underwood Professor of Law Emeritus, Professor of History Emeritus, Lecturer in Law, Vanderbilt Law School
Prof. Roderick M. Hills, Jr., William T. Comfort, III Professor of Law, New York University School of Law
Hon. Adam P. Laxalt, Attorney General, Nevada
Prof. Ilya Somin, Professor of Law, Antonin Scalia Law School, George Mason University
Moderator: Hon. Allison H. Eid, Colorado Supreme Court
Introduction: Mr. Jeffrey Bossert Clark, Partner, Kirkland & Ellis LLP