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On Tuesday, December 10, the Supreme Court heard oral arguments in EPA v. EME Homer City Generation. The Court will be deciding a number of questions: (1) Whether the court of appeals lacked jurisdiction to consider challenges to the Clean Air Act on which it granted relief; (2) whether states are excused from adopting state implementation plans prohibiting emissions that “contribute significantly” to air pollution problems in other states until after the EPA has adopted a rule quantifying each state’s inter-state pollution obligations; and (3) whether the EPA permissibly interpreted the statutory term “contribute significantly” so as to define each upwind state’s “significant” interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires the EPA to consider only each upwind state’s physically proportionate responsibility for each downwind air quality problem. Mark DeLaquil attended oral arguments and offered his impressions to a live Courthouse Steps Teleforum audience.
- Mr. Mark DeLaquil, Partner, Baker & Hostetler LLP
- Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society
December 9, 2013 | Lee Strang
On December 3, 2013, the Supreme Court heard oral argument in Northwest, Inc. v. Ginsberg. The question here is whether the Airline Deregulation Act of 1978 (the “ADA”) preempts Ginsburg's claim that Northwest Air Lines breached an implied covenant of good faith and fair dealing when it unilaterally terminated his membership in Northwest's frequent-flier program.
To discuss the case, we have Lee Strang, who is a Professor of Law at the University of Toledo College of Law.
December 6, 2013 | Evan A. Young
On October 15, 2013, the Supreme Court heard oral argument in Daimler AG v. Bauman. This case involves what is known as “personal jurisdiction,” which means that a court must possess jurisdiction over the parties to a given case before it may assert authority over them. There are a number of bases on which a court can acquire personal jurisdiction over a legal person, including a corporation. The question before the Supreme Court in this case is whether it violates due process for a federal court to exercise “general” personal jurisdiction over a foreign corporation based solely on the fact that an indirect corporate subsidiary performs services on behalf of the foreign corporation in the state where the federal court is located.
To discuss the case, we have Evan Young, who is a Senior Associate at the Austin office of Baker Botts. It should be noted that all expressions of opinion are those of Mr. Young rather than Baker Botts.
On December 3, 2013, a federal judge held that the city of Detroit is eligible to shed billions in debt in the largest public bankruptcy ever in the United States. The judge also ruled that public pensions could be reduced during reorganization, a provision in Michigan's Constitution notwithstanding. As an increasing number of local and municipal governments find themselves in dire financial straits, leaders are looking to new methods of increasing revenues and cutting costs, including pension reform. Professor David Skeel discussed the challenges faced by cities considering a restructuring of their pension plans, as well as the strength of various arguments regarding the legality of those efforts.
- Prof. David A. Skeel, S. Samuel Arsht Professor of Corporate Law, University of Pennsylvania Law School
- Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society
In 2013 voters in Colorado and Washington legalized the possession of marijuana under state law. Several other states allow the possession and use of marijuana for medicinal purposes. Yet marijuana remains illegal under federal law. The Justice Department has not sought to preempt these decisions, and has outlined a new enforcement policy that largely defers to state law enforcement on the assumption that states will effectively regulate the sale and possession of marijuana. Are the Justice Department’s efforts to accommodate state decisions about marijuana policy prudent or irresponsible? Could it do more? Should the federal government defer to state voters on the desirability of marijuana prohibition? How should principles of federalism inform the federal government’s response to state initiatives on marijuana? Can the federal government allow states to decriminalize marijuana possession and sale without undermining the rule of law?
- Mr. Robert D. Alt, President, The Buckeye Institute for Public Policy Solutions
- Dr. John C. Eastman , Henry Salvatori Professor of Law & Community Service, Chapman University School of Law
- Mr. Michael Francisco , Assistant Solicitor General, Colorado
- Hon. George J. Terwilliger III , Partner, Morgan Lewis & Bockius LLP
- Moderator: Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law
National Press Club
On December 1, 2013, Amazon announced that it might make deliveries to homes and businesses in the future using unmanned aerial drones. As the domestic use of drones rises, legal issues will arise as well over who controls airspace and who has the right to regulate the use of such aircraft. Privacy issues will also be implicated. Professor Gregory S. McNeal discussed these issues with a live Teleforum audience.
- Prof. Gregory S. McNeal, Associate Professor of Law, Pepperdine University School of Law
- Moderator: Christian Corrigan, Director of Publications, The Federalist Society
December 3, 2013 | Luke A. Wake
On November 13, 2013, the Supreme Court heard oral argument in Unite Here Local 355 v. Mulhall. The question in the case is whether an employer and union are prohibited by the Labor-Management Relations Act from entering into a “neutrality agreement” under which the employer exercises its freedom of speech by promising to remain neutral to union organizing, its property rights by granting union representatives limited access to the employer's property and employees, and its freedom of contract by obtaining the union's promise to forego its rights to picket, boycott, or otherwise put pressure on the employer's business.
To discuss the case, we have Mr. Luke Wake, Staff Attorney, NFIB Small Business Legal Center.
Closing Panel: The Electorate and the Courts
4:00 p.m. – 5:00 p.m.
- Hon. Paul D. Clement, Partner, Bancroft PLLC and former United States Solicitor General
- Mr. John Fund, National Affairs Columnist, National Review and Fox News Analyst
- Hon. Seth P. Waxman, Partner, WilmerHale and former United States Solicitor General
- Moderator: Hon. David M. McIntosh, Partner, Mayer Brown and Vice Chairman, The Federalist Society
In recent years, textualism has come to replace legislative history as the most important tool available to Supreme Court Justices when interpreting statutory text. This panel will examine the new textualism and will debate its merits. What are the arguments for and against textualism? When, if ever, ought a judge consider legislative history? This panel will also address the question of whether theJjustices all share the same approach to statutory interpretation or whether they continue to diverge in predictable ways. What effect does the choice of interpretive techniques have on congressional drafting of legislation in the future?
The Federalist Society's Practice Groups presented this showcase panel on "Textualism and Statutory Interpretation" on Saturday, November 16, during the 2013 National Lawyers Convention.
Showcase Panel IV: Textualism and Statutory Interpretation
2:15 p.m. – 4:00 p.m.
- Prof. John F. Duffy, Samuel H. McCoy II Professor of Law and Armistead M. Dobie Professor of Law, University of Virginia School of Law
- Hon. Frank H. Easterbrook, United States Court of Appeals, Seventh Circuit
- Prof. William N. Eskridge, Jr., John A. Garver Prof. of Jurisprudence, Yale Law School
- Prof. Abbe R. Gluck, Yale Law School
- Prof. Victoria F. Nourse, Georgetown University Law Center
- Moderator: Hon. William H. Pryor Jr., United States Court of Appeals, Eleventh Circuit
The Sixth Annual Rosenkranz Debate was held on November 16, 2013, during The Federalist Society's 2013 National Lawyers Convention. The topic of the debate was "RESOLVED: Courts are too Deferential to the Legislature" and featured Prof. Randy Barnett of Georgetown University Law Center and Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit. Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit moderated.
Sixth Annual Rosenkranz Debate
RESOLVED: Courts are too Deferential to the Legislature
12:15 p.m. – 2:15 p.m.
- Prof. Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center
- Hon. J. Harvie Wilkinson, United States Court of Appeals, Fourth Circuit
- Moderator: Hon. Jerry E. Smith, United States Court of Appeals, Fifth Circuit
- Introduction: Mr. Eugene B. Meyer, President, The Federalist Society
In 1990, the Supreme Court unanimously held that an integrated state bar association, which all lawyers licensed in a state must join, could not use the compulsory dues paid by its members to pursue political or ideological activities unrelated to regulating the legal profession or improving the legal system. Keller v. State Bar of California, 496 U.S. 1 (1990). The Court explained, “[T]he extreme ends of the spectrum are clear: Compulsory dues may not be extended to endorse or advance a gun control or nuclear weapons freeze initiative; at the other end of the spectrum petitioners have no valid constitutional objection to their compulsory dues being spent for activities connected to disciplining members of the Bar or proposing ethical codes for the profession.” Id., at 15-16.
In the nearly 25 years since the Court decided Keller, the entities empowered to promulgate ethical rules binding on the lawyers practicing in a state have imposed a variety of regulations, some of which are more closely and clearly related to the regulation of the legal profession than others. Requirements like continuing legal education and contributions to client security funds are generally seen to fall within the scope of permissible regulation. The imposition of mandatory diversity training in Minnesota and a requirement that law students perform a specified number of hours of pro bono work as a condition to their becoming licensed to practice in New York look different.
Should state regulation of the bar be limited to imposing rules whose purpose is the protection of client interests? Or, can the regulators impose rules designed to make lawyers “better” people in the belief that “better” people will better serve their clients? How far can the organized bar go in “proposing ethical codes for the profession?” To what extent do programs like mandatory diversity training and requiring law students to perform a specified number of pro bono hours serve the interests of clients?
The Professional Responsibility & Legal Education Practice Group hosted this panel on "Regulation of the Legal Profession in the 21st Century: Should Professional Regulation Favor Social Policy over Client Protection?" on Saturday, November 16, during the 2013 National Lawyers Convention.
Professional Responsibility: Regulation of the Legal Profession in the 21st Century: Should Professional Regulation Favor Social Policy over Client Protection?
10:45 a.m. – 12:15 p.m.
- Mr. Scott Johnson, Co-Founder and Contributor, Power Line Blog
- Mrs. Margaret A. Little, Partner, Little and Little and Director, Pro Bono Center, The Federalist Society
- Prof. Thomas D. Morgan, Oppenheim Professor of Antitrust and Trade Regulation Law, The George Washington University Law School
- Prof. Alan B. Morrison, Lerner Family Associate Dean for Public Interest/Public Service, The George Washington University Law School
- Moderator: Hon. David R. Stras, Associate Justice, Minnesota Supreme Court
- Introduction: Mr. Jack Park Jr., Of Counsel, Strickland Brockington Lewis LLP
This past year, the Supreme Court decided three important regulatory takings cases, including Arkansas Game & Fish Commission, Koontz, and Horne. At the state level, several states, including Virginia and Mississippi, recently adopted new constitutional amendments limiting the definition of public use and restricting the power of eminent domain. Many, including Supreme Court Justice Antonin Scalia, have urged the Supreme Court to reconsider its Public Use Clause jurisprudence and overrule or limit cases such as Kelo v. City of New London. At both the state and federal level, takings law is very much in flux. This panel will assess where we are on important constitutional takings issues, and where we should be going.
The Environmental Law & Property Rights Practice Group hosted this panel on "New Directions in Takings Law" on Saturday, November 16, during the 2013 National Lawyers Convention.
Environmental Law: New Directions in Takings Law
10:45 a.m. – 12:15 p.m.
- Mr. Paul J. Beard II, Principal Attorney, Pacific Legal Foundation
- Prof. James L. Huffman, Dean Emeritus, Lewis & Clark Law School
- Prof. Thomas W. Merrill, Charles Evans Hughes Professor of Law, Columbia Law School
- Prof. Stewart E. Sterk, H. Bert and Ruth Mack Professor of Real Estate Law, Cardozo School of Law
- Moderator: Hon. Edith Brown Clement, United States Court of Appeals, Fifth Circuit
Has Congress has over-delegated to agencies and failed to provide meaningful oversight? Should Congress coordinate its oversight responsibility with its appropriations authority? Are the courts, in the wake of the Chevron case, and most recently in City of Arlington, deferring too much to agencies? Are the President and White House able to provide oversight, and does the answer change for cabinet-level departments versus independent agencies?
The Administrative Law & Regulation Practice Group hosted this panel on "Executive Branch Gone Wild? 21st Century Checks and Balances" on Saturday, November 16, during the 2013 National Lawyers Convention.
Administrative Law: Executive Branch Gone Wild? 21st Century Checks and Balances
10:45 a.m. – 12:15 p.m.
- Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law and Director, Center for Business Law and Regulation, Case Western Reserve University School of Law
- Prof. Rachel E. Barkow, Segal Family Professor of Regulatory Law and Policy, New York University School of Law
- Hon. Patrick Morrisey, Attorney General, West Virginia
- Prof. David Schoenbrod, Visiting Scholar, American Enterprise Institute and Trustee Professor, New York Law School
- Prof. Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law; Director of the Environmental Law Advocacy Center and Executive Director, Project for Older Prisoners, The George Washington University Law School
- Moderator: Hon. Eileen J. O’Connor, Pillsbury Winthrop Shaw Pittman LLP and former Assistant Attorney General, Tax Division, United States Department of Justice
The Supreme Court was less than one month away from hearing arguments in Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc. and answering the question of whether disparate impact claims are cognizable under the Fair Housing Act when the case settled. Ilya Shapiro discussed this development and its impact on future civil rights litigation for a live Teleforum audience.
- Mr. Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute
- Moderator: Dean A. Reuter, Vice President and Director of Practice Groups, The Federalist Society
November 25, 2013
The International & National Security Law Practice Group is pleased to present its Recommended National Security Law Reading List for Fall 2013....[Read Now!]