Federalist Society logo

2018 National Lawyers Convention

Good Government through Agency Accountability and Regulatory Transparency

November 15 — 17, 2018

The 2018 National Lawyers Convention is scheduled for Thursday, November 15 through Saturday, November 17 at the Mayflower Hotel in Washington, D.C. The theme for the convention this year is: Good Government through Agency Accountability and Regulatory Transparency.

Online registration is now closed.
Onsite registration will be available at the Mayflower Hotel during the following times:
Thursday - 7:30am - 3:30pm
Friday - 8:00am - 3:30pm
Saturday - 8:00am - 3:00pm

LodgingFeesCLE


2018 Antonin Scalia Memorial Dinner
SOLD OUT

Union Station
50 Massachusetts Avenue NE
Washington, DC 20002
Thursday, November 15, 2018
Reception - 6:00 p.m.
Dinner - 7:00 p.m.
(ticketed event) BLACK TIE OPTIONAL


Eighteenth Annual Barbara K. Olson Memorial Lecture

Featuring:


Hon. Jeffrey S. Sutton

United States Court of Appeals,
Sixth Circuit

The Mayflower Hotel
1127 Connecticut Avenue NW
Friday, November 16, 2018
5:00 p.m.
(ticketed event)


Eleventh Annual Rosenkranz Debate

RESOLVED: District courts do not have the authority to enter universal injunctions.

Featuring:

John Harrison
Prof. John Harrison
James Madison Distinguished
Professor of Law,
University of Virgina
School of Law
 

          and

 

 

 

 

 

Neal Katyal
Mr. Neal Katyal
Partner,
Hogan Lovells US LLP


 

The Mayflower Hotel
1127 Connecticut Avenue NW
Saturday, November 17, 2018
12:30 p.m.


Showcase Sessions Discussing the Convention Theme:
"Good Government through Agency Accountability and Regulatory Transparency"

  • What is Regulation For?
  • Balancing Insulation and Accountability of Agency Decisions
  • The States & Administrative Law
  • Does Agency Regulatory Power Extend Beyond its Formal Power, and Should It?

Practice Group Breakout Sessions

  • Independent Agencies: How Independent is Too Independent?
  • Say What You Will?: Government Compelled Speech
  • Rulemaking by Adjudication: Who Am I to Judge?
  • Discrimination Against Minorities
  • A New Approach to Antitrust Law: Transparency
  • The Pros and Cons of Plea Bargaining
  • Climate Change Nuisance Suits
  • Revisiting the Community Reinvestment Act
  • Artificial Intelligence and Big Data Innovation: Navigating the Technology World of the Near Future
  • National Security Law & Doing Business Abroad
  • Joint Employment: The Unintended and Unpredictable 'Employment' Relationship
  • The Future of the Past: Stare Decisis
  • Technology, Social Media and Professional Ethics
  • The Current Landscape of Telecommunications Law
  • Masterpiece Cakeshop and its Implications

Up to 20 hours of Continuing Legal Education (CLE) credits available. Direct all CLE inquiries to the Federalist Society's national office - (202) 822-8138 or email cle@fedsoc.org.


Lodging

Reserve early! Washington, DC hotels are becoming booked very quickly for the fall convention season. To reserve overnight accommodations for the Convention, please contact The Mayflower directly:

The Mayflower Hotel
1127 Connecticut Avenue, NW
Washington, DC 20036

Reservations Toll Free: 877-212-5752
Reservations Local Phone: 202-347-3000

Reservation Link: https://book.passkey.com/event/49723797/owner/1261/home

Cut off Date: October 22, unless rooms sell out sooner.

Inquire about the special rate of $270 per night offered to Federalist Society Convention registrants. Specify "Federalist Society" when contacting the Mayflower.


Convention Fees

Convention Package* 
Private Sector
Non-Member
$625
Private Sector
Active Member
$500
Student/Non-Profit/Government
Non-Member
$400
Student/Non-Profit/Government
Active Member                                                
$300


*The Convention Package includes all three days of sessions, CLE, and lunches as well as the Barbara K. Olson Memorial Lecture & Reception.  Please note that the Convention Package does not include the Antonin Scalia Memorial Dinner.

 Individual Day**
Non-Member$250 per day
Active Member$200 per day
Student Non-Member$60 per day
Student Active Member                                                $50 per day


**Individual day purchase includes that day’s sessions, CLE and lunch.  It does not include social events.

Social Events 
Annual Dinner - SOLD OUT
Non-Member
                  $250
Annual Dinner - SOLD OUT
Active Member
$200
Barbara K. Olson Memorial Lecture & Reception
Non-Member
$150
Barbara K. Olson Memorial Lecture & Reception         
Active Member
$100

CANCELLATION FEE OF $100 AFTER MONDAY, NOVEMBER 5.
NO REFUNDS WILL BE GIVEN AFTER MONDAY, NOVEMBER 12.


Media inquiries should go to Peter Robbio at probbio@crcpublicrelations.com.

 

Back to top
9:00 a.m. - 9:45 a.m.
Opening Address by Mike Lee

2018 National Lawyers Convention

Topics: Administrative Law & Regulation • Federalism • Federalist Society • Regulatory Transparency Project
The Mayflower Hotel - Grand Ballroom
1127 Connecticut Avenue, NW
Washington, DC 20036

Event Video

Description

United States Senator Mike Lee will deliver the opening address at the 2018 National Lawyers Convention.

  • Hon. Mike S. Lee, United States Senate, Utah

Speakers

9:45 a.m. - 11:30 a.m.
Showcase Panel I: What is Regulation For?

2018 National Lawyers Convention

Topics: Administrative Law & Regulation • Regulatory Transparency Project
The Mayflower Hotel - Grand Ballroom
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

The administrative state, with roots over a century old, was founded on the premise that Congress lacked the expertise to deal with the many complex issues facing government in a fast-changing country, and that it was unhelpfully mired in and influenced by politics, leading to bad outcomes when it did act. The alternative was to establish administrative agencies, each with assigned areas of responsibility, housing learned experts qualified to make policy decisions, deliberately insulated from political accountability. The Administrative Procedure Act (APA), passed in 1946, both governs the manner in which agencies may adopt and enforce regulations, and provides for judicial review of agency action. Supporters of the administrative state point to the successes of agency actions leading to a cleaner environment, more sensible use of finite resources, healthier foods, safety on the roads and rails, and many other areas of improved quality of life. But even looking past structural separation of powers issues written into the bones of the administrative state, critics assert that in the ensuing 70 years the APA has become an ineffective limitation an agency power, as agencies bypassed its requirements by issuing sub-regulatory guidance, letters, FAQs, and more. Compounding the problem, the critics continue, the courts have adopted a policy of deference to agency actions that grant agencies even more latitude. Is it time to revisit the APA? If so, how should it be updated?

  • Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University School of Law
  • Prof. Philip Hamburger, Maurice & Hilda Friedman Professor of Law, Columbia Law School
  • Prof. Kathryn Kovacs, Professor of Law, Rutgers Law School 
  • Prof. Jon Michaels, Professor of Law, UCLA School Of Law
  • Moderator: Hon. Britt Grant, United States Court of Appeals, Eleventh Circuit

Speakers

11:45 a.m. - 1:30 p.m.
The Future of the Past: Stare Decisis

2018 National Lawyers Convention

Topics: Federal Courts • Litigation • Supreme Court
The Mayflower Hotel - State Room
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

Stare decisis – “to stand by things decided” – is the doctrine under which courts follow their own precedents, and precedents of superior courts. Proponents of stare decisis assert that it promotes predictability in the law, reduces revisiting settled issues, and increases reliance on judicial decisions, all while enhancing the legitimacy of the judicial branch. Critics of stare decisis assert that a court decision in error should not be followed blindly, and over-reliance on stare decisis can cause errors to become set in concrete. A handful of recent opinions suggest that some in the judiciary might be open to revisiting the contours of the doctrine of stare decisis. Should it be reevaluated? Does it matter whether the issue under consideration is statutory or constitutional? Does the time in history of the original decision matter? What is the future of this doctrine?

  • Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center
  • Hon. W. Neil Eggleston, Partner, Kirkland & Ellis LLP
  • Mr. Kannon K. Shanmugam, Partner, Williams & Connolly LLP
  • Moderator: Hon. Amy Coney Barrett, United States Court of Appeals, Seventh Circuit

Speakers

11:45 a.m. - 1:30 p.m.
Independent Agencies: How Independent is Too Independent?

2018 National Lawyers Convention

Topics: Administrative Law & Regulation • Federalism
The Mayflower Hotel - East Room
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

Justice Scalia put it bluntly in Morrison v. Olson: “There are now no lines.” Morrison, 478 at 726 (Scalia, J., dissenting). This is, perhaps, an unsurprising observation, considering the majority in Humphrey's Executor v. United States recognized that, “between the decision in the Myers v. United States case, which sustains the unrestrictable power of the President to remove purely executive officers, and our present decision that such power does not extend to an office such as that here involved, there shall remain a field of doubt." Humphrey's Ex'r, 295 U.S. at 632. How do courts navigate this field?  

In Humphrey's Executor, for-cause removal was approved as applied to the five-member FTC, which exercises powers the Court described as "neither political nor executive, but predominantly quasi-judicial and quasi-legislative." Id. at 624. In Morrison, the Court approved for-cause removal—by the Attorney General—as applied to an independent counsel. In so doing, it walked back its emphasis on the character of an agency's or officer's functions and expressly noted there was "no real dispute that the functions performed by the independent counsel [were] 'executive.'" Morrison, 487 at 691. But "the real question," the Court reasoned, "is whether . . . removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty" to take care that the laws be faithfully executed. Id. Then, in Free Enterprise Fund v. PCAOB, the Court invalidated a two-layer system of for-cause removal that over-insulated PCAOB members. Free Enter. Fund, 561 U.S. at 495–508. Combining the lessons of Humphrey's Executor and Morrison, the problem was that the act in question "grant[ed] the Board executive power without the Executive's oversight, [thereby] subvert[ing] the President's ability to ensure that the laws are faithfully executed." Id. at 498.

While Myers and Free Enterprise teach that limits do exist on Congress's ability to isolate executive functions from executive oversight, a clear articulation of those limits has so far eluded the Court's jurisprudence in this area. And with an active Special Counsel and several recent lawsuits challenging the structural design of various independent agencies, the question remains: how independent is too independent? Is there any unifying principle for lower courts to apply? Does the character of an agency's/officer's functions matter? May an agency's director be removable only for cause if it is a single director? The D.C. Circuit said yes to the latter while sitting en banc in PHH Corp. v. Consumer Financial Protection Bureau, but what if there were no Financial Stability Oversight Council with veto power over the CFPB's policies? Or, what if there is such a veto-wielding council but the agency is not subject to funding via the normal budgeting process over which the President holds veto power?

Different agencies are structured differently, so certainly we are stuck with an ad hoc inquiry. But how is a judge to know when Congress has placed one straw too many on the camel's back?

  • Prof. William W. Buzbee, Professor of Law, Georgetown University Law Center
  • Prof. John Eastman, Henry Salvatori Professor of Law & Community Service and former Dean, Chapman University's Fowler School of Law; Senior Fellow, Claremont Institute
  • Hon. Henry Kerner, Special Counsel, Office of the Special Counsel
  • Prof. Jennifer Mascott, Assistant Professor, Antonin Scalia Law School, George Mason University
  • Moderator: Hon. Diane Sykes, United States Court of Appeals, Seventh Circuit

Speakers

11:45 a.m. - 1:30 p.m.
General Luncheon

2018 National Lawyers Convention

The Mayflower Hotel - Various Rooms
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Description

Lunch Buffet:
Cabinet, East, Senate and State Rooms 

Practice Group Sessions & Lunch:
Federalism Panel - East Room 
Litigation Panel - State Room 

1:45 p.m. - 3:15 p.m.
Artificial Intelligence and Big Data Innovation: Navigating the Technology World of the Near Future

2018 National Lawyers Convention

Topics: Intellectual Property
The Mayflower Hotel - Grand Ballroom
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

Technology progress in recent years has been driven in large part by the continuous generation of massive amounts of data (“Big Data”) and its processing by means of Artificial Intelligence (“AI”). Self-driving cars, personalized advertising, and automated medical diagnostics are examples of a technology trend that will accelerate in the future, creating unseen before opportunities for innovation, along with serious legal and regulatory pitfalls. This panel will focus on practical matters concerning AI and Big Data related innovation, including (a) protecting of related intellectual property (“IP”) and (b) handling of data ownership and privacy issues. It will tackle problems such as: who owns AI-generated IP?; who owns personal or test data?; who is liable if something goes wrong?; and what role, if any, should the government(s) have in regulating the flow and use of data-driven information?

  • Address: Hon. Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent Trademark Office
  • Mr. James C. Cooper, Deputy Director for Economic Analysis, Bureau of Consumer Protection, Federal Trade Commission
  • Mr. Shawn D. Hamacher, Assistant General Counsel, Steelcase 
  • Hon. Michelle K. Lee, Former Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office
  • Dr. Ognian “Oggie” Shentov, Of Counsel, Jones Day
  • Moderator: Hon. David J. Porter, United States Court of Appeals, Third Circuit

Speakers

1:45 p.m. - 3:15 p.m.
Joint Employment: The Unintended and Unpredictable 'Employment' Relationship

2018 National Lawyers Convention

Topics: Labor & Employment Law
The Mayflower Hotel - East Room
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

The vast web of federal and state laws protecting employees stands or falls on a single concept: Is there an employment relationship? Payment of overtime, responsibility for employment taxes, union obligations, responsibility for workplace discrimination, workers compensation – every employment law obligation depends on the existence of an employment relationship. 

Thus, it may be surprising to some that most employment laws do not define who is an employer or who is an employee. The Fair Labor Standards Act, for example, defines an “employer” as “any person acting directly or indirectly in the interest of an employer in relation to an employee,” and an “employee” is “any individual employed by an employer.” The National Labor Relations Act also makes us dizzy with circular definitions: an “employer” is “any person acting as an agent of the employer, directly or indirectly” and an “employee” is “any employee.”  

The result: Whether an employment relationship exists has been left to the vagaries of agency guidance and decisions. In its 2015 Browning-Ferris decision, the NLRB expanded the definition of “joint employment” to include employers who share direct, indirect, potential or even “ultimate” control over a worker. In a 2016 Administrator’s Interpretation, the Labor Department similarly expanded the definition of joint employment, declaring that “employment generally should be defined expansively” under the FLSA, unrestrained by the concept of control found in the common law concepts of employment. Suddenly, many businesses faced investigations regarding activities of subcontractors, and franchisors were named as defendants for alleged violations by franchisees.   

DOL has withdrawn its 2016 Administrator’s Interpretation, but has yet issued no replacement guidance. Browning-Ferris still stands, although the NLRB has announced its intention to issue regulations regarding joint employment. This panel will explore whether and how the key concepts of employment, employer and employee should be defined under our nation’s employment laws: By Congress, the Courts, or agencies? Adopting one definition or many? Based on statutory definitions or the common law?

  • Prof. Richard Epstein, Laurence A. Tisch Professor of Law and Director, Classical Liberal Institute, New York University Law School
  • Mr. Richard F. Griffin, Jr., Of Counsel, Bredhoff & Kaiser, PLLC  
  • Hon. Philip A. Miscimarra, Partner, Morgan & Lewis
  • Moderator: Hon. Timothy M. Tymkovich, United States Court of Appeals, Tenth Circuit

Speakers

1:45 p.m. - 3:15 p.m.
A New Approach to Antitrust Law: Transparency

2018 National Lawyers Convention

Topics: Corporations, Securities & Antitrust
The Mayflower Hotel - State Room
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

Antitrust enforcers in the post-Microsoft era, under both Republican and Democratic administrations, have been under more or less continuous criticism as insufficiently active. Proponents of this view have offered a number of routes to more vigorous and creative enforcement, ranging from re-writing the core statutes to address high tech industries and following the lead of the European Commission to adopting a “Brandeisian” approach, which focuses on a variety of concerns beyond consumer welfare, including employment, privacy, and environmental sustainability.

As an alternative to these “tear it all down” approaches, could greater transparency be a more effective response? Concerns regarding the level and type of enforcement activity are arguably rooted in widespread misunderstanding of the process, particularly with respect to merger review. Has the time come to update the DOJ/FTC guidelines on horizontal mergers, the licensing of intellectual property, the operation of information exchanges, and other issues? Are agency processes and decisional factors sufficiently well understood? Has the Supreme Court’s antitrust docket hampered or improved transparency? Such questions are particularly timely in light of the FTC’s ongoing hearings on Competition and Consumer Protection in the 21st Century.

  • Hon. Frank Easterbrook, United States Court of Appeals, Seventh Circuit 
  • Ms. Deb Garza, Partner, Covington & burling
  • Mr. Eric Grannon, Partner, White & Case 
  • Prof. Douglas Melamed, Professor of Law, Stanford Law School
  • Moderator: Hon. John B. Nalbandian, United States Court of Appeals, Sixth Circuit

Speakers

3:30 p.m. - 5:00 p.m.
Rulemaking by Adjudication: Who Am I to Judge?

2018 National Lawyers Convention

Topics: Administrative Law & Regulation
The Mayflower Hotel - East Room
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

When Congress delegates to a federal agency the responsibility for implementing, administering, and enforcing a law, it also authorizes the agency to make and promulgate rules about how it will do that.  These rules will often be issued first as a notice of proposed rulemaking, giving the public the opportunity to comment before the regulation becomes final and goes into effect. Many agencies, however, also avail themselves of another, less well-known rule-making tool: adjudication.  Rather than promulgate a regulation, these agencies often announce and apply new policies - even ones that will have broad applicability – in the form of decisions resolving disputes with the agency. These decisions are then applied as precedent by the agency. Some agencies including the National Labor Relations Board, the Federal Elections Commission, the Equal Employment Opportunity Commission, and other federal agencies, essentially announce and implement all policies this way. That agencies use adjudication to announce and implement policy is not new, but critics contend that it eliminates fair notice of the rule and avoids public participation in its development.

Policy implemented through notice-and-comment rulemaking is generally applied prospectively only, and has the benefit of the agency having solicited and, ideally, responded to public comments. Policy implemented through adjudication, however, has not had the benefit of public input. Further, the application is generally retroactive. To avoid retroactive application of a rule, regulated parties can be inclined to simply comply with an agency's demands, thus depriving the public of a fair test of the agency’s position. Finally, agency adjudication – performed by an agency’s administrative law judge, and appealable to agency leadership who may wish to use the case to make new policy - can be seen to be biased.

How weighty are these concerns? What is the proper role of agency adjudication? What deference, if any, should courts give policies agencies announce through adjudication? What safeguards could be designed and implemented to prevent the misuse of agency adjudication?

  • Prof. Jack Beermann, Professor of Law, Boston University School of Law
  • Mrs. Allyson N. Ho, Partner, Gibson, Dunn & Crutcher
  • Mr. Stephen A. Vaden, Principal Deputy General Counsel, United States Department of Agriculture
  • Prof. Christopher J. Walker, Associate Professor of Law, The Ohio State University Moritz College of Law
  • Moderator: Hon. Gregory G. Katsas, U.S. Court of Appeals, District of Columbia Circuit

Speakers

3:30 p.m. - 5:00 p.m.
The Pros and Cons of Plea Bargaining

2018 National Lawyers Convention

Topics: Criminal Law & Procedure
The Mayflower Hotel - State Room
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

The Black’s Law Dictionary defines Plea Bargaining as: “[t]he process whereby the accused and the prosecutor in a criminal case work out a mutually satisfactory disposition of the case subject to court approval. It usually involves the defendant’s pleading guilty to a lesser offense or to only one or some of the counts of a multi-count indictment in return for a lighter sentence than that possible for the graver charge.” Plea Bargaining as a concept dates farther back than the American justice system itself. However, over the past few decades it has occurred with more and more frequency to reach its’ current unprecedented level in our criminal justice system. 

Today, over 95 percent of criminal convictions are a result of Plea Bargaining, which has contributed to an evolving and controversial national debate over whether Plea Bargaining has gone too far. The positives of Plea Bargaining are apparent. It is a much more efficient process than juries, and a much more inexpensive process than trials. However, some opponents of plea bargaining point to the dangerous potential for coercion, insisting that the imbalance of power between prosecutor and defendant can often lead to a miscarriage of justice. Additionally, some criticize Plea Bargaining because it infringes upon the right of the American citizen to participate in the jury process. The debates over the correct response to the frequency of Plea Bargaining will continue to grow as the effects are felt by the entirety of the American Criminal Justice System.

  • Hon. Stephanos Bibas, United States Court of Appeals, Third Circuit
  • Mr. Greg Brower, Shareholder, Brownstein, Hyatt, Farber, Shreck
  • Prof. Carissa Hessick, Anne Shea Ransdell and William Garland "Buck" Ransdell, Jr. Distinguished Professor of Law, University of North Carolina School of Law
  • Mr. Clark Neily, Vice President for Criminal Justice, Cato Institute
  • Moderator: Hon. Lisa Branch, United States Court of Appeals, Eleventh Circuit 

Speakers

3:30 p.m. - 5:00 p.m.
Masterpiece Cakeshop and Its Implications

2018 National Lawyers Convention

Topics: Religious Liberty • Religious Liberties
The Mayflower Hotel - Grand Ballroom
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

The Supreme Court’s decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission was unexpectedly based on religious free exercise (rather than free speech) and the evidence of bias in the proceedings of the state commission. This panel will explore the opinions in Masterpiece Cakeshop and the implications of the case for the First Amendment’s religion and speech guarantees. Among the topics discussed will be the differences among the majority and concurring opinions on the free exercise and free speech issues, whether the free exercise holding will have wider reach beyond the specific facts about the Colorado commission’s handling of the case, and implications of Masterpiece Cakeshop for other cases involving freedom of speech or religion and anti-discrimination laws, such as Arlene’s Flowers Inc. v. Washington, which was remanded for consideration in light of the Masterpiece decision.

  • Prof. Thomas C. Berg, James L. Oberstar Professor of Law and Public Policy, University of St. Thomas, Minnesota School of Law
  • Prof. Gerard V. Bradley, Professor of Law, University of Notre Dame Law School
  • Prof. Dale Carpenter, Judge William Hawley Atwell Chair of Constitutional Law, SMU Dedman School of Law
  • Ms. Louise Melling, Deputy Legal Director and Director of Center for Liberty, ACLU
  • Moderator: Hon. Andrew S. Oldham, United States Court of Appeals, Fifth Circuit

Speakers

6:00 p.m. - 7:00 p.m.
Madison Club Reception

2018 National Lawyers Convention

Union Station - Columbus Club
50 Massachusetts Avenue NE
Washington, DC 20002

Share

Description

(Invitation only) BLACK TIE OPTIONAL

6:00 p.m. - 7:00 p.m.
Lawyers Convention Reception

2018 National Lawyers Convention

Union Station - East Hall
50 Massachusetts Avenue NE
Washington, DC 20002

Share

Description

(Ticketed event) Black Tie Optional

7:00 p.m. - 10:00 p.m.
Antonin Scalia Memorial Dinner

2018 National Lawyers Convention

Union Station - Great Hall
50 Massachusetts Avenue NE
Washington, DC 20002

Share

Description

(Ticketed event) Black Tie Optional

10:00 p.m. - 11:00 p.m.
Closing Reception

2018 National Lawyers Convention

Union Station - East Hall
50 Massachusetts Avenue NE
Washington, DC 20002

Share

Description

Co-Sponsored by the Harvard Student Chapter

Back to top
9:00 a.m. - 11:15 a.m.
Showcase Panel II: Balancing Insulation and Accountability of Agency Decisions

2018 National Lawyers Convention

Topics: Administrative Law & Regulation
The Mayflower Hotel - Grand Ballroom
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

Many federal government decisions that affect Americans’ day-to-day lives are made by agencies. Agency decisions, therefore, should maximize net benefits to society. For over 37 years, every president has directed executive agencies to do that through a cost-benefit decisional rule. However, regulatory agencies have sometimes interpreted their authorizing statutes to limit or prohibit this approach, and they may enjoy deference from courts when doing so. Many regulatory experts, including the current Administrator of the Office of Information and Regulatory Affairs, have expressed concern over agencies’ failure to ensure that their decisions do more good than harm.

How do we guarantee that all executive and independent agencies are accountable for their actions, while preserving needed insulation from overbearing political pressure? Does the answer change depending on the mission of the particular agency? Are there problems with the cost-benefit analysis model that create opportunities for agencies to manipulate and justify their actions?

  • Hon. Steven G. Bradubury, General Counsel, United States Department of Transportation
  • Dr. Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science; Director, Penn Program on Regulation, University of Pennsylvania Law School
  • Prof. Susan Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice Trachtenberg School of Public Policy & Public Administration, George Washington University
  • Prof. Catherine M. Sharkey, Crystal Eastman Professor of Law, New York University Law
  • Moderator: Hon. Michael B. Brennan, United States Court of Appeals, Seventh Circuit

Speakers

11:45 a.m. - 2:00 p.m.
General Luncheon

2018 National Lawyers Convention

The Mayflower Hotel - Multiple Rooms
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Description

Lunch Buffet:
Cabinet, Chinese, East, Senate and State Rooms 

Practice Group Sessions & Lunch:
Civil Rights Panel - State Room
Financial Services Panel - Chinese Room 
Telecommunications Panel - East Room 

11:45 a.m. - 2:00 p.m.
The Current Landscape of Telecommunications Law

2018 National Lawyers Convention

Topics: Telecommunications & Electronic Media
The Mayflower Hotel - East Room
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

The Trump administration has emphasized the importance of ensuring existing regulations are not stifling innovation or foreclosing economic opportunities. Earlier this year, under Chairman Ajit Pai’s leadership, the FCC modified several of its internal processes to further promote transparency and public engagement. The FCC has also continued on a path of eliminating outdated regulations. During this event, Chairman Pai will deliver remarks about his work to-date at the Commission and his plans for the coming year. He will give his take on the current telecommunications marketplace and how federal, state, and local governments can best respond to ever-changing technologies. A panel discussion will follow Chairman Pai’s remarks with reactions. Panelists will also share their views of the current telecommunications landscape and the regulatory path to continued American industry leadership.

  • Keynote: Hon. Ajit Pai, Chairman, U.S. Federal Communications Commission

  • Ms. Kathleen Ham, Senior Vice President, Government Affairs, T-Mobile
  • Ms. Nuala O'Connor, President and CEO, Center for Democracy and Technology
  • Mr. K. Dane Snowden, Chief Operating Officer, NCTA - The Internet & Television Association
  • Ms. Jamie Susskind, Chief of Staff and Legal Advisor, Office of Commissioner Carr, Federal Communications Commission
  • Moderator: Hon. Jerry E. Smith, United States Court of Appeals, Fifth Circuit

Speakers

11:45 a.m. - 2:00 p.m.
Revisiting the Community Reinvestment Act

2018 National Lawyers Convention

Topics: Financial Services • Financial Services & E-Commerce
The Mayflower Hotel - Chinese Room
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

It is difficult to find anyone today who is satisfied with how CRA currently works. Its clear and terse statutory purpose is to assess a bank’s record of meeting the credit needs of its entire community.  Subsequent regulation and enforcement practices have expanded Community Reinvestment Act requirements and layered on significant compliance obligations, beyond a view of lending, while narrowing its focus to segments of the community, particularly low- and moderate-income neighborhoods. The geographic assumption of the statute appear increasingly out of step with the expansion of banking through the Internet, mobile banking, and ACH and the apparent lessening importance of brick- and mortar- branch offices as sources of deposits. What is the relevance of the CRA today, and what reforms are appropriate? Or should it be repealed altogether?

  • Mr. Bert Ely, Principal, Ely & Company, Inc 
  • Mr. Deepak Gupta, Founding Principal, Gupta Wessler PLLC 
  • Mr. Keith Noreika, Partner, Simpson Thacher
  • Mr. Jesse Van Tol, Chief Executive Officer, National Community Reinvestment Coalition
  • Moderator: Hon. Joan Larsen, United States Court of Appeals, Sixth Circuit

Speakers

11:45 a.m. - 2:00 p.m.
Discrimination Against Minorities

2018 National Lawyers Convention

Topics: Civil Rights
The Mayflower Hotel - State Room
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

In 2014, Students for Fair Admissions (SFFA) sued Harvard University, alleging that Harvard was violating Title VI of the Civil Rights Act by, among other things, discriminating against Asian Americans in the admissions process. In its recent motion for summary judgment, SFFA presented statistical evidence that Harvard discriminates both in subjective scoring and selection for admission to limit the number of Asian Americans that attend the college. Harvard’s filing denies all of these claims, stating that the statistical model put forth by SFFA is deeply flawed. They argue that the model ignores essential factors, such as personal essays and teacher recommendations, and omits large sections of the applicant pool, such as recruited athletes and legacy applicants. Harvard explains in their rebuttal that once all relevant information is included, there is no evidence of discrimination. The trial began on October 15th in Boston’s Federal District Court. Harvard officials, as well as past and present students, have testified in support of Harvard. This panel will examine the implications of the case, which many believe is destined for the Supreme Court. The resulting decision will set the precedent for college admission processes nationwide and could transform the nation’s higher education landscape. 

  • Prof. Andrew Koppelman, John Paul Stevens Professor of Law, Northwestern University School of Law
  • Dr. Althea Nagai, Research Fellow, Center for Equal Opportunity 
  • Mr. Patrick Strawbridge, Partner, Consovoy McCarthy Park PLLC 
  • Prof. John Yoo, Professor of Law, University of California, Berkeley
  • Moderator: Hon. James C. Ho, United States Court of Appeals, Fifth Circuit 

Speakers

2:15 p.m. - 2:45 p.m.
Address by Alex Azar

2018 National Lawyers Convention

Topics: Federalism • Healthcare • Federalism & Separation of Powers
The Mayflower Hotel - Grand Ballroom
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

  • Hon. Alex Azar, Secretary, United States Department of Health & Human Services

Speakers

3:00 p.m. - 4:30 p.m.
National Security Law & Doing Business Abroad

2018 National Lawyers Convention

Topics: International Law & Trade • International & National Security Law
The Mayflower Hotel - State Room
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

U.S. businesses operating in the global economy, and non-U.S. businesses operating or looking to invest in the United States, must account for an increasingly prominent national security and personal security law architecture applicable to international trade and investment. Businesses in the United States are both the world’s largest foreign direct investors, and the largest single national beneficiary of foreign direct investment from other countries. But as markets and investment opportunities have become increasingly global, protection of national security interests has become an important consideration for many governments. While the term "national security" naturally conjures up images of military and intelligence matters, the link between trade, investment, and national security has become more prominent for policymakers. Although national security reviews of foreign investment, such as the process conducted by the Committee on Foreign Investment in the United States (CFIUS), perhaps receive the most public and media attention, there are a host of other security-related concerns that must be navigated by companies operating in the global environment: requests to assist the home state government with intelligence and criminal investigations; ensuring that products and services sold outside of the U.S. are done in compliance with applicable U.S. and foreign trade sanctions and import/export licensing regimes; and maintaining data privacy/security and robust cybersecurity protections. Our panel of seasoned general counsels and national security experts will explore the intersection of private sector commerce and national security.

  • Mr. William J. Haynes II, Former General Counsel of the Department of Defense
  • Mr. Timothy J. Keeler, Partner, Mayer Brown
  • Prof. Randal S. Milch, Co-Chair, NYU Center for Cybersecurity; Distinguished Fellow, Center on Law and Security; Professor of Practice, New York University School of Law
  • Mr. Donald J. Rosenberg, Executive Vice President, General Counsel and Corporate Secretary, Qualcomm Inc.
  • Moderator: Mr. Eric J. Kadel, Jr., Partner, Sullivan & Cromwell LLP

Speakers

3:00 p.m. - 4:30 p.m.
Say What You Will?: Government Compelled Speech

2018 National Lawyers Convention

Topics: First Amendment • Free Speech & Election Law
The Mayflower Hotel - District Room
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

When can the government require you to speak, or to host speech on your property, or to pay for speech you dislike? Three of the Court’s 2018 cases – the Masterpiece Cakeshop wedding cake/same-sex wedding case, the Janus union dues case, and the National Institute of Family and Life Advocates pregnancy crisis center case -- all involved this question. So do many other matters that are in the news: For instance, the controversy over whether people can be required to use particular pronouns to refer to others is in large measure a controversy about compelled speech. But the law in this area is surprisingly complicated, ambiguous, and unsettled. This panel will consider what the law is, and what the law ought to be.

  • Prof. Mark L. Rienzi, Professor of Law, Columbus School of Law, The Catholic University of America
  • Prof. Amanda Shanor, Assistant Professor, Legal Studies & Business Ethics, The University of Pennsylvania Wharton School
  • Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, University of California Los Angeles School of Law
  • Moderator: Hon. Sandra Segal Ikuta, United States Court of Appeals, Ninth Circuit 

Speakers

3:00 p.m. - 4:30 p.m.
Evolution of the District Courts

2018 National Lawyers Convention

Topics: Federal Courts
The Mayflower Hotel - Grand Ballroom
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

Over the past several decades, the workload of federal district courts has changed significantly. On the civil side, perhaps as litigants seek to avoid the expense of elaborate discovery and prolonged motions practice and trials, more and more cases are resolved through alternative dispute resolution. On the criminal side, more and more cases are resolved through plea bargaining. The result is fewer and fewer trials. Our panel will discuss these phenomena, and their implications. What are the causes of these evolutions? Is there a lasting impacts on judges themselves? Are lawyers now required to hone different skills? Is there a lasting effect on the administration of justice, and civil society more generally?

  • Hon. Thomas Hardiman, United States Court of Appeals, Third Circuit
  • Hon. Michael B. Mukasey, Of Counsel, Debevoise & Plimpton, LLP
  • Hon. William E. Smith, Chief Judge, United States District Court, District of Rhode Island
  • Hon. Amul Thapar, United States Court of Appeals, Sixth Circuit
  • Moderator: Hon. Carlos T. Bea, United States Court of Appeals, Ninth Circuit

Speakers

5:00 p.m. - 5:45 p.m.
18th Annual Barbara K. Olson Memorial Lecture

2018 National Lawyers Convention

The Mayflower Hotel - Grand Ballroom
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

On September 11, 2001, at the age of 45 and at the height of her professional and personal life, Barbara Olson was murdered in the terrorist attacks against the United States as a passenger on the hijacked American Airlines flight that was flown into the Pentagon. The Federalist Society believes that it is most fitting to dedicate an annual lecture on limited government and the spirit of freedom to the memory of Barbara Olson. She had a deep commitment to the rule of law and understood well the relationship between respecting limits on government power and the preservation of freedom. And, significantly, Barbara Olson was an individual who never took freedom for granted in her own life, even in her final terrifying moments-her inspiring and energetic human spirit is a testament to what one can achieve in a world that places a premium on human freedom.

  • Hon. Jeffrey Sutton, United States Court of Appeals, Sixth Circuit
  • Introduction: Mr. Eugene B. Meyer, President, The Federalist Society

For more on Barbara Olson and the Barbara K. Olson Memorial Lecture Series, follow this link.

Speakers

5:45 p.m. - 7:30 p.m.
Barbara K. Olson Memorial Reception

2018 National Lawyers Convention

The Mayflower Hotel - East & State Rooms
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Description

This is a ticketed event. To be admitted to this reception, you must purchase either an All-Inclusive ticket or a single Barbara K. Olson Memorial Lecture & Reception ticket.

Back to top
9:00 a.m. - 10:45 a.m.
Showcase Panel III: The States & Administrative Law

2018 National Lawyers Convention

Topics: Administrative Law & Regulation
The Mayflower Hotel - Grand Ballroom
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

We live in a system where regulators make the rules, investigate alleged violations of the rules, and then adjudicate those violations before Administrative Law Judges. If the matter ever gets to court, courts generally defer to the agency on questions of law “and fact.” As a result, agencies know that their regulations are unlikely to face challenge and, if they are challenged, will likely be upheld. In this system, critics argue, the predictable result is more and more irrational regulations and enforcement actions. Arizona has first-of-its-kind legislation to “reverse” Chevron and to instruct courts to give no deference to agency decisions on questions of law. On a related note, Arizona also passed the Right to Earn a Living Act, creating a cause of action to challenge occupational licensing decisions under a heightened standard of review. Some contend that the result of this new law has been significant in that regulators are reviewing and improving rules, or repealing them outright, rather than face litigation. Could these measures serve as a model other states and the federal government in reducing the size and scope of, and otherwise improving the Administrative State?

  • Prof. Nestor Davidson, Albert A. Walsh Chair in Real Estate, Land Use, and Property Law; Faculty Director, Urban Law Center, Fordham University School of Law
  • Prof. Chris Green, Associate Professor of Law and H.L.A. Hart Scholar in Law and Philosophy, University of Mississippi School of Law 
  • Prof. Miriam Seifter, Professor of Law, University of Wisconsin Law School 
  • Hon. Jeffrey Sutton, United States Court of Appeals, Sixth Circuit
  • Moderator: Hon. Michael Scudder, United States Court of Appeals, Seventh Circuit

Speakers

11:00 a.m. - 12:30 p.m.
Climate Change Nuisance Suits

2018 National Lawyers Convention

Topics: Environmental & Energy Law • Environmental Law & Property Rights
The Mayflower Hotel - East Room
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

Should climate change responsibility be evaluated in the courts or by the elected policymaking branches? Several municipalities in multiple states have filed lawsuits against energy companies claiming those entities are liable for billions in damages for climate change based on theories of public nuisance and other tort theories. On June 25, 2018, Judge William Alsup of the U.S. District Court for the Northern District of California issued the first major ruling in one of these cases, dismissing one such lawsuit brought by the cities of Oakland and San Francisco against BP, Chevron, ConocoPhillips, ExxonMobil, and Royal Dutch Shell. On July 19, 2018, New York City similar action was dismissed by a second federal district judge. These rulings are likely to have an impact on similar pending lawsuits and to set precedents regarding whether and how the courts can be accessed to bring climate change-associated liability claims.

But in Juliana v. United States, Oregon federal district court judge Ann Aiken has allowed a similar case, filed against the federal government and asserting (inter alia) substantive-due-process and public trust claims, to proceed. On July 30, 2018, and again on November 2, 2018, the United States Supreme Court denied the United States Department of Justice’s applications for a stay of the case without prejudice, noting in the first instance that the request was premature and in the second instance that adequate relief could be available in the Ninth Circuit without needing to obtain relief in the Supreme Court. The Supreme Court noted that “[t]he breadth of respondents’ claims is striking,” and that “the justiciability of those claims presents substantial grounds for a difference of opinion.” Meanwhile, a petition for mandamus remains pending before the Court, and further appellate orders in the case seem likely to be entered soon.

What is the proper scope and meaning of public nuisance and the public trust doctrine? What is the proper role of the courts in resolving issues of climate change causation, traceability, and impact? Should courts allocate costs, if any, when so many individuals and entities are engaged in actions alleged to harm the climate; and, if so, how? This panel will discuss ongoing climate-change-related public nuisance and public trust litigation and examine the major issues raised by the cases.

  • Mr. David Bookbinder, Chief Counsel, Niskanen Center  
  • Mr. Eric Grant, Deputy Assistant Attorney General, Environment and Natural Resources Division, United States Department of Justice
  • Prof. James Huffman, Emeritus Dean and Professor of Law, Lewis & Clark Law School
  • Mr. Mark W. Smith, Founder, Smith Valliere PLLC
  • Moderator: Hon. John K. Bush, United States Court of Appeals, Sixth Circuit

Speakers

11:00 a.m. - 12:30 p.m.
Technology, Social Media and Professional Ethics

2018 National Lawyers Convention

Topics: Professional Responsibility & Legal Education
The Mayflower Hotel - State Room
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

To what extent can the legal community engage in social media: a critical means to connect and network in the 21st century? To what degree are judges held to higher standards when posting, liking, and retweeting what may be controversial content? In this day and age, when much of America gets its news from social media, the legal community can ill afford to disengage. Justice Don Willett of the Texas Supreme Court, who has been dubbed “the most famous judge on Twitter,” due to his commentary on sports, family, politics, and cultural issues, said he errs on the side of self-censorship: “Usually what goes through my mind before I hit the tweet button is, did I misspell or mis-grammatize anything, but also, is this worth polluting the interwebs with for posterity?”

The possibility of endangering a citizen’s view of their lawyer or an unbiased judiciary seems clear. Critics of the practice argue that a judge should have a more controlled demeanor than is conducive to frequent, polarizing online posting. On the other hand, David Lat, founder of the popular Above the Law blog, has the view that we should be more concerned about what judges and lawyers are writing in their opinions and briefs than online on personal accounts. This panel aims to discuss the tenuous ground on which advocates and judges must tread in the coming years.

  • Prof. Josh Blackman, Associate Professor of Law, South Texas College of Law 
  • Mr. John Browning, Shareholder, Passman & Jones 
  • Hon. Stephen Dillard, Chief Judge, Georgia Court of Appeals 
  • Mr. David Lat, Founder, Above The Law 
  • Moderator: Hon. Don Willett, United States Court of Appeals, Fifth Circuit 

Speakers

12:30 p.m. - 2:30 p.m.
Eleventh Annual Rosenkranz Debate & Luncheon

2018 National Lawyers Convention

Topics: Constitution • Federal Courts
The Mayflower Hotel - Grand Ballroom
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

RESOLVED: District courts do not have the authority to enter universal injunctions.

  • Prof. John Harrison, James Madison Distinguished Professor of Law, University of Virginia School of Law
  • Mr. Neal Katyal, Partner, Hogan Lovells US LLP
  • Moderator: Hon. Beth A. Williams, Assistant Attorney General, Office of Legal Policy, United States Department of Justice

Speakers

2:45 p.m. - 4:30 p.m.
Showcase Panel IV: Does Agency Regulatory Power Extend Beyond its Formal Power, and Should It?

2018 National Lawyers Convention

Topics: Administrative Law & Regulation
The Mayflower Hotel - State Room
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

The Federalist Society’s Regulatory Transparency Project working group on agency enforcement and coercion released a report on July 5, 2017, which detailed numerous instances of potential coercive behavior by agencies. Additionally, the Administrative Conference of the United States (ACUS) sponsored a study in 2017 of agency guidance—advisories, interpretive letters, enforcement manuals, fact sheets, FAQs, etc. The ACUS study drew on interviews with 135 individuals across agencies, industries, and NGOs, finding that regulated parties often (though not always) have no practical choice but to follow informal agency guidance even when it is not mandatory. The ACUS report concluded that certain structural features of modern regulation—while not dismissing the concern of intentional or deliberate abuse—impose a strong incentive on regulated parties to figure out what an agency wants, even beyond the limits of its legal authority, and to do just that, regardless of the format in which agency wants are expressed. Can agency coercion be reduced or eliminated without reducing needed discretion in the agency?

  • Hon. C. Boyden Gray, Founding Partner, Boyden Gray & Associates
  • Prof. Kristin Hickman, Distinguished McKnight University Professor and Harlan Albert Rogers Professor in Law, University of Minnesota Law School
  • Prof. Sally Katzen, Professor of Practice and Distinguished Scholar in Residence; Co-Director of the Legislative and Regulatory Process Clinic, New York University School of Law
  • Prof. Nicholas Parrillo, Professor of Law, Yale Law School
  • Moderator: Hon. David Stras, United States Court of Appeals, Eighth Circuit 

Speakers

4:30 p.m. - 5:30 p.m.
John Marshall: The Man Who Made the Supreme Court

2018 National Lawyers Convention

Topics: Founding Era & History • Supreme Court
The Mayflower Hotel - State Room
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Event Video

Description

  • Mr. Richard Brookhiser, Senior Editor, National Review and Author, John Marshall: The Man Who Made the Supreme Court 
  • Hon. S. Kyle Duncan, United States Court of Appeals, Fifth Circuit
  • Hon. Kevin Newsom, United States Court of Appeals, Eleventh Circuit
  • Mr. David B. Rivkin, Jr., Partner, BakerHostetler
  • Moderator: Hon. William H. Pryor, Jr., United States Court of Appeals, Eleventh Circuit

Speakers

5:30 p.m. - 7:00 p.m.
Closing Reception & Book Signing

2018 National Lawyers Convention

The Mayflower Hotel - Palm Court Ballroom
1127 Connecticut Avenue, NW
Washington, DC 20036

Share

Description

All registrants are welcome to attend the Closing Reception.

Book Signing:

  • John Marshall: The Man Who Made the Supreme Court by Richard Brookhiser

Speakers

Back to top