FedSoc LiveBlog: Barbara K. Olson Memorial Lecture featuring Hon. Douglas H. Ginsburg

Barbara K. Olson Memorial Lecture
Friday, Nov. 13
5:15 p.m. – 5:45 p.m.
Grand Ballroom

- Hon. Douglas H. Ginsburg, U.S. Court of Appeals, D.C. Circuit

FedSoc LiveBlog: Address by Mark Levin, Author of Liberty and Tyranny: A Conservative Manifesto

Address
4:30 p.m. – 5:30 p.m.
State Room

• Mr. Mark R. Levin, President, Landmark Legal Foundation and Author of Liberty and Tyranny: A Conservative Manifesto

Introduction by Leonard Leo

The Federalist Society is so great the libs made up their own society. What’s it called? The American what?

The key to America’s greatness is the civil society, recognizes individual as unique social order.

The Civil Society hjas a cultural identity of traditions and customs. In the civil society private property and liberty are inseparable.

Property is manifestation of individual’s labor. Just and predictable rule of law undergirds civil society.

Modern liberal is not liberal at all. Classical liberal is opposite of authortarian. Modern liberal is a statist. He promotes a soft tyranny. A statist is at war with the Civil Society. They reject the Declaration of Independence.

Stop giving statists the benefits of the doubt.

Langauge most pernicious tool of the statistis.

Lincoln- “We all proclaim liberty. But we don’ t all mean the same thing.”

And I stopped blogging here. This was an overtly political speech, and was not appropriate for a Federalist Society event. I heard many grumblings in the reception following. I took some video, but not worth the time to publish and post it.

FedSoc LiveBlog: Delaware’s New Competition: The Creeping Federalization of American Corporate Law featuring Steven Bainbridge

Corporations: Delaware’s New Competition: The Creeping Federalization of American Corporate Law
Saturday, Nov. 14
10:45 a.m. – 12:15 p.m.
State Room

• Prof. Stephen M. Bainbridge, William D. Warren Professor of Law, University of California, Los Angeles School of Law
• Mr. Cornish F. Hitchcock, Hitchcock Law Firm PLLC
• Mr. David A. Katz, Partner, Wachtell, Lipton, Rosen & Katz
• Prof. Roberta Romano, Oscar M. Ruebhausen Professor of Law and Director, Yale Law School Center for the Study of Corporate Law
• Moderator: Hon. Thomas M. Hardiman, U.S. Court of Appeals, Third Circuit

Corporations: Delaware’s New Competition: The Creeping Federalization of American Corporate Law

Saturday, Nov. 14 – Hayes Edwards and Joel G. Miller

10:45 a.m. – 12:15 p.m.

State Room

Moderator: Hon. Thomas M. Hardiman, U.S. Court of Appeals, Third Circuit

Prof. Stephen M. Bainbridge, University of California, Los Angeles School of Law

For last 200 yrs in US, corporations have been subject to state governance

Incorporation in one state does not preclude from doing business in another state

This results in competitive federalism, there is competition to attract the most number of corporations

Many regard this as a race to the bottom, by offering managers laws to enrich themselves at expense of investors

Others suggest the race is to minimize needed capital

Others deny that there is a race at all

Delaware has attracted many corporations

Delaware faces a new competitor in the federal government

Corporate governance remained in state control until 2002

Federal control and regulation has increased under Obama Admin

Substantial possibility that there will be permanent federal intrusion into corporate governance

The issues in play, then, are:

1 Say on pay

2 Shareholder access and ability to nominate directors

3 Mandates for majority voting

4 Creation of non-executive chairmen

5 Classified boards of directors

6 Compensation

Bottom line is the environment of horizontal competition between states is being replaced by vertical competition, primarily between the federal government and Delaware

As Fed more willing to intrude in this way, are we more likely to see more efficienct rules or less efficient rules that allow less free for companies

More after the jump.

FedSoc LiveBlog: Telecommunications: Broadband Policy — One Year In

Telecommunications: Broadband Policy — One Year In
10:45 a.m. – 12:15 p.m.
East Room

• Prof. Marvin Ammori, University of Nebraska-Lincoln College of Law
• Hon. Robert M. McDowell, Commissioner, Federal Communications Commission
• Hon. David M. McIntosh, Partner, Mayer Brown Row & Maw, LLP
• Hon. Kyle E. McSlarrow, President & CEO, National Cable & Telecommunications Association
• Prof. Gigi B. Sohn, President and Founder, Public Knowledge
• Moderator: Hon. Jennifer W. Elrod, U.S. Court of Appeals, Fifth Circuit

Commissioner McDowell – Introductory Remarks

• This year may be busiest year for FCC ever
• In addition to normal duties, stimulus act requires national broadband plan by Feb. 17
• Every aspect of society is affected by the Internet
• Only been privatized 15 years ago, developing very quickly
• Our economy is dependant upon it
• Broadband ubiquity could cost 20 Billion – 350 Billion
• Questions:

-       How can the gov’t provide incentives for private sector investment to achieve this goal?

-       Is the Internet broken?  If so, should the gov’t fix it?

-       How has factual landscape changed in recent years?

-       Are non-state controlled orgs able to resolve network management problems?

-       Can FCC resolve the technical difficulties?

-       Will US regulations2 spark international retaliation?

-       Will gov’t intervention spark abuse?

-       Does the FCC have statutory authority to regulate the Internet?

-       What affects will regulation have on the current ecosystem (infrastructure, current investments?

• Remember, regulations on corporations are subject to first-amendment analysis as well.  This includes the corporations’ right to free speech.
• 5^th amendment issues – depriving corporations’ use of property.
• Let’s hope that what is not broken does not end up broken.
• Let’s hope tat competition is inspired by whatever regulation that is established.

More after the jump.

FedSoc LiveBlog: Showcase Panel IV: Control of the Bureaucracy

Showcase Panel IV: Control of the Bureaucracy
2:30 p.m. – 4:15 p.m.
State Room

• Prof. Geoffrey P. Miller, Stuyvesant P. Comfort Professor of Law, Director, Center for the Study of Central Banks and Financial Institutions, New York University School of Law
• Hon. Harvey L. Pitt, Chief Executive Officer, Management, Kalorama Partners, LLC
• Hon. Steven Wallman, Chief Executive Officer, Foliofn
• Moderator: Hon. A. Raymond Randolph, U.S. Court of Appeals, D.C. Circuit

Dick Cheney to Judge Randolph: “In Congress it’s not whether you win or lose. It’s how you place the blame.”

FedSoc LiveBlog: Annual Rosenkranz Debate and Luncheon: The United States Constitution Requires Federal Courts to Interpret Statutes as Honest Agents of the Enacting Congress

Annual Rosenkranz Debate and Luncheon: Statutory Interpretation
RESOLVED: The United States Constitution Requires Federal Courts to Interpret Statutes as Honest Agents of the Enacting Congress
Saturday, Nov. 14
12:30 p.m. – 2:30 p.m.
Grand Ballroom

• Hon. Guido Calabresi, U.S. Court of Appeals, Second Circuit
• Hon. Frank H. Easterbrook, U.S. Court of Appeals, Seventh Circuit
• Moderator: Prof. John F. Manning, Bruce Bromley Professor of Law, Harvard Law School

Easterbrook

Calabresi

Manning-

25 years ago, statutory interpretation was not very important, and received little attention. This topic source of energetic debate. Intentionalists an Purpovists and Textualists

Defend the proposition when interpreting statutes judges should be honest agents of the enacting legislature. Fiathful application of statutes part of our heritage from UK: “judicial power in Article III”

Take care that the laws be “Faithfully” executed. Judges cannot be allowed to depart from faithful execution when the Executive cannot.

The real question: Faithful to the enacting legislature, or to the sitting legislature? Later enacted statues and treat earlier statues as part of common, if not statutory law. (Common law in the age of statues- Calabresi)

1. Our Constitution makes certain procedures essential to law. Majority vote, both houses must enact same text during same session, President must give assent unless override veto. Terms limited to 2, 4,6 years. Judges can’t conceive of legislatures as in perpetual tenure. Only what officials do during their term counts as law. opinion poll is not law, even if poll is 100% sure represents legislature law. West VA v. Casey, litigant argues that if Congress thought of this in 1871, they would have thought of shifting of expert fees. Justices though this exercise illegitimate. Judges are not authorized to engage in this exercise.

Stevens, J. dissent: ” The fact that Congress has consistently provided for the inclusion of expert witness fees in fee-shifting statutes when it considered the matter is a weak reed on which to rest the conclusion that the omission of such a provision represents a deliberate decision to forbid such awards. Only time will tell whether the Court, with its literal reading [n.19] of 1988, has correctly interpreted the will of Congress with respect to the issue it has resolved today.”

THe only will of Congress taht counts is will htat satisifes bicamerlaism and presentment requirements

2. Limiting interpretation to enacting congres. Clauses enacted as package. Arguments that today’s congress would do X, considers that Legislatures would act in that exact way. But if proposal has support, someone always adds amendment. E.g., Stupak Amendment.

Civil Rights of 1991. Justices were sure legislature would overturn the law. Act also changed some decisions that favored plaintiffs, set caps on damage awards. Pro-worker provisions could not have been passed by pro-employer. Any prediction by Judge on one issue would not consider resolution of other issues.

3. Judicial attempts to predict what congress will do is difficult.

Illinois Brick Company v. Illinois, Brennan predicted in dissent Congress would change law, so the Court should allow the law to change without having the Bill go through congress.

“When a Judge says I’m confident today’s congress will propose X, it really means, I favor X”

Guide, and More, after the Jump

FedSoc LiveBlog: Breakdown of the Public-Private Distinction: Implications for the Administrative State

Administrative Law: Breakdown of the Public-Private Distinction: Implications for the Administrative State
Saturday, Nov. 14
10:45 a.m. – 12:15 p.m.
Chinese Room

Mr. David Berenbaum, Executive Vice President, National Community Reinvestment Coalition

Mr. David G. Leitch, Group Vice President and General Counsel, Ford Motor Company

Prof. J.W. Verret, Assistant Professor of Law, George Mason University School of Law

Prof. David Zaring, Assistant Professor of Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania

Moderator: Hon. Ronald A. Cass, President, Cass & Associates, PC

Leitch

Public Corporations regulated by public agencies

Basic regulatory model subject to a variety of regulations that blur line between public and private

First widespread use of government corporations came during WWI, Great Drepression, and WWII

WWII, 58 Gov corporations

Government Corporation Control Act cut back on number of gov corporations and increased transparency and accountability

Government appointed boards of directors. Some designated agencies of United States, some not.

Some owned or controlled by the government.

Line has blurred.

GM & TARP. GM Financial Institution within meaning of TARP.

GM Bailout done on “thinnest of legal reads.” It was rushed and minimal debate.

Executive only stepped in after House bill died.

Clear example of raw executive power with no discernible power.

Looking forward, no guidance in law from government’s ownership of GM. How should gov manage GM? What are rights and duties? Should goal be to maximize taxpayer recover?

This is not the rule of law, but extreme deference to the executive.

More, after the jump.

FedSoc LiveBlog: Showcase Panel III: Regulation of Financial Institutions featuring Judge Jones, Hon. Paul Atkins and Paul Mahoney

Showcase Panel III: Regulation of Financial Institutions
Saturday, Nov. 14
9:00 a.m. – 10:30 a.m.
Grand Ballroom

- Hon. Paul S. Atkins, Congressional Oversight Panel and Former U.S. SEC Commissioner
- Ms. Stephanie R. Breslow, Partner, Schulte, Roth & Zabel LLP
- Dean Paul G. Mahoney, David and Mary Harrison Distinguished Professor of Law,  Arnold H. Leon Professor of Law, University of Virginia School of Law
- Hon. Annette L. Nazareth, Partner, Davis Polk & Wardwell LLP
- Moderator: Hon. Edith H. Jones, U.S. Court of Appeals, Fifth Circuit

The real way to fix financial institutions:

Judge Jones, quoting Reagan:

“If it moves, tax it. If it moves too fast, regulate it. If it stops moving, subsidize it.”

Mahoney-

Insufficient or lax regulation was not the cause of financial crisis. Crisis due to mistake in monetary policy. Collapse of tech stops, 9/11, Enron, Feds reduced short-run interest rates.

Taylor rule could be used to predict changes in short-term rates.But feds continued to ease and kept lowering it. At the same time house prices increased dramatically.

Whenever there are long-term short interest rates in high inflation, people will want to buy at short-term rates in hope of quick appreciation and quick profit. Adjustable rate mortgages accomplished this.

Possible explanations-

1. Failure of Consumer Protection- banks tricked customers by offering low teaser rates. But when short term rates unusually low, people wanted to borrow short in order to borrow long. Why were banks so easy to make the loan?

2. Repeal of Glass Steagle by GLB, allowed banks to affiliate with investment firms. Doesn’t explain why commercial and investment banks got into trouble.

3. Executive compensation focus on short term.

More, after the jump.

FedSoc LiveBlog: The Fairness Doctrine featuring Thomas Hazlett and Seton Motley

Free Speech: The Fairness Doctrine
Friday, Nov. 13
3:15 p.m. – 4:45 p.m.
State Room

- Prof. Thomas W. Hazlett, Professor of Law & Economics, George Mason University
- Mr. Seton Motley, Communications Director, Media Research Center
- Prof. Jamin Ben Raskin, Director, Law and Government Program, Washington College of Law, American University College of Law
- Moderator: Hon. David B. Sentelle, U.S. Court of Appeals, D.C. Circuit

Mr. Seton Motley, Media Research Center

Radio act was designed to regulate transmissions for public and those from ships, etc

No limitations on ideas

-Fairness doctrine rescinded in 1987

-Since it was rescinded, we’ve had a blossoming of new ideas in new forums, which wouldn’t exist without rescinding the doctrine

-You should not apply rules against free speech on one venue and not others

-Going forward we need to be wary of limiting

-The left wants to shut down voices with which they don’t agree. The jig is up

-The battle today is in the concept of media diversity and localism, not the fairness doctrine

 

(Rebuttal)

Public interest best judged by what the public is interested in

They’ll vote with what they listen to

Liberal radio has failed

The voice of public is being heard because they’re voting with what they listen to

It’s not the case that the people owning the airwaves is the same as the government owning it

 

Hon. Jamin Ben Raskin, American University Washington College of Law

-Just because everybody’s being treated the same way, it doesn’t mean it fair

-The Fairness Doctrine was Constitutional, but whose values need to be updated for today

-Unfairness doctrine: when public resources are converted to private use

-FCC created to alleviate the problems associated with over-competition in early days of radio

-Broadcasters required by FCC to evenhandedly offer time to groups with differing views

-Supreme Court held that this is a scarce resource, so there’s nothing wrong with placing conditions on its use

-Conservatives don’t seem to care about the “decency” rules

-The policy was Constitutional and warranted, but that doesn’t mean it worked very well

-Enforcement a tough administrative task

-But that doesn’t mean it’s partisan

 

(Rebuttal)

I consider myself a very strong defender of free speech

Are you arguing for a total deregulation?

If you we’re going to deal with current situation, we need to think about media conglomeration, which poses a greater threat to free speech than the fairness doctrine could

-The right of reply was designed to give people who were attacked an opportunity to respond

-No one is arguing to bring the fairness doctrine back

-This debate is a proxy for current debates about core issues like media conglomeration

 

Prof. Thomas W. Hazlett, George Mason University School of Law

-Red Lion decision notes that if there had been information that the decision would have a chilling effect, that it would have been decided differently

-Lifting the restraint of the Fairness Doctrine in 1987

-There isn’t really a debate about whether there is a chilling effect associated with the FD

-People who want the fairness doctrine typically say that they want to chill certain views

-The fact that there is a finite number of radio licenses is a complete myth

-They are no different than any other property right

-It’s an imaginary concept that has stumbled all the way to twenty-first century

-Public interest doctrine came directly from the FCC

-Limits on competitive entry helped radio corporations and regulators,

Now it’s time for the first amendment to give the rest of us what we want

-Airwaves should be treated as any other commodity, as private property

-We should turn the FCC into a court, which would rule on property rights

-Cable news looks a lot more like free speech that the 1970s when news came through three lookalikes, whose executives were having dinner at the white house, by the way

FedSoc LiveBlog: Address by Hon. Michael B. Mukasey, Partner, Debevoise & Plimpton and Former U.S. Attorney General

Address by the Honorable Michael B. Mukasey

2:15 p.m. – 3:00 p.m.

Introduction

Tells how Mukasey, before being confirmed as Attorney General, said that if President did anything against Constitution he would tell him to change course or he would quit.  So when Congress tried to stop wiretapping, he refused to seek confirmation votes, stating that the statute cannot change the Constitution, which allowed President to defend the nation.

General Mukasey stands to a standing ovation

Commends introducer for fighting against injustice rather than suffering, at considerable expense to himself.

Jokes that he will pick up where he left off last year.  (audience laughter)

References the news this morning that principle operative and mastermind of 9/11 will be brought to U.S. to stand trial.  He considers the decision to be unwise and shows a refusal to accept that we are at war with a religiously idealistic people determined to kill us.

But first some good news on intelligence gathering:

Amendments passed in 2008 have been beaten back, and intelligence gathering authorities have stayed in place. Foreign security specialists were used to devise plans for tracing international money transfers.  DHS said they had used the same type of technique under Bush, what an official called continuity we can believe in. (audience laughter)

More after the jump.