Federalist Society LiveBlog: My Interview with Professor Richard Epstein

Richard Epstein is my idol. He is the man. I can’t believe I just did this interview. Wow.



FedSoc LiveBlog: Civil Rights – Affirmative Action in the Obama Era

Civil Rights: Affirmative Action in the Obama Era
Thursday, Nov. 12
3:45 p.m. – 5:15 p.m.
East Room and State Room

– Ms. Shirley J. Wilcher, Executive Director, American Association for Affirmative Action
Prof. Theodore M. Shaw, Professor of Professional Practice, Columbia University School of Law
Ms. Linda L. Chavez, Chairman, Center for Equal Opportunity
Hon. Peter N. Kirsanow, Commissioner, U.S. Commission on Civil Rights
Moderator: Hon. Carlos T. Bea, U.S. Court of Appeals, Ninth Circuit

Ms. Linda L. Chavez, Center for Equal Opportunity

When I saw “This Week” on abc, I was very concerned along with many Americans about the motives

of the alleged crimes of the Fort Hood attacks

-Did the army drop the ball in failing to investigate activities of Officer Hasan

General George Casey: What happened is a tragedy. I think it would be a greater tragedy if

“diversity became a tragedy” there too.

It is an attack, not a tragedy, for a military officer to kill fellow soldiers

General Casey should be fired for his statements, but he won’t be, because the “diversity at any cost”

rationale epitomizes a double standard in judging individuals

What we are really saying is that protecting diversity is more important than protecting lives, and if

that’s the case the world has gone mad.

It’s this idea of diversity that permeates every institution in American life.

We’ve become inured to the idea that this perspective is offensive

The Obama admin has also clearly signaled a change from Bush in “disparate impact”

-The admin has filed a case challenging the physical ability test of Mass prison guards on basis of


-The test is based on activities, which simulate on-the-job duties

Some of us hoped that in voting in a new president we would get back to the original idea behind Civil

right legislation

This administration is promoted to diversity no matter what the cost.

More after the jump

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FedSoc LiveBlog: Federalism and the Economic Crisis featuring John C. Eastman, Malcolm M. Feeley, and Ilya Somin

Federalism: Federalism and the Economic Crisis 3:45 p.m. – 5:15 p.m.  
Grand Ballroom

  • Dean John C. Eastman, Dean and Donald P. Kennedy Chair in Law, Chapman University School of Law
  • Prof. Malcolm M. Feeley, Claire Sanders Clements Dean’s Chair Professor of Law, University of California Berkeley School of Law, Boalt Hall
  • Prof. Roderick M. Hills, William T. Comfort, III Professor, New York University School of Law
  • Prof. Ilya Somin, George Mason University School of Law

Moderator: Hon. Jeffrey S. Sutton, U.S. Court of Appeals, Sixth Circuit

John Eastman

Discussing spending clause, and need to have it related to enumerated power. Spending had to be for general welfare, not local or regional welfare. General meant national welfare, like common defense.

President would veto bills in 19th Century as unconstitutional that spent on local concerns.

Malcolm Feeely

They need someone from Berkeley and John Yoo is too busy working for John Eastman.

Brutus warned people to be aware of Federalist 78.

Federalism is not a viable idea in modern administrative state, and almost all federalism doctrine is incoherent.

Federalism is just a euphemism for decentralization

Ilya Somin

Judge Sutton zings him for going to Amherst, #2 to Williams.

Discussing his article about Federalism and Star Trek.

Consider the impact of federalism on the current economic crisis. He will suggest there are 2 ways the current crisis poses a threat. Reliance of state govs on federal funds, and expansion of federal regulations.

Why should we care which functions federalism prefers? We should value decentralization. Much of beneficial decentralization can only be achieved if we have constitutional and other structural constraints on the Federal Gov.

We want federalism to protect diversity of policy in a large nation with diverse interests. Need decentralization of authority to achieve some of that.

Diversity and competition promotes innovation and better policy. If states compete for labor and capital, incentive to adopt better policies. Enable people to vote with their feet and at the ballot box. Foot voting ahs important benefits over ballot box voting. With ballot box voting we tend to be rationally ignorant. Little chance vote can change the outcome, not much of an incentive.

Economic crisis has expanded federal power. States reliant on federal grants for revenue sources

If you can get money from federal sugar daddy, why get it from states?

Federal policies requires states to follow certain policies, decreases range of issues to engage in competition and innovation. Grants unlikely to be rolled back after crisis ends. Just because crisis ends doesn’t mean states won’t continue to lobby.

General welfare clause does not mean whatever Congress said it mean. Pessimistic court will roll it back. Courts are moving further in wrong direction.

Easier to bribe states through spending clause than through commandeering.

Roderick M. Hills

Federal courts can’t and shouldn’t and don’t need to impose limits on Congress’s spending clause power.

There are constitutional limits on spending power, and are rooted in general welfare clause, but have never been enforced by Courts, they have been enforced by President.

6th Circuit case discussing No Child Left Behind, split 8-8. (Judge Sutton is on the panel).

Judge Sutton, Moderating

Why can’t there be a judicially enforced federalism?

Feeley- Political problem, political will. not a federal system in the world that has a judicially enforced federalism system.

Somin- general welfare cannot be read so broadly to subsume common defense clause. Judges often vote their policy preferences, but over time as we develop a precedent, there can be a cross-ideological agreement.

Question- There are no interest groups in favor of federalism? States do not want federalism. Interest groups do not want it.

Hills- I do want federalism, but spending clause takes care of itself.

Somin- 17th amendment did not destroy Senators. Most states had committed to have popular election of senators. State legislatures like federal funds, have reasons to support expansion of federal power, not obvious that popularly elected senators, many of whom are bad people, may not represent federalist needs.

Ron Rotunda Question- States cannot turn down money. In stimulus bill, state legislature can override Governor’s veto. Governor from South Carolina turned it down, but then he went on a vacation to Argentina.

Feely- No one would fight for their state. Sutton: Ever go to a Ohio State/Michigan Game?

Pics after the jump

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FantasySCOTUS.net: By Popular Demand, League Feature in the work

After 24 hours, over 700 people have joined FantasySCOTUS.net.

I am currently developing a league feature. Schools, Law Firms, and Friends can now sign up to compete. Stay tuned.

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Federalist Society LiveBlog: Interview with Professor Ilya Somin, Right on the Constitution, Wrong on Baseball

It’s tragic such a bright mind can fall prey to rooting for an inferior baseball team, the Boston Red Sox. While he is a debate champion, he cannot rebut the virtue of the Yankees World Series Win, and must result to pejorative attacks comparing the Yankees to an evil empire. Very sad indeed.

Federalist Society LiveBlog: Interview with Roger Pilon

Roger himself was amazed that his question was limited to 40 seconds. And more from the Maven of Cato.

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Federalist Society LiveBlog: Miguel Estrada Comments on His Representation of John Yoo

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