After live-blogging much of the American Constitution Society’s annual convention, Josh Blackman says he sensed a difference in “tone” from Federalist Society conferences, particularly from the leadership. While I am not sure that the difference is quite that which he identifies (I’ve heard my share of polemics at Federalist Society gatherings), the differences are real and go much beyond the two organizations’ respective ideologies. I also find these differences quite interesting as ACS was created as a counterweight to the Federalist Society.
Before getting to the differences, let me note that the ACS annual conference and Federalist Society lawyersconvention are very similar. As Orin reported a few years back, both are high-quality, substantive legal conferences featuring panels of legal luminaries that tilt in the direction of each group’s ideological core. (For a report on the first ACS convention, see here.) Over time, the ACS convention has become more balanced, or at least more inclusive of conservative and libertarian views, and has also developed its own roster of “stars.” Those interested in legal policy questions could learn quite a bit from either event. But the similarities are not as interesting to consider, so that’s enough of that. On to the differences!
One structural difference is that the Federalist Society hosts separate annual events for students and lawyers, whereas ACS hosts a combined event with a combined audience of students, academics, and practitioners. The Federalist Society annual student conference is always hosted by a law school chapter and is usually quite academic, focusing on questions of legal theory, constitutional interpretation, and the like. The Federalist Society lawyers convention, on the other hand, is held each fall in Washington, D.C., is more policy-oriented, and typically features remarks by political figures interspersed among the various topical panels. Separating the two events results in conferences that are somewhat tailored to separate audiences.
If the Federalist Society lawyers convention is more policy-oriented than the student conference, in my experience the ACS panel is a bit more policy oriented still. By this I mean that, of the three, the ACS conferences devote the least time to questions of legal theory and the greatest share to practical policy questions. There is nothing wrong with this – policy is important and should be discussed. It is nonetheless interesting that one is more likely to hear debates from first principles and discussions of legal theory at a Federalist Society conference than at ACS.
Another obvious difference between Federalist Society and ACS gatherings is the former’s emphasis on debate. The Federalist Society’s leadership hopes to see a clash of views on every panel at every conference, and selects topics and speakers accordingly. Intra-movement disagreement, in particular, is encouraged, as between libertarians and conservatives, those that support or oppose federal intervention, those that support or oppose relying upon precedent as opposed to the original public meaning of the constitution or something else, and so on. Cross-ideological discussion and disagreement is encouraged as well. Even where a panel is “lopsided” and features only a token liberal voice, it is unlikely that the remaining panelists will agree on the matter at hand.
ACS conferences, on the other hand, have not emphasized debate to the same extent, at least not in my experience. ACS panels increasingly include a dissenting conservative or libertarian voice, but the conversation is not structured to emphasize disagreement and foster debate. A typical panel lineup may feature several people who approach a given issue from different standpoints (e.g., federal agency, interest group, trial attorney, etc.), but from a unified ideological perspective (save for the token right-winger). So, for instance, most of the panelists on the health care panel discussed aspects of health care reform that should interest progressives and, save for the Barnett-Balkin clash on constitutional issues, there was little disagreement. My climate panel had a similar structure – various panelists summarized and evaluated climate policy developments without explaining why a given approach or agenda should be preferred. It is almost as if at an ACS panel, the correct answer to the question at hand is presumed, whereas at the Federalist Society it is something to be debated and defended. There is nothing wrong with the ACS approach; it’s largely a matter of taste. Conference panels and presentations summarizing recent developments in a field can be quite valuable, particularly in building and sustaining a movement, but this is different than what one usually finds at a Federalst Society event.
What accounts for these differences? That is an interesting question. One possibility is that both conferences, in their own way, are responding to the relative dominance of liberal or left-leaning views within the legal academy. The Federalist Society seeks to foster debates incorporating views that are largely absent from most classrooms, injecting conservative and libertarian viewpoints into the discussion. ACS, on the other hand, is less focused on filling a void in the legal academy and among the legal intelligentsia so much as it is arming and energizing left-leaning legal types to put their ideas into action. This could also explain the Federalist Society’s relative emphasis on theory compared to the ACS’ focus on practice and implementation. If you’ve gotten a good dose of liberal and progressive legal theory in law school, it may be time to focus on the practical side of things. Whereas if you haven’t gotten much conservative and libertarian legal theory, that’s a gap to be filled. Consider also that the Federalist Society was founded on law school campuses, and initially focused on the academy, while the ACS was founded in Washington, D.C., and has had Beltway insiders and a policy focus from the start. This might also explain why ACS conferences explicitly set time aside for networking and the like, whereas the Federalist Society leaves such things to spontaneous order.
Again, the conferences have quite a bit in common, and are both worthwhile. There is nothing wrong with the ACS approach. Indeed, I’ve enjoyed all three of my ACS appearances and learned from attending other panels all three times. My point is not to criticize but compare and contrast, as the differences between Federalist Society and ACS events extend beyond ideology.