Archive | Federalist Society

Harvard Federalist Society Conference: Intellectual Diversity and the Legal Academy

Last week, I posted about a conference at Harvard on the topic of intellectual diversity in the legal academy. I’m pleased to report that the conference was a great success, well conceived and well executed by the excellent students of the Harvard chapter of the Federalist Society. If nothing else, it succeeded in shining a light on the stark political / jurisprudential / methodological imbalance at the top law schools. It turns out that many of these schools are just like Georgetown Law — where most students will graduate after three years without ever once laying eyes on a conservative or libertarian professor at the front of a classroom.

Harvard Law School Dean Martha Minow was unable to attend the conference, but she did provide a written statement, which is an eloquent endorsement of intellectual diversity:

“He who knows only his own side of the case, knows little of that.” John Stuart Mill’s insight carries importance for any place of learning and special significance for a law school. For one cannot truly understand a legal argument on behalf of one client or side without thoroughly understanding and addressing competing arguments and objections. Even if there were no other reasons available, this would supply sufficient basis for a robust commitment to intellectual diversity among the faculty and students, courses and journals, activities and speakers at Harvard Law School.

But there are other powerful reasons to pursue and nurture intellectual diversity at Harvard Law School. We recruit extraordinary students and work hard to equip them to pursue great careers and great dreams. Both in honing their aspirations and equipping them to achieve them, nothing works as well as serious intellectual encounters with smart and motivated individuals with varied viewpoints. Faculty and students also advance knowledge and law reform through scholarship and public

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Upcoming Talks in Ohio & Florida

I will be speaking at several law schools and universities in Ohio and Florida the week of March 18th (our spring break). All events are free and open to the public. Always happy to meet readers of the Conspiracy. Additional information at the links.

March 18th, Case Western Reserve University Law School (noon), “Piracy and the Limits of International Law.”

March 18th, Ohio State University, The New Palestinian State.

March 19th, Ohio University, “Disputing Occupation: Israel’s Borders in International Law

March 21st: Florida International Law School, “Israel & International Law.” [...]

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Federalist Society Panel on National Security and International Law

Last Friday, I was pleased to take part in a panel at the Federalist Society convention on national security and international law, and whether they are in conflict (or at least serious tension).  It featured an excellent lineup with many different viewpoints: Sarah Cleveland and Rosa Brooks (law professors who had served during the Obama 1 administration in senior posts in the State Department and Defense Department, respectively), Julian Ku (most recently, co-author with John Yoo on the very interesting book Taming Globalization), Gregory McNeal (Pepperdine Law professor who knows, I believe, more than any person who has not served in government in the last couple of years about the decision-making process of targeting in targeted killing; his article on Afghanistan targeting is essential reading on actual US practices), and me.  John McGinnis (Northwestern, author of this particularly interesting article on democracy and human rights with VC’s very own Ilya Somin) served as moderator.

The panel had possibly fewer fireworks and disagreements that might have been anticipated, given the range of views on the panel, but that was largely on account of the framing of the question.  When it comes to national security, at least as armed conflict, international law is enabling for the United States, and indeed serves as the core framework structuring how the US does it.  It does it according to a long, long, long tradition of the customary and treaty law of war, as the US has understood, interpreted, and practiced it.  The fundamental law of targeting, for example – target combatants, don’t target noncombatants – is not just an imposed rule on military practice, it is military practice.  So although there are areas of international law which raise serious questions about democratic sovereignty and  such in relation to national security concerns, international law in [...]

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Why Libertarian Law Professors Tend to Support Romney

As Jonathan and Ilya have recently pointed out, Reason Magazine’s writers are overwhelmingly voting for Gary Johnson, or they are not voting at all.

By contrast, most libertarian law professors of my acquaintance are supporting Romney. (And even back in 2008, when some libertarians supported Obama, this was a distinct minority position among libertarian law professors–though David Post did support Obama on this blog.) Why the difference? One reason, undoubtedly, is that law professors have a much greater than average concern about the Supreme Court. And while one can make the case that a libertarian whose primary concern is gay rights or abortion would prefer a Court with Democratic appointees, here’s something to keep in mind, from a post I wrote back in October 2008:

Libertarians have been heavily involved in some of the most important constitutional Supreme Court litigation of the last two decades, either in terms of bringing the case, being among the most important advocates of one side’s constitutional theory, or both. Among the cases in this category are Lopez, Morrison, Boy Scouts v. Dale, U.S. Term Limits, Grutter, Gratz, Kelo, Raich, Heller, and probably a few more that I’m not thinking of offhand. With the minor exception of Justice Breyers’ vote in Gratz, in each of these cases, the ONLY votes the libertarian side received were from Republican appointees, and all of the Democratic appointees, plus the more liberal Republican appointees, ALWAYS voted against the libertarian side. The latter did so even in cases in which their political preferences were either largely irrelevant (Term Limits), or should have led them to sympathize with the plaintiff (Lopez, Kelo, Raich).

To those examples we can add McDonald, Citizens United, American Tradition [...]

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The Second Circuit’s DOMA Decision

At the Federalist Society’s Supreme Court blog, I offer some thoughts on the Second Circuit’s decision in Windsor v. United States, which held the Defense of Marriage Act unconstitutional.  The post concludes with a thought on what direction the Supreme Court might take when it confronts the constitutionality of DOMA:

Even if the Court is inclined to strike down the Defense of Marriage Act, it’s more likely the Court would do so in the more limited and incremental way suggested by the First Circuit than in the more ambitious way advanced by the Second Circuit. The federal-only rationale of the First Circuit focuses on what possible interest the federal government could have in denying equal treatment to a subset of married couples. It does not necessitate a ruling that state governments must equally recognize same- and opposite-sex couples as married. For a Court that wants to leave the marriage debate open in the states, but at the same time wants to ensure that the federal government does not inject itself into that debate with unusual discrimination, that may be a tempting option.

UPDATE:  Ed Whelan argues that the analysis of the First Circuit in Massachusetts v. Dep’t of HHS would also result in the invalidation of state laws confining marriage to opposite=sex couples.


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Federalist Society Events This Week

This week I’ll be discussing same-sex marriage at two different student chapters of the Federalist Society. One is today at noon at the University of Missouri-Kansas City School of Law. Tomorrow is at 12:30 at the University of Kansas School of Law in Lawrence. In both places, my sparring partner will be Dale Schowengerdt of the Alliance Defense Fund.  The events are open to the public. [...]

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Federalist Society Symposium on Cybersecurity

Last week, the Federalist Society hosted a symposium on cybersecurity that you can watch here (morning panel, focused on national security issues), here (lunch address), and here (afternoon panel, focused on business and criminal law issues).

Two VC bloggers participated in the symposium. Stewart Baker gave the lunchtime keynote address, which you can watch here:

I gave a few comments criticizing the Obama Administration’s proposals to expand the Computer Fraud and Abuse Act, which you can watch here:


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“Health Laws of Every Description”: Obamacare and Original Meaning

Is the Patient Protection and Affordable Care Act consistent with the original meaning of Constitution? David Gans (at Balkinization) and Charles Fried (testifying before the Senate Judiciary Committee) agree that the answer is “yes.” Both of them point to Gibbons v. Ogden and McCulloch v. Maryland.

Gibbons is certainly a good foundation for advocates of strong federal powers. As the Supreme Court later wrote in Wickard v. Filburn, Gibbons “described the Federal commerce power with a breadth never yet exceeded.” Indeed, Wickard itself did not purport to go any further than Gibbons had gone. Yet too many people know Gibbons only from expurgated versions in casebooks; thus they rely on some general phrases in Gibbons, and they infer that the commerce power encompasses everything that has interstate effects. Yet reading the full text of Gibbons ends the need to build speculation upon speculation. According to Chief Justice Marshall, the commerce power does not encompass:

that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general government: all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description….

(Emphasis added.) Of course one may argue that Chief Justice Marshall was wrong, and that it would be better if “health laws of every description” could be enacted by the national government. But that would not be an originalist argument, and it would certainly not an argument for which one could cite Gibbons v. Ogden.

Some advocates of the current health control law also point to McCulloch v. Maryland to bolster their favored interpretation of the Necessary & Proper clause. These interpretations are not consistent with Chief Justice Marshall’s own understanding of what McCulloch said, and what he believed that “necessary  [...]

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Conservative and Libertarian Alternatives to Originalism

The Federalist Society’s recent Faculty Conference included an interesting panel on Conservative and Libertarian Alternatives to Originalism, ranging from natural law theories to libertarian approaches to Burkean methods. John O. McGinnis moderates, and the speakers include Patrick Brennan, David Bernstein, Brian Fitzpatrick, and myself. It’s a very “meta” discussion, especially in the Q&A.


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Upcoming Talks in Madison, Wisconsin on the Individual Mandate and Property Rights

This Wednesday, I will be giving two talks in Madison, Wisconsin. One, sponsored by the Federalist Society Lawyers Division, will be at a panel on the Obamacare individual mandate litigation. The other two panelists are Wisconsin Attorney General J.B. Van Hollen (Wisconsin recently became one of the 28 states challenging the mandate in court) and Democratic state representative Jon Richards, who will defend the constitutionality of the mandate. It will be held at 11:30 AM. Logistical details available here.

My second talk will be at 6 PM at the University of Wisconsin Law School, in the Lubar Commons, and is sponsored by the Law School student Federalist Society chapter. It will be about Kelo v. City of New London, post-Kelo eminent domain reform, and recent judicial decisions on takings, especially the two big New York Court of Appeals decisions (the Atlantic Yards and Columbia cases).

VC readers are more than welcome to come to either or both events! [...]

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Advice for law students: Enjoy your University

A few weeks ago, I returned to my beloved University of Michigan, for a law school class reunion. This time, I stayed an extra day, in order to speak to law students at a lunchtime event on Monday, organized by the U of M Federalist Society. Michigan Prof. Richard Primus provided some thoughtful commentary on my presentation, and the FedSoc organization was outstanding. Anyway, the extra 36 hours on campus was a great opportunity to walk many miles revisiting the immense Michigan campus, the U of M’s beautiful Arboretum, and Ann Arbor.

The campus visit reminded me of how much of the education I received at the University of Michigan took place outside the Law Quad–even though the quantity and quality of education received inside the Quad were excellent. My start as a journalist during law school was writing theater reviews, and then op-eds for the Michigan Daily.  Unlike some Daily alumni, I’ve never won a Pulitzer Prize, but like all Daily writers, I benefited from the opportunity to work for a solid daily newspaper with a circulation of 18,000.

Other law school friends who got outside the Law Quad also had great experiences. One friend played interscholastic rugby. My 1L roommate found a small church in Ann Arbor, which at the time was holding services in a room at the YMCA. My roommate was a very studious fellow, even by law school standards, but the church drew him towards something more important. After serving as a JAG officer in the Air Force, he became an ordained minister.

Even if the university beyond the law school doesn’t help you discern a vocation or avocation, you’ll still find lots of theater, music, museums (including mini-exhibits in classroom buildings), guest lectures on topics other than law, and so on. Not [...]

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President Reagan Speaks at the Federalist Society Lawyer’s Convention in 1988

C-Span’s archives are truly amazing, and its online library has filled out over time. The site now allows embedding of video, too. So here’s a fascinating video of President Reagan speaking at the Federalist Society’s Lawyer’s Convention in 1988, with Reagan starting at around the 9 minute mark:

The President won’t be speaking at this year’s Federalist Society Lawyer’s Convention, but you can find the list of speakers, including several of my fellow Conspirators, here. [...]

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