In 1964, the U.S. Supreme Court issued its opinion in New York Times v. Sullivan treating public figures to a different, more onerous standard when they were the victims of defamator falsehoods than in traditional libel cases. Recently, Justice Thomas and Justice Gorsuch have expressed skepticism about the constitutional infirmity of this decision. Our panelists will provide their perspectives on this decision and whether the Court should reconsider it. Featuring: Joe Cohn, Legislative and Policy Director, FIRE Prof. Carson Holloway, Professor of Political Science and Department Chair, University of Nebraska Omaha Jered Ede, Clare Locke Carol Jean LoCicero, Managing Partner, Thomas & LoCicero, PL Moderator: Jesse Panuccio, Partner, Boies Schiller Flexner LLP
Featuring: Zack Smith, Legal Fellow and Manager, Supreme Court and Appellate Advocacy Program, Meese Center, The Heritage Foundation Henry Whitaker, Solicitor General, Florida Moderator, Hon. Raag Singhal, Judge, United States District Court, Southern District of Florida
We’ve grown accustomed to learning about government actions only because an enterprising person or group brought them to light using the Freedom of Information Act. Enacted in 1967 after a decade of debate and Congressional hearings, and most recently amended in 2016, FOIA was intended to correct what some viewed as the Administrative Procedure Act’s tendency toward nondisclosure. This panel will discuss the law, how FOIA requests are used by reporters, researchers, academics, interest groups, trial lawyers and others to obtain information from the government, how the government protects information it considers covered by FOIA exemptions, how courts review government denials of FOIA requests, and some of the more newsworthy disclosures obtained using FOIA.
The First Amendment forbids public officials from censoring disfavored speech and speakers. But what happens if public officials enlist private parties to do the censorship? In recent years, public officials and agencies have pressed social-media platforms to silence dissenting views on public health and other “misinformation,” insurers and financial institutions to drop clients engaged in unpopular or controversial advocacy, and health-care providers to dismiss attorneys challenging government policy. Further, there’s no way to know how many private decisions to silence speech and speakers have been influenced or coerced by government actors. Is this phenomenon inevitable in an age of unprecedented opportunity to reach large audiences? Should there be greater transparency when public officials wield their power to influence the exercise of First Amendment rights? What’s the line between encouragement and coercion, and is that the right line to separate constitutional from unconstitutional censorship? What are the prospects that agencies will police themselves and refrain from wielding their power and influence to suppress dissension and debate? Should Congress or the President address third-party censorship and, if so, how exactly? Our panelists will address these questions and more.
The Supreme Court continues to accept for review cases that challenge agency authority on separation of powers grounds, and its decisions may fundamentally reshape the modern administrative state. This term, it heard challenges to the jurisdiction of federal courts to hear challenges to agency proceedings (Axon v. FTC; SEC v. Cochran), and to the Biden administration’s authority to forgive student loan debt (U.S. Department of Education v. Brown; Biden v. Nebraska). Next term, it will hear a constitutional challenge to the funding structure of an independent regulatory agency (CFPB et. al. v. Com. Fin. Services Assn.). And pending in the certiorari queue is a case that raises a triumvirate of issues about the SEC’s administrative proceedings: whether they violate the Seventh Amendment, the non-delegation doctrine, and/or the President’s removal power (SEC v. Jarkesy). This panel will discuss the constitutional questions raised by these cases, the potential effect of the Court’s decisions on agency structure and practices, the rebalancing of power between the three branches, and the future of the administrative state.
Antitrust law has made recent headlines for a host of reasons, ranging from Chairwoman Lina Kahn’s approach to running the Federal Trade Commission to the Department of Justice’s Antitrust Division’s high-profile cases against tech giants such as Google. In this lunch session, former FTC Chairman Jon Leibowitz, a Democrat, will join former FTC Commissioner Noah Joshua Phillips, a Republican, and moderator Judge Neomi Rao to discuss recent developments in the antitrust world and debate what might come next, including for the future of independent executive branch agencies in general.
At the end of an administration, the President and Vice President are required to relinquish control over certain documents, pursuant to the Presidential Records Act. Recently, it has come to light that former officials of both parties have brought certain classified documents to their private residences and other non-governmental property. This panel will explore the legal, ethical, national security, and policy issues that confront executive-branch lawyers as they assist Presidents and Vice Presidents to comply with the law.
This panel will evaluate efforts in the Biden administration, building upon executive actions dating back to the Clinton administration, to refocus federal agencies in a “whole of government” manner on “environmental justice” (EJ). The Civil Rights Act and various executive orders are cited as the primary legal support for these initiatives. On this basis, enforcement priorities are being adjusted across all federal agencies. Agency budgets for EJ programs are being increased and new EJ offices opened. The panel will explore the myriad legal, regulatory, and policy issues that arise in this context. It will offer a primer on administration EJ actions, and evaluate the use of disparate impacts under current law as well as related issues.
Earlier this month, the White House released much-anticipated changes to federal regulatory practices, including a new Executive Order 14094 on “Modernize Regulatory Review,” draft revisions to Circular A-4 governing regulatory impact analysis, and draft guidance on meetings with entities outside of the executive branch. The Office of Information and Regulatory Affairs (OIRA) has the lead for implementing these changes, which comprise the most significant regulatory policy initiatives of the Biden administration. In this opening session, OIRA experts, including several former OIRA administrators will review these developments.
Anxiety regarding parental rights in American healthcare and education is at an all time high. Our panel will discuss questions such as, “Are parental rights being circumvented at the schoolhouse and medical office doors?”; “Who decides the best interest of the child?”; “When should the state’s judgment supersede parents’ judgment?”; and “Who determines the parental right to know?” Featuring: Luke Berg, Deputy Counsel, Wisconsin Institute for Law & Liberty Thomas M. Fisher, Solicitor General, Indiana Office of the Attorney General Emilie Kao, Senior Counsel, Vice President of Advocacy Strategy, Alliance Defending Freedom Moderator: Hon. Matthew W. McFarland, United States District Judge, Southern District of Ohio
Policymaker interest in alternatives to traditional public schools has sharply increased post-pandemic, with some states considering and adopting proposals to provide educator regulatory relief; increase access to charter schools; offer additional vouchers and tax credit programs; and create education savings account options to increase choice in education. Optics on professions in education have been challenging. Many of these proposals address the number of religious schools in school choice programs, which has led to both new legislation and litigation. Panelists will survey relevant proposals and developments in the midwest while considering the perspective of stakeholders in the field. Featuring: Séamus Boyce, Partner, Kroger, Gardis & Regas, LLP Leslie Davis Hiner, Vice President of Legal Affairs & Director of Legal Defense & Education Center, EdChoice Daniel Suhr, Senior Fellow, National Opportunity Project Moderator: Hon. Sarah Pitlyk, Judge, United States District Court, Eastern District of Missouri
Panelists will offer their diverse perspectives on the current state of the Wisconsin Supreme Court and the issues it is facing, its potential docket, and emerging legal controversies that may affect the court's future work. They will explore issues such as the role of the court in shaping public policy, the importance of judicial independence, and challenges that the court will face as it adapts to a rapidly changing legal landscape. Featuring: Jeffrey A. Mandell, Partner, Stafford Rosenbaum LLP Ryan J. Walsh, Partner, Eimer Stahl LLP Prof. Robert Yablon, Associate Professor of Law, University of Wisconsin-Madison Moderator: Hon. Shelley A. Grogan, Judge, District II, Wisconsin Court of Appeals
Although many lawyers spend their careers in front of judges, the process by which a judge is elected or appointed can sometimes seem shrouded in mystery. What makes for a good judge? How are they chosen? Are there opportunities Wisconsin lawyers aspiring to the state or federal bench should pursue, or pitfalls they should avoid? A panel of Wisconsin-based judges from a variety of courts joins us to discuss the path to the judiciary in Wisconsin, moderated by Milwaukee Chapter President Matthew Fernholz. Featuring: Hon. Michael J. Aprahamian, Judge, Waukesha County Circuit Court Hon. Rebecca Grassl Bradley, Justice, Wisconsin Supreme Court Hon. William C. Griesbach, Senior District Judge, United States District Court, Eastern District of Wisconsin Moderator: Matthew M. Fernholz, Partner, Cramer, Multhauf & Hammes, LLP & President, Milwaukee Lawyers Chapter
Join us for a Texas-sized BBQ banquet featuring Austin BBQ. Dress in your Texas best! Attire is dressy, but cowboy boots and hats are welcome! *This event requires the purchase of a separate ticket.
Judicial Review has been criticized throughout American history as undemocratic, creating what has been known in the modern era as the counter-majoritarian difficulty. Is the Court in fact counter-majoritarian? To what degree? If so, is it a difficulty? What theories of constitutional interpretation best reconcile judicial review with democracy—originalism or living constitutionalism or something else? Featuring: Moderator: Hon. James Ho, The United States Court of Appeals for the Fifth Circuit Prof. Tara Leigh Grove, Vinson & Elkins Chair in Law, University of Texas School of Law Prof. Lawrence Sager, Alice Jane Drysdale Sheffield Regents Chair, University of Texas School of Law Prof. Keith Whittington, William Nelson Cromwell Professor of Politics, Princeton University
The United States is constitutionally not one, but fifty-one, democracies. How can they all fit together? The oldest issue in our republic is the relation between the federal and state governments: where does the democratic decision-making power of one leave off and the other begin? The question remains relevant today on such issues as the proper locus of decisions about abortion. But the relation of the states to one another is now also pressing as states deploy their authority to influence the democratic decision making of other states, on issues as disparate as gun and climate policy. Are the proper boundaries between our different democracies best policed by the judiciary or by democratic politics? Featuring: Moderator: Hon. Andrew Oldham, The United States Court of Appeals for the Fifth Circuit Prof. Ilya Somin, Professor of Law, George Mason University Antonin Scalia Law School Prof. Jud Campbell, Professor of Law, University of Richmond School of Law Prof. Michael S. Greve, Professor of Law, George Mason University Antonin Scalia Law School
Many aspects of the United States governing structure have been criticized as inconsistent with democracy or at least with majority rule. Elections for the House of Representatives and state legislatures are subject to gerrymandering. The Senate represents large and small states equally and thus unequally weights the voters across the nation. The Electoral College, too, provides electoral advantages to some states over others. And the institutions themselves sometimes depart from majority rule, most notably in the United States Senate with its filibuster. Can these arrangements be justified, or should they be reformed? Featuring: Moderator: Hon. Patrick J. Bumatay, The United States Court of Appeals for the Ninth Circuit Prof. Sanford V. Levinson, W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, University of Texas School of Law Prof. Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School Prof. Stephanie Barclay, Associate Professor of Law and Director of the Religious Liberty Initiative, Notre Dame Law School Prof. Lori A. Ringhand, J. Alton Hosch Professor of Law & Josiah Meigs Distinguished Teaching Professor, University of Georgia School of Law
Democracy begins with elections. But the process for voting in our elections has been increasingly a matter of political contestation. This panel will consider these process issues, including the Voting Rights Act, campaign finance reform, early and mail in- balloting, and eligibility to vote, including that of felons and aliens. The panel will also consider the question of how the decision-making over these issues should be divided, between the courts and democratic legislatures as well as between the states and the federal government. Featuring: Moderator: Hon. Timothy M. Tymkovich, The United States Court of Appeals for the Tenth Circuit Audrey Perry Martin, Partner, Gober Group Lee E. Goodman, Partner, Wiley Prof. Derek T. Muller, Ben V. Willie Professorship in Excellence, University of Iowa College of Law Prof. Richard Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law
There has been much discussion about threats to democracy over the past year. But conceptions of democracy differ. What does democracy entail in our system? Is the U.S. a democracy, a republic, a democratic republic? What does democracy require and what genuinely threatens it? How do we address such threats? Featuring: Moderator: Hon. Edith H. Jones, United States Court of Appeals for the Fifth Circuit Prof. J. Joel Alicea, Co-Director, the Project on Constitutional Originalism and the Catholic Intellectual Tradition, and Assistant Professor of Law, The Catholic University of America Columbus School of Law Prof. Bruce E. Cain, Charles Louis Ducommun Professor in the School of Humanities & Sciences, Director of the Bill Lane Center for the American West, Senior Fellow at the Woods Institute at the Stanford Institute for Economic Policy Research, Professor at the Stanford Doerr School of Sustainability, Stanford University Prof. Daniel Lowenstein, Professor of Law Emeritus, UCLA Law Prof. Stephen I. Vladeck, Charles Alan Wright Chair In Federal Courts, The University of Texas School of Law
George Soros has contended that “there is no connection between the election of reform-minded prosecutors and local crime rates.” When considering some of the largest metropolitan cities on the west coast, such as Los Angeles, San Francisco, and Seattle, do the violent crime and homicide statistics support this claim? Progressive prosecutors have introduced a range of policies, such as eliminating cash bail, decriminalizing misdemeanor drug possessions, refraining from trying minors as adults, and shifting emphasis on police misdeeds rather than criminal offenses. Do the efforts to reverse tough-on-crime policies have a direct correlation to the rising crime rates in big cities? What is the proper role of a prosecutor? Should prosecutors be practicing more restraint? Does bail reform affect recidivism rates? The panelists will discuss these questions and share their insights on these questions. Featuring: Mr. Cully Stimson, Deputy Director, Edwin Meese III Center, Manager, National Security Law Program, and Senior Legal Fellow, Senior Advisor to the President The Heritage Foundation Mr. McGregor W. Scott, Partner, King & Spalding LLP, Former U.S. Attorney for the Eastern District of California Confirmed Ms. Lauren-Brooke Eisen, Senior Director, Brennan Center for Justice Moderator: Hon. Danielle J. Forrest, United States Court of Appeals, Ninth Circuit
Many western states are making significant structural changes to their campaign and election laws. Innovations like ranked-choice voting and new campaign financial disclosures rules are taking hold in many states, including California, Washington, Arizona, and Alaska. These changes are having real impact on the ground, as evidenced by the recent primary election in Alaska, where ranked-choice voting resulted in a Democrat being elected to Congress for the first time in five decades. Other legislative changes across the west address political speech and its funding sources, including Alaska’s recently enacted ban on so-called “dark money;” Arizona’s Proposition 211 measure, which was passed in the recent election; and Oregon’s consideration of introducing a similar measure on the ballot in 2024. In addition to significant policy debates over the merits of these policies, lawyers are challenging their constitutionality based on First Amendment speech and association grounds. The panel will begin by framing the policy debate, followed by a discussion of the current status of various election-related reforms, including litigation pushing state and federal constitutional challenges to these changes. Featuring: Mr. Daniel Suhr, Senior Attorney, Liberty Justice Center Mr. Kory Langhofer, Managing Partner, Statecraft Prof. Richard Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law Mr. Scott Kendall, Of Counsel, Cashion Gilmore & Lindemuth Prof. Bradley A. Smith, Josiah H. Blackmore II/Shirley M. Nault Professor of Law Hon. Terry Goddard, Shareholder, Goddard Law PLC, Former Arizona Attorney General Moderator: Hon. Patrick J. Bumatay, United States Court of Appeals, Ninth Circuit
The rising cost of housing and the regulatory state are some of the major issues affecting real property law in the western states. This panel will examine three critical areas regarding government regulation of real property law: short-term rentals, rezoning for multi-family homes, and environmental regulations in the building of new homes. For short-term rentals, panelists will walk through the laws and regulations concerning eligibility to obtain short-term rental permits in order to list one’s home on websites such as Airbnb and VRBO. As for rezoning for multi-family homes, the panel will examine the effects that government regulations have on a possible solution to a housing shortage. The panelists will also analyze how federal and state environmental regulations affect the costs of new housing or improvements to existing housing, and what they mean for stakeholders and the overall community. Featuring: Mr. Eric Grant, Partner, Hicks Thomas Ms. Jennifer L. Hernandez, Partner, Holland & Knight Mr. Chris Carr, Partner, Paul Hastings Ms. Karrin Taylor Robson, Founder & President, Arizona Strategies Moderator: Hon. Lawrence VanDyke, United States Court of Appeals, Ninth Circuit
Featuring: The Honorable Andrew Bailey, Attorney General, State of Missouri Attorney General Bailey will offer remarks on Missouri v. Biden and the First Amendment.
The Supreme Court’s decision in Dobbs returned the abortion question–whether and how to regulate abortion services–to the States. Many states, including Missouri, now have laws on the books that restrict or prohibit abortion. Dobbs doesn’t end the legal wrangling over abortion—it begins a new chapter that will unfold as litigation arises challenging these state laws. What constitutional challenges could Missouri see to its legislation in coming months and years? Featuring: Moderator: Barbara A. Smith, Partner and Co-Chair, Appellate and Supreme Court Group, Bryan Cave Leighton Paisner J. Andrew Hirth, Founder, TGH Litigation LLC Jesus A. Osete, Attorney, Appellate and Supreme Court Group, Bryan Cave Leighton Paisner LLP
Our distinguished panel of judges discussed the unique roles of both appellate judges and trial court judges. Topics that were explored include judicial philosophy, the use of originalism in both state and federal courts, the differences in the roles of a trial court judge and an appellate court judge, and the importance of state constitutions in protecting individual liberty. Panelists also discussed their path to the bench. Featuring: Moderator: Hon. Duane Benton, Judge, United States Court of Appeals, Eighth Circuit Hon. Stephen N. Limbaugh, Jr., Senior Judge, United States District Court, Eastern District of Missouri Hon. Matthew T. Schelp, Judge, United States District Court, Eastern District of Missouri Hon. Cristian M. Stevens, Judge, Missouri Court of Appeals, Eastern District of Missouri Hon. John Torbitzky, Judge, Missouri Court of Appeals, Eastern District of Missouri
This panel explored the concept of whether what has come to be called “inclusive language," including some of the examples referenced in Kelly Frickleton’s recent Kansas City Counselor article, is something that lawyers have an ethical duty to use under Rule 4-8.4 of the Missouri Rules of Professional Conduct, Rule 8.4 of the Kansas Rules, or perhaps under some other provision. We explored not only the “whether,” but also the “why." We also explored the question of whether the imposition of any penalty on a lawyer for failing to use this language would be constitutional. Featuring: Moderator: Karen Donnelly, Partner, Copilevitz Lam & Raney Ted Frank, Director of Litigation and Senior Attorney, Hamilton Lincoln Law Institute Kelly Frickleton, Associate, Bartimus Frickleton Robertson Rader P.C. Edward D. Greim, Partner, Graves Garrett LLC
The panel is sponsored by our Civil Rights practice group and will focus on the issues in, and potential outcome of, Students for Fair Admissions Inc. v. President & Fellows of Harvard College. One of the most closely anticipated cases of the coming Supreme Court term involves a challenge to the use of racially preferential undergraduate student admissions practices at Harvard University and the University of North Carolina. This panel will examine the issues raised by those cases, the possible outcomes, and their likely impact on the future of higher education and beyond. Will these cases mark the end of race-as-a-factor in holistic admissions practices? If so, will universities comply with the Court’s decision, or will they evade it? And what will be the ramifications in other sectors, such as the workplace? Is a color-blind society possible in our time? Featuring: Mr. Michael A. Carvin, Partner, Jones Day Hon. Gail L. Heriot, Professor of Law, University of San Diego School of Law; Member, U.S. Commission on Civil Rights; Former Civil Rights Counsel, U.S. Senate Committee on the Judiciary Prof. Eric Segall, Ashe Family Chair Professor of Law, Georgia State University College of Law Moderator: Hon. Kevin C. Newsom, Judge, U.S. Court of Appeals, Eleventh Circuit