Federalist Society 2009 Lawyers Convention

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.

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.

More >

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

More >

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

[youtube=http://www.youtube.com/watch?v=KkoeFNjsKsU]

The real way to fix financial institutions:

[youtube=http://www.youtube.com/watch?v=julnt19Pl8E]

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.

More >

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.

More >

Labor: Wall Street, Labor Unions, and the Obama Administration: A New Paradigm for Capital and Labor?
Friday, Nov. 13
12:00 noon – 2:00 p.m.
Chinese Room

- Mr. Harold Meyerson, Editor-at-Large, The American Prospect
- Ms. Amity Shlaes, Senior Fellow for Economic History, Council on Foreign Relations
- Mr. Damon A. Silvers, Associate General Counsel, American Federation of Labor-Congress of Industrial Organizations
- Prof. Todd J. Zywicki, Foundation Professor of Law, George Mason University School of Law
- Moderator: Hon. Steven J. Law, Chief Legal Officer and General Counsel, U.S. Chamber of Commerce

Moderator: Hon. Steven J. Law opening remarks:

quoted from Amity’s “The Forgotten Man” – likened the current economic decline to the decline of the Great Depression

Mr. Harold Meyerson:

unemployment is up, underemployment is up, people are working fewer hours or lower paid positions than they were before.

in the under 35 population, only 31% feel that they can save money for later; used to be 52%

in the 60+ population, higher % are working than in past years and many are pushing off retirement even further

retirement is becoming a luxury of the elites and unreachable to the average worker

recently there has only be a 5% increase in unionization – it is too hard to unionize in the private sector due to laws that favor private corporations over unions

is there a changing paradigm?  He hopes so.  He’d like to see greater enforcement of the minimum wage laws and enactment of laws more favorable to unionization so the youth entering the work force can

if we continue to slip behind, we will no longer be the world power we have been used to

Ms. Amity Shlaes:

in 1937 song “Nice work if you can get it” gives insight into the conditions of the Great Depresion

that was a reference to prostitution, but the song caught on and is romanticized

late 30’s created a new social divide – the depression had lasted too long – what explains the longevity?

the labor price was too high

in the 20’s companies faced with economic decline either laid off workers or cut wages – when the economy lifted, they hired back workers and providing raises again

in 1929, President Hoover encouraged companies to keep wages high so that workers would have money to spend

companies who laid off were more hesitant to rehire back

the Wagner Act caused wages to increase

the country saw a depression within a the Great Depression

the plan was perverse – wages were 20% higher than they should be based on trend

unionization in the 30’s did not help labor – it helped some workers – overall work hours were down (fewer were getting paid, fewer were employed) and wages were up (for the few who were employed, they had more money than the market trend)

are we headed to a new paradigm?  fears that we are following the old paradigm with regard to labor-price matters

proposed a new song title “Nice economy if we can get it”, but we can’t

Mr. Damon A. Silvers:

all kinds of arguments about history are possible when those who lived it are dead

he sees 4 big problems that have to be addressed:

1. wage-productivity gap.  post-war America wages and productivity were tied tightly together until the 80’s when they separated.  they were tied again briefly in the 90’s, but separated again.  the equation is complicated by wages in the form of healthcare insurance, but that high cost to employers is barely an increase in wage to employees since that itself is an overinflated cost.  Understanding the gap is crucial to understanding the pressures on modern employees.
2. structural trade deficit.  China’s money is pegged to the U.S. dollar – this is not an accurate picture of worth.  they lend us money, we purchase imports from them, they lend us more.  the “compression of global risk spreads” is problematic.  Risky lending without charging a premium for the risk leads to inaccurately priced loans.
3. financialization of our economy.  financial activity is an intermediate function and should not be 40% of our economic base.  quotes the President of the AFL-CIO as saying “finance should be the servant to the economy, not its master.”
4. our approach to energy.  both a big problem and an opportunity.  our energy use policies are not sustainable, but there is the opportunity to take the lead in developing new energy policy.

How do we relate this to capital, labor, and government?

labor and business have a joint interest in solving – we need a solution that is viable in a global economy – other nations increasingly are gaining a comparative advantage in various industries

we have to ask ourselves, what kind of society do we want to live in?  what are the outcomes of the changes of the 1930’s?

the social conflict that is engendered by labor-market flexibility is undesirable and dangerous

these changes are not how you would want society to be founded

we need a strategy to deal with these 4 structural problems

he hopes the Obama administration is attempting to do that, but is unsure that the political system is prepared to accept a solution

Prof. Todd J. Zywicki:

Fears that we are entering a new paradigm that will lead to long term stagnation, social inequity, and decline

the paradigm threatens the rule of law specifically regarding contracts and property law

threatens the rule of law:

demonstrated by the Chrysler case – he is disgusted by this case

the lynch pin of bankruptcy has always been that the priority goes to the secure creditor

in Chrysler, secured creditors received 29¢ to the dollar, while the UAW received 50¢ to the dollar

the UAW essentially stole money from the secured creditors (rousing applause)

perhaps even more distasteful is the way the government played a role in Chrysler

banks who were on TARP basically rolled over and allowed the demise of those who were not – they were safe because they were on “government welfare” – they acted in “moral cowardice”

as soon as we start the game of allowing some emergencies to overrule property rights, we lose the rule of law

threatens the economy:

there is an increased risk of lending and additionally have to consider the political risk

http://online.wsj.com/article/SB124217356836613091.html

if dealing with a company with political risk, and they have credit problems, and can’t get private loans, the government will have to bail them out again

Fannie & Freddy are prime examples

when corporate giants become too big to fail, they gain the comparative advantage over everyone else because they don’t have to worry about financing – they know the government will have to bail them

if the top 10 are too big to fail, what happens to number 11?  obviously they merge with another smaller company in attempt to become one of the top 10 – perverse incentive to rent sharing

long term threat to free enterprise

President Obama is obviously not an economist – when he learned about Public Choice, but he must have mistaken what he was taught – Public Choice theory is a cautionary tale, not a how-to manual

what is perhaps most pernicious is the rent extortion the government is engaged in by using politics to play corporations against each other

what is essentially happening is the government is saying to corporations “we have a right to destroy you, and you have a right to buy back your life”

wrap up:

Ms. Amity Shlaes:

(regarding a question comparing the U.S. unemployment to Europe)

“Why do we want to be like Europe where you has no future?”

remarks on the posttests in France over labor law and the response was to say that the youth cannot have what their parents had – this points to the very problem of a social welfare system – it denies the youth that which they are most entitled to: economic growth and prosperity in their own lives

Prof. Todd J. Zywicki:

it all comes to basic economics

in a recession, either have to cut wages or cut employees – there are only 2 options – you cannot both keep the employees and continue to pay them the same wages

unions create economic rents – just look at the number of discrimination cases from the 1950’s where a union is the defendant – initially unions were run based on favors and who knew who

since 1963, women who had been excluded through the union networks entered the work force

Ms. Amity Shlaes:

If past is prologue:

in the 1950’s we were the only power around – there were no economic challenges – we were protected – that’s why there was no disparity between wages and productivity

so, how do we deal with that now?  protectionism is not the answer

freedom, education, and freedom to become educated are the answers

the teachers union is the union to support above all

[youtube=http://www.youtube.com/watch?v=6kd02InD1-w]