The Freedom of Thought Podcast The Federalist Society

In the first part of this interview, James Burnham and Jonathan Mitchell discuss his unusual career progression in alternating legal practice and academia, how his experience with consequentialism informs his formalism and textualism, and what's next for the conservative legal movement.

In June, the Supreme Court held that consideration of applicants’ race in admissions decisions of Harvard and the University of North Carolina violated both the Equal Protection Clause of the Constitution and Title VI of the 1964 Civil Rights Act. Join us as two EEOC Commissioners, Democrat Vice Chair Jocelyn Samuels and Republican Commissioner Andrea Lucas, discuss their respective views on how this decision, the federal law banning employment discrimination (Title VII of the 1964 Civil Rights Act), and EEOC regulations apply to employers’ DEI programs and initiatives. The Commissioners also will discuss their views on related topics such as the benefits and risks related to various categories of DEI programs; how employers should assess the lawfulness of their initiatives; and promising practices and guardrails for employers.

Featuring:

Jocelyn Samuels, Vice Chair, Equal Employment Opportunity Commission
Andrea Lucas, Commissioner, Equal Employment Opportunity Commission
Moderator: Kate Comerford Todd, Partner, Ellis George Cipollone

For decades, the plaintiffs' bar has been populated by liberal lawyers who support left-wing elected officials and liberal causes, while conservative lawyers have largely joined the ranks of defense-side firms. In recent years, large public companies have become increasingly associated with political liberalism, and promoted contentious social issues that many conservatives reject – with biglaw defending them throughout.
Given this shift in corporate behavior and business culture, it is reasonable to ask--why haven't more conservatives joined the plaintiffs’ bar that seeks to hold large companies accountable? Is our culture shifting in a fundamental way that will realign the legal profession? Or will the tension between supporting big business and believing in conservative views soon pass?
Join us for a discussion that reflects the diversity of perspectives within the right on these questions.
Featuring:

James M. Burnham, President, Vallecito Capital, LLC
Ashley Keller, Partner, Keller Postman
Mark Behrens, Co-Chair, Public Policy Group at Shook, Hardy & Bacon L.L.P.
Brandon Smith, Chief of Staff, Office of the Tennessee Attorney General
Moderator: Andrew Ferguson, Solicitor General of Virginia

This panel will consider the symmetry and consistency of free speech norms in higher education. Academic norms for free speech are essential to promote the free exchange of ideas. Students and professors must be free to engage with mutual respect while drawing a line at harassment. But has academia failed to recognize consistent speech harassment distinctions? Have there even been decisions that turned on the identities of the group involved?
Featuring:

Prof. David Bernstein, University Professor of Law and Executive Director, Liberty & Law Center, Antonin Scalia Law School, George Mason University
Prof. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of Law
Jay Edelson, Founder & CEO, Edelson PC
Prof. Todd J. Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason University
Moderator: Marcella Burke, Founder and Managing Partner of Burke Law Group PLLC

Recent high-profile incidents at law schools have raised questions about the scope of academic freedom for faculty and freedom of speech for students and faculty. At the suggestion of its Strategic Review Committee, the Council of the ABA's Section of Legal Education and Admissions to the Bar, which is the primary accreditor of American law schools, has put out for comment a proposed new accreditation standard, "Standard 208, Academic Freedom and Freedom of Expression."
As the Council describes the core concern behind the proposed standard: “Effective legal education and the development of the law require the free, robust, and uninhibited sharing of ideas reflecting a wide range of viewpoints. Becoming an effective advocate or counselor requires learning how to conduct candid and civil discourse in respectful disagreement with others while advancing reasoned and evidence-based arguments. Concerns about civility and mutual respect, however, do not justify barring discussion of ideas because they are controversial or even offensive or disagreeable to some.”
The Freedom of Thought Project has assembled a virtual panel to help illuminate discussion of various questions implicated by the proposed standard. Among other topics, the panel will consider the rationale for the standard put forward by the Council as well as the likely efficacy of the standard. It will also consider the role of accreditation standards in supporting freedom of thought at law schools.
Featuring:
Prof. Nicole Stelle Garnett, John P. Murphy Foundation Professor of Law, University of Notre Dame Law School
Daniel R. Thies, Shareholder, Webber & Thies PC
Prof. Joshua Kleinfeld, Professor of Law, Northwestern University Pritzker School of Law
Moderator: Hon. Carlos G. Muñiz, Chief Justice, Florida Supreme Court

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In the second part of this interview, James Burnham and Jonathan Mitchell discuss areas where conventional wisdom can be challenged and how he has sought to shift the Overton window in legal discourse. Should legal doctrine eclipse constitutional and statutory text? Join us for a sweeping discussion on equality doctrine, judicial review limitations, private civil enforcement, and more.