Federalist Society Faculty Division Podcasts

Limited Government and the Bill of Rights takes a novel approach to the constitutional connection between the Bill of Rights and principles of limited government.  Author Patrick Garry proposes that the Bill of Rights should be viewed primarily as limiting the power of government rather than protecting of the autonomy interests of individuals.   He argues that this limited government approach is ultimately the best way to maximize individual liberty, and limits judicial overreach by denying Courts the power to create and enforce expansive, autonomy-based rights.Professor Garry, Professor of Law and Director of the Hagemann Center for Legal & Public Policy Research at the University of South Dakota School of Law, is joined by critical commenter Lee Strang, Professor at the University of Toledo College of Law, to discuss the book.

First Amendment Institutions proposes a new approach to enforcing First Amendment laws by arguing that institutions who exercise First Amendment freedoms should have more autonomy to regulate their own affairs, as the courts and a “top-down rules” approach insufficiently account for the complexity of real-world situations. Author Paul Horwitz suggests that such an approach would enhance these institutions’ role in social and political life, thus making the state a part of our social framework as opposed to an overbearing sovereign.Horwitz, the Gordon Rosen Professor of Law at the University of Alabama School of Law, is joined by critical commenter Marc DeGirolami, Associate Professor of Law at St. John’s University School of Law, to discuss the book.

With the 2012 presidential election now behind us, the unique American presidential election system is fresh in the mind of the public. Some dismiss the Electoral College as outdated, arguing that the system should be replaced by direct popular vote. Enlightened Democracy: The Case for the Electoral College? author Tara Ross provides an overview of the history of the Electoral College from the Founding Era to the present, defending the College as an institution and explaining how it protects our republic and promotes liberty. This second edition includes a section discussing the National Popular Vote legislative effort. Derek Muller, Associate Professor at Pepperdine University School of Law, interviews Ms. Ross about her book.

In Search of Jefferson’s Moose: Notes on the State of Cyberspace? explores the “new world” of cyberspace: what it is, how it works, and what laws it should have. Author David Post compares Thomas Jefferson’s thoughts on the New World in Notes on the State of Virginia to the internet, drawing out the similarities and differences between the two “new worlds,” and presents Jefferson’s ideal--small self-governing groups loosely joined together and forming groups of increasingly large size--as a model for self-government in cyberspace. David Post, a Professor of Law at Temple University Beasley School of Law, is joined by critical commenter Eugene Volokh, the Gary T. Schwartz Professor of Law at UCLA School of Law, to discuss the book.

When States Go Broke: The Origins, Context, and Solutions for the American States in Fiscal Crisis? discusses the problem of fiscal crises in American states and the best way to meet the political and fiscal challenges they present. The book features insights from leading scholars in a variety of disciplines, and facilitates debate about the origin and context of the crises, and what regimes bankrupt states should adopt. Author David Skeel, the S. Samuel Arsht Professor of Corporate Law at the University of Pennsylvania Law School, is joined by critical commenter Richard Hynes, Professor of Law and Director of John M. Olin Program in Law and Economics at the University of Virginia School of Law, to discuss the book.

Lawyer Barons exposes the high but unseen cost of litigation driven by contingency fees, a method of financing that is said to improve access to the courts for personal injury victims with limited means. Author Lester Brickman argues that there is more to the picture than just improving access, however; that the contingency fee also enables lawyers and judges to collaborate and incentivize litigation to a degree that distorts our civil justice system and imposes other financial and social costs. Brickman, a professor at the Benjamin N. Cardozo School of Law, is joined by critical commenter Peter Schuck, the Simeon E. Baldwin Professor Emeritus of Law at Yale University, discuss the book.

This podcast discusses Firearms Law and the Second Amendment: Regulation, Rights and Policy by authors Nicholas Johnson, David Kopel, George Mocsary and Michael O'Shea. Firearms Law provides a comprehensive overview of the constitutional right to private firearms, the first traditional casebook on the subject, covering the history and development of the constitutional right to keep and bear arms, and all aspects of firearms law, policy and regulations. The book serves as a starting point for discussion of contemporary gun-law issues raised by the Supreme Court’s 2008 ruling in District of Columbia v. Heller that invalidated a law banning handgun possession in Washington, DC and in its 2010 ruling in McDonald v. Chicago, which extended that right to constrain state action. Authors Nicholas Johnson, a Professor at Fordham University School of Law, and Michael O’Shea, a Professor at Oklahoma City University School of Law, are joined by commentator Adam Winkler, a Professor at the UCLA School of Law, to discuss the book.

Gunfight: The Battle Over the Right to Bear Arms in America? tells the story of the six-year courtroom battle that culminated in the Supreme Court’s 2008 ruling in District of Columbia v. Heller, invalidating a law banning handgun possession in Washington, DC. In the book, author Adam Winkler gives a historical overview of the battle between gun rights and gun control advocates, and brings to light what he argues are the often misunderstood legal and historical issues central to history of guns in America. Winkler, a Professor at the UCLA School of Law, is joined by Nelson Lund, the Patrick Henry Professor of Constitutional Law and the Second Amendment at George Mason University School of Law, to discuss the book.

During the past decade, courts have struggled to reconcile anti-discrimination statutes with claims by private organizations to First Amendment protection for decisions regarding their missions and membership. Can the Boy Scouts expel a gay Scoutmaster? (Boy Scouts of America v. Dale) Can a state law school deny official recognition to a religious club that requires members to affirm certain beliefs regarding homosexuality? (Christian Legal Society v. Martinez) In resolving these questions courts have frequently invoked the freedom of "expressive association," a phrase that appears nowhere in the text of the First Amendment but has been a part of modern judicial doctrine. In Liberty’s Refuge, Professor Inazu argues that this "expressive association" mode of analysis is at least in part responsible for what he argues is inadequate protection for associational autonomy--and that a return to the more textually and historically grounded "right of the people peaceably to assemble" is necessary to recapture the benefits of a meaningful pluralism. The Constitution contemplated forcefully dissenting political and expressive groups that would serve as a check on majority rule’s tendency to turn into a force for stifling nonconformity. To maintain an environment in which these groups will flourish, Inazu contends, our First Amendment jurisprudence must recover a more robust conception of associational autonomy grounded in a better understanding of the centrality and breadth of the assembly right. John Inazu, a professor at Washington University Law School, is joined by critical commenter Michael McConnell, the Richard & Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School, as well as Senior Fellow at the Hoover Institution, to discuss the book.

Written by Michigan State University law professor Brian Kalt, Constitutional Cliffhangers envisions six constitutional controversies that could arise in selecting, replacing, and punishing a U.S. president. None of Kalt’s scenarios, such as the criminal prosecution of a sitting president, a president pardoning himself, or a two-term president attempting to stay in power, have actually occurred, though some have come close. In the book Kalt provides a legal guide to navigating these situations, should they ever occur, and in the process offers insight into pertinent structural and procedural provisions in the Constitution.? Brian Kalt is joined by critical commenter Seth Barrett Tillman, a Lecturer in the Department of Law at the National University of Ireland, Maynooth, to discuss the book.

The Machinery of Criminal Justice discusses the shift in American criminal law from being a system run primarily by laymen to a system in which lawyers are the primary actors. Author Stephanos Bibas argues that this shift has increased the speed and efficiency of our criminal justice system, but that softer values, such as reforming defendants and healing relationships, have been lost with the prioritization of efficiency. Bibas proposes a variety of ways to involve victims, defendants, and the public in the criminal justice process again, including requiring convicts to work or serve in the military and giving more power to sentencing juries over prosecutors. His remarks suggest that, although these mechanisms may be more expensive, they may better serve the interests of criminal procedure by facilitating the denouncement of crime, the vindication of victims, and the reformation of criminals. Stephanos Bibas, a professor at the University of Pennsylvania Law School, is joined by critical commenter Andrew Taslitz, a professor at Howard University School of Law, to discuss the book.

Taming Globalization discusses the challenge to American constitutional law that arises out of our increasingly global society. The creation of dozens of international institutions, from the International Court of Justice to border commissions to the World Trade Organization, has given rise to a legal network that poses a challenge for American constitutional law. In response to this challenge, Julian Ku and John Yoo propose that domestic actors make use of “mediating devices” such as non-self-execution of treaties, recognition of the President’s authority to interpret international law, and a reliance on state implementation of international law and agreements. These devices, the authors argue, will help us resolve the legal challenges of globalization in a way that minimizes both constitutional and international difficulties. Julian Ku, a professor at Hofstra University School of Law, is joined by critical commenter Martin Flaherty, the Leitner Family Professor of Law and Co-Founding Director of the Leitner Center for International Law and Justice at Fordham Law School, to discuss the book.

This Federalist Society Faculty Book Podcast features Professor Scott Gerber’s new book, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787. A Distinct Judicial Power analyzes the origins of judicial independence in the United States. The book sets forth both the political theory behind and the historical progression of independent judicial power in the United States during the colonial period. It concludes with an examination of how this mixture of theory and experience coalesced to produce Article III of the U.S. Constitution and a power of judicial review committed to the protection of individual rights. Professor Scott Gerber, a professor at Ohio Northern University College of Law, is joined by critical commenter Jim Pfander, a professor at Northwestern University School of Law, to discuss the book.

This Federalist Society Faculty Book Podcast features Professor Elizabeth Price Foley’s new book, The Tea Party: Three Principles. As Publisher Cambridge University Press states: “In The Tea Party: Three Principles, constitutional law professor Elizabeth Price Foley takes on the mainstream media's characterization of the American Tea Party movement, asserting that it has been distorted in a way that prevents meaningful political dialogue and may even be dangerous for America's future. Foley sees the Tea Party as a movement of principles over politics. She identifies three "core principles" of American constitutional law that bind the decentralized, wide-ranging movement: limited government, unapologetic U.S. sovereignty, and constitutional originalism. These three principles, Foley explains, both define the Tea Party movement and predict its effect on the American political landscape. Foley explains the three principles' significance to the American founding and constitutional structure. She then connects the principles to current issues as health care reform, illegal immigration, the war on terror, and internationalism.” Professor Foley, a Professor of Law at Florida International University School of Law, is joined by critical commenter Jared Goldstein, a Professor at Roger Williams University School of Law, to discuss the book.