CAPITALISM, MARKETS AND THE CONSTITUTION - University of ...

THE FEDERALIST SOCIETY30th Annual Student SymposiumFebruary 27, 2009J.B. Moore Society of International LawCAPITALISM,MARKETS AND THECONSTITUTIONFebruary 25 & 26, 2011

WelcomeAmerica’s economy, characterized bycapitalism and the free market, has generallyprovided material prosperity for its citizenssince the country was founded. In the last fewyears, however, that same economy has faceda financial crisis and recession worse than anyother since the Great Depression. The federalgovernment took an active role in respondingto the downturn, favoring more interventionover less. The results included a bailout ofmajor banks and automobile companies, an$800 billion stimulus package, an overhaulof financial regulations, and a comprehensivehealth care reform package.These measures were hotly contested,and a vocal group of citizens responded byforming Tea Party groups across the country.Members of this movement placed a heavyemphasis on the ideas of the founders andthe original meaning of the Constitution.Opposition to the federal government’seconomic approach, primarily led by the TeaParty movement, culminated in historicRepublican gains in the 2010 midterm elections.Shortly after taking control, the newmajority held a reading of the Constitution onthe floor of the House of Representatives forthe first time in history.The battle over the government’s rolein economic regulation has not only beenwaged in the halls of Congress, but in thecourts as well. In the past year a total of 28states have filed joint or individual lawsuitschallenging the constitutionality of the healthcare reform bill’s individual mandate.With the state of the economy at ahistoric low and the popularity of the Constitutionat a historic high, now is an apt time toexamine the topic of capitalism, markets andthe Constitution. This symposium seeks toexplore the following questions: What werethe economic theories of the founders andhow did they influence the Constitution? Towhat extent does the Constitution protecteconomic liberties, if at all? What effectdoes American federalism, embodied in theConstitution, have on the substance and styleof government regulation? Is a welfare stateconsistent with American exceptionalism?What is the role of the courts in times ofeconomic uncertainty? And lastly, what werethe causes and consequences of the recentfinancial crisis?The University of Virginia School ofLaw and its Federalist Society chapter arehonored to host the 2011 Student Symposium.The setting is the perfect match for thissymposium — a law school with a history offocusing on the intersection of law and theeconomy located just miles from the homeof James Madison. We hope that each of youwill approach our panels with an open mindand insightful questions and will discuss witheach other what you learn over the course ofthe weekend. Anyone who has attended pastFederalist Society symposia knows to expectthe highest degree of respectful and cordialdebate. Thank you for joining us in Charlottesvillefor what is sure to be an exciting andengaging event.Symposium CommitteeUniversity of Virginia Federalist SocietyPlease see the last page of this program for alist of our generous sponsors.2

Friday3:30 p.m.RegistrationUniversity of Virginia School of Law,Caplin Auditorium Lobby6:15 p.m.Welcome andOpening RemarksUniversity of Virginia School of Law,Caplin AuditoriumBen MasseyPresident, University of VirginiaFederalist SocietyLILLIAN BEVIERDean, University of Virginia School of Law6:30 p.m.Debate: EconomicFreedoms and theConstitutionUniversity of Virginia School of Law,Caplin AuditoriumSince West Coast Hotel Co. v. Parrish and theend of the Lochner era, the Supreme Courthas adhered to the belief that “[t]he Constitutiondoes not speak of freedom of contract.”But is this commitment consistent with anoriginal understanding of the Constitution?This panel will address whether the Constitutionpermits the extensive state regulationof economic affairs. Even if Lochner as adecision was illegitimate, has the SupremeCourt retreated too far in protecting economicliberties from state interference? Is theConstitution a thoroughly libertarian documentor is it compatible with a high degree ofstate regulation? Does either understandingcome with any limiting principles? If so, whatare their sources? In any event, is it desirablefor a constitution to constrain the power ofthe state in the area of redistribution andeconomic regulation?Randy BarnettGeorgetown University Law CenterJeffrey RosenGeorge Washington University Law SchoolModerator:Judge Debra LivingstonU.S. Court of Appeals for the Second CircuitDebate participant biographies on page 94

11 a.m.SPEECH: The U.S.Financial Crisis: Causesand ConsequencesUniversity of Virginia School of Law,Caplin Auditorium12:30 p.m.lunchUniversity of Virginia School of Law,Withers-Brown HallMany politicians have blamed business forthe current recession, leading to additionalmeasures by the U.S. government to regulatethe market. Some critics argue that the FederalReserve’s missteps in managing the monetarysystem created an economic bubble. Thatbubble pervaded the real estate market in partthrough relaxed lending standards promulgatedby the government-sponsored enterprisesFreddie Mac and Fannie Mae. When the bubbleinevitably deflated, the crisis spread to thegeneral economy, resulting in high unemploymentand negative or slow economic growth.But will the measures the government took tostem the crisis and regulate the market reduceeconomic growth in the long term? JohnAllison will outline the fundamental economicand philosophical solutions to these problemsin his presentation.John AllisonFormer Chairman and CEO, BB&T CorporationIntroductionHoward HusockManhattan InstituteAllison and Husock biographies on page 157

2 p.m.Panel III: The Welfare Stateand American ExceptionalismUniversity of Virginia School of Law,Caplin AuditoriumFollowing the recent passage of PresidentBarack Obama’s health care legislation, thispanel will reassess whether it is possible tohave a welfare state that meshes with theAmerican constitutional tradition. Is theenduring presence of government entitlementsantithetical to our system of government, or isthere a way to accommodate these programswithout changing the historical Americanrelationship between the individual and thegovernment? Will the growing role of governmentin the United States cause the countryto increasingly mirror Europe, or can thenation chart an alternate course? Does the U.S.Constitution’s relative lack of positive rightscompared to its counterparts around the worldpose problems for proponents of an Americanwelfare state? Is the American suspicion towardstate entitlements the product of a longstandingphilosophical commitment or the resultof historical contingency? Are there currentlyany constitutional limits on the growth of thewelfare state? Should there be?William P. MarshallUniversity of North Carolina School of LawJeremy RabkinGeorge Mason University School of LawNeomi RaoGeorge Mason University School of LawModerator:Judge Brett KavanaughU.S. Court of Appeals for the D.C. CircuitPanel III participant biographies on page 164 p.m.Panel IV: EconomicUncertainty and the Roleof the CourtsUniversity of Virginia School of Law,Caplin AuditoriumThis panel will examine the role of the courtsin an uncertain economic climate. Given thefinancial troubles plaguing the United States,how much emphasis should the judiciary placeon the constitutional protection of privateproperty? In a difficult economic climate,should a judge’s empathy for those in financialdistress affect his rulings? If a state defaults onits obligations, what is the appropriate role ofthe courts? Should a refusal to pay constitute aviolation of the Takings Clause? On a broaderlevel, to what extent do interpretive methodshave financial consequences? How muchstock do investors put in stability in judicialreasoning when choosing where to place theirmoney? Does our current law protect privateproperty too much or not enough to maximizesocial utility, and should that be the standardby which we judge the legal protection ofproperty rights? Does the experience of othercountries offer any lessons in this area?Paul G. MahoneyDean, University of Virginia School of LawPaul StephanUniversity of Virginia School of LawTodd ZywickiGeorge Mason University School of LawModerator:Judge Diane SykesU.S. Court of Appeals for the Seventh CircuitPanel IV participant biographies on page 188

participants6 p.m.Cocktail ReceptionBoar’s Head Inn7 p.m.Banquet and KeynoteSpeechBoar’s Head InnInvocationFr. Luke ClarkSt. Thomas Aquinas ChurchIntroduction and WelcomeEugene MeyerPresident, The Federalist SocietyAlexander CoxSymposium Chair, University of VirginiaFederalist SocietyPresentation of Student Chapter AwardsStudent Division Staff, The Federalist SocietyPresentation of the Paul M. Bator AwardPresenter:Joseph BinghamUniversity of Chicago Federalist SocietyRecipient:Brian FitzpatrickVanderbilt University Law SchoolIntroduction of Keynote SpeakerLillian BeVierUniversity of Virginia School of LawKeynote Speechjustice Clarence ThomasU.S. Supreme CourtDebate: EconomicFreedoms and theConstitutionFriday, 6:30 p.m., Caplin AuditoriumRandy BarnettRandy E. Barnett is the CarmackWaterhouse Professor ofLegal Theory at the GeorgetownUniversity Law Center,where he teaches constitutionallaw and contracts. Aftergraduating from Northwestern University andHarvard Law School, he tried many felonycases as a prosecutor in the Cook CountyState’s Attorney’s Office in Chicago. He hasbeen a visiting professor at Northwesternand Harvard Law School. In 2008, he wasawarded a Guggenheim Fellowship inConstitutional Studies. Barnett’s publicationsinclude more than 90 articles and reviews,as well as nine books, including “Restoringthe Lost Constitution: The Presumptionof Liberty” (Princeton, 2004), “ConstitutionalLaw: Cases in Context” (Aspen, 2008),“Contracts” (Oxford Introductions to U.S.Law, 2010), “Contracts: Cases and Doctrine”(Aspen, 4th ed. 2008) and “The Structureof Liberty: Justice and the Rule of Law”(Oxford, 1998). In 2004, Barnett argued themedical marijuana case of Gonzalez v. Raichbefore the U.S. Supreme Court. He regularlypublishes opinion pieces in such publicationsas the Wall Street Journal, and appears onsuch programs as “CBS Evening News,” “TheNBC Nightly News,” “Parker Spitzer” (CNN)and “The Glenn Beck Show.” In 2007, Barnettwas featured in the documentaries, “TheTrials of Law School” and “In Search of theSecond Amendment”; he also portrayed anassistant prosecutor in the independent film“InAlienable.”9

Judge DebraLivingstonDebra Livingston was appointedto the U.S. Court of Appealsfor the Second Circuit in 2007.Prior to her appointment shewas the Paul J. Kellner Professorof Law at Columbia LawSchool, where she also served as vice deanfrom 2005 to 2006. Livingston joined theColumbia faculty in 1994. She continues toserve as a member of that faculty as the PaulJ. Kellner Professor.Livingston received her B.A., magna cumlaude, in 1980 from Princeton University,where she was elected to Phi Beta Kappa.She received her J.D., magna cum laude, in1984 from Harvard Law School, where shewas an editor on the Harvard Law Review.Following law school, she served as a lawclerk to Judge J. Edward Lumbard of the U.S.Court of Appeals for the Second Circuit.Livingston was an assistant U.S. attorneyin the Southern District of New York from1986 to 1991 and she served as a deputy chiefof appeals in the Criminal Division from 1990to 1991. She was an associate with the NewYork law firm Paul, Weiss, Rifkind, Wharton& Garrison from 1985 to 1986 and again from1991 to 1992, when she elected to pursue anacademic career. Livingston was a member ofthe University of Michigan Law School facultyfrom 1992 until 1994.Livingston is a co-author of the casebook“Comprehensive Criminal Procedure,” andhas published numerous academic articleson legal topics. She has taught courses inevidence, criminal law and procedure, andnational security and terrorism. From 1994 to2003, Livingston was a commissioner on NewYork City’s Civilian Complaint Review Board.10Jeffrey RosenJeffrey Rosen is a professorof law at George WashingtonUniversity and the legalaffairs editor of The NewRepublic. His most recentbook is “The Supreme Court:The Personalities and Rivalries that DefinedAmerica.” He also is the author of “The MostDemocratic Branch,” “The Naked Crowd” and“The Unwanted Gaze.” Rosen is a graduate ofHarvard College, summa cum laude; OxfordUniversity, where he was a Marshall Scholar;and Yale Law School.Rosen’s essays and commentaries haveappeared in the New York Times Magazine,the Atlantic Monthly, on National PublicRadio, and in the New Yorker, where he hasbeen a staff writer. The Chicago Tribunenamed him one of the 10 best magazinejournalists in America and the L.A. Timescalled him “the nation’s most widely read andinfluential legal commentator.” Rosen livesin Washington, D.C., with his wife, ChristineRosen, and their two sons.Panel I: Economic Theory,Civic Virtue and the Meaningof the ConstitutionFriday, 8 p.m., Caplin AuditoriumJames ElyJames W. Ely, Jr., is the MiltonR. Underwood Professor ofLaw, emeritus, and a professorof history, emeritus, at VanderbiltUniversity. He is the authoror editor of numerous books,including “The Chief Justiceship of MelvilleW. Fuller, 1888-1910” (1995), “Railroads andAmerican Law” (2001), “The Bill of Rights inModern America,” (rev ed. 2008, with DavidJ. Bodenhamer), “The Guardian of Every

Other Right: A Constitutional History of PropertyRights,” (3rd ed. 2008), and “AmericanLegal History: Cases and Materials,” (4th ed.2011, with Kermit L. Hall and Paul Finkelman).Ely has also authored a wide range of articlesdealing with the rights of property owners inAmerican constitutional history. In 2006 hereceived the Brigham-Kanner Property RightsPrize. Ely is a former associate editor of theAmerican Journal of Legal History.Renee Lettow LernerProfessor Renee Lettow Lernerworks in the fields of U.S. andEnglish legal history, civiland criminal procedure, andcomparative law. She focusesparticularly on the history ofU.S. procedure and legal institutions, howthey have diverged from those of England,and on the differences between currentadversarial and nonadversarial legal systems.She regularly speaks to groups of U.S. andforeign judges about comparative procedureand institutions. She is the author, with JohnLangbein and Bruce Smith, of the book“History of the Common Law: The Developmentof Anglo-American Legal Institutions”(2009).Lerner received an A.B., summa cumlaude, in history from Princeton University.She did graduate work as a Rhodes Scholarat Oxford University in English legal history.At Yale Law School, she was articles editorof the Yale Law Journal. She clerked for U.S.Supreme Court Justice Anthony M. Kennedyand Judge Stephen F. Williams of the U.S.Court of Appeals for the District of ColumbiaCircuit. From 2003 to 2005, she served asdeputy assistant attorney general in the Officeof Legal Counsel at the U.S. Departmentof Justice.Nelson LundNelson Lund is the PatrickHenry Professor of ConstitutionalLaw and the SecondAmendment at George MasonUniversity School of Law,where he has served as vicedean and as co-editor of the Supreme CourtEconomic Review. A graduate of St. John’sCollege in Annapolis, Md., he holds advanceddegrees in philosophy from the Catholic Universityof America (M.A. 1978) and in politicalscience from Harvard University (A.M. 1979;Ph.D. 1981). He received his law degree in1985 from the University of Chicago, wherehe was executive editor of the University ofChicago Law Review and chapter presidentof the Federalist Society.Lund served as a law clerk for JudgePatrick E. Higginbotham of the U.S. Court ofAppeals for the Fifth Circuit and for JusticeSandra Day O’Connor of the U.S. SupremeCourt. In addition to experience in the U.S.Department of Justice at the Office of theSolicitor General and at the Office of LegalCounsel, Lund served in the White House asassociate counsel to the president from 1989to 1992.Lund has written on a variety of subjects,including constitutional interpretation,federalism, separation of powers, jurisprudence,federal election law, the CommerceClause, the Speech or Debate Clause, theSecond Amendment, the Uniformity Clause,employment discrimination and civil rights,the legal regulation of medical ethics, andthe application of economic analysis to legalinstitutions and to legal ethics.G. Edward WhiteG. Edward White joinedthe Virginia law faculty in 1972after a clerkship with ChiefJustice Earl Warren of the U.S.Supreme Court and a year as11

visiting scholar at the American Bar Foundation.He was appointed the John B. MinorProfessor of Law and History in 1987, andheld that chair until 2003, when he becamethe David and Mary Harrison DistinguishedProfessor of Law. In 1992, he was appointedto a University Professorship, which he helduntil 2003. From 1990-92 and from 2001-03,he was the Sullivan & Cromwell ResearchProfessor; from 1994-97 the E. James KellyResearch Professor; and from 1999-2001the Class of 1963 Research Professor. Hehas held visiting appointments at New YorkLaw School, William & Mary School of Law,Brooklyn Law School, Arizona College ofLaw, the London School of Economics andPolitical Science, and Harvard Law School.He has been a Guggenheim Fellow and twicea senior fellow of the National Endowmentfor the Humanities. He is a fellow of theAmerican Academy of Arts & Sciences, afellow of the Society of American Historians,and a member of the American Law Institute.12He received the Roger and Madeleine TraynorFaculty Achievement Award in 2008.White’s 14 published books have wonnumerous honors and awards. These includefinal listing for the Pulitzer Prize in history,the Silver Gavel Award from the AmericanBar Association, the James Willard HurstPrize from the Law & Society Association, theLittleton-Griswold Prize from the AmericanHistorical Association, the Scribes Award andthe Association of American Law Schools’Triennial Coif Award.White was editor of the Studies inLegal History series for the North CarolinaPress from 1980-85, and advisor on lawmanuscripts for Oxford University Press from1986-96. He was on the editorial board ofthe Virginia Quarterly Review from 1980-2002. He has served on the Commission forUndergraduate Education in Law and theHumanities, and has taught summer humanitiesseminars for lawyers and judges underthe auspices of the National Endowment forthe Humanities.Judge J. HarvieWilkinson IIIJ. Harvie Wilkinson graduatedfrom Yale University in 1967and received his law degreefrom the University of Virginiain 1972.He began his law career in 1972 as aclerk for U.S. Supreme Court Justice Lewis F.Powell. Wilkinson was a law professor at theUniversity of Virginia from 1973-78, 1981-82and 1983-84. In 1978, he became editor of theNorfolk Virginian-Pilot. In 1982, he becamedeputy assistant attorney general in the CivilRights Division of the Department of Justice.He was appointed circuit judge for the U.S.Court of Appeals for the Fourth Circuit in1984, and was the circuit’s chief judge from1996-2003.From 1992-96, Wilkinson served on theBoard of the Federal Judicial Center, and

in 2003 he was appointed to the Board ofthe James Madison Memorial FellowshipFoundation. In 2004, he was awarded theThomas Jefferson Medal by the University ofVirginia and the Thomas Jefferson Foundation.This award is the highest outside awardoffered by the University, which grants nohonorary degrees. In 2008, he was awardedThe Lawrenceville Medal, the highest awardgiven by The Lawrenceville School. He is amember of the American Law Institute, andhe was selected in 2009 as a Fellow of theAmerican Academy of Arts and Sciences.Wilkinson holds honorary J.D.s from theUniversity of Richmond and the University ofSouth Carolina, and an honorary LL.D. fromChristopher Newport University.He is also the author of several books:“Harry Byrd and the Changing Face ofVirginia Politics” (University of Virginia Press,1968), “Serving Justice: A Supreme CourtClerk’s View” (Charterhouse 1974), “FromBrown to Bakke: The Supreme Court andSchool Integration” (Oxford University Press,1979), and “One Nation Indivisible: How EthnicSeparatism Threatens America” (AddisonWesley/now Perseus, 1997).Wilkinson lives in Charlottesville, Va.He and his wife, Lossie, have two children,Nelson and Porter.and constitutional law. Adler is the author oreditor of four books on environmental policyand his articles have appeared in publicationsranging from the Harvard Environmental LawReview and Supreme Court Economic Reviewto the Wall Street Journal and The WashingtonPost. Adler is a contributing editor toNational Review Online and a regular contributorto the popular legal blog, The VolokhConspiracy. In 2004, Adler received thePaul M. Bator Award, given annually by theFederalist Society for Law and Policy Studiesto an academic under 40 for excellence inteaching, scholarship and commitment tostudents. In 2007, the Case Western ReserveUniversity Law Alumni Association awardedAdler their annual Distinguished TeacherAward. Adler has appeared on numerousradio and television programs, ranging from“Newshour with Jim Lehrer” and NPR’s “Talkof the Nation” to “The O’Reilly Factor” and“Entertainment Tonight.” Prior to joining thefaculty at Case Western, Adler clerked forJudge David B. Sentelle on the U.S. Court ofAppeals for the District of Columbia Circuitand was director of environmental studies atthe Competitive Enterprise Institute. He holdsa B.A., magna cum laude, from Yale Universityand a J.D., summa cum laude, from theGeorge Mason University School of Law.Panel II: Federalism andInterstate CompetitionSaturday, 9 a.m., Caplin AuditoriumJonathan AdlerJonathan H. Adler is a professorof law and director of theCenter for Business Law &Regulation at the Case WesternReserve University Schoolof Law, where he teachescourses in environmental, administrative13

Clayton GilletteProfessor Clayton Gillettejoined the New York UniversitySchool of Law faculty in 2000.For the prior eight years, hewas the Perre Bowen Professorof Law at the Universityof Virginia School of Law. Gillette began histeaching career at Boston University, wherehe served as the Warren Scholar in MunicipalLaw and associate dean, and has been a visitingprofessor at the University of Michiganand the University of Virginia as well as atNYU School of Law.Gillette earned his J.D. from the Universityof Michigan in 1975 and a B.A. fromAmherst College in 1972. After law school, heclerked for Judge J. Edward Lumbard of theU.S. Court of Appeals for the Second Circuit,and was associated with Cleary, Gottlieb,Steen and Hamilton in New York City.Gillette’s scholarship concentrates oncommercial law and local government law. Heis the author of casebooks on “Local GovernmentLaw” (with Lynn Baker) and “PaymentSystems and Credit Instruments” (with AlanSchwartz and Robert Scott), and a textbook,“Municipal Debt Finance Law” (with RobertS. Amdursky). Gillette’s numerous articlesinclude studies of long-term commercialcontracts, initiatives, relations betweenlocalities and their neighbors, privatization ofmunicipal services and judicial constructionof contracts governing homeowners’ associations.He has also served as the reporterfor the ABA Intersectional Task Force onInitiatives and Referenda and has consultedin litigation ranging from the Agent OrangeProducts Liability Litigation to the default onmunicipal bonds by Orange County, Calif.,and the Washington Public Power SupplySystem.14John McGinnisProfessor John O. McGinnis isa graduate of Harvard Collegeand Harvard Law School, wherehe was an editor of the HarvardLaw Review. He also has an M.A.from Balliol College, Oxford, inphilosophy and theology. McGinnis clerked onthe U.S. Court of Appeals for the District ofColumbia Circuit. From 1987 to 1991, he wasdeputy assistant attorney general in the Officeof Legal Counsel at the Department of Justice.McGinnis is a scholar in both the areas ofconstitutional and international law. The Officeof the U.S. Trade Representatives has addedhim to the roster of Americans who can beappointed as panelists to resolve World TradeOrganization disputes. He is a past winner ofthe Paul Bator award, given by the FederalistSociety to an outstanding academic under 40.Judge William H.Pryor Jr.William H. Pryor Jr. is a judgeof the U.S. Court of Appealsfor the 11th Circuit. Initiallyappointed by President GeorgeW. Bush in 2004, during aSenate recess, Pryor’s appointmentwas confirmed by the Senate in 2005.Pryor served as attorney general ofAlabama from 1997 to 2004. When firstappointed, he was the youngest attorneygeneral in the nation. He was later electedand re-elected to that office in 1998 and2002.Pryor is a graduate, magna cum laude,of Tulane Law School, where he was editorin chief of the Tulane Law Review, memberof the Order of the Coif and recipient of theGeorge Dewey Nelson Memorial Award.After graduation, Pryor served as a lawclerk for Judge John Minor Wisdom of theU.S. Court of Appeals for the Fifth Circuit.Following his judicial clerkship, Pryorengaged in a private practice of litigation in

Birmingham, Ala., and for six years servedas an adjunct professor of admiralty law atthe Cumberland School of Law of SamfordUniversity. Since 2006, Pryor has served as avisiting professor of federal jurisdiction at theUniversity of Alabama School of Law.Pryor is a member of the American LawInstitute and the Board of Advisory Editors ofthe Tulane Law Review. He is a fellow of theAlabama Law Foundation, vice president ofthe Alabama Center for Law & Civic Education,and a former chairman of the Federalismand Separation of Powers Practice Groupof the Federalist Society. In 2002-03, Pryorserved as a member of the State and LocalSenior Advisory Committee of the WhiteHouse Office on Homeland Security. Pryorhas been awarded honorary doctorates oflaw from John Marshall Law School in Atlantaand Regent University in Virginia.Pryor has lectured and published widelyincluding the Columbia and Virginia lawreviews, the Harvard Journal of Law & PublicPolicy and the Yale Law & Policy Review. Hehas delivered lectures at the Ronald ReaganPresidential Library and several law schoolsand universities. He has published op-eds inthe Wall Street Journal, the New York Times,the Washington Times and USA Today. Hehas testified before committees of the U.S.Senate on capital punishment, environmentallaw and the role of the judiciary.Pryor is married with two children.Louis MichaelSeidmanAfter graduating from HarvardLaw School in 1971, ProfessorLouis Michael Seidmanserved as a law clerk forJudge J. Skelly Wright of theU.S. Circuit Court of Appealsfor the District of Columbia Circuit and U.S.Supreme Court Justice Thurgood Marshall.He then was a staff attorney with the D.C.Public Defender Service until joining theGeorgetown University Law Center facultyin 1976. He teaches a variety of coursesin the fields of constitutional and criminallaw. He is co-author of a constitutional lawcasebook and the author of many articlesconcerning criminal justice and constitutionallaw. His most recent books are “Silence andFreedom” (Stanford, 2007), “Our UnsettledConstitution: A New Defense of Constitutionalismand Judicial Review” (Yale, 2001) and“Equal Protection of the Laws” (Foundation,2002).Speech: The U.S.Financial Crisis: Causesand ConsequencesSaturday, 11 a.m., Caplin AuditoriumJohn AllisonJohn A. Allison is the retiredchairman and CEO of BB&TCorporation, the 10th-largestfinancial services holdingcompany headquartered in theU.S. Allison began his servicewith BB&T in 1971 and managed a wide varietyof responsibilities throughout the bank.He became president of BB&T in 1987 andwas elected chairman and CEO in July 1989.During Allison’s tenure as CEO from 1989 to2008, BB&T grew from $4.5 billion to $152billion in assets. In March 2009, he joinedthe faculty of Wake Forest University Schoolof Business as a Distinguished Professor ofPractice.Allison is a Phi Beta Kappa graduate ofthe University of North Carolina at ChapelHill, where he received a B.S. in businessadministration (1971). He received hismaster’s degree in management from DukeUniversity (1974). He is also a graduate of theStonier Graduate School of Banking and hasreceived honorary doctorate degrees from15

Paul StephanAn expert on internationalbusiness and Soviet andpost-Soviet legal systems,Paul Stephan has advisedgovernments and internationalorganizations, organizedconferences, edited books and lectured toprofessionals, university groups and highschool students on a variety of issues raisedby the globalization of the world economyand the transition away from Soviet-stylesocialism. During 2006-07, he served ascounselor on international law in the U.S.Department of State. Other interests forStephan, who joined the Virginia Law Schoolfaculty in 1979, include international law,taxation and constitutional law.In law school, Stephan was executive editorof the Virginia Law Review and a memberof the Order of the Coif. During the two-yearperiod between his graduation and returnas a professor, he clerked for Judge LevinCampbell of the U.S. Court of Appeals forthe First Circuit and for U.S. Supreme CourtJustice Lewis F. Powell Jr. He has taught atthe University of Vienna, Münster University,Lausanne University, Melbourne University,University of Pantheon-Assas and at SciencesPo, in Paris, at the Interdisciplinary Centre,Herzliya and at Sydney University.Since the collapse of the Soviet Union,Stephan has worked on a variety of projectsinvolving law reform in former socialist states.He has worked in Russia, Georgia, Ukraine,Albania and Slovakia on behalf of the U.S.Treasury and in Kazakhstan and Azerbaijanon behalf of the International Monetary Fund.He also has organized training programsfor tax administrators and judges from allof the formerly socialist countries under theauspices of the Organization for EconomicCooperation and Development. His casebookon international business is used at lawschools both in the U.S. and abroad. He haswritten extensively on international law, corruptionand the history of the Cold War. Mostrecently, he is the co-author, with RobertScott, of “The Limits of Leviathan: ContractTheory and the Enforcement of InternationalLaw” (Cambridge University Press, 2006). Hiscurrent research interests include books onthe political economy of international lawmakingand on the collapse of communism.Judge Diane SykesJudge Diane Sykes was nominatedby President GeorgeW. Bush to the U.S. Courtof Appeals for the SeventhCircuit. She was confirmed bythe U.S. Senate on June 24,2004, received her commission on July 1 andentered upon duty on July 4. Prior to her appointmentto the federal bench, Sykes servedas a justice of the Wisconsin Supreme Court.She was appointed to the Supreme Court in1999 by then-Gov. Tommy G. Thompson andelected to a 10-year term in April 2000.Born and raised in the Milwaukee area,Sykes received a bachelor’s degree from theMedill School of Journalism at NorthwesternUniversity in 1980 and a J.D. from MarquetteUniversity Law School in 1984. Betweencollege and law school, Sykes worked as areporter for The Milwaukee Journal. Sykeswas elected to the bench in MilwaukeeCounty in 1992 and served there in themisdemeanor, felony and civil divisions untilher appointment to the Wisconsin SupremeCourt in September 1999. Prior to her electionto the Milwaukee County Circuit Court, Sykespracticed law with the Milwaukee law firm ofWhyte & Hirschboeck, S.C., and served as lawclerk to Judge Terence T. Evans. Sykes is themother of two sons.19

Todd ZywickiTodd Zywicki is the GeorgeMason University FoundationProfessor of Law at GeorgeMason University School ofLaw and a senior scholar of theMercatus Center at George Mason.He is also co-editor of the Supreme CourtEconomic Review. From 2003-04, Zywickiserved as the director of the Office of PolicyPlanning at the Federal Trade Commission. Hehas also taught at Vanderbilt University LawSchool, Georgetown University Law Center,Boston College Law School and MississippiCollege School of Law.Zywicki clerked for Judge Jerry E.Smith of the U.S. Court of Appeals for theFifth Circuit and worked as an associate atAlston & Bird in Atlanta, where he practicedbankruptcy and commercial law. He receivedhis J.D. from the University of Virginia, wherehe was executive editor of the Virginia TaxReview and a John M. Olin Scholar in Law andEconomics. Zywicki also received an M.A. ineconomics from Clemson University and anA.B., cum laude, with high honors in his majorfrom Dartmouth College.Zywicki is also a senior fellow of theJames Buchanan Center Program on Politics,Philosophy, and Economics at George MasonUniversity; a senior fellow of the GoldwaterInstitute; and a fellow of the InternationalCentre for Economic Research in Turin, Italy.During the fall 2008 semester Zywicki was theSearle Fellow of the George Mason UniversitySchool of Law and was a 2008-09W. Glenn Campbell and Rita Ricardo-CampbellNational Fellow and the Arch W. Shaw NationalFellow at the Hoover Institution on War,Revolution and Peace. He has lectured andconsulted with government officials aroundthe world, including Iceland, Italy, Japan andGuatemala. In 2006 Zywicki served as a memberof the U.S. Department of Justice studygroup on “Identifying Fraud, Abuse and Errorsin the United States Bankruptcy System.”20Zywicki is the author of more than 70articles in leading law reviews and peerreviewedeconomics journals. He is one ofthe Top 50 Most Downloaded Law Authorsat the Social Science Research Network, bothall time and during the past 12 months. Heserved as the editor of the Supreme CourtEconomic Review from 2001-02. He has testifiedseveral times before Congress on issuesof consumer bankruptcy law and consumercredit and is a frequent commentator on legalissues in the print and broadcast media. He isa contributor to the popular legal weblog TheVolokh Conspiracy and The Atlantic BusinessChannel of The Atlantic magazine.Zywicki is a member of the board ofdirectors of the Bill of Rights Institute, thegoverning board and the advisory councilfor the Financial Services Research Programat George Washington University School ofBusiness, the executive committee for theFederalist Society’s Financial Institutions andE-Commerce Practice Group, the advisorycouncil of the Competitive EnterpriseInstitute, and the program advisory board ofthe Foundation for Research on Economicsand the Environment. He is currently the chairof the academic advisory councils of the Billof Rights Institute, the film “We the People inIMAX,” and the McCormick-Tribune FoundationFreedom Museum in Chicago. Since2009 he has been a member of the board oftrustees of Yorktown University. From 2005-09 he served as an elected alumni trustee ofthe Dartmouth College Board of Trustees.

Banquet and KeynoteSpeechSaturday, 7 p.m., Boar’s Head InnJustice ClarenceThomasClarence Thomas was bornin the Pin Point communityof Georgia near Savannah onJune 23, 1948. He marriedVirginia Lamp in 1987 and hasone child, Jamal Adeen, by aprevious marriage. He attended ConceptionSeminary and received an A.B., cum laude,from Holy Cross College, and a J.D. fromYale Law School in 1974. He was admitted tolaw practice in Missouri in 1974, and servedas an assistant attorney general of Missourifrom 1974–77, an attorney with the MonsantoCompany from 1977–79, and legislative assistantto Sen. John Danforth from 1979–81.From 1981–82, he served as assistant secretaryfor civil rights in the U.S. Departmentof Education, and as chairman of the U.S.Equal Employment Opportunity Commissionfrom 1982–90. He became a judge of the U.S.Court of Appeals for the District of ColumbiaCircuit in 1990. President George H.W. Bushnominated him as an associate justice of theSupreme Court, and he took his seat on Oct.23, 1991.21

The Federalist Societyfor Law & Public Policy StudiesFounding DirectorsHon. E. Spencer AbrahamSteven G. CalabresiHon. David M. McIntoshLee Liberman OtisDirectors/OfficersSteven G. Calabresi, ChairmanHon. David M. McIntosh, Vice ChairmanGary Lawson, SecretaryBrent O. Hatch, TreasurerEugene B. Meyer, President...Hon. T. Kenneth Cribb, Jr., Counselorboard of visitorsHon. Robert H. Bork, Co-Chairman Hon. Orrin G. Hatch, Co-ChairmanLillian BeVierHon. Elaine L. ChaoChristopher DeMuthHon. C. Boyden GrayHon. Lois Haight HerringtonHon. Donald Paul HodelHon. Frank Keating IIHarvey C. KochRobert A. LevyHon. Edwin Meese IIIHon. Michael B. MukaseyHon. Gale NortonHon. Theodore B. OlsonAndrew J. RedleafHon. Wm. Bradford Reynolds Nicholas Quinn RosenkranzHon. Gerald Walpin22

Federalist Society staffEugene B. MeyerPresidentLeonard A. LeoExecutive Vice PresidentLee Liberman OtisSenior Vice President andDirector, Faculty DivisionStudent DivisionLawyers DivisionFaculty DivisionPeter RedpathVice President and DirectorDaniel SuhrDeputy DirectorKate Beer AlcantaraAssociate DirectorAlexandra BruceAssistant DirectorAdministrationand Support StaffDouglas C. UbbenVice President and Director,FinanceC. David SmithVice President and Director,Information TechnologyPaul ZimmermanDirector of PublicationsMatthew DanielDirector of MembershipKendra KocovskyAlumni DirectorRhonda MoalandOffice ManagerMatt NixAssistant Office ManagerDean ReuterVice President and Director,Practice GroupsLisa Budzynski EzellVice President and Director,Lawyers ChaptersJuli NixDeputy Director ofPractice GroupsKen WiltbergerDeputy Director ofInternational AffairsDavid C.F. RayAssociate DirectorAllison AldrichAssociate DirectorHannah De GuzmanAssistant DirectorThomas KraemerAssistant DirectorState CourtsJonathan BunchVice President and DirectorMaureen WagnerDeputy DirectorAnthony DeardurffDeputy DirectorBarrett YoungAssociate DirectorDevelopmentEmily KueblerDeputy DirectorSophia MasonAssistant DirectorIndependentContractorsJames P. Kelly IIIDirector of International AffairsPeggy LittleDirector of thePro Bono Center23

UVA Law SchoolFederalist SocietySymposium CommitteeAlexander Cox, Symposium ChairBrinton Lucas, Symposium Vice ChairVladimir Shklovsky, Symposium Vice ChairSpeakers and Panels Vice ChairsJoseph Clark, Joseph D’Agostino, Devin DeBacker,Matthew Glover and Lauren PriebLaura Jenkins, Events and Facilities ChairEvents and Facilities Vice ChairsStacy Chung, Sarah Cummings and Jessica GarciaAshlee Sawyer, Public Relations ChairSean Twomey, Finance and Registration ChairBrian Polley, Finance and Registration Vice ChairPeter Trentman, Travel and Accommodations ChairAndrew Head, Travel and Accommodations Vice Chair24

UVA Law SchoolFederalist SocietyChapter BoardBen Massey, PresidentAllison Harnack, Executive Vice PresidentChris Schandevel, Vice President for SpeakersKim Paschall, Vice President for Special EventsDavid Merritt, Vice President for AdministrationAmber Williams, Vice President for CommunicationsMilad Emam, Vice President for Professional DevelopmentGreg Heinen, 1L Committee ChairMatthew Glover, 1L Committee Vice Chair1L CommitteeDavid Colquitt, Jessica Jones, Alex Royal, Garrick Smith,William Stephenson, Jonathan Urick and Annie Wang25

sponsorsThe UVA Law School Chapter of the Federalist Society would like to thank the followingsponsors for their generous support of the 2011 Student SymposiumSymposium SponsorsHolman Supporting FoundationThe Jefferson Trust, An Initiative of the UVA Alumni AssociationRichard and Helen DeVos FoundationSPONSORING LAW FIRMGibson, Dunn & Crutcher LLPGOLD SPONSORSullivan & Cromwell LLPsilver SPONSORSAlston & Bird LLPBartlit Beck Herman Palenchar & Scott LLPBracewell & Giuliani LLPCooper & Kirk, PLLCDebevoise & Plimpton LLPDLA PiperGoodwin Procter LLPGreenberg Traurig LLPHogan Lovells US LLPHollingsworth LLPHunton & Williams LLPJones Daybronze SPONSORSKing & Spalding LLPKirkland & Ellis LLPMayer Brown LLPMcCarter & English, LLPOgletree DeakinsPatton Boggs LLPPaul, Hastings, Janofsky & Walker LLPSidley Austin LLPWhite & Case LLPWiley Rein LLPPartners of Willkie Farr & Gallagher LLPWilmerHaleBrownstein Hyatt Farber Schreck, LLPDechert LLPCovington & Burling LLPSteptoe & Johnson LLP26Wilson Sonsini Goodrich & Rosati

scheduleFriday, Feb. 25, 20113:30 p.m.RegistrationUniversity of Virginia School of Law,Caplin Auditorium Lobby6:15 p.m.Welcome andOpening RemarksUniversity of Virginia School of Law, Caplin Auditorium6:30 p.m.Debate: EconomicFreedoms and theConstitutionUniversity of Virginia School of Law, Caplin Auditorium8 p.m.Panel I: Economic Theory,Civic Virtue and theMeaning of the ConstitutionUniversity of Virginia School of Law, Caplin Auditorium9:45 p.m.Cocktail ReceptionUniversity of Virginia School of Law, Caplin PavilionSCOTTCOMMONSSaturday, Feb. 26, 20118 a.m.Continental BreakfastUniversity of Virginia School of Law,Caplin Auditorium Lobby9 a.m.Panel II: Federalism andInterstate CompetitionUniversity of Virginia School of Law, Caplin Auditorium11 a.m.SPEECH: The U.S.Financial Crisis: Causesand ConsequencesUniversity of Virginia School of Law, Caplin Auditorium12:30 p.m.lunchUniversity of Virginia School of Law, Withers-Brown Hall2 p.m.Panel III: The Welfare Stateand American ExceptionalismUniversity of Virginia School of Law, Caplin Auditorium4 p.m.Panel IV: EconomicUncertainty and the Roleof the CourtsUniversity of Virginia School of Law, Caplin AuditoriumSIDE ENTRANCESLAUGHTER HALLSPIES GARDENCAPLINPAVILIONCLAY HALLMAIN ENTRANCEWITHERS-BROWN HALLCAPLINAUDITORIUMMAP IS NOT TOSCALESIDE ENTRANCE6 p.m.Cocktail ReceptionBoar’s Head Inn7 p.m.Banquet and KeynoteSpeechBoar’s Head Inn