The Freedom of Thought Podcast

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 CommissionAndrea Lucas, Commissioner, Equal Employment Opportunity CommissionModerator: 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, LLCAshley Keller, Partner, Keller PostmanMark Behrens, Co-Chair, Public Policy Group at Shook, Hardy & Bacon L.L.P. Brandon Smith, Chief of Staff, Office of the Tennessee Attorney GeneralModerator: 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 UniversityProf. Eugene Volokh, Gary T. Schwartz Distinguished Professor of Law, UCLA School of LawJay Edelson, Founder & CEO, Edelson PCProf. Todd J. Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason UniversityModerator: 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 SchoolDaniel R. Thies, Shareholder, Webber & Thies PCProf. Joshua Kleinfeld, Professor of Law, Northwestern University Pritzker School of LawModerator: Hon. Carlos G. Muñiz, Chief Justice, Florida Supreme Court ---To register, click the link above.

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.

A panel of experts from a variety of political perspectives will discuss the range of briefing and arguments in Moody v. NetChoice, LLC and NetChoice, LLC v. Paxton. Featuring: Ryan L. Bangert, Senior Vice President, Strategic Initiatives & Special Counsel to the President, Alliance Defending Freedom Prof. Julia D. Mahoney, John S. Battle Professor of Law, University of Virginia School of Law Prof. Ganesh Sitaraman, New York Alumni Chancellor's Chair in Law, Vanderbilt University Law School Prof. Zephyr Teachout, Professor of Law, Fordham Law School Moderator: James M. Burnham, President, Vallecito Capital, LLC

In June of last year, 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.But what are the implications outside of university admissions? How might this decision affect the interpretation and enforcement of federal laws against discrimination in employment, contracting, and other business practices?Please join us for the first in a series of webinars, as we consider the larger implications of Students for Fair Admissions for employees and businesses.On February 12th, our panelists will consider the continuing relevance of voluntary affirmative action plans under Weber and Johnson, the risks of adopting "diversity" commitments or pressuring outside contractors on diversity metrics, and newer defenses like asserted First Amendment interests in the consideration of race.Featuring:Jason C. Schwartz, Partner, Gibson Dunn & CrutcherJay Edelson, Founder & CEO, Edelson PCStacy Hawkins, Professor of Law, Rutgers Law SchoolJonathan Berry, Managing Partner, Boyden Gray PLLCModerator: Hon. Gregory G. Katsas, Judge, United States Court of Appeals, District of Columbia Circuit

The Department of Justice has just released new Draft Merger Guidelines. What are the implications - not just for how the Draft Guidelines might affect economic questions, but also for freedom of thought and the rule of law? In this afternoon session, Assistant Attorney General Jonathan Kanter and Principal Deputy Assistant Attorney General Doha Mekki will discuss these issues, the development of the Draft Guidelines and what comes next.Featuring:Hon. Jonathan S. Kanter, Assistant Attorney General for the Antitrust Division, U.S. Department of JusticeDoha Mekki, Principal Deputy Assistant Attorney General, U.S. Department of JusticeProf. Todd J. Zywicki, George Mason University Foundation Professor of Law, Antonin Scalia Law School, George Mason UniversityModerator: James M. Burnham, President, Vallecito Capital, LLC

Judge Gregory Katsas and Ashley Keller sit down for a wide-ranging discussion of his career as a conservative plaintiff’s lawyer, how he thinks about corporate rights and corporate power, and what Citizens United might say about competing First Amendment interests of corporations and human citizens.

In the second part of this interview, Matt and Prof. Kleinfeld discuss the roots of authoritarian trends we should be worried about in the United States and debate how ideological attitudes among few powerful elite have power over our cultural institutions and way of thinking.

In Part 1 of Open Minds with Matt Stoller, we hear about how Matt's formative years shaped his interest in economics and government. Matt tells us about how he thinks about politics in a way that bends categories and how antitrust relates to contemporary problems.

Prof. Randy Barnett joins Prof. Joshua Kleinfeld to discuss how his life experiences have informed his libertarian convictions. Along the way, he has rubbed shoulders with some of the giants in Libertarian political philosophy and made significant contributions to the legal discourse - with over 24,000 citations. Now among the most highly regarded libertarian legal academics, Prof. Barnett considers how libertarian premises might be refined to address current institutional culture war challenges.

Finally, we turn to the present moment and consider the current challenges to American free speech and culture. How does cancel culture contribute to professional blacklisting at law firms and universities? Professor Volokh tackles this issue and addresses the role of social media companies in restricting speech and participating in canceling.

What are the fundamentals of how free speech law works and what are the outer limits of free speech protection? Is it constitutional to allow voters to to wear a Trump hat while casting a ballot? Tune in to hear Professor Volokh's perspective.

What made Professor Volokh the independent and influential thinker he is today? It began with an unusual childhood and education. He discusses how his early years shaped his career path, how he has developed his approach to law and doctrine, and which major justification of free speech most resonates with him.