Panel II

Is Economic Protectionism a Legitimate State Interest?

The Tenth Circuit held in Powers v. Harris that “intra-state economic protectionism, absent a violation of a specific federal statutory or constitutional provision, is a legitimate state interest.” The Second Circuit agrees. In contrast, the Fifth and Sixth Circuits have struck down laws aimed at protecting local economic actors as unjustified by state police power. Does a state violate the Equal Protection Clause when it restricts economic liberty for the sole purpose of economic protectionism?  For example, is the Equal Protection Clause violated when a state doesn’t make an activity or ownership of a certain type of property per se illegal, but the state employs economic “checkpoints” to significantly discourage the activity or specified property ownership (i.e., guns, pornography, etc.).


This panel will also explore the impact of cronyism on emerging technologies and federalism. For example, had Uber and Lyft not been so successful in expeditiously building themselves up before being taken seriously by regulators and traditional industry competitors (i.e., taxi companies), the taxi companies likely could have, and would have, lobbied to pass legislation and create regulations making ridesharing companies like Uber and Lyft illegal, or so cost prohibitive as to preclude the ridesharing industry from ever being financially viable.

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Moderator and Panelists

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MODERATOR - Judge Edith H. Jones (U.S. Court of Appeals, 5th Circuit)

Edith Jones has been a federal judge since May 1985, when she was appointed to the bench by President Ronald Reagan. She assumed the chief judgeship of the Fifth Circuit in January, 2006 and served until October, 2012.


Born in Philadelphia, Pennsylvania, in 1949, she grew up in San Antonio, Texas, graduating from Alamo Heights High School, where she was a National Merit Scholar. In 1971, she received her B.A. in Economics from Cornell University, graduating with honors. In 1974, she was awarded her J.D. at the University of Texas Law School, where she was a law review editor and received the Order of the Coif. She is a recipient of the Leon Green Award from UT Law Review, and in 2004 was honored with the Distinguished Alumnus Award.


Judge Jones served on the board of the Sam Houston Area Council of the Boy Scouts of America organization for many years, and received Scouting=s Silver Beaver Award in 2003. She has been a member of the Garland Walker Inn of Court in Houston since 1998 and is its current President.

From 2002 to 2008, Judge Jones served as a White House Fellows Commissioner, by appointment of President George W. Bush. She is a former member of the National Bankruptcy Review Commission (1994-97). She is also on the Board of the Calvin Coolidge Presidential Foundation.


Relevant Articles, Cases, etc.:

 Cases

  1. Greater Houston Small Taxicab Co. Owners Ass'n v. City of Houston, Tex., 660 F.3d 235, 240 (5th Cir. 2011)

Panel Discussions:

  1. Has the Consumer Financial Protection Bureau (CFPB) Helped Consumers? Federalist Society, 2016 National Lawyers Convention. November 23, 2016
  2. Showcase Panel III: Regulation of Financial Institutions. Federalist Society, 2009 National Lawyers Convention. November 14, 2009

PANELIST - Prof. Todd Zywicki (Antonin Scalia Law School)

Todd J. Zywicki is George Mason University Foundation Professor of Law at the Antonin Scalia Law School, Senior Scholar of the Mercatus Center at George Mason University, and Senior Fellow at the F.A. Hayek Program for Advanced Study in Philosophy, Politics and Economics. Since 2006 he has served as Co-Editor of the Supreme Court Economic Review. From 2003–04, Professor Zywicki served as the Director of the Office of Policy Planning at the Federal Trade Commission. He teaches in the area of Bankruptcy, Contracts, Commercial Law, Business Associations, Law & Economics, and Public Choice and the Law. He has also taught at Vanderbilt University Law School, Georgetown University Law Center, Boston College Law School, and Mississippi College School of Law.

Professor Zywicki clerked for Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit and worked as an associate at Alston & Bird in Atlanta, Georgia, where he practiced bankruptcy and commercial law. He received his JD from the University of Virginia, where he was executive editor of the Virginia Tax Review and John M. Olin Scholar in Law and Economics. Professor Zywicki also received an MA in Economics from Clemson University and an AB cum laude with high honors in his major from Dartmouth College.


Relevant Articles, Cases, etc.:

  1. Zywicki, Todd. “The CFPB Could Be a Force for Good.” The Wall Street Journal, Dow Jones & Company, 19 Feb. 2018, www.wsj.com/articles/the-cfpb-could-be-a-force-for-good-1519070012
  2. Adam C. Smith, Todd Zywicki, Behavior, Paternalism, and Policy: Evaluating Consumer Financial Protection, 9 NYU J.L. & Liberty 201 (2015)

PANELIST - Prof. Paul Bender (ASU Sandra Day O'Connor College of Law)

Paul Bender is professor of law and dean emeritus for the Sandra Day O'Connor College of Law. He teaches courses on U.S. and Arizona constitutional law. He has written extensively about constitutional law, intellectual property and Indian law, and is coauthor of the two-volume casebook/treatise, Political and Civil Rights in the United States. Professor Bender has argued more than 20 cases before the U.S. Supreme Court, and actively participates in constitutional litigation in federal and state courts.

Professor Bender served as dean of the College of Law from 1984-1989, during which time he was instrumental in starting its Indian Legal Program. Prior to joining the College faculty, he was law clerk to 2nd U.S. Circuit Court of Appeals Judge Learned Hand and to U.S. Supreme Court Justice Felix Frankfurter, and spent 24 years as a faculty member at the University of Pennsylvania Law School. Professor Bender served as Principal Deputy Solicitor General of the United States from 1993-1997, with responsibility for Supreme Court and federal appellate litigation in the areas of civil rights, race and sex discrimination, freedom of speech and religion, and tort claims against the federal government.


Relevant Articles, Cases, etc.:

  1. The Obscenity Muddle, Harper’s Magazine, February, 1973.
  2. The Constitutionality of Proposed Federal Database Protection Legislation, 28 Dayton L.R. 143 (2003).
  3. Copyright and First Amendment After Eldred v. Ashcroft, 30 Colum J. L. & Arts 349 (2006).

PANELIST - Prof. Roderick Hills (NYU School of Law)

Roderick Hills teaches and writes in public law areas with a focus on the law governing division of powers between central and subcentral governments. These areas include constitutional law, local government law, land use regulation, jurisdiction and conflicts of law, and education law. His publications have appeared, among other places, in the Harvard Law Review, Pennsylvania Law Review, Michigan Law Review, Stanford Law Review, the University of Chicago Law Review, and the Supreme Court Law Review. Hills has been a cooperating counsel with the American Civil Liberties Union of Michigan and also files amicus briefs in cases on issues relevant to the autonomy of state and local governments and the protection of their powers from preemption. Hills holds bachelor’s and law degrees from Yale University. He served as a law clerk for Judge Patrick Higginbotham of the US Court of Appeals for the Fifth Circuit and previously taught at the University of Michigan Law School. He is a member of the state bar of New York and the US Supreme Court bar.


Relevant Articles, Cases, etc.:

  1. "Can 'Planning' Deregulate Land Use?," 38 Reg. 36 (2015) (with David Schleicher)
  2. "Hydrofracking and Home Rule: Defending and Defining an Anti-Preemption Canon of Statutory Construction in New York," 77 Alb. L. Rev. 647 (2014)

PANELIST - Mr. Yaron Brook (Chairman of the Board - Ayn Rand Institute)

Yaron Brook is chairman of the board of the Ayn Rand Institute and host of the weekly The Yaron Brook Show, which airs live on the BlogTalkRadio podcast. He is also a frequent guest on national radio and television programs.


As coauthor, with Don Watkins, of the national best-seller Free Market Revolution: How Ayn Rand's Ideas Can End Big Government, Brook and Watkins argue that the answer to our current economic woes lies not in "trickle-down government" but in Rand's inspiring philosophy of capitalism and self-interest.  Brook and Watkins also co-authored Equal Is Unfair: America's Misguided Fight Against Income Inequality, a book that shows the real key to making America a freer, fairer, more prosperous nation is to protect and celebrate the pursuit of success―not pull down the high fliers in the name of equality. 


Brook is also a contributing author to Neoconservatism: An Obituary for an Idea, Winning the Unwinnable War: America’s Self-Crippled Response to Islamic Totalitarianism and Big Tent: The Story of the Conservative Revolution — As Told by the Thinkers and Doers Who Made It Happen. He was a columnist at Forbes.com, and his articles have been featured in the Wall Street Journal, USA Today, Investor’s Business Daily and many other publications. 


Brook was born and raised in Israel. He served as a first sergeant in Israeli military intelligence and earned a BSc in civil engineering from Technion-Israel Institute of Technology in Haifa, Israel. In 1987 he moved to the U.S., where he received his MBA and PhD in finance from the University of Texas at Austin; he became an American citizen in 2003. For seven years he was an award-winning finance professor at Santa Clara University, and in 1998 he cofounded BH Equity Research, a private equity and hedge fund manager, of which he is managing founder and director. 


Brook serves on the boards of the Ayn Rand Institute, the Clemson Institute for the Study of Capitalism and CEHE (Center for Excellence in Higher Education), and he is a member of the Association of Private Enterprise Education and the Mont Pelerin Society.


Relevant Articles, Cases, etc.:

Articles

  1. Brooks, Y. From Flat World to Free World. Forbes. June 26, 2008. 

YouTube

  1. Yaron Answers: Do Free Trade Agreements Actually Promote Free Trade? Ayn Rand Institute. Published on May 15, 2013

Books

  1. Brook, Y., & Watkins, D. (2016). Equal is unfair: Americas misguided fight against income inequality. New York: St. Martins.
  2. Brook, Y., & Watkins, D. (2013). Free market revolution: How Ayn Rands ideas can end big government. Basingstoke: Palgrave Macmillan.

Panel Discussions:

  1. Income Inequality: Is It Fair or Unfair? Federalist Society, Yale Student Chapter. September 27, 2017.