FedSoc Blog

Article: “Rethinking Presumed Knowledge of the Law in the Regulatory Age”

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by Publius
Posted March 24, 2015, 2:13 PM

Article: Michael Anthony Cottone has an interesting new article in the Tennessee Law Review. The abstract:

In this article, I will examine the doctrine of ignorantia legis, or presumed knowledge of the law, as it functions in the current milieu of American criminal justice, the age of the regulatory crime. Much ink has been spilled over this doctrine, and many pieces argue against ignorantia legis, hinting at normative values of fairness and economic efficiency. With this article, I intend to formalize and synthesize these discussions, approaching the problem explicitly from both perspectives. As a framework for evaluating the doctrine, I will apply both Lon Fuller’s idea of “internal morality of the law” and general principles of economic analysis of law. While I do not subscribe completely to either view for all purposes, my intent is to demonstrate that the current application of presumed knowledge of the law is extremely troublesome under at least two distinct methods of evaluating law, indicating a strong need for reconsideration of the doctrine. Part II of this article gives an overview of the doctrine of presumed knowledge of the law in the context of the regulatory state, ultimately arguing that it pervades the current legal system. Part III contains the two critiques of the doctrine based on Fuller’s “internal morality of the law” and on the economic analysis of law, determining that the current application of ignorantia legis is suspect under both. Finally, the Article concludes by synthesizing these arguments and offering a few thoughts on the doctrine moving forward.

Read the full article.

Categories: External Articles

Today in 1775: “Give me liberty, or give me death!”

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by Publius
Posted March 23, 2015, 9:02 AM

Today in 1775: On this day in 1775, Patrick Henry spoke to the second Virginia Convention and urged his colleagues to support the revolution, ending his speech with seven immortal words. The entire speech, though, is worth reading and remembering:

St. John's Church: Richmond, Virginia
March 23, 1775

MR. PRESIDENT: No man thinks more highly than I do of the patriotism, as well as abilities, of the very worthy gentlemen who have just addressed the House. But different men often see the same subject in different lights; and, therefore, I hope it will not be thought disrespectful to those gentlemen if, entertaining as I do, opinions of a character very opposite to theirs, I shall speak forth my sentiments freely, and without reserve. This is no time for ceremony. The question before the House is one of awful moment to this country. For my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfil the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offence, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the majesty of heaven, which I revere above all earthly kings.

Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst, and to provide for it.

I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years, to justify those hopes with which gentlemen have been pleased to solace themselves, and the House? Is it that insidious smile with which our petition has been lately received? Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with these war-like preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled, that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort. I ask, gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us; they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging. And what have we to oppose to them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done, to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne. In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free² if we mean to preserve inviolate those inestimable privileges for which we have been so long contending²if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained, we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of Hosts is all that is left us!

They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. Three millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations; and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable and let it come! I repeat it, sir, let it come.

It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace²but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty, or give me death!

Categories: Federalist Society

SCOTUS Orders & Opinions 3/9/2015

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by Publius
Posted March 09, 2015, 9:59 AM

SCOTUS Orders & Opinions 3/9/2015Orders: The order list is here.

Two cert grants: (1) a GVR in University of Notre Dame v. Burwell (for reconsideration in light of Burwell v. Hobby Lobby); and (2) A substantive grant in Hurst v. Florida limited to the following question: Whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U. S. 584 (2002).

The Court also issued its decree in the original action Kansas v. Nebraska, and there was also a CVSG in RJR Pension Investment v. Tatum.

Opinions: The Court issued two opinions today:

(1) Perez v. Mortgage Bankers Ass'n. (and Nickols v. Mortgage Bankers Ass'n): By a vote of 9-0, the judgment of the DC Circuit is reversed. The issue and resolution are summarized in the opening of Justice Sotomayor's opinion for the Court, which was joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Kagan, and by Justice Alito except for part III-B:

"When a federal administrative agency first issues a rule interpreting one of its regulations, it is generally not required to follow the notice-and-comment rulemaking procedures of the Administrative Procedure Act (APA or Act). See 5 U. S. C. §553(b)(A). The United States Court of Appeals for the District of Columbia Circuit has nevertheless held, in a line of cases beginning with Paralyzed Veterans of Am. v. D. C. Arena L. P., 117 F. 3d 579 (1997), that an agency must use the APA’s notice-and-comment procedures when it wishes to issue a new interpretation of a regulation that deviates significantly from one the agency has previously adopted. The question in these cases is whether the rule announced in Paralyzed Veterans is consistent with the APA. We hold that it is not."

Justice Alito filed an opinion concurring in part and concurring in the judgment. Justices Scalia and Thomas also filed opinions concurring in the judgment.

(2) Dep't of Transportation v. Ass'n of American Railroads:  By a vote of 9-0, the judgment of the D.C. Circuit is vacated and the case remanded. Per Justice Kennedy, the Court holds that, for purposes of determining the validity of the metrics and standards issued by Amtrak, Amtrak is a governmental entity. Justices Kennedy's opinion for the Court was joined by the Chief Justice and Justices Scalia, Ginsburg, Breyer, Alito, Sotomayor, and Kagan. Justice Alito also filed a concurring opinion. Justice Thomas filed an opinion concurring in the judgment.

Categories: SCOTUSreport

SCOTUS Opinion 3/4/2015

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by Publius
Posted March 04, 2015, 10:46 AM

SCOTUS Opinion 3/4/2015Today the Supreme Court decided Alabama Dep't  of Revenue v. CSX Transportation. Federal law prohibits states from imposing taxes that discriminate against a rail carrier. The issue in this case is whether a state violates this prohibition by taxing diesel fuel purchases made by a rail carrier while exempting similar purchases made by its competitors; and if so, whether the violation is eliminated when other tax provisions offset the challenged treatment of railroads. The Eleventh Circuit ruled in favor of CSX on both issues.

In an opinion delivered by Justice Scalia, the Court reversed the judgment of the Eleventh Circuit by a vote of 7-2 and remanded the case for further proceedings. The Court agreed with the Circuit that it was appropriate to compare Alabama's treatment of CSX (a rail carrier) with Alabama's treatment of motor and water carriers, but found error in the Circuit's refusal to consider Alabama's tax-based justification: that the sales tax imposed on rail carriers (but not motor carriers) was not ultimately discriminatory because Alabama imposed a roughly similar fuel-excise tax on motor carriers but not rail carriers. The Court left it to the Circuit to consider on remand whether the fuel-excise and sales taxes are sufficiently similar, as well as to compare the treatment of water carriers (which pay neither tax).

Justice Scalia's opinion was joined by the Chief Justice and Justices Kennedy, Breyer, Alito, Sotomayor, and Kagan. Justice Thomas issued a dissent that was joined by Justice Ginsburg.

Categories: SCOTUSreport

SCOTUS Orders 3/2/2015

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by Publius
Posted March 02, 2015, 11:43 AM

Today the Court granted cert in two cases. The order list is here.  The Court has not yet announced the release of opinions this week, but an opinionless week at this point in the term would be unusual so we'll be keeping any eye out.

(1) Ocasio v. United States: Whether a conspiracy to commit extortion requires that the conspirators agree to obtain property from someone outside the conspiracy.

(2) Hawkins v. Community Bank of Raymore: (1) Whether “primarily and unconditionally liable” spousal guarantors are unambiguously excluded from being Equal Credit Opportunity Act (ECOA) “applicants” because they are not integrally part of “any aspect of a credit transaction”; and (2) whether the Federal Reserve Board has authority under the ECOA to include by regulation spousal guarantors as “applicants” to further the purposes of eliminating discrimination against married women.

Categories: SCOTUSreport

Judge Rules Missouri’s Membership in Common Core Testing Group Is Illegal

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by Publius
Posted February 27, 2015, 11:32 AM

Judge Rules Missouri's Membership in Common Core Testing Group is IllegalThe Washington Post reports on the ruling in Sauer v. Nixon:

The fighting over the Common Core initiative continues: A Missouri judge said the state’s membership in a federally funded testing consortium charged with creating an assessment aligned with the Common Core standards is illegal. And what’s more, he ruled that the state should stop paying fees to the group, the Smarter Balanced Assessment Consortium.

The ruling, which is expected to be appealed and well may not stand, is the newest salvo in what is an increasingly heated debate over Common Core State standards. The Associated Press reported that the state had budgeted about $4.3 million to pay dues to the SBAC this fiscal year.

The tactic of going to court to stop membership in a Core consortium could spread to other states by Core critics.

Read the full article.

Read the ruling.

* * * * *

The Federalist Society recently hosted a Teleforum call on the topic of Common Core that featured the Sauer v. Nixon case.

The Common Core State Standards attempts to define what K-12 students should know at the end of each school year in key subject areas. The initiative garnered strong and broad support, but has come under increasingly heavy criticism from state and local officials, and parents. Supporters argue that uniform standards are an essential part of assuring quality education throughout the nation. Criticisms range from concerns about top-down, federal control of a traditionally state and local government function, to attempts to impose a nationwide curriculum, to a lack of field testing of the standards. Our experts discussed the standards and who has the better argument.

  • Jimmy R. Faircloth, Jr., Managing Partner, Faircloth, Melton & Keiser, LLC
  • D. John Sauer, Partner, Clark & Sauer, LLC

Listen to the podcast.

Categories: External Articles

SCOTUS Opinions 2/25/2015

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by Publius
Posted February 25, 2015, 10:47 AM

SCOTUS Opinion 2/25/2015Today the Supreme Court decided two cases:

(1)  First is the Florida grouper/Sarbanes Oxley case, Yates v. United States.  Yates won a reversal of the conviction he had challenged, by a vote of 5-4, but without a majority opinion.

To prevent federal authorities from confirming that he had harvested undersized grouper, Yates ordered crew to toss the suspect catch back into the sea.  He was charged and convicted under several provisions of federal law, including the Sarbanes Oxley prohibition on destruction of "tangible object[s]" with intent to impede a federal investigation (18 USC 1519).  The Eleventh Circuit affirmed on the grounds that a fish was a "tangible object" within the meaning of the statute.

The Supreme Court reversed the judgment of the Eleventh Circuit and remanded the case for further proceedings, but with no majority opinion.  Justice Ginsburg announced the judgment of the Court and delivered an opinion joined by the Chief Justice, Justice Breyer, and Justice Sotomayor. The plurality concluded that dictionary definitions were not dispositive here, that traditional tools of statutory interpretation counseled against an aggressive interpretation of "tangible object," and that if any doubt remained it would be appropriate to invoke the rule of lenity.

Justice Alito concurred in the judgment, providing the necessary fifth vote to reverse, but on narrower grounds: "[T]raditional tools of statutory construction confirm that John Yates has the better of the argument. Three features of 18 U. S. C. §1519 stand out to me: the statute’s list of nouns, its list of verbs, and its title. Although perhaps none of these features by itself would tip the case in favor of Yates, the three combined do so."

Justice Kagan filed a dissenting opinion, joined by Justices Scalia, Kennedy and Thomas.  Citations include the work of Dr. Seuss: "While the plurality starts its analysis with §1519's heading...I would begin with §1519’s text. When Congress has not supplied a definition, we generally give a statutory term its ordinary meaning. See, e.g., Schindler Elevator Corp v. United States ex rel. Kirk, 563 U. S. ___, ___ (2011) (slip op., at 5). As the plurality must acknowledge, the ordinary meaning of “tangible object” is “a discrete thing thatpossesses physical form.” Ante, at 7 (punctuation andcitation omitted). A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). So the ordinary meaning of the term “tangible object” in §1519, as noone here disputes, covers fish (including too-small red grouper)."

(2) Second was North Carolina Bd. of Dental Examiners v. FTC.  By a vote of 6-3, the FTC prevailed.

Per Justice Kennedy's opinion for the Court, which was joined by the Chief Justice and Justices Ginsburg, Breyer, Sotomayor and Kagan:

"This case arises from an antitrust challenge to the actions of a state regulatory board. A majority of the board’s members are engaged in the active practice of the profession it regulates. The question is whether the board’s actions are protected from Sherman Act regulation under the doctrine of state-action antitrust immunity....The Sherman Act protects competition while also respecting federalism. It does not authorize the States to abandon markets to the unsupervised control of active market participants, whether trade associations or hybrid agencies. If a State wants to rely on active market participants as regulators, it must provide active supervision if state-action immunity under Parker is to be invoked. The judgment of the Court of Appeals for the Fourth Circuit [(upholding the FTC judgment against the Board)] is affirmed."

Justice Alito filed a dissenting opinion, which was joined by Justices Scalia and Thomas.

Categories: SCOTUSreport

SCOTUS Opinion 2/24/2015

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by Publius
Posted February 24, 2015, 11:27 AM

SCOTUS Opinion 2/24/2015The Supreme Court released one opinion today:

Kansas v. Nebraska

The question in this case was whether Nebraska violated a compact apportioning the waters of the Republican River between Kansas, Nebraska, and Colorado; if so, what relief is appropriate to remedy the violation.

In an original opinion delivered by Justice Kagan, the Court agreed with the Special Master's conclusion that Nebraska "knowingly failed" to comply with its obligations under the Final Settlement Stipulation and adopted his recommendations that Nebraska pay Kansas 1.8 million in disgorgement and that Kansas's request for injunctive relief be denied.

Per Justice Kagan, "...we agree with the Master’s conclusion that Nebraska 'knowingly exposed Kansas to a substantial risk' of receiving less water than the Compact provided, and so 'knowingly failed' to comply with the obligations that agreement imposed...In such circumstances, a disgorgement award appropriately reminds Nebraska of its legal obligations, deters future violations, and promotes the Compact’s successful administration" The Court rejected Kansas's request for an injunction ordering Nebraska to adhere to the Compact and Settlement. Per Kagan, "Kansas wants such an order so that it can seek contempt sanctions against Nebraska for any future breach...But we agree with the Master that Kansas has failed to show, as it must to obtain an injunction, a 'cognizable danger of recurrent violation.'"

Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined the opinion of the Court. Chief Justice Roberts joined as to Parts I and III. Chief Justice Roberts and Justice Scalia filed opinions concurring in part and dissenting in part. Justice Thomas filed an opinion concurring in part and dissenting in part, which Justices Scalia and Alito joined and which Chief Justice Roberts joined as to Part III.

Categories: SCOTUSreport

TX Federal Judge Blocks Obama Immigration Orders

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by Publius
Posted February 17, 2015, 10:52 AM

Hon. Andrew HanenThe Washington Post reports:

A federal judge in Texas last night temporarily blocked the Obama administration’s executive actions on immigration. The judge, responding to a suit filed by 26 Republican-run states, did not rule on the legality of immigration orders but said there was sufficient merit to the challenge to warrant a suspension while the case goes forward.

No law gave the administration the power “to give 4.3 million removable aliens what the Department of Homeland Security itself labels as ‘legal presence,’” the judge said in a memorandum opinion. “In fact the law mandates that these illegally-present individuals be removed.” The Department of Homeland Security “has adopted a new rule that substantially changes both the status and employability of millions.”...

The administration’s directives announced in November have been vigorously challenged by Republicans in Congress and across the country, who cite them as examples of what House Speaker John A. Boehner (R-Ohio) has called Obama’s “legacy of lawlessness.” The administration has defended them as routine exercises of presidential authority, made necessary by Congress’s failure to enact comprehensive revisions to U.S. immigration law. U.S. District Judge Andrew S. Hanen in Brownsville strongly disagreed. . . .

Read the full article.

* * * * *

In January, our Engage journal published an article by Prof. John C. Eastman on President Obama's executive action on immigration. He writes:

There has been a lot of talk about prosecutorial discretion since November 20, 2014, when President Obama announced that he was unilaterally suspending deportation proceedings against millions of illegal immigrants.  Despite the President’s claim that his actions were simply “the kinds of actions taken by every single Republican president and every single Democratic President for the past half century,” whether or not prosecutorial discretion can be stretched so far is actually an issue of first impression.  But as serious as that issue is, it masks a much more fundamental constitutional question about executive power, for the President has not just declined to prosecute (or deport) those who have violated our nation’s immigration laws. He has granted to millions of illegal immigrants a lawful status to remain in the United States as well, and with that the ability to obtain work authorization, driver’s licenses, and countless other benefits that are specifically barred to illegal immigrants by U.S. law.  In other words, he has taken it upon himself to drastically re-write our immigration policy, the terms of which, by constitutional design, are expressly to be set by the Congress.

Read the full article.

 

Categories: External Articles

Senators Introduce The Law Enforcement Access to Data Stored Abroad (LEADS) Act

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by Publius
Posted February 12, 2015, 4:42 PM

The Law Enforcement Access to Data Stored Abroad (LEADS) ActToday Senators Hatch, Coons, and Heller reintroduced The Law Enforcement Access to Data Stored Abroad (LEADS) Act. [FULL TEXTThe Hill reports:

“As Congress works to reform our domestic privacy laws, we must also clarify and modernize the legal framework for government access to digital data stored around the world,” Hatch said at the Reboot Congress conference on Thursday. “These two issues are inextricably linked.”

The bill would require law enforcement to obtain a warrant if it wants emails or other communications stored in the cloud. Under current law, only a subpoena is needed to force U.S. companies to hand over electronic communications more than 180 days old.

The second piece of the bill would put restrictions on what kind of information the government can force a U.S. company to hand over, when that data is stored overseas.

Under the change, the government could use a warrant to get access only to Americans’ data stored overseas, and not from foreigners. But a U.S. company could fight the government order if it would violate the foreign country’s laws.

Read the full article.

Read a summary of the bill

* * * * *

In a recent Teleforum, two expercts discussed the reach of federal warrants when it comes to data stored outside the United States. If you're interested in learning more about the issue, that Teleforum call is now available for download as a podcast: The Reach of Federal Warrants - The Microsoft Case.

In December of 2014, Microsoft filed a brief with the Federal Court of Appeals for the Second Circuit in New York to prevent the U.S. Department of Justice from seizing a customer’s data stored in Dublin, Ireland. It’s a case that raises important questions about the right of Americans to know what the government and companies are doing with sensitive electronic data. How do we ensure accountability both to the law through reasonable regulation, and to the courts through effective judicial review? The case also raises questions about the rights of people in other countries. Will they continue to have their privacy rights protected by their own laws? Anticipating a world where every device is a connected device, these are but a few of the important questions raised by this case regarding the future of privacy and regulations going forward.

  • James M. Garland, Partner, Covington & Burling LLP
  • David Howard, Corporate Vice President & Deputy General Counsel, Microsoft

Listen to the podcast.

Categories: External Articles

And the Finalists Are…

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by Publius
Posted February 05, 2015, 11:54 AM

And the Finalists Are...

 

The Federalist Society's 34th National Student Symposium is only weeks away. In addition to the exciting speakers, interesting panels, and lots of friends, we will present this year's Feddie Awards at the banquet dinner, celebrating the best of our student chapters.  The finalists are:

James Madison Award for Chapter of the Year

Columbia
Florida
Florida State
Harvard
Kentucky
Michigan
Nebraska
Texas
Virginia
Washington & Lee
Yale

Alexander Hamilton Award for Most Improved Chapter

Concordia
McGeorge
Minnesota
Nebraska
Northwestern
Savannah
South Texas

Samuel Adams Award for Membership Growth

Brigham Young
Chicago
George Washington
Harvard
Kentucky
Notre Dame
Savannah
Virginia

Thomas Paine Award for Creative Publicity

Arizona
Baltimore
Colorado
Florida
Michigan
Nebraska
Pepperdine
UCLA
UC-Davis
Virginia

The winners in each category will be announced at the dinner Saturday evening, which will also feature an exciting panel with Colin Stretch, General Counsel of Facebook, Katie Biber Chen, Senior Counsel of Airbnb, and Hon. Theodore Ullyot, Palantir. Good luck to all of our Finalists, we will see YOU on the red carpet!

Here are a few important reminders:

  • Register now for the Symposium and don't forget to buy a ticket to the Banquet as it does sell out.
  • Download the free Symposium App for up to date information about the symposium.
  • Don't forget we can reimburse 50% of your airfare and your taxis to/from the airports in addition to your taxis to/from the hotel if you are a national member.
  • Make sure to check out and invite your friends to the Symposium Facebook event.

Categories: Federalist Society

National Constitution Center Announces Members Of Coalition Of Freedom Advisory Board

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by Publius
Posted February 04, 2015, 1:43 PM

The National Constitution Center made an exciting announcement earlier today:

The National Constitution Center in Philadelphia is pleased to announce the members of its new scholarly Coalition of Freedom Advisory Board, co-chaired by leaders of the Federalist Society and the American Constitution Society. The new board was created to oversee a three-year initiative made possible by a $5.5 million grant from the John Templeton Foundation to increase awareness of the rights set forth in the United States Constitution and other founding documents. The initiative will bring together the best scholars in America to participate in Town Hall constitutional debates across America and to create the best non-partisan Interactive Constitution on the web.

The Coalition of Freedom board is composed of 27 constitutional scholars from across the political spectrum, and it is co-chaired by Lee Otis, Senior Vice President and Faculty Division Director of the Federalist Society, and Caroline Fredrickson, President of the American Constitution Society for Law and Policy. It also includes scholarly co-chairs Richard Pildes, Sudler Family Professor of Constitutional Law at New York University School of Law, and Nicholas Quinn Rosenkranz, Professor of Law at Georgetown University Law Center and Senior Fellow at the Cato Institute.

Coalition of Freedom Advisory Board

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Read the full announcement.

Categories: External Articles

First Amendment Rights of Judges in the Spotlight

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by Publius
Posted January 28, 2015, 10:00 AM

Flickr user Leon Reed (lreed76) https://www.flickr.com/photos/leonandloisphotos/The Wall Street Journal reports:

Just a few days ago, the U.S. Supreme Court heard arguments on whether states can bar judicial candidates from soliciting campaign donations without violating their speech rights.

Across the coast in California, the state’s highest court has decided that judges there will no longer be allowed to belong to nonprofit youth organizations that discriminate on the basis of race, sex, sexual orientation or other criteria, effectively barring membership to the Boy Scouts of America.

The group wasn’t mentioned specifically by name, but the California rule was proposed last year in response to the Boy Scout’s policy of excluding gays from staff and leadership roles. After hearing from scores of judges and lawyers, some of whom fiercely opposed it, the California Supreme Court on Friday voted to adopt the rule, which takes effect next year.

The U.S. Supreme Court case is about the political speech rights of judges, while the California ethics rule deals with limits on free association. But both raise the question of how much First Amendment protection should be granted to judges who have a special duty to be fair and impartial, says Harvard University constitutional scholar Noah Feldman. . . .

Read the full article.

Categories: External Articles

SCOTUS Opinion 1/26/2015

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by Publius
Posted January 26, 2015, 10:18 AM

SCOTUS Opinion 1/26/2015The Supreme Court released one opinion this morning:

M & G Polymers USA v. Tackett: In an opinion by Justice Thomas, a unanimous Court held that the Sixth Circuit erred in reasoning that collective bargaining agreements created a right to lifetime contribution-free health care benefits for retirees, their surviving spouses, and their dependents. The judgment of the Sixth Circuit was vacated and the case remanded for application of ordinary principles of contract law.  Per Justice Thomas for the Court:

"This case arises out of a disagreement between a group of retired employees and their former employer about the meaning of certain expired collective-bargaining agreements. The retirees (and their former union) claim that these agreements created a right to lifetime contribution-free health care benefits for retirees, their surviving spouses, and their dependents. The employer, for its part, claims that those provisions terminated when the agreements expired. The United States Court of Appeals for the Sixth Circuit sided with the retirees, relying on its conclusion in International Union, United Auto, Aerospace, & Agricultural Implement Workers of Am. v. Yard-Man, Inc., 716 F. 2d 1476, 1479 (1983), that retiree health care benefits are unlikely to be left up to future negotiations. We granted certiorari and now conclude that such reasoning is incompatible with ordinary principles of contract law. We therefore vacate the judgment of the Court of Appeals and remand for it to apply ordinary principles of contract law in the first instance."

Justice Ginsburg filed a concurring opinion, which was joined by Justices Breyer, Sotomayor, and Kagan, suggesting that the employer was not necessarily certain to win on remand.

Categories: SCOTUSreport

McGinnis: Another Step Toward Neutral Principles in Campaign Regulation

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by Publius
Posted January 22, 2015, 2:30 PM

McGinnis: Another Step Toward Neutral Principles in Campaign RegulationAt the Library of Law and Liberty Blog, John O. McGinnis discusses the Williams-Yulee v. The Florida Bar case and its implications. He comments:

This week the Supreme Court heard argument in Williams-Yulee v. The Florida Bar. The case is the sixth campaign finance case heard by the Roberts Court but the first to focus on judicial elections. The Florida bar disciplined Ms. Williams-Yulee for sending a letter to solicit contributions for her campaign for election as a Florida trial judge. The bar found her solicitation to violate a rule of the Florida Code of Judicial Conduct that barred personal solicitation of campaign contributions.

A central doctrinal question in the case is whether the Court will apply its overinclusiveness/ under inclusiveness test to these regulations. The Court in First Amendment cases typically assesses whether the legislative solution offered by a statute fits the problem by asking whether it is underinclusive or overinclusive. One way of understanding this test is that a focus on the fit between the proffered purpose of the regulation and its scope helps to ferret out pretext, uncovering regulation that claims to solve a problem but is directed at impermissible objective. If the regulation is underinclusive with respect to its objective, it suggests that regulation is pretextual because it does not solve the problem. If it is overinclusive, it suggests that it is burdening more speech rights than is necessary because it applies regardless of whether the rationale for the legislation is present.

Assuming that the government interest is to avoid corruption or appearance of corruption,  preventing solicitation by personal letter is both over and underinclusive.

Read the full post.

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