FedSoc Blog

According to Reuters:

A federal appeals court on Thursday revived a challenge against the town of Greece in upstate New York over its policy of holding opening prayers at town board meetings.

The New York-based U.S. Court of Appeals for the 2nd Circuit found that the prayer policy aligned the town with Christianity in violation of the Establishment Clause, which prevents the government from favoring one religion over another.

"The town's desire to mark the solemnity of its proceedings with a prayer is understandable; Americans have done just that for more than two hundred years. But when one creed dominates others -- regardless of a town's intentions -- constitutional concerns come to the fore," Judge Guido Calabresi wrote for a unanimous three-judge panel.

Two Greece residents, Susan Galloway and Linda Stephens, complained in 2007 that the town board only invited Christian clergy to deliver the invocation. The next year, the town invited a Wiccan priestess, a chairman of a local Baha'i congregation and a lay Jewish man to give the prayer. But prayers at eight of the 12 meetings were Christian.

Galloway and Stephens sued the town and its supervisor in 2008, challenging the prayer practice under the Establishment Clause. The district court ruled in the town's favor before a trial, finding that town employees did not intentionally exclude any particular faiths and did not restrict the content of the prayers.

But the 2nd Circuit panel reversed that decision on Thursday, finding that the town's process for selecting speakers virtually ensured a Christian viewpoint. Even though most of the congregations in Greece were Christian, the town could have invited clergy from outside its borders, the panel found.

At the Weekly Standard, Adam J. White responds to Jeffrey Toobin's much-discussed account of Citizens United v. FEC:

In this week's New Yorker, Jeffrey Toobin criticizes the Supreme Court's handling of Citizens United v. FEC, which affirmed a corporation's First Amendment right to spend money on independent speech on political issues, even when that speech criticizes candidates for office.

According to Toobin's account—styled as a behind the scenes exposé—Chief Justice John Roberts orchestrated a win for Republican political fortunes in Citizens United, by hijacking a humdrum campaign finance case and turning it into a radical return to the Gilded Age. Toobin asserts that Roberts went so far as to go beyond the narrow "statutory" arguments offered by the corporation's own counsel, creating a First Amendment fight that even the corporation had wanted to avoid.

The article already has attracted much attention. Chief Justice Roberts's critics love it, of course, as does the larger chorus of critics opposed to corporate political speech. (The Atlantic calls Toobin's piece an "epic dissection.")

But beyond Toobin's base, his analysis is attracting skeptical criticism. SCOTUSblog's Tom Goldstein (no right-winger, for certain) and NRO's Ed Whelan already have poured cold water on Toobin, in terms of both his specific details and his broader narrative.

Whelan and Goldstein will be followed by others; Toobin practically demands this level of scrutiny, by front-loading his story with easily disprovable mischaracterizations of the case. Even a cursory review of the case's briefs, and contemporary news coverage, disproves Toobin's thesis that Citizens United was originally a mundane case, until Chief Justice Roberts twisted it to reach radical, partisan ends. . . .

Toobin knows all of this, of course, because he made the very same points, on national television. The morning of oral argument, he appeared on CNN to discuss the case (transcript here; video here.) . . .

For some of the Federalist Society's previous coverage of the case, see William R. Maurer's Engage article "Illuminating Citizens United: What the Decision Really Did."  You can also listen to a post-decision SCOTUScast featuring Edward B. Foley, Erik S. Jaffe, and Bradley A. Smith.

JURIST reports:

A judge for the US District Court for the District of Columbia on Monday awarded victims' families over $300 million dollars in damages from the governments of Syria and Iran for their roles in an April 2006 terrorist attack in Israel. The lawsuit was filed by the Shurat HaDin Israel Law Center on behalf of plaintiffs who were injured or lost family members in a suicide bombing attack at the Rosh Ha'ir restaurant in Tel Aviv, Israel. The plaintiffs alleged that the governments of Syria and Iran offered crucial aid to the Palestine Islamic Jihad (PIJ), the terrorist group that carried out the attack. In its decision, the court found that the defendants' connection with the PIJ was significant:

The evidence shows that defendants completely lacked any semblance of remorse for this deadly attack and in fact, encouraged and supported this and similar attacks. When a state chooses to use terror as a policy tool—as Iran and Syria continue to do—that state forfeits its sovereign immunity and deserves unadorned condemnation.

Defendants previously attempted to have the case dismissed for sovereign immunity, but their motion was denied. In a press release the Shurat HaDin Israel Law Center noted that this was the group's first successful suit against Syria.

At the Volokh Conspiracy, David Kopel is advertising the publication of the first law school textbook on the Second Amendment. He co-authored the book, titled Firearms Law and the Second Amendment: Regulation, Rights and Policy, with Nick Johnson (Fordham), Michael O’Shea (Oklahoma City), and George Mocsary (Connecticut).  According to his pitch:

Here’s the publisher’s page for the textbook, from which professors can request a free review copy. The book is also available for civilian purchase from Amazon.

We also have our own website for the book. There, you can read the detailed Table of Contents, and the Preface. The website is in an early stage of development; eventually, it will include detailed research guides and topic suggestions for students who are writing seminar papers. If you a professor and one of your students writes a seminar paper which makes a genuine contribution to knowledge about a topic, we invite you to send the us paper for publication on the website.

The textbook will have an accompanying Teacher’s Manual. We are currently finishing that up, and aim to have it available before the Fourth of July. (It’s free for professors who get a review copy, and forbidden for anyone else.)

Besides the 11 chapters in 1,008 pages of the printed book, there will also be four more on-line only chapters, available to purchasers of the printed book. These chapters will be: 12, Social science about firearms policy. 13, International law. 14, Comparative law. 15, A detailed explanation of firearms and their function. (Chapter 1 of the printed book provides a brief explanation of firearms and their function; the on-line chapter will go into much greater detail [e.g., what is a lever action gun?], and will have illustrations and photos.)

Finally, Firearms Law is the first law school textbook to be the subject of a podcast series. The published podcasts are: Chapter 3, The Colonies and the Revolution. Chapter 2, Antecedents of the Second Amendment: From Confucius to the British Whigs. Chapter 1, An introduction to firearms laws and firearms function. As the summer progresses, we will be adding more, and some chapters may have more than one. Thus far, all the podcasts are interviews of me, but as we make our way through the book, other co-authors will also appear in the podcasts.

Ars Technica reports that an admitted file-swapper is begging the Supreme Court to reduce his sentence: $675,000 in statutory damages.  His attorney is arguing that this punishes the defendant "beyond any rational measure of the damage he conceivably caused, not for the purpose of recovering compensation for actual damage caused by him, nor for the primary purpose of deterring him from further copyright infringement, but for the ulterior purpose of creating an urban legend so frightening to children using the Internet, and so frightening for parents and teachers of students using the Internet, that they will somehow reverse the tide of the digital future."

According to the news story:

As part of its massive legal campaign against online file-swapping, the Recording Industry Association of America [RIAA] sued nearly 20,000 people during the middle part of the last decade. Only two took their cases all the way to a trial and verdict. The first was Jammie Thomas-Rasset in Minnesota; Tenenbaum, from Massachusetts, was the second. In both cases, judges overturned the absurd verdicts (Thomas-Rasset owed $222,000, $1.92 million, and then $1.5 million after her three trials, respectively) and said that anything above $2,250 per song had entered "monstrous and shocking" territory.

The recording industry, keen to avoid this as a precedent, appealed both cases. The Thomas-Rasset case continues at the appellate level; the Tenenbaum case was sent back to the trial court last September with a demand that Judge Nancy Gertner simply cut the $675,000 down to size using a common-law process called "remittitur" rather than concluding (as she did) that the award was so disproportionate to harm as to be constitutionally impermissible.

This might sound like a technicality—in both cases, Tenenbaum's payout would be cut to $67,500—but it has a serious implication. If Judge Gertner "remits" the award, the labels could choose to have another trial against Tenenbaum. If Judge Gertner reaches the constitutional question, the trial stage ends.

These aren't hypotheticals; this happened in the Thomas-Rasset case. After a $1.92 million verdict was slashed using remittitur, the labels took Thomas-Rasset to trial once more. It's an expensive, lengthy process, and one that's probably pointless. In the four trials to date on this particular issue, no jury has ever come in beneath the upper bound set by the judges. (The juries are told nothing of previous judgments or of the judge's own rulings in these matters.)

The Washington Times reports:

This month’s revival of terrorism trials at Guantanamo Bay underscores President Obama’s reliance on counterterrorism tools he inherited from George W. Bush.

While Mr. Obama has been a frequent critic of Mr. Bush as a war president, the record shows he has embraced, and even expanded, groundbreaking policies and operational techniques — from increased government surveillance to enhanced special operations — left by his predecessor.

Bush administration alumni are arguing that the anti-terror measures they created in the hectic first years after the Sept. 11, 2001, attacks have stood the test of time.

“President Obama and members of his team criticized severely a number of aspects of the Bush administration’s war on terrorism that they have since found it necessary and useful to embrace,” said Douglas Feith, the Pentagon’s top policymaker in those early war years.

Mr. Feith said one of the most important concepts came as the Pentagon and World Trade Center still smoldered.

Mr. Bush’s declaration that “this is war” — not a law enforcement exercise — has been employed in key Obama strategy documents and is used as a legal basis to assassinate terror suspects via airstrikes and to hold them indefinitely.

At first, the Obama administration shunned the terms “war,” “war on terrorism” and “global war.” John Brennan, the president’s chief counterterrorism adviser, said in Mr. Obama’s first year in office that the word “war” only applied to al Qaeda and its allies.

The Washington Post unearthed an internal memo that asked agencies to refrain from using the terms “long war” or “global war on terror.” “Please use ‘overseas contingency operation,’ ” the memo said.

But that distinction seems to be missing from subsequent declarations. When Attorney General Eric H. Holder Jr. justified assassinating Anwar al-Awlaki, a U.S. citizen in Yemen, he said: “We are at war with a stateless enemy, prone to shifting operations from country to country.”

At the Daily Caller, Peter Wallison responds to those are trying to connect JPMorgan Chase's $2 billion loss to the need for further banking regulations, including the Volcker rule:

The JP Morgan Chase (JPMC) story — in which the bank lost $2 billion on a failed effort to hedge a $400 billion portfolio of assets — has morphed into a Jamie Dimon story, complete with gossip about his private comments at a dinner party. The story is following the usual pattern: regulatory agencies piling on; inaccurate reporting about what the law requires; reporters consulting “experts” with political motivations who don’t know what they’re talking about; politicization of the story so that it becomes relevant to a public issue — in this case the Volcker rule; and then the focus on whether a well-known and respected person will be brought down by the controversy. It’s depressing to watch, but it is missing the point that the Volcker rule would not have prevented the loss and is probably unworkable. . . .

JPMC’s loss and Jamie Dimon’s fall from grace in the media is now part of the debate in Washington over the Volcker rule, but this is an artifact of the misinformation that has surrounded this issue. The Volcker rule would not have prevented the loss because it doesn’t prevent hedging. Senators Carl Levin (D-MI) and Jeff Merkley (D-OR) have claimed that the Volcker rule limits hedging to specific risks and prohibits attempting to cover the risk of a whole portfolio. But this is incorrect. The statutory language is clear that hedging is permitted on both single risks and on portfolios of risks — which the act calls “aggregated positions.” Senators Levin and Merkley had proposed an amendment to ban portfolio hedging, but it failed. They are now trying to get the same result by pressuring the regulators who are drafting the rule.

The problem with the Volcker rule is that proprietary trading and hedging look very much alike. Both involve buying and selling fixed income securities or derivatives. At the very least, it is necessary to review all the facts and circumstances about a transaction in order to be sure that it is a hedge rather than a proprietary trade. Attempting to write a rule that distinguishes between these two — prohibiting one, but permitting the other — is a daunting and probably impossible task.

On February 16, 2012, FedSoc's Financial Services & E-Commerce Practice Group and the American Bankers Associaton hosted a panel discussion on "The Volcker Rule: Curbing Risk or Curbing the Economy?" The panelists were Randall Guynn, Sarah "Sally" Miller, Coryann Stefansson, Mark Van Der Weide, and Hester Pierce.  You can the video of the entire event here.

At the Volokh Conspiracy, George Mason University Law Professor Ilya Somin comments on a recent application of eminent domain:

Richmond Times-Dispatch columnist A. Barton Hinkle recently published this piece on a case of eminent domain abuse in Virginia:

As a general rule, progressives do not get worked up about property rights the way conservatives do. This is a mistake — as a case out of Norfolk shows.

To the progressive eye, property is bound up with materialism and wealth and greed and other yucky things. But property is also bound up with some things progressives hold dear. And even progressives were outraged when, in its 2005 Kelo decision, the Supreme Court said governments could take property from the poor and give to the rich.

That is what has been happening in Norfolk, where the city’s Redevelopment and Housing Authority has been using eminent domain to take dozens of pieces of private property for resale to a foundation run by Old Dominion University. The housing authority has been collecting commissions on the sales; the foundation has then been turning the property over to developers for their use as part of a swanky new University Village.

Among those properties is the building that houses Central Radio, whose story was detailed here back in May 2010. Some years ago, Norfolk offered to buy the property for a lowball price of $700,000 (more than a decade before, a developer had offered more than $1 million). Central Radio’s president, Bob Wilson, turned the city down. So the city slapped a spurious designation of “blighted” on the property and condemned it.

Norfolk couldn’t get away with that today. Virginia’s General Assembly has sharply curtailed such abusive use of eminent domain, precisely because of cases such as this one and others like it….

But the legislature’s changes to eminent-domain law included a grandfather clause, allowing Norfolk to proceed. Wilson is naturally cheesed off. He has vented his frustration by putting up on the side of his building a protest banner. (“50 years on this street,” it reads. “78 years in Norfolk. 100 workers. Threatened by eminent domain.” The words “eminent domain abuse” are surrounded by a red circle with a slash through it.)

But Norfolk officials apparently feel it is not enough to take away Wilson’s property. They also are trying to take away his right to free speech, by insisting that his banner violates the city’s sign ordinance….

Hinkle correctly notes that this is just one of several recent cases around the country in which local governments and influential developers not only engaged in dubious takings, but also tried to prevent property owners from speaking out against them. As he also points out, Virginia is one of a minority of states that has enacted strong post-Kelo eminent domain reform that will constrain abusive condemnations in the future. But as I documented in this article, in many other states reform still has a long way to go. Even in Virginia, eminent domain reform will not be fully secure in the long run until it has been incorporated into the state constitution, as well as statutory law.

Because blight and “economic development” takings tend to victimize the poor and politically weak for the benefit of the wealthy and politically powerful, they have generated widespread opposition on the left as well as the right. We will need greater cross-ideological cooperation on this issue to fully address the problem.

On the same subject, Professor Somin not long ago published a paper titled “What if Kelo v. City of New London Had Gone the Other Way?” In 2010, he appeard on a FedSoc panel on Kelo at the University of Chicago.  His remarks, "Eminent Domain After Kelo," can be found here.

Writing for the Washington Post, Ezra Klein calls attention to a law suit arguing that the filibuster is unconstitutional:

According to Best Lawyers — “the oldest and most respected peer-review publication in the legal profession” — Emmet Bondurant “is the go-to lawyer when a business person just can’t afford to lose a lawsuit.” He was its 2010 Lawyer of the Year for Antitrust and Bet-the-Company Litigation. But now, he’s bitten off something even bigger: bet-the-country litigation.

Bondurant thinks the filibuster is unconstitutional. And, alongside Common Cause, where he serves on the board of directors, he’s suing to have the Supreme Court abolish it.

In a 2011 article in the Harvard Law School’s Journal on Legislation, Bondurant laid out his case for why the filibuster crosses constitutional red lines. But to understand the argument, you have to understand the history: The filibuster was a mistake.

In 1806, the Senate, on the advice of Aaron Burr, tried to clean up its rule book, which was thought to be needlessly complicated and redundant. One change it made was to delete something called “the previous question” motion. That was the motion senators used to end debate on whatever they were talking about and move to the next topic. Burr recommended axing it because it was hardly ever used. Senators were gentlemen. They knew when to stop talking.

That was the moment the Senate created the filibuster. But nobody knew it at the time. It would be three more decades before the first filibuster was mounted — which meant it was five decades after the ratification of the Constitution. “Far from being a matter of high principle, the filibuster appears to be nothing more than an unforeseen and unintended consequence of the elimination of the previous question motion from the rules of the Senate,” Bondurant writes. . . .

At the core of Bondurant’s argument is a very simple claim: This isn’t what the Founders intended. The historical record is clear on that fact. The framers debated requiring a supermajority in Congress to pass anything. But they rejected that idea.

In an effort to increase dialogue about state court jurisprudence, the Federalist Society presents the Spring 2012 State Court Docket Watch. This newsletter is one component of the State Courts Project, presenting original research on state court jurisprudence and illustrating new trends and ground-breaking decisions in the state courts. This edition contains updates on important state court decisions in Wisconsin, Arkansas, Pennsylvania, Montana, Georgia, and California.

• Wisconsin Supreme Court Rules Plaintiffs Entitled to Receive "Phantom Damages" by Andrew C. Cook
• Arkansas Supreme Court Clarifies Standard for Awarding Punitive Damages by William S.W. Chang
• Pennsylvania Supreme Court Vacates Trial Court's Denial of a Minor's Application to Obtain an Abortion by Steven J. Willis & Jordan E. Pratt
• Montana Takes on Citizens United by Edward Greim & Justin Whitworth
• Georgia Supreme Court Strikes Down Ban on Assisted Suicide Advertisements by Jack Park
• California Supreme Court Upholds Law Dissolving Redevelopment Agencies by Angela Kopolovich
• California: Traditional Marriage Proponents Have Standing When Public Officials Refuse to Defend It by Jonathan Berry

On April 16, 2012, the Supreme Court heard oral argument in Christopher v. SmithKline Beecham Corp. This case presents two questions: first, whether courts must defer to the Department of Labor’s interpretation of its regulations addressing the “outside salesman” exemption from the overtime requirements imposed on employers by the Fair Labor Standards Act; and second, whether pharmaceutical sales representatives, who cannot themselves sell prescription drugs, are considered “outside salesmen” and thus not entitled to overtime pay under the Act.

To discuss the case, we have Anthony Caso, an associate professor at Chapman University School of Law.

Click here to view this article on the source site »

At Bench Memo's Carrie Severino highlights a Michigan judge in the spotlight for possible improprieties:

Michigan Supreme Court justice Diane Hathaway is under scrutiny for a series of financial transactions that could subject her to investigation by ethical and law-enforcement authorities. As Ross Jones of local ABC affiliate WXYZ reports:

[R]ecords show in a little over a year, [Justice Hathaway] owned four homes: one in Florida, and three in Grosse Pointe Park.

The homes are a part of a dizzying property shuffle that experts say raise ethical and legal questions, but Justice Hathaway has been ducking those questions for more than six weeks.

. . . .

[Lawyer] Howard Young says when his clients have asked about moving assets out of their names to qualify for a short sale , he’s told them to be cautious. 

“Those are typically fraudulent transfers, because they are done with the intent to delay, hinder, or defraud creditors,” said Young.

“And we are very careful to advise against making such transfers because even as an attorney, you can well be considered a co-conspirator in a fraud and that has significant ethical issues, and the state bar is going to come looking,” he said.

Judges are held to a high standard of conduct in Michigan, and according to the state judicial code, they need to avoid even the “appearance of impropriety.”

Scott Johnson at Powerline Blog relays a more detailed account of what happened, from the perspective of a lawyer who says the transactions “could well be Federal and state felony bank fraud.” Justice Hathaway seems to be referring questions to a top criminal-defense lawyer . . . .

According to Reuters: 

Two big cases addressing marriage rights for gays and lesbians are on track to reach the U.S. Supreme Court as soon as this year, keeping the focus on an issue President Barack Obama reignited with his endorsement this week. . . .

Lawyers for California same-sex couples are urging the U.S. Court of Appeals for the 9th Circuit to end its involvement, which would clear the way for a request for the Supreme Court to settle the issue.

Each day the government does not recognize the couples "is a day that can never be returned to them," lawyer Ted Olson wrote in a court filing in March. . . .

The second major case is from Massachusetts, where gays and lesbians can legally marry but are ineligible for the federal benefits of marriage.

Seventeen married or widowed men and women suing for benefits won a 2010 ruling that is now on appeal. A decision is likely in the next several months from the U.S. Court of Appeals for the 1st Circuit, with the high court a possible next step.

Other cases in earlier stages are challenging laws that restrict same-sex relationships. A New York widow is suing over the tax treatment of her late wife's estate. The two were married in Canada in 2007.

Jurist reports:

A 14-judge panel for the US Court of Appeals for the Fourth Circuit ruled 12-2 Friday that the earlier dismissal of lawsuits against two Abu Ghraib contractors on the grounds that they have immunity as government contractors was premature. The court sent the cases against CACI International Inc. and L-3 Communications Holdings Inc. back to the district court for fact-specific scrutiny to determine the validity of their immunity claims. According to the en banc decision of the appeals court, the case must be remanded because, "[t]he appellants are requesting immunity in a context that has been heretofore unexplored. These are not disputes in which facts that might be material to the ultimate issue have been conclusively identified." Prior to the decision of the appeals court, the US Department of Justice (DOJ) filled an amicus brief claiming that torture claims are not subject to immunity and that the case should be remanded to the district court.

The Lincoln Journal Star reports:

The Nebraska Supreme Court has affirmed a Lincoln judge's order, finding an alleged sexual assault victim in contempt for refusing to testify.

At the same time, the high court said just because the state can compel the woman to testify it "does not necessarily mean that it should."

"But that question must be left to the judgment and discretion of the prosecutor," Justice Kenneth Stephan wrote in Friday's opinion.

The ruling -- along with the rare question for the court -- all seemed to come down to this: how far should the state take a case against a victim's wishes.

As it stands, Glen Riensche's now-25-year-old accuser could go to jail for 90 days unless she agrees to testify or the state dismisses the case.

That decision now is in Lancaster County Attorney Joe Kelly's hands and, on Friday, he said he hasn't decided yet how his office will proceed.

But, he said, they will "respectfully listen to and talk with our victim" before moving ahead with the case.