FedSoc Blog

On January 10, the Supreme Court announced its decision in Minneci v. Pollard. The question in the case was whether prison inmates may invoke the Bivens doctrine to bring suit against the employees of a private company hired by the federal government to provide services for the prison.  

In an opinion delivered by Justice Breyer, the Court held 8-1 that it could not imply a Bivens remedy here because state law authorized alternative damages actions that provide both significant deterrence and compensation.  Justice Scalia, joined by Justice Thomas, wrote an opinion concurring in the Court’s judgment.  Justice Ginsberg filed a dissenting opinion.

We have Alexander Volokh, assistant professor at Emory University School of Law, to discuss the case.

Click here to view this article on the source site »

Writing for The American Spectator, Jack Park, an attorney at Strickland Brockington Lewis, comments on the Supreme Court's decision in Perry v. Perez:

On January 20, the Supreme Court unanimously reversed the decision of a three-judge federal court in Texas in a case that shows the Voting Rights Act at its most unworkable. The Court's ruling highlights the importance of a state's legislative policy judgments in redistricting work and, in so doing, reinforces the importance of judicial restraint.

In Perry v. Perez, the Court had to decide which of two three-judge federal district courts get to do what with statewide redistricting plans the Texas Legislature adopted. Right now, one court in Washington, D.C. is in the middle of a trial to determine whether those legislatively enacted Texas plans can be put in effect, while the other court in Texas largely ignored them because the court in Washington, D.C. wasn't done with its work.

The Supreme Court told the Texas court to give greater respect to the legislature's work. As the Court explained, that's as it should be, given that redistricting involves the making of "policy judgments" that courts are "at best, ill suited" to make.

The circus began because Texas is subject to Section 5 of the Voting Rights Act. As a result, it needs permission, called preclearance, from either the Washington D.C. court or U.S. Department of Justice(USDOJ), before it can use its new congressional, state house, and state senate redistricting plans. Section 5 was enacted in 1965 as emergency legislation, but Congress keeps extending and tightening it up even though the targeted Southern states have demonstrated continued improvement in the rate of minority participation in registration and voting and in the number of minority elected officials. In 2006, though, Congress said that Section 5 is not just directed at backsliding but can be used to sniff out "any discriminatory purpose" on the part of a covered jurisdiction.

When Texas sought preclearance from the court in Washington, D.C., USDOJ balked, and it was joined by Democratic-leaning individuals and groups. USDOJ was OK with the state senate plan, but the interveners weren't. Moreover, USDOJ and the interveners had specific objections to different districts, and both suggested that the plans were the product of discriminatory motives. Now, Texas has to go through a trial to prove that its plans don't have the purpose or effect of "denying or abridging the right to vote on account of race or color."

On January 9th, the Supreme Court heard oral argument in Sackett v. EPA.  The case involves two landowners who graded a lot in a residential subdivision so that they could build a home there.  The Environmental Protection Agency subsequently issued an administrative compliance order to the landowners stating that the graded lot was a wetland, and directing the landowners either to remove the fill and restore the lot to its original condition, or risk civil fines in the amount of thousands of dollars for each day of non-compliance.  

The question before the Court is whether the landowners may seek judicial review of the EPA’s compliance order before it is actually enforced against them and, if not, whether the compliance order deprives the landowners of due process of law.

We have Elizabeth Papez, a partner at Winston & Strawn, to discuss the case.

Click here to view this article on the source site »

The Wall Street Journal reports that a federal court in North Dakota dismissed a complaint filed by the Obama Justice Department against three oil companies under the Migratory Bird Act:

Continental Resources, Brigham Oil & Gas and Newfield Production Company were accused of causing the deaths of six Mallard ducks and one Say's Phoebe, which had waded in oil pits. The criminal charges carried fines and potential prison sentences.

In a ruling that can only be called withering, district Judge Daniel Hovland contrasted "incidental and unintended" deaths during "legal, commercially-useful activity" with "hunting and poaching." The court rejected U.S. Attorney Timothy Purdon's "expansive interpretation of the law" because it "would yield absurd results": If the government's case carried the day, "many everyday activities become unlawful—and subject to criminal sanctions—when they cause the death of pigeons, starlings, and other common birds."

The newspaper had previously claimed that the Obama administration was selectively prosecuting the Migratory Bird Act against oil companies but not companies generating energy via wind turbines, which kill many birds.

For some of the Federalist Society's previous examination of overcriminalization in federal law, see here. On January 31st, FedSoc's Triangle Lawyers Chapter will be hosting a talk on the subject in Raleigh, North Carolina.  The guest speaker is John S. Baker, Jr., Distinguished Scholar in Residence at Catholic University of America Law School and Emeritus Professor at Louisiana State University Law School.

On January 10, the Supreme Court announced its decision in Gonzalez v. Thaler.  The case presented two questions arising under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA).  The first was whether a judge’s failure to “indicate” the constitutional issue that a state prisoner has raised in a habeas appeal deprives a court of subject-matter jurisdiction to hear that appeal.  The second question was when a judgment becomes “final” for purposes of calculating the one-year limit that state prisoners have in which to file a federal habeas petition.

In an opinion delivered by Justice Sotomayor, the Court held 8-1 that (1) a judge’s failure to “indicate” the requisite constitutional issue raised by a state prisoner does not deprive a court jurisdiction to hear a state prisoner’s habeas appeal, and (2) for a state prisoner who does not seek review in the state’s highest court, judgment becomes final on the date that the time for seeking such review expires.  On that basis, the Court affirmed the decision of the lower court that the state prisoner’s federal habeas petition was time-barred.  Justice Scalia filed a dissenting opinion.

To discuss the case, we have Ozan Varol, visiting assistant professor at the Chicago-Kent College of Law.

Click here to view this article on the source site »

Brian Kalt is guest blogging at the Volokh Conspiracy regarding his new book Constitutional Cliffhangers.   In his first post, the Michigan State University professor defines "constitutional cliffhangers" as “scenarios in which the fate of the president or presidency is in doubt as politicians, courts, and the people argue over the proper interpretation of the Constitution.”  Why should we care about scenarios that many might think are bizarre and unlikely?  Kalt explains:

The short answer is that crazy stuff like this happens quite often. The scenarios in my book were chosen because they haven’t happened yet, but some of them have come close. More to the point, other examples abound in American history: The Jefferson-Burr tie in the Election of 1800 is probably the first; the Harrison-Tyler “acting president” question from 1841 is probably the most significant; and the Paula Jones case is probably the most recent. The Constitution has too many wrinkles and slick spots in it for us to avoid tripping or slipping on them once in a while.

It’s worthwhile to try to identify problems before they happen, and to discuss and possibly fix them. Indeed, some of them are too obvious to ignore, yet we still manage to do so until it’s too late.

On January 10th, the Supreme Court announced its decision in CompuCredit Corp. v. Greenwood.  The case regarded the Credit Repair Organizations Act (CROA), which requires credit repair organizations to disclose to consumers that they have a right to sue credit repair organizations that violate the Act.  At issue was whether a credit repair company being sued by former customers under CROA could force those customers to arbitrate their claims based on an arbitration provision contained in the customers’ credit card applications.

In an opinion written by Justice Scalia, the Court held 8-1 that CROA does not address the arbitrability of claims made under it, and that the Federal Arbitration Act therefore requires the arbitration agreement to be enforced according to its terms.  Justice Sotomayor filed a concurring opinion, joined by Justice Kagan.  Justice Ginsburg filed a dissenting opinion. 

We have Christopher Drahozal, a professor at the University of Kansas School of Law, to discuss the case.

Click here to view this article on the source site »

The Federalist Society has posted videos of nearly the entire 14th annual Faculty Conference, which was held January 5-6, 2012, in Washington, D.C.

Below please find the schedule with links to the videos.

Thursday, January 5, 2012

Panel 1: The Sovereign Shareholder? Government Ownership and Corporate Law Post-Bailout  

• Prof. Lynn Stout, UCLA School of Law
• Prof. J.W. Verret, George Mason University School of Law
• Prof. David Zaring, The Wharton School, University of Pennsylvania
• Moderator: Dean Donald Weidner, Florida State University College of Law
• Introduction: Hon. Lee Liberman Otis, Senior Vice President & Faculty Division Director, The Federalist Society

Friday, January 6, 2012

Panel 2: Public Sector Unions  

• Prof. Samuel Estreicher, New York University School of Law
• Prof. John McGinnis, Northwestern University School of Law
• Prof. Joseph Slater, University of Toledo College of Law
• Moderator: Prof. James Lindgren, Northwestern University School of Law

Young Legal Scholars Paper Presentations  

• Mr. William Baude, Stanford Constitutional Law Center, "Beyond DOMA"
• Prof. Dan Markel, Florida State University College of Law, "Retributive Justice and the Demands of Democratic Citizenship"
• Prof. Andrew Schwartz, University of Colorado Law School, "The Perpetual Corporation"
• Prof. Houman Shadab, New York Law School, "Credit Risk Transfer Governance: The Good, the Bad, and the Savvy"
• Commenter: Prof. Eugene Volokh, UCLA School of Law
• Commenter: Prof. Todd Henderson, University of Chicago Law School
• Moderator: Prof. Nicholas Quinn Rosenkranz, Georgetown University Law Center

Luncheon Debate: The Alien Tort Statute, International Law, and the Judiciary  
Co-sponsored by the American Society of International Law

• Prof. Eugene Kontorovich, Northwestern University School of Law
• Prof. Stephen Vladeck, American University Washington College of Law
• Moderator: Ms. Elizabeth Andersen, Executive Director & Executive Vice President, American Society of International Law

Panel 3: Judicial Ethics  

• Prof. Charles Geyh, Indiana University Maurer School of Law
• Prof. Stephen Gillers, New York University School of Law
• Hon. A. Raymond Randolph, U.S. Court of Appeals, District of Columbia Circuit
• Prof. Ronald Rotunda, Chapman University School of Law
• Moderator: Hon. Deanell Tacha, Pepperdine University School of Law

The Supreme Court today delivered its opinion in United States v. Jones, a case regarding whether police officers’ warrantless installation and use of a GPS tracking device on a suspect’s vehicle violated the Fourth Amendment.  (Find Orin Kerr's earlier SCOTUScast on the case here.)  The court ruled unanimously that the use of the GPS tracking was in fact an unconstitutional search.

Justice Antonin Scalia delivered the opinion, which was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Sonia Sotomayor (who also filed a concurring opinion), and Clarence Thomas:

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a "search" within the meaning of the Fourth Amendment when it was adopted.

Justice Samuel Alito filed a concurring opinion, joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Elena Kagan. Alito wrote:

[The majority's] holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.

I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.

Fox News reports:

The chief of the Criminal Division of the U.S. Attorney’s Office in Arizona is refusing to testify before Congress regarding Operation Fast and Furious, the federal gun-running scandal that sent U.S. weapons to Mexico.

Patrick J. Cunningham informed the House Oversight Committee late Thursday through his attorney that he will use the Fifth Amendment protection.

Cunningham was ordered Wednesday to appear before Chairman Darrell Issa and the House Oversight Committee regarding his role in the operation that sent more than 2,000 guns to the Sinaloa Cartel. Guns from the failed operation were found at the murder scene of Border Agent Brian Terry.

The letter from Cunningham’s Washington DC attorney stunned congressional staff. Last week, Cunningham, the second highest ranking U.S. Attorney in Arizona, was scheduled to appear before Issa‘s committee voluntarily. Then, he declined and Issa issued a subpoena. 

Cunningham is represented by Tobin Romero of Williams and Connolly who is a specialist in white collar crime. In the letter, he suggests witnesses from the Department of Justice in Washington, who have spoken in support of Attorney General Eric Holder, are wrong or lying.

“Department of Justice officials have reported to the Committee that my client relayed inaccurate information to the Department upon which it relied in preparing its initial response to Congress. If, as you claim, Department officials have blamed my client, they have blamed him unfairly,” the letter to Issa says.

Romero claims Cunningham did nothing wrong and acted in good faith, but the Department of Justice in Washington is making him the fall guy, claiming he failed to accurately provide the Oversight Committee with information on the execution of Fast and Furious.

"To avoid needless preparation by the Committee and its staff for a deposition next week, I am writing to advise you that my client is going to assert his constitutional privilege not to be compelled to be a witness against himself." Romero told Issa.

This schism is the first big break in what has been a unified front in the government’s defense of itself in the gun-running scandal. Cunningham claims he is a victim of a conflict between two branches of government and will not be compelled to be a witnesses against himself, and make a statement that could be later used by a grand jury or special prosecutor to indict him on criminal charges.

CNN reports on an important Supreme Court decision regarding legislative redistricting:

The Supreme Court has tossed out the Texas redistricting map for congressional and legislative seats drawn up a federal court, giving a partial victory to GOP lawmakers.

In an unsigned opinion issued just 11 days after holding oral arguments, the justices said a revised map that differed greatly from the one created by the legislature used ambiguous standards.

"To the extent the [federal] District Court exceeded its mission to draw interim maps that do not violate the Constitution or the Voting Rights Act, and substituted its own concept of 'the collective public good' for the Texas Legislature's determination of which policies serve 'the interests of the citizens of Texas,' the [district] court erred," said the Supreme Court ruling Friday.

At issue are competing maps for the Texas state legislative and congressional districts – created first by Republican lawmakers that favored their political base, and later by a federal judicial panel to give minorities greater voting power.

The court-drawn map was imposed after Democrats and minority groups in Texas challenged the original plan approved by the GOP-led state legislature.

The political stakes are huge: Texas gains four new congressional seats based on the newly completed census, and this ruling could help determine whether Democrats can wrest control of the House of Representatives from the Republicans.

The legal stakes are just as important – creating standards courts must use when evaluating voting boundaries. This is the latest election-related dispute for the justices this year. Continuing, separate challenges to campaign spending laws and state voter identification laws will soon be presented to the court.

On Saturday, January 28, 2012, FedSoc will host its sixth annual Western Conference at the Ronald Reagan Presidential Library in Simi Valley, California.  The theme is "Challenges Facing California and the Western States."

In addition to a luncheon exchange between Ninth Circuit judges Alex Kozinski and Stephen Reinhardt, the conference will include the following panels:

California in Crisis: Are People and Jobs Leaving for Better Pastures?
10:15 a.m. - 12:00 Noon
Much has been written lately about companies’ unwillingness to invest or create new jobs in California.  2010 was the first census in which California did not add a member of Congress.  Other states, including Texas, are seeing large influxes of new jobs and people.  Some have suggested that California law (as passed by the legislature and as made by the courts) contributes to a negative business climate that discourages investment and job creation.  This panel will look at California laws involving employment issues, tort liability, and environmental regulation and compare California’s approach to those of other states, including Texas to determine whether the law has become an impediment to job creation in California.

Panelists:

• William J. Emanuel, Littler Mendelson P.C.
• Mr. Jed Kolko, Chief Economist and Head of Analytics, Trulia
• Mr. H. Scott Leviant, Spiro Moss LLP
• David A. Schwarz, Irell & Manella LLP and Member, Little Hoover Commission
• Ms. Kate Comerford Todd, Chief Counsel, Appellate Litigation, National Chamber Litigation Center
• Hon. Carlos T. Bea, U.S. Court of Appeals, Ninth Circuit (Moderator)

Federalism and State Immigration Policy
2:15 p.m. - 4:00 p.m.
Arizona v. United States raises several cutting edge questions about federal preemption of state laws. These questions derive from Arizona’s “mirror image theory” of the case. That is, Arizona argues that its statutes are a mirror image of federal statutes, and therefore that no preemption problem exists. In arguing against that theory, the federal government has voiced what has been unflatteringly called “preemption by executive whim.” That is, that preemption can be created by federal executive branch enforcement (or, non-enforcement) priorities that essentially ignore enforcement of the statutes being mirrored. What do those competing claims mean in preemption analysis where, traditionally, courts have looked to the law as written/established, rather than as enforced?

Another big question here is whether a state may have specific policies where either (1) the federal government does not, or (2) the federal government is perceived to have failed in its policies. Arizona has expressly adopted a policy of “attrition through enforcement” in regard to illegal aliens. The federal government, on the other hand, has not ever adopted such a policy. As Ilya Shapiro put it, the national immigration system “is a remnant of various half-baked ‘reforms’ going back decades, it’s a schizophrenic set of laws that don’t advance any particular goal or mission.” Does a “policyless” federal system conflict with a state system that has a policy? Does it matter if that policy is “attrition through enforcement” or “sanctuary cities”? Moreover, does the federal government’s “failure” to have a workable or actual policy free a state to derive its own policy, at least where that vacuum of federal power is seen as having specific negative effects on the state?

Panelists:

• Prof. Gabriel “Jack” Chin, UC Davis School of Law
• Prof. John Eastman, Chapman University School of Law
• Joe Sciarrotta, Counsel to Governor Jan Brewer, Arizona
• Prof. Margaret Stock, Counsel, Lane Powell LLC
• Hon. Edwin Meese, The Heritage Foundation and former U.S. Attorney General (Moderator)

For more information on the conference and to register, click here.

Ken Kersch, a political science professor at Boston College, recently published a law journal article that might be of interest.  It's titled "Beyond Originalism: Conservative Declarationism and Constitutional Redemption."  According to the introduction:

Almost 150 years after the ratification of the Thirteenth Amendment, the redemption of the nation from chattel slavery has become important--and for many conservatives, central--to the understanding of American politics. Slavery itself may be a thing of the past, but the purported political and constitutional lessons of its initial acceptance and subsequent eradication--once a preoccupation primarily of the liberal/left--are very much on the mind of the modern American right. In a marked departure from the old, more familiar conservative narrative, many of the modern movement's most influential constitutional theorists recount the nation's experience with slavery through a constitutional vision I will call (as have others) "Declarationism." As that term is used in this Article, Declarationism is the view that the Constitution can only be understood and interpreted in light of the principles enunciated in the opening words of the Declaration of Independence, which are held to be the Constitution's beating heart and unshakable foundation.

This Article, argues that contemporary conservative Declarationism offers a dramatic and morally compelling story about the long trajectory of American constitutional development, and serves: (1) as an ideological means of morally rehabilitating and redeeming southern conservatism in the wake of its longtime, but now morally discredited, defense of legal segregation; and (2) as an ideological means of unifying the diverse strands of the contemporary Religious Right. Both, of course, are crucial to the mission of the modern Republican Party.

On January 11th, the Supreme Court heard oral argument in Coleman v. Maryland Court of Appeals.  The question before the Court is whether Congress, in passing the “self-care” provision of the Family and Medical Leave Act, constitutionally abrogated the Eleventh Amendment sovereign immunity of the states.  Under the Act's self-care provision, a state worker may sue if the state interferes with the worker’s statutory right to a certain amount of leave for a personal debilitating health condition.

To discuss the case, we have Elizabeth Foley, professor at the Florida International University School of Law.

Click here to view this article on the source site »

Numerous websites--including Wikipedia, Google, Reddit, Craigslist--went dark today to protest the proposed Stop Online Piracy Act (SOPA) and PROTECT IP Act (PIPA).  The Daily Caller reported on one prominent defender of the legislation:

Former Connecticut Democratic Sen. Chris Dodd, currently chairman and CEO of the Motion Picture Association of America, condemned the SOPA “Blackout Day” as a “gimmick” and an “abuse of power” by the Web companies participating in the protest against pending anti-piracy legislation. . . .

While supporters of the legislation — including the MPAA, the Recording Industry Association of America and the U.S. Chamber of Commerce — have argued that legislation is needed to tackle the problem of foreign “rogue sites” that peddle counterfeit products to Americans, opponents of the legislation argue that it would jeopardize free speech.

Dodd . . . issued a statement on the eve of Wednesday’s “blackout,” in which he said that the blackout day was a “dangerous” “gimmick” “designed to punish elected and administration officials who are working diligently to protect American jobs from foreign criminals.”

“It is an irresponsible response and a disservice to people who rely on them for information and use their services,” said Dodd.

"It is also an abuse of power given the freedoms these companies enjoy in the marketplace today,” said Dodd, “It’s a dangerous and troubling development when the platforms that serve as gateways to information intentionally skew the facts to incite their users in order to further their corporate interests.

Writing for Forbes, Josh Barro of the Manhattan Institute attempted to place the debate over SOPA in historic context by arguing that the MPAA's fear of the internet is reminiscent of the organization's earlier fear of VCRs:

Thirty years before SOPA, the MPAA was in Washington, demanding legislative protection from a new and dangerous technology: the VCR. Here’s then-MPAA head Jack Valenti, testifying before a House Judiciary Subcommittee in 1982:

 I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone…

The Mediastat’s analyst says that 67 percent of the VCR owners own no prerecorded cassettes and 72 percent plan to buy one in the coming year and 48 percent have never rented a prerecorded cassette. The major source of programing material is home recording, which thus preempts prerecorded tapes and their revenue…

The loser will be your public because they don’t have these expensive machines. And that is what I am saying, sir. The public is the loser when creative property is taken and here is the reason why. The investment of hundreds of millions of dollars each year to produce quality programs to theaters and television will surely decline.

Of course, home video (and later DVD) went on to become a hugely profitable delivery channel for movie studios. Far from decimating the industry, it grew profits, especially for studios like Disney with valuable back catalogs. It just goes to show, disruptive technologies can have different effects than you expect.