FedSoc Blog

GAO: Department of Defense Broke the Law with Bergdahl Swap

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by Publius
Posted August 21, 2014, 3:40 PM

GAO: Department of Defense Broke the Law with Bergdahl SwapThe U.S. Government Accountability Office released its report Thursday on the question of whether or not the Department of Defense violated section 8111 of the Department of Defense Appropriations Act when it transferred five prisoners detained at Guantanamo Bay to Qatar.

The report concluded:

DOD violated section 8111 because it did not notify the relevant congressional committees at least 30 days in advance of the transfer. In addition, because DOD used appropriated funds to carry out the transfer when no money was available for that purpose, DOD violated the Antideficiency Act. . . .

In our view, the meaning of section 8111 of the Department of Defense Appropriations Act, 2014, is clear and unambiguous. . . .

We do not offer any opinion on the constitutionality of section 1035 of the FY 2014 NDAA or of section 8111 of the Department of Defense Appropriations Act, 2014. It is not our role or our practice to determine the constitutionality of duly enacted statutes. . . . In our view, where legislation has been passed by Congress and signed by the President, thereby satisfying the bicameralism and presentment requirements in the Constitution, that legislation is entitled to a heavy presumption in favor of constitutionality.

Read the full report.

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Do Occupational-Licensing Laws Trump the First Amendment?

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by Publius
Posted August 21, 2014, 1:05 PM

The New York Times hosted an online debate on the question of occupational licences and free speech. They featured four opinions, including this commentary from the Institute for Justice's Dana Berliner: 

Recognizing First Amendment protection for occupational speech doesn’t mean government has no power to license occupations. It just means we should apply the same rule to occupational licenses that we apply to any speech restrictions. That means government can restrict conduct—it can make it illegal to perform brain surgery or prescribe dangerous drugs—but it can’t restrict communication without surviving First Amendment scrutiny.

That basic rule is consistent with an idea at the heart of the First Amendment: In this country, we rely on people to decide for themselves who they want to listen to; we don’t let the government make that decision for them.

Read all four opinions

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SEC Shifts from Courts to Internal “Administrative Law Judges”

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by Publius
Posted August 21, 2014, 8:35 AM

By AgnosticPreachersKid (Own work) [CC-BY-SA-3.0 (http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia CommonsPhilip Hamburger, at the Library of Law and Liberty blog, comments

The SEC has recently suffered some losses at trial, and these have occurred almost entirely in insider trading cases. Is the shift from courts to administrative proceedings a response to these losses? . . .

Perhaps the SEC is not merely responding to its losses, but the underlying reality is obvious enough. According to [SEC Enforcement Director] Ceresney, one of the factors that will lead the SEC to chose administrative adjudication is “whether the case would play well before a jury.” No kidding.

The SEC clearly hopes to use administrative proceedings to evade the constitutional right to jury. When discussing the recent trial losses suffered by the SEC, Ceresney defended its evasion by talking about the SEC as if it were a victim of unfortunate circumstances in court — circumstances that ordinarily are called juries. He said that insider trading actions are “challenging cases for us.” “Among other problems, the evidence is ‘typically circumstantial’ and the SEC cannot produce ‘victim witnesses’ to sway juries. He also said that juries — perceiving the SEC as similar to criminal authorities — apply a ‘higher standard than the preponderance of the evidence standard’ to commission cases.”

Read the entire post.

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Sixth Circuit: Oversized Yard Signs May Be Restricted

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by Publius
Posted August 20, 2014, 10:35 AM

Sixth Circuit: Oversized Yard Signs May Be RestrictedThe Plain Dealer reports:

Frank Wagner has been waging a First Amendment crusade for years for the right to post a sign in his Garfield Heights yard in opposition to traffic cameras.

Tuesday, he lost that right following a ruling by the 6th U.S. Circuit Court of Appeals. . . .

Wagner, 54, led the city's successful "Ban the Cam" campaign in 2010, and the following year he erected a sign in his yard on Oak Park Boulevard critical of a city councilwoman who supported the cameras.

When former Councilwoman Tracy Mahoney complained to Mayor Vic Collova and the city building commissioner, William Wervey, they sent Wagner a warning notice:

His sign was in violation of a city ordinance that limited placards with political messages to six square feet. Wagner's sign was 16 square feet, and if he failed to take it down he risked being fined up to $1,000 a day.

Wagner removed the sign but filed a federal lawsuit against the city. In 2013, U.S. District Court Judge Solomon Oliver Jr. ruled that the city's sign ordinance placed an illegal restriction on Wagner's free speech and was unconstitutional.

But the city prevailed in the 6th Circuit, where the judges reversed Oliver's ruling and directed him to enter a judgment in favor of the city.

"The city's political sign ordinance survives scrutiny because it serves significant government interests, is narrowly tailored to promote those interests, and leaves open alternative channels of communication," the court of appeals said in its 35-page ruling. . . .

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FAA Ruling Bans “Planesharing”

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by Publius
Posted August 19, 2014, 8:24 AM

FAA Ruling Bans TechCrunch reports:

A Federal Aviation Administration (FAA) ruling prohibits private pilots from publicly offering seats on their planes in exchange for gas money, including via startups like AirPooler and Flytenow. The decision strikes a blow to the sharing economy, and comes in response to AirPooler formally requesting a clarification of the gray area it was operating in. Banning this form of planesharing (like ridesharing for aircraft) could keep people safe by preventing them from hopping in with rookie pilots. . . .

AirPooler plans to ask for a clarification of the ruling, as it’s based on an unofficial draft for a 1963 proposal for planesharing, rather than the 1964 regulation that said pilots can privately ask if passengers want to join them and split costs if pilots paid their pro-rata share, we’re already planning the flight, and met some other restrictions. . . .

The new FAA ruling deems any kind of cost-sharing as compensation for the private pilots, whether they use old school means or a website to list their seats. It’s currently illegal to compensate private pilots . . .

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3 Questions About Governor Rick Perry’s Indictment

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by Publius
Posted August 18, 2014, 9:44 AM

At the Volokh Conspiracy, Eugene Volokh asks three great questions about the indictment of Texas Governor Rick Perry:

1. To begin with, the law applies to a public servant’s misusing property that is in his “custody or possession.” What property was in the governor’s custody or possession?

2. Beyond this, how does vetoing the appropriation qualify as “misuse,” in the sense of “dealing with” the $7.5 million “contrary to an agreement under which defendant held such property or contrary to the oath of office he took as a public servant”?

3. Is the prosecution’s theory that vetoes of appropriations are criminal if they are not seen as “faithful[] execut[ion of] the duties of the office of Governor” — though deciding whether or not to “approv[e]” a bill is itself part of the duties of that office? Or is it that such vetoes are criminal if they do not “to the best of [the Governor's] ability preserve, protect, and defend the [federal and state] Constitution and laws”?

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How Will 3D Printing Impact Intellectual Property Law?

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by Publius
Posted August 15, 2014, 12:54 PM

Devan R. Desai & Gerard N. Magliocca, of the Concurring Opinions blog, recently published a fascinating article in the Georgetown Law Journal. The abstract:

Digitization has reached things. This shift promises to alter the business and legal landscape for a range of industries. Digitization has already disrupted copyright-based industries and laws. As cost barriers fell, individuals engaged with copyrighted work as never before. Business-to-business and business-to- consumer models of industrial copyright faltered and, in some cases, failed. Industries were forced to reorganize, and the foundations of copyright were reexamined. This Article assesses a prime example of the next phase of digitization: 3D printing and its implications for intellectual property law and practice.

3D printing is a general-purpose technology that will do for physical objects what MP3 files did for music. The core patent bargain—sharing how to make something in exchange for exclusivity—may be meaningless in a world of digitized things. While 3D printers will unleash the creativity of producers and reduce costs for consumers, they will also make it far easier to infringe patents, copyrights, and trade dress. This will compel firms to rethink their business practices and courts to reconsider not only patent law but also long-established doctrine in areas ranging from copyright merger to trademark post-sale confusion. Moreover, Congress will need to consider establishing some sort of infringement exemption for 3D printing in the home and expanding the notice-and-takedown rules of the Digital Millennium Copyright Act to websites that host software enabling 3D printing of patented items and distinctive trade dress. While a 3D printer is not yet a common household item, the time to start thinking about that future is now.

Read the full article.

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Support The Federalist Society with Your Back to School Shopping

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by Publius
Posted August 14, 2014, 1:39 PM

You can support The Federalist Society with your back to school shopping--at no additional cost to you!

Just shop through AmazonSmile and they'll donate a small percent to us.

AmazonSmile is the same Amazon you know. Same products, same prices, same service.

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Political Bias in Legal Scholarship

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by Publius
Posted August 14, 2014, 8:13 AM

University of Chicago Law Library - Photo by Matthew G. BisanzA new study from the University of Chicago concludes:

At a statistically significant level, law professors at elite law schools who make donations to Democratic political candidates write liberal scholarship, and law professors who make donations to Republican political candidates write conservative scholarship. These findings raise questions about standards of objectivity in legal scholarship.

Josh Blackman comments on some of the nuances of the study:

First, the authors had a tough time finding enough law professors at the top 14 schools who donated more money to Republicans.

In the initial sample of 140 professors, however, only 8 had donated more money to Republicans than Democrats (which is our principle measure of ideology). . . .

Second, the authors broke down these professors by subject matter they wrote in. My initial thought, was, how many of those 24 “Republican” Profs teach constitutional law. The authors note (p. 21) that virtually none of them teach ConLaw . . . .

Third, the authors confirm what seems to be the conventional wisdom–many closeted conservatives get ahead by stifling their ideology, or writing in field where ideology isn’t as important. . . .

Fourth, for the small number of “Republican” law professors, there sure were a lot of “Conservative” articles written. The article found:

Of the 780 articles in our dataset, 512 are liberal and 237 are conservative.

The authors don’t draw any conclusions here, but it would seem this small cadre of conservative law professors is quite productive. . . .

Fifth, the authors find that  “net Democratic donors write highly ideological articles, whereas net Republican donors write articles that are distributed widely across the spectrum.” . . .

Read Mr. Blackman's full analysis on his blog.

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Should You Be Able to Sue a Think Tank You Don’t Agree With?

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by Publius
Posted August 13, 2014, 8:33 AM

Photographer: AgnosticPreachersKid via Wikimedia CommonsIlya Shapiro, on the Cato at Liberty blog, comments:

In response to some scathing criticism of his methodologies and an allegation of scientific misconduct, the author of the infamous “hockey stick” models of global warming [Dr. Michael Mann] has taken the global climate change debate to a record low by suing the Competitive Enterprise Institute, National Review, and two individual commentators. The good Dr. Mann claims that some blogposts alleging his work to be “fraudulent” and “intellectually bogus” were libelous. . . .

The D.C. trial court rejected the defendants’ motion to dismiss this lawsuit, holding that their criticism could be taken as a provably false assertion of fact because the EPA, among other bodies, have approved of Mann’s methodologies. In essence, the court seems to cite a consensus as a means of censoring a minority view. The defendants appealed to the D.C. Court of Appeals (the highest court in the District of Columbia).

Cato has now filed a brief, joined by three other think tanks, in which we urge the court to stay out of the business of refereeing scientific debates. . . .

We argue that the First Amendment demands that failing to leave room for the marketplace of ideas to operate stifles academic and scientific progress, and that judges are ill-suited to officiate policy disputes – as history has shown time and again. The lower court clearly got it wrong here – and there are numerous cases where courts have more judiciously treated similarly harsh assertions for what they really are: expressions of disagreement on public policy that, even if hyperbolic, are among the forms of speech most deserving of constitutional protection. . . .

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2014 Graduates: Sign Up for a Free Year of Membership in the Lawyers Division

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by Publius
Posted August 12, 2014, 2:08 PM

2014 Graduates: Sign Up for a Free Year of Membership in the Lawyers Division

As you are about to finish law school and embark on a new journey, we would like to remain an active part of your professional career and continue to be your link to the legal and public policy worlds.

As a student member about to graduate, we are offering you 1 year of free membership in the Lawyers Division and membership in two Practice Groups. You will receive a number of benefits with your lawyer membership, including discounts to chapter events, CLE credit, and the opportunity to closely network with prominent policy officials, judges, scholars, and business leaders.

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Governor Jindal Seeks Injunction to Stop Use of Common Core Tests

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by Publius
Posted August 11, 2014, 3:15 PM

The Times-Picayune reports:

In the latest salvo in the ongoing fight over Louisiana's use of the Common Core education standards, Gov. Bobby Jindal has amended his lawsuit and is now seeking a court injunction to immediately stop the state from using the tests tied to Common Core.

The governor's office said in a release that the injunction is needed "because of the imminent risk of irreparable harm created by the unlawful exercise of federal control of education in Louisiana."

The injunction would bar the state's Board of Elementary and Secondary Education from implementing any assessment program developed by the Partnership for the Assessment of Readiness for College and Careers, known as PARCC. . . .

In addition to adding the request for the injunction, the lawsuit claims the PARCC agreement violates federal law.

Laws including the General Education Provisions Act and the Elementary and Secondary Education Act ban the federal government from controlling school curriculum and instructional material, said attorney Jimmy Faircloth, who is representing the Jindal administration in the case. . . .

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District Court: NCAA Rules Violate Antitrust Laws

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by Publius
Posted August 11, 2014, 8:38 AM

District Court: NCAA Rules Violate Antitrust LawsUSA Today reports:

A federal judge ruled Friday that the NCAA's limits on what major college football and men's basketball players can receive for playing sports "unreasonably restrain trade" in violation of antitrust laws.

U.S. District Judge Claudia Wilken, in a 99-page ruling in favor of a group of plaintiffs led by former UCLA basketball player Ed O'Bannon, issued an injunction that will prevent the NCAA the "from enforcing any rules or bylaws that would prohibit its member schools and conferences from offering their FBS football or Division I basketball recruits a limited share of the revenues generated from the use of their names, images, and likenesses in addition to a full grant-in-aid." . . .

The ruling also will allow schools and conferences to deposit money in trust for football and men's basketball players that will become payable when they leave school or their eligibility expires. Under this setup:

  • The NCAA will be allowed to set a cap on the amount of money that may be held in trust, but that cap cannot be less than $5,000 in 2014 dollars for every year the athletes remain academically eligible.
  • Schools will be allowed to offer less than the NCAA maximum amount if they so choose, but they cannot unlawfully conspire with each other in setting the amounts they offer.
  • The NCAA will be allowed have rules that prevent the athletes from using the money being held in trust for them to obtain other financial benefits while they are in school.
  • The NCAA also will be able to have rules that prevent schools from offering different amounts of deferred money to athletes who are in the same recruiting class on the same team.
  • The amounts that schools decide to place in trust for the athletes may vary from year to year. . . .

The NCAA plans to appeal.

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Washington Post: Congress Gridlock “Doesn’t Grant the President License to Tear up the Constitution”

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by Publius
Posted August 08, 2014, 12:02 PM

In a recent editorial, The Washington Post took a strong stance over executive action on immigration. They comment:

Obstinate, hopelessly partisan and incapable of problem-solving, Congress is a mess. But that doesn’t grant the president license to tear up the Constitution. As Mr. Obama himself said last fall: “If, in fact, I could solve all these problems without passing laws in Congress, then I would do so. But we’re also a nation of laws.” To act on his own, the president said, would violate those laws.

Mr. Obama now seems to be jettisoning that stance in the name of rallying his political base. He is considering extending temporary protection from deportation to millions of illegal immigrants, including the parents of U.S.-born children and others who have lived in the United States for years. Conceivably, this would give Democrats a political boost in 2016. Just as conceivably, it would trigger a constitutional showdown with congressional Republicans, who could make a cogent argument that Mr. Obama had overstepped his authority.

The president should think twice. . . .

The right response to the collapse of the U.S. immigration system is for Congress to fix the law. The House had a vehicle to do just that by taking up the legislation passed by the Senate last year. But it does not follow that Congress can be ignored based on its failure to act. . . .

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Why the Voter ID Debate Goes Nowhere

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by Publius
Posted August 08, 2014, 8:45 AM

Why the Voter ID Debate Goes NowhereTamara Tabo at Above the Law has some interesting thoughts about voter ID laws. What would you propose as a solution?

The Wisconsin Supreme Court recently issued two rulings upholding 2011 Wisconsin Act 23, a state law requiring voters to present photo identification at polling places. The court ruled that mandating ID does not place a substantial burden on voters, nor does it create an unreasonable regulation on elections. The Seventh Circuit is still considering a challenge to the same law, however. In April, Judge Lynn Adelman of the U.S. District Court for the Eastern District of Wisconsin ruled that the law unduly burdens some voters, particularly low-income ones, and violates the Voting Rights Act. This week, Wisconsin Attorney General J.B. Van Hollen filed motion to lift the injunction created by Judge Adelman’s earlier ruling. . . .

Both sides offer up horror stories. True the Vote trumpets allegations of misconduct on one side, while the NAACP insists that election officials continue to suppress minority votes on the other. Mostly the discourse drops to the level of anecdote. Too often, the deciding factor reduces to which seems more plausible to you personally — that people who shouldn’t vote do, or that people who should don’t?

Where does the conversation go from there? . . .

At the bottom of the criticisms, an important question remains: how unreasonable is it for voters, even those with limited means, to obtain photo identification? In an age when so many routine daily tasks require a driver’s license or its equivalent, asking for ID at the polls just doesn’t seem that onerous to many Americans, myself included.

Functionally, the benefit of these laws may be minimal. Likewise, the burdens look slight. Much of the fervor on each side is grounded more in symbolic value than in practical effect. . . .

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