FedSoc Blog

The Washington Post reports today that the Justice Department has decided to attempt to block the merger between AT&T and T-Mobile after it determined that AT&T's $39 billion bid for the rival company will reduce competition in the wireless industry and increase prices for customers.

AT&T has announced that it will fight DOJ's opposition to the merger, thus sparking what may become a massive battle in court between the company and the Obama Administration. According to AT&T, it will request the U.S. District Court in Washington, where the Justice Department earlier today filed a complaint to block the merger, to give the company an expedited hearing on the issue.

In the papers filed with the district court, DOJ argued that the merger would get rid of a "low cost alternative" in the market of wireless carriers. According to the Washington Post article, "T-Mobile competes directly with AT&T in 97 of 100 local wireless markets, and the two firms are the only national carriers using a technology known as GSM that can be used overseas."

FCC Chairman Julius Genachowsky tentatively expressed agreement with DOJ that the merger would harm competition, saying that "although our process is not complete, the record before this agency also raises serious concerns about the impact of the proposed transaction on competition."

But AT&T's general counsel Wayne Watts says that the merger will make the companies' wireless service better, expand AT&T's 4G network, and create investment and job opportunities. Responding to DOJ's complaint, Watts said, "The DOJ has the burden of proving alleged anti-competitive effects, and we intend to vigorously contest this matter in court."

The rejection of the AT&T-T-Mobile deal is the first time the Obama Administration has tried to block a significant merger in the technology market, with the President's former Assistant Attorney General for Antitrust approving Google's purchase of ITA, TicketMaster's merger with LiveNation, and Comcast's deal with NBC Universal.

Click here for the WSJ Law Blog's post on reactions to the DOJ move against the merger.

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The National Labor Relations Board (NLRB) issued a new rule last week mandating that employers post signs about their employees' rights to form unions, engage in collective bargaining, and go on strike under the National Labor Relations Act, reports a Wall Street Journal editorial published today.

Click here to see the NLRB's announcement of the new rule.

Under the rule, the NLRB will distribute the notices, consisting of an 11 by 17 inch poster in colors, style, and type size determined by the NLRB, to employers. The government will interpret failure to post the signs as an unfair labor practice and possibly "evidence of antiunion animus" in labor cases before the Board.

According to the NLRB, the impetus behind the rule is that many employees are unaware of their rights under U.S. labor law, as shown by "the comparatively small percentage of private sector employees who are represented by unions."

But, the editorial argues, the notice required under the rule "is unlikely to reverse this downward trend, which is largely the result of union effects on business competitiveness and long-term job security." The authors also write that the Board has no authority under the law to release the rule, which was created "on its own discretion." Therefore, they say, we should expect legal challenges.

Click here for the article from the NYT on the rule.

The New York Times reports that various veterans organizations have filed suit against a federal government policy enforced by the new director of the Houston National Cemetery that prevents volunteer honor guards from reading aloud recitations during military funeral rituals unless families specifically request that they do so.

Some of the ritual recitations that these volunteer honor guards perform include prayers and references to God. The plaintiffs seek to use a Veterans of Foreign Wars script read from the time of World War I stating that the departed veteran was "a brave man" with an "abiding faith in God." The script later asks for an "almighty and merciful God" for comfort.

The Department of Veterans Affairs says the policy, enacted in 2007 but not enforced until recently, aims to resolve complaints about religious words and symbols being introduced into the funerals of veterans when they were not requested by the family.

The policy allows family members to request that recitations be used in funeral ceremonies, but according to volunteer honor guard members, the Houston cemetery director, Arleen Ocasio, has interpreted the policy in a way that does not allow them to speak to family members about whether they wish any religious recitations to be read. When families do not specifically request these prayers, the director does not allow them, say the volunteer groups.

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Eugene Volokh writes on Volokh Conspiracy that a panel the First Circuit Court of Appeals held on Friday of last week that an individual has a First Amendment right to "openly videorecord and audiorecord police officers in public."

Click here to read the court's decision in Glik v. Cunniffe, written by Judge Kermit Lipez.

The case began when the plaintiff Glik was arrested for filming an arrest on the Boston Common with the digital video camera on his cell phone. He was charged with violating Massachusetts's wiretap statute and two other state laws, but these charges were later dismissed.

Glik then sued the police officers for violating his First Amendment right to speech and his Fourth Amendment right to be free from unreasonable searches and seizures. The district court denied the defendants' motion to dismiss, and the defendants appealed to the First Circuit.

The judges on the First Circuit panel noted that the Supreme Court had stated previously that "the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw." The open filming of police officers in a public place, the court ruled, fit within this principle:

In our society, police officers are expected to endure significant burdens caused by citizens' exercise of their First Amendment rights. Indeed, "(t)he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state." The same restraint demanded of law enforcement officers in the face of "provocative and challenging" speech must be expected when they are merely the subject of videotaping that memorializes, without impairing, their work in public spaces.

Notably, the court rejected the distinction between a regular citizen and a member of the press for the purposes of the case, stating that "changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw."

The First Circuit panel also held that the police had violated Glik's Fourth Amendment rights for arresting him without probable cause.

The Wall Street Journal has an editorial today noting that the EPA is currently pushing for rules to reorganize the electricity industry in the United States that may result in the shutdown or downgrade of a number of coal-fired power plants. According to the Federal Energy Regulatory Commission, the new rules would "likely" or "very likely" result in a reduction of 8% of all U.S. generating capacity.

In light of this potential reduction, the editorial argues that President Obama should use authority granted under amendments of the Clean Air Act to delay the impact of these rules and to prevent any new EPA rules until the economy has bounced back for an extended period.

Under the Clean Air Act amendments, the President can push back the enforcement of the regulations for two years if he decides "that the technology to implement such standard is not available and that it is in the national security interests of the United States to do so." The editorial asserts that both criteria are met, since the new rules will be enforced much more quickly than plants can begin complying with them, and they could cause blackouts and brownouts in much of the grid:

The EPA is in effect undermining the national security concept of "critical infrastructure" - assets essential the functioning of society and the economy that Mr. Obama has an obligation to protect.

In the end, the authors state that they do not expect President Obama to take their advice and suspend the EPA rules, but, they argue, he cannot say he is prohibited from acting when he has the tools at his disposal to put an end to the EPA proposals.

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Florida history teacher Jerry Buell, who has been voted "Teacher of the Year" at his public high school near Orlando, is allowed to return to the classroom following his recent suspension for making comments criticizing gay marriage on his Facebook page, reports the WSJ Law Blog.

In his comments reacting to New York's legalization of gay marriage, Buell wrote:

I was watching the news, eating dinner when the story about New York okaying same-sex unions came on and I almost threw up ... If they want to call it a union, go ahead. But don't insult a man and woman's marriage by throwing it in the same cesspool of whatever.

The school board suspended him for the comments but reinstated him earlier this week after finding that he did not run afoul of the district's ethics policy by writing the Facebook content. In response, Buell stated that his comments were protected by the First Amendment, under which he had "the right to express my opinions passionately."

The school board, however, is separately investigating whether Buell created problems with his school webpage, which states that he will attempt to "teach and lead my students as if Lake Co. Schools had hired Jesus Christ himself," and his syllabus, which says that he teaches "God's truth." The school board may find that these messages violate the Constitution's Establishment Clause, which courts have interpreted as prohibiting the "establishment of religion" by state governments.

Click here for the post on Volokh about the story.

According to an article in the WSJ today, the Fish and Wildlife Service has been coming down on Gibson Guitar recently, raiding its offices and factories in an effort to seize wood and guitars, along with computer files, to investigate whether the company is making guitars with prohibited wood.

In a first raid, says the article, the agents were trying to find out whether wood used in Gibson guitars had been illegally harvested from protected forests, while in the raid that occurred Wednesday, the FWS "seems to be questioning whether some wood sourced from India met every regulatory jot and tittle."

Both manufacturers and musicians are concerned about how regulations attempting to keep environmentally protected materials from being used in the manufacturing of instruments are affecting their trade. Some musicians are afraid to leave the country with their vintage instruments because, if they are made with such materials and are not accompanied with the proper paperwork, they may be permanently confiscated at the border.

The article reports that many musicians are resisting the changes to the composition of their instruments. Dick Boak, director of artist relations for C.F. Martin & Co., said, "Surprisingly, musicians, who represent some of the most savvy, ecologically minded people around, are resistant to anything about changing the tone of their guitars."

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A Wall Street Journal editorial yesterday commented on the Federal Communications Commission's decision Monday to end the Fairness Doctrine, a 1949 rule requiring broadcasters to give an equal amount of time to each side on political issues.

The editorial states that FCC Chairman Julius Genachowski deserves credit for pulling the Fairness Doctrine off the books. While the FCC during the Reagan Administration stopped enforcing the doctrine and no Administration has enforced it since that time, according to the editorial, some politicians have favored reviving the doctrine since then. But "(t)he proliferation of media outlets should have long ago ended any realistic concern about different voices getting their say on a scarce broadcast spectrum," says the article.

Chairman Genachowski had this to say about the change:

The elimination of the obsolete Fairness Doctrine regulations will remove an unnecessary distraction. As I have said, striking this from our books ensures there can be no mistake that what has long been a dead letter remains dead. The Fairness Doctrine holds the potential to chill free speech and the free flow of ideas and was properly abandoned over two decades ago.

Click here to download Genachowski's press release announcing the FCC action.

October 3rd marks the first day of the 2011 Supreme Court term. Join panelists Michael Carvin, Thomas Hungar, Neal Katyal, Mark Rienzi, Elizabeth Papez and Adam Mossoff at the National Press Club on September 27 for a preview of interesting cases and themes in the coming term.

For more information or to RSVP please click here. 

There is no charge for this event. 

In a WSJ op-ed today, Cass Sunstein, administrator of the President Obama's Office of Information and Regulatory Affairs, writes that federal agencies are saving taxpayers billions by cutting red tape and streamlining restrictions, following the President's executive order mandating that these agencies produce plans to "measure, and seek to improve, the actual results of regulatory requirements."

Click here for the text of President Obama's executive order, entitled "Improving Regulation and Regulatory Review," released on Jan. 18, 2011.

According to Sunstein, agencies are now releasing their final plans, "including hundreds of initiatives that will reduce costs, simplify the system, and eliminate redundancy and inconsistency." Among the rule changes are the removal of unnecessary regulations and reporting requirements by Health and Human Services on health care providers, the simplification of hazard warnings for workers by the Dept. of Labor, and removal of some regulation of the railroad industry by the Dept. of Transportation.

At the Cato@Liberty blog, however, Trevor Burrus argues that the agencies are missing the point and should be focused on the processes that brought about the need for these reforms. He says that serious cutting needs to take place, even of programs that President Obama and others view as "sacred cows":

These sacred cows ... have a severe eating disorder. The binge and purge cycle that politicans occasionally put them through does nothing to eliminate the underlying disease. Governmental agencies are inherently inefficient and wasteful because they have few reasons not to be. Searching out government waste is a chimerical mission that should raise fundamental questions about the nature of government....

For more on the executive order requiring agencies to eliminate waste, click here to read Susan Dudley's article for the latest issue of the Federalist Society journal Engage entitled "Prospects for Regulatory Reform in 2011."

Clifford Winston and Robert W. Crandall have an op-ed in The Wall Street Journal today arguing that ending much of the current government regulation in the practice of law would lead to lower prices for legal services and more jobs for people who wish to go into the legal profession.

The authors assert that if states did not require lawyers to attend law schools accredited by the American Bar Association (ABA), and allowed companies owned by non-lawyers to engage in legal services, prospective clients would have greater access to affordable legal services, and the industry would expand to accommodate more people who want to make law a career.

According to the article, traditional law schools would also face competition from other sources, such as online and vocational schools, and thus would be forced to lower their tuition rates and other fees.

The op-ed writers believe the concerns of critics that deregulating the profession would only serve to allow unskilled and unethical lawyers to practice are unrealistic:

Large companies seeking advice in complex financial deals would still look to established lawyers, most of whom would probably be trained at traditional law schools but may work for a corporation instead of a law firm....Others, seeking simpler legal services such as a simple divorce or will, would have an expanded choice of legal-service providers, which they would choose only after consulting the Internet or some other modern channel of information about a provider's track record.

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Miriam Jordan reports in The Wall Street Journal that yesterday the Obama Administration announced its plan to review the cases of 300,000 illegal immigrants set for deportation and to grant a large number of them the chance to stay in the country.

Click here to see the announcement of the new policy on The White House Blog.

Under the new policy, administration officials will look at the individual cases of immigrants in deportation proceedings and will give those who have not engaged in criminal activity and are not a problem from the standpoint of public safety an opportunity to remain in the United States and eventually request a work permit.

According to one administration official quoted in the article, the idea is to identify low-risk illegal immigrants who are being deported and "administratively close the case so they no longer clog the system."

While some say that the policy shift will maximize government resources and help grow the economy, opponents say that the change is simply an offer of amnesty to people who are not allowed to be in the U.S. Rep. Lamar Smith of Texas, chairman of the House Judiciary Committee, said in respose to the announcement, "The Obama administration should enforce immigration laws, not look for ways to ignore them."

Click here for the post from the WSJ Law Blog by Nathan Koppel on the new deportation policy. Click here and here for a discussion in the Federalist Society Practice Groups journal Engage on the new immigration laws being passed by states like Arizona cracking down on undocumented aliens.

Today, the Federalist Society released the latest issue of State Court Docket Watch. This special issue, consisting of an article by Andrew Cook and Emily Kelchen entitled "State Court Challenges to Legislatively Enacted Tort Reforms," focuses on state tort reform legislation across the country and challenges to this reform in the state courts.

As Cook and Kelchen point out, many state courts, including courts in Wisconsin, Georgia, and Illinois, have overturned their respective states' tort reform legislation, while, so far, one state supreme court, in West Virginia, has "bucked the trend" by upholding the reform law.

Opponents of the tort reform legislation generally argue that it is unconstitutional because it is a legislative attack on the jury's right to determine damages for plaintiffs in tort cases. Supporters assert that the laws do not impact the right to a jury trial and do not violate separation of powers principles. According to the West Virginia Supreme Court:

(I)f the legislature can, without violating separation of powers principles, establish statutes of limitations, establish statutes of repose, create presumptions, create new causes of action and abolish old ones, then it also can limit noneconomic damages without violating the separation of powers doctrine.

Click here to read the new issue of Class Action Watch.

The WSJ Law Blog reports that two years after the Supreme Court's 2009 decision in Ricci v. DeStefano, holding that New Haven had unconstitutionally discriminated against 20 firefighters when it threw out the results of a promotion test merely because white test-takers outperformed minority test-takers, the litigation continues.

Now, Michael Briscoe, a black firefighter in New Haven, is suing the city because, following the Supreme Court's decision in Ricci, it accepted the results of the test at the basis of the litigation and thus denied him a promotion. He alleges that the fact that the test was 60 percent written and 40 percent oral favored the white firefighters, whereas a 30-70 differential would have resulted in him passing.

After a federal district court decided that the Supreme Court's ruling shielded the city from suit over the test's validity, the Second Circuit Court of Appeals reversed the lower court and held that the suit, based on disparate impact claims under Title VII of the 1964 Civil Rights Act, could go forward. Click here for the court's decision.

The city argued that the Supreme Court had precluded the suit in language in the decision, which stated that "in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results," it would have been subject to liability for race discrimination. The appeals court, however, found that this was merely a "single sentence of dicta" unrelated to the holding of the case.

Click here for a Federalist Society SCOTUScast on Ricci v. DeStefano featuring Michael Rosman. Click here for a paper by Roger Clegg on the Obama Administration's involvement in the case for the Federalist Society's New Federal Initiatives Project.

UPDATE: For a discussion of the Ricci case within a broader argument for a new principle of equality, click here to read Donald J. Kochan's article "On Equality: The Anti-Interference Principle," published earlier this year in the University of Richmond Law Review.

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The Indianapolis Star reports that a state court judge in Indiana has rejected a request for a temporary injunction against a school voucher program in that state because the lawsuit, filed by teachers and parents opposed to the program, was unlikely to succeed.

Click here for the judge's order denying the injunction.

The parents and teachers had sued Governor Mitch Daniels and Superintendent of Public Instruction Tony Bennett over the voucher program, asserting that it was unconstitutional because it would involve giving money primarily to religious schools outside the public school system. Out of 240 schools participating, all but six are religious institutions, said the attorney for the plaintiffs, and this transfer of funds would thus constitute an establishment of religion in violation of the First Amendment.

Indiana Solicitor General Thomas Fisher, on the other hand, argued that the money was not intended to establish religion but merely to educate children, and that parents had the option to send children to nonreligious schools outside their district.

Judge Michael Keele apparently agreed with Fisher's analysis, ruling that the plaintiffs had "failed to demonstrate any likelihood of success on the merits" in the case and therefore that they had failed to meet the standard for the preliminary injunction they had requested.

It is unclear whether the plaintiffs, including representatives from the Indiana State Teachers Association, will move forward with the case.