FedSoc Blog

At the Volokh Conspiracy, Ilya Somin draws attention to a decision by the California Supreme Court that upheld the constitutionality of a law abolishing the state’s numerous redevelopment agencies.  According to Sign On San Diego:

The California Supreme Court ruled Thursday against redevelopment agencies, including San Diego’s, and said they cannot remain in business by paying the state a portion of their property tax receipts....

The court was dealing with two laws passed by the Legislature in June to help close the state budget deficit by tapping the redevelopment funds held by redevelopment agencies.

The Institute for Justice released a statement claiming that the ruling is beneficial from the perspective of eminent domain:

In a landmark victory for private property owners in the Golden State, the California Supreme Court today upheld a statute abolishing the nearly 400 redevelopment agencies across the state. The court also struck down a law that would have allowed these agencies to buy their way back into existence. The final outcome of the case is that, in 2012, California’s decades-long redevelopment nightmare will finally come to an end.

California redevelopment agencies have been some of the worst abusers of eminent domain for decades, violating the private property rights of tens of thousands of home, business, church and farm owners. The Institute for Justice has catalogued more than 200 abuses of eminent domain across California during the past ten years alone....

While the decision focused on specific provisions of the California Constitution, its practical effect represents a significant victory for California property owners. “Redevelopment in California has been a billion-dollar, state-subsidized boondoggle that has completely eroded private property rights through the abuse of eminent domain for private gain,” said Christina Walsh, the Institute’s director of activism and coalitions. “With the court’s decision, redevelopment has finally met its long-overdue end, and property owners who have been living in terror across the state can finally rest safe in what they’ve worked so hard to own.”

In a decision issued today, the Eighth Circuit has held that a district court erred in granting summary judgment, based on qualified immunity, to a public law school dean in a lawsuit brought by an applicant for a legal writing or adjunct legal writing position.  The suit claims  the applicant, in violation of Section 1983 of the U.S. Civil Rights Act, was discriminated against  on account of her political views, which are protected by the First and Fourteenth Amendments.  

The Eighth Circuit found that the "First Amendment prohibits a state from basing hiring decisions on political beliefs or associations with limited exceptions for policymaking and confidential positions. . . . If a state actor refuses to hire an individual because of her political associations, then the individual has suffered an adverse employment action. . . . Thus, [the applicant] suffered an adverse employment action."  The appellate court also found that "the district court erred in finding that qualified immunity protects [the dean] from liability in her individual capacity."

Viewing the record through the prism of the summary judgment standard applicable in First Amendment cases, the court believed that there was sufficient evidence to warrant submitting the case to a jury.  Among other things, the court noted that the applicant held herself out to be a Republican and mentioned on her resume her work for National Right to Life Committee, which opposes abortion and euthanasia, and the Family Research Council, which advocates for conservative social views, and had taught legal writing for two years at another school.  By contrast, the court said that at the public law school to which she was applying "[t]he law school faculty at the University is viewed as being liberal. Only one out of 50 professors is a registered Republican." The court also noted that  two different associate deans recommended to the applicant that she not mention various aspects of her conservative past, including a tenure-track job offer from another school widely perceived as conservative.  The court also noted that another candidate who was hired had portrayed himself as a liberal, that an associate dean had inquired after the applicant was not hired whether her politics had been a factor, and that even though the applicant was encouraged to apply for part-time adjunct positions, she was not given an interview for these and the faculty voted not to hire her while hiring people with less prior teaching experience and lower student evaluation scores.  Finally, the court noted that while the dean proffered other reasons for her decision not to hire the applicant, and argued that she was bound by the faculty decision, there was a dispute of material facts as to both questions that should be resolved by a jury at trial and that  the law forbidding discrimination in hiring on the basis of political views for non-policymaking public positions was clearly established for purposes of qualified immunity.

Larry Ribstein, professor of law at the University of Illinois and previously George Mason, has died.  He was 65.  A friend of the Federalist Society's, Professor Ribstein was a man of great courage, intellect, and wisdom.  He wrote on topics ranging from corporate law to the market for law to the crisis in legal education.  The inspiration behind the blog Truth on the Market, he was always ready to give advice and help to younger colleagues.  Indeed, he was scheduled to comment on two junior scholars' winning papers in FedSoc's annual paper competition to be presented at our Faculty Conference on January 6.  He will be greatly missed.

For tributes to Professor Ribstein, see here, here, and here.

Writing in the Wall Street Journal, Peter Wallison argues for the historic significance of the SEC's lawsuits against Fannie Mae and Freddie Mac executive:

The Securities and Exchange Commission's lawsuits against six top executives of Fannie Mae and Freddie Mac, announced last week, are a seminal event.

For the first time in a government report, the complaint has made it clear that the two government-sponsored enterprises (GSEs) played a major role in creating the demand for low-quality mortgages before the 2008 financial crisis. More importantly, the SEC is saying that Fannie and Freddie--the largest buyers and securitizers of subprime and other low-quality mortgages—hid the size of their purchases from the market. Through these alleged acts of securities fraud, they did not just mislead investors; they deprived analysts, risk managers, rating agencies and even financial regulators of vital data about market risks that could have prevented the crisis.

On December 7, the Supreme Court heard oral argument in Mayo Collaborative Services v. Prometheus Laboratories, Inc. The question is whether a patent can be issued for an observed correlation between blood test results and patient reactions to prescription drugs.

To discuss the case we have Adam Mossoff, professor at George Mason University School of Law.

Click here to view this article on the source site »

The Hill reports the following breaking news regarding the Supreme Court's decision to rule on the constitutionality of ObamaCare:

McSweeney's, the humor magazine, features a satirical article pointing out an apparent contradiction in legal academia:  “Look, We Can Either Study for Our Law School Finals, or We Can Bring About the Violent Dissolution of the American Legal System.”  Just in time for the end of the fall semester, it begins:

It’s been a long semester. At this point we’ve read hundreds of pages of judicial opinions and sat through countless hours of lectures on legal theory and case law, and now we’re down to the wire. Exams are less than a week away, and the way I look at it, we’ve only got two options: we can either buckle down and hit the books harder than we ever have in our entire lives, or else can can attempt to bring about the violent downfall of the institution of rule of law in the United States of America.

And between you, me, and this three-hundred page Crim. Law outline I got from a 2L, that second one just sounds more viable.

Sure we can study. We can go over our notes and take a couple practice tests and pray we get good enough grades to land a sweet summer firm job. But let’s be realistic. How hard is it going to be to understand the complex web of choice-of-law analysis implicated by Erie Railroad Co. v. Tompkins? Now how hard is it going to be to instigate a bloody nihilistic revolution the primary result of which will be the complete collapse of the federal and state judiciaries and the instantaneous and complete invalidation of four centuries of American law and jurisprudence?

On December 6, the Supreme Court heard oral argument in Williams v. Illinois. The issue in the case is whether a defendant’s Confrontation Clause rights were violated when an expert witness for the prosecution testified at trial about the results of a DNA test in which the expert witness had not been involved and which had been performed by an out-of-state analyst who was not present at the trial.

To discuss the case we have John O’Quinn, a partner at Kirkland & Ellis.

Click here to view this article on the source site »

To give us a better understading of the unusually dramatic Supreme Court term, at The Atlantic, Andrew Cohen humorously imagines the cases as potential TV shows.  For instance:

Recusing Elena

Should she or shouldn't she? That's the decision that young associate Elena Kagan faces each day in her new job at the nation's most exclusive and prestigious law firm, otherwise known as the Supreme Court. Haunted by her past (emails), which means different things to different people, Elena has to navigate the political and ethical shoals without a map, since her "firm" has never bothered to codify its own recusal rules. Think LA Law meets The Firm meets Ally McBeal meets the Judicial Conference of the United States.

Montemayor!

She's a brilliant Puerto Rican jurist. He's a savvy Texas politician. She likes the New York Yankees. He hates all types of Yankees. There have nothing in common -- nothing -- except their patriotism and love for one another. Sonia Sotomayor and Rick Perry take us on an hilarious and unforgettable romp through the ups and downs of modern relationships -- not to mention the modern-day jurisprudence of federalism. Think Love Story meets The Odd Couple meets The Southern Manifesto.

On December 5, the Supreme Court heard oral argument in Messerschmidt v. Millender.  This case presents the question of whether: 1) police officers are entitled to immunity from suit when their search of a gang member’s residence was based on a warrant that a court later determined to be overly broad and not reasonably supported by probable cause, and 2) whether the standard applicable to immunity determinations in such circumstances is problematic and should be altered.

We have Joshua Skinner to discuss the case.

Click here to view this article on the source site »

SCOTUSblog reports that the Supreme Court has added yet another landmark case to an already unusually historic term.  The Court agreed to review the constitutionality of Arizona's immigration law.  This case is styled Arizona v. U.S. (11-182):

The Arizona case puts before eight of the Justices — former U.S. Solicitor General and now Justice Elena Kagan will not take part — that state’s highly controversial bill, known popularly as “S.B. 1070.”  That measure set a pattern among a number of states that have been growing increasingly impatient with what they consider to be the federal government’s lax enforcement of immigration controls, and the resulting harm that they believe illegal immigrants are doing to the quality of life for their citizens and legal residents.  The Arizona measure, and one in Alabama that goes even further, were passed by state legislatures with the specific intent of making life so difficult for undocumented aliens that they would choose to leave the state.  Other states are also passing similar measures.

Arizona’s governor, Janice Brewer, in taking the fate of S.B. 1070 on to the Supreme Court, is portraying the case as a major test of the sovereignty of the states to make their own social policies under traditional “police power” principles.  The federal government, which tried unsuccessfully to persuade the Court not to get involved in the case at this point, is treating the case as a test of whether states may adopt their own immigration policies that frustrate specific goals of federal policy.

With Justice Kagan not taking part, presumably because she had something to do with the issue in her former role in the Obama Administration Justice Department, there is the possibility that the eight participating Justices will wind up split 4-4 in the case.   That would have the effect of simply upholding a Ninth Circuit Court decision, but without opinion and without setting a nationwide precedent.  The practical effect of that would be that Arizona could not enforce four key provisions of S.B. 1070, blocked by both the Ninth Circuit and, earlier, by a federal District judge in Arizona.

At Above the Law, David Lat reports on a conversation Professors Richard Epstein and John Yoo held on reforming law school education, among other topics:

Epstein argues that knowledge of legal history can help lawyers serve their clients better in the present day. He also argues that law schools should teach theory as well as practice because they are training future leaders, not just specialists in technical doctrine. For example, take M&A work: when structuring and negotiating a deal, you need to understand theories and concepts from law and economics (e.g., moral hazard).

Yoo shares Epstein’s general positive view of American legal education, arguing that legal education in many other nations is worse than it is in the United States. He points out that Korea, for example, is moving to a U.S-style law school system — after studying many different models for legal education, from around the world. It’s also worth noting how many LLM students come to the United States after receiving their first law degrees in their home countries. It’s a sign that they, or their employers, think they will become better lawyers if they get legal training in the United States.

A recording of the entire discussion, which also includes free speech issues in the Occupy Los Angeles protests, is available at Richochet.

On November 28, the Supreme Court heard oral argument in First American Financial Corp. v. Edwards.  The question in the case is whether a private purchaser of real estate settlement services has standing to sue banks and title companies that pay kickbacks for closing a mortgage loan, when there is no claim that the kickbacks affected the price or quality of services provided.

We have Kevin Walsh to discuss the case.



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FedSoc just released two new articles from the current issue Engage.

In "Affirmative Action for Men? Strange Silences and Strange Bedfellows in the Public Debate over Discrimination Against Women in College Admissions," Gail Heriot and Alison Somin examine reports that discrimination against women on the basis of sex in college admissions is increasingly common and explore the seeming lack of attention the issue has received to date.

In "The States and the NLRB: A Study in Comparative Sovereignty," Thomas M. Christina discusses National Labor Relations Board v. Arizona, a case pending in Arizona district court. He says the arguments made by the NLRB in that case reflect a novel conception of federal-state relations and separation of powers issues.

Click here to see all the articles released so far from the current issue.

Former attorney general Michael Mukasey wrote an op-ed in the Wall Street Journal today claiming that neither Justice Thomas nor Justice Kagan should recuse themselves from the ObamaCare case:

it is clear that neither justice should step aside. The court we have should decide the case.

Justice Kagan served as solicitor general in the Obama Justice Department before she was nominated to the bench. The solicitor general heads the small team of lawyers who represent the federal government before the Supreme Court, and coordinates and controls the government's litigation positions in the various federal courts of appeal and occasionally even in district courts.

Although critics have portrayed Justice Kagan during her tenure as a "cheerleader" for the health-care bill, and although she did send an email to a former faculty colleague that applauded the legislation, the solicitor general ordinarily is not called on to advise on issues of constitutionality of proposed legislation; that task usually falls to the Office of Legal Counsel. There has been no evidence that she acted personally in her official capacity as solicitor general in connection with any issue in the case.

As to Justice Thomas, the facts said to bear on recusal stem not from his own acts and statements, but solely from those of his wife, who has been described as a conservative activist affiliated with groups that have a position decidedly opposed to the health-care legislation and its individual mandate. But here, too, the case for recusal is flimsy at best.

In National Review Online, Carrie Severino agrees that Justice Thomas should not recuse himself but respectfully disagrees as to Justice Kagan:

First, it appears that Mukasey is basing his conclusions only on the e-mails most recently divulged by DOJ that show Kagan cheering the passage of Obamacare.  As I have stated before, these emails are not relevant to my analysis of her participation as counsel and are not the basis on which anyone is claiming she must be recused. 

Second, Mukasey assumes the Obamacare case was following the normal course en route to the solicitor general’s office and therefore that her office was not involved pre-appeal, which is a reasonable assumption. But thanks to e-mails that three FOIA requests and two lawsuits have wrested from DOJ’s “transparent” hands, we now know that the Obama administration was planning its defense of the law — with participation from the SG’s office personally approved by Kagan — months before the law was passed. Given those e-mails, we have the evidence Mukasey thought was missing — that Kagan “acted personally in her official capacity as solicitor general” in the case.