FedSoc Blog

The University of Chicago Law School has provided some more details on Justice Antonin Scalia's historic visit to the school (about which we reported earlier).  The justice spoke about his defense of originalism, as well as his role in helping U of C law students start one of the founding chapters of the Federalist Society:

With his visit on Feb. 13 and 14 to the University of Chicago Law School, U.S. Supreme Court Justice Antonin Scalia returned to the place where, as a faculty member, he honed his historic contributions to judicial thought.

Scalia explained his guiding principles before a packed Law School auditorium, in a lecture titled "Methodology of Originalism” on Feb. 13. Scalia has long been known as a standard-bearer of originalism, the school of Constitutional interpretation that emphasizes historical context and the original meaning of the framers.

The homecoming also included informal talks with students and faculty members, who had the opportunity to engage Scalia in spirited conversation and debate. . . .

He defended his judicial approach of originalism by telling a joke about two hunters trying to outrun a grizzly bear. “I don’t have to outrun that grizzly bear; I just have to outrun you,” one says to the other.

“It’s the same thing with theories of Constitutional interpretation,” Scalia argued. “I don’t have to prove that originalism is perfect. It’s not perfect. The question is whether it’s better than anything else.”

“And that is not difficult,” he remarked dryly.

History and Jurisprudence

Throughout the lecture, Scalia passionately advocated historical research into the framers’ intent, and defended originalism as the only viable method of constitutional interpretation.

He spoke at length about District of Columbia v. Heller, a landmark 2008 decision that overturned Washington, D.C.’s handgun ban on the grounds that the Second Amendment protects the right of individuals to keep a gun for personal use.

The historical evidence presented to the Court was “overwhelming,” Scalia said: at the time of the framing, owning a gun was considered to be one of the fundamental rights of Englishmen.

Scalia also disputed the petitioners’ contention that the phrase “keep and bear arms” had an exclusively military connotation, arguing it had a broader meaning at the time the Constitution was written.

“I deny the premise that law has nothing to do with historical inquiry,” he said.

Without such historical evidence, the Constitution becomes “what you think it oughta be.”

Yet he argued that the conclusions to be drawn from the historical evidence were the responsibility of the Court, not professional historians. “Figuring out the meaning of legal texts is judges’ work,” he said.

Scalia also touted originalism as a defense against ideologically motivated decisions. “If ideological judging is the malady,” he said, “the avowed application of personal preferences will surely hasten the patient’s demise, and the use of history is far closer to being the cure than it is to being the disease.”

That philosophy made a broad impact during Scalia's time as a UChicago professor, when he helped a group of Law School students establish a founding chapter of the Federalist Society, an organization that favors judicial restraint in line with originalist interpretations. Scalia met with current members of the Law School's Federalist Society chapter during his visit.

The Claremont Institute today announced the launch of its new natural law online journal:

Today we are very pleased to announce a new project for our Center for the Jurisprudence of Natural Law, Right Reason, an online journal devoted to the jurisprudence of natural law. Right Reason will feature the thoughts and writings of Professor Hadley Arkes (and a few others over time) as they relate both to contemporary and timeless topics touching on the understanding and foundation of our Constitution and laws. The inaugural piece from Professor Arkes is an analysis of the part of the debate that is both crucial and missing in understanding the constitutionality of Obamacare. We consider this a "soft launch" of Right Reason as we will be improving the site over the next several weeks and months. For now we wanted to keep it as simple and basic as possible to promote, as clearly as possible, the jurisprudential understandings of the Founders and Abraham Lincoln as they relate to the various debates we now find ourselves in. We hope you will visit Right Reason from time to time and find it both enlightening and instructive. We would welcome any comments you may have and urge you to pass the site along to anyone you think may be interested. Please visit Right Reason here: http://www.right-reason.org/

The AP reports (h/t How Appealing):

The House sought Tuesday to undercut a 2005 Supreme Court ruling that gives state and local governments eminent domain authority to seize private property for economic development projects.

Sponsors of the bill, which passed by a voice vote, said it was needed because the 5-4 high court ruling skewed constitutional intentions that eminent domain apply only to land for public use projects.

That ruling, said bill cosponsor Rep. James Sensenbrenner, R-Wis., justified "the government's taking of private property and giving it to a private business for use in the interest of creating a more lucrative tax base." As a result, he said, the "government's power of eminent domain has become almost limitless, providing citizens with few means to protect their property."

His legislation would withhold for two years all federal development aid to states or locales that take private property for economic development. It also bars the federal government from using eminent domain for economic development purposes and gives private property owners the right to take legal action if provisions of the legislation are violated.

Sensenbrenner, a conservative, was joined in sponsoring the legislation by Rep. Maxine Waters of California, a liberal Democrat and senior member of the Congressional Black Caucus. She said that economic development projects have "all too often been used by powerful interest groups to acquire land at the expense of the poor and politically weak."

Stephen E. Sachs, a professor at Duke Law, has published an article in Law & Contemporary Problems that provides an analysis of the constitutionality of ObamaCare.  Titled "The Uneasy Case for the Affordable Care Act," here is the abstract:

The constitutionality of the Affordable Care Act is sometimes said to be an "easy" question, with the Act's opponents relying more on fringe political ideology than mainstream legal arguments. This essay disagrees. While the mandate may win in the end, it won't be easy, and the arguments against it sound in law rather than politics.

Written to accompany and respond to Erwin Chemerinsky's essay in the same symposium, this essay argues that each substantive defense of the mandate is subject to doubt. While Congress could have avoided the issue by using its taxing power, it chose not to do so. Congress has power to regulate commerce among the several States, but that might not extend to every individual decision involving economic considerations -- walking rather than taking the bus, stargazing rather than renting movies, or carrying a gun in a school zone rather than hiring private bodyguards. Even the necessary-and-proper power, the strongest ground for the mandate, may stop short of letting Congress claim extraordinary powers to fix the problems created by its exercise of ordinary ones.

Because the mandate's opponents can find some support in existing doctrines, a decision striking down the mandate needn't be a drastic break from past practice. By contrast, a decision upholding the mandate would raise serious questions about the limits of Congress's powers. To many, these questions offer good reasons for doubting whether existing doctrine gets it right -- reasons having more to do with constitutional theory than political preference.

On February 22, 2012, the University of Pennsylvania's Federalist Society chapter hosted a Templeton Healthcare debate on the topic "The Constitutionality of the Affordable Care Act."  Professor Richard Epstein of NYU Law faced off against Professor Teg Ruger of UPenn Law.

A video of the event can be found here.

The Weekly Standard reports that the state of California is inquiring about the sexuality of its judges:   

In order to make sure gays and lesbians are adequately represented on the judicial bench, the state of California is requiring all judges and justices to reveal their sexual orientation. The announcement was made in an internal memo sent to all California judges and justices.

“[The Administrative Office of the Courts] is contacting all judges and justices to gather data on race/ethnicity, gender identification, and sexual orientation,” reads an email sent by Romunda Price of the Administrative Office of the Courts. . . .

“Providing complete and accurate aggregate demographic data is crucial to garnering continuing legislative support for securing critically needed judgeships,” Price writes.

The process of self-revealing one’s sexual orientation is an element of a now yearly process. “To ensure that the AOC reports accurate data and to avoid the need to ask all judges to provide this information on an annual basis, the questionnaire asks that names be provided. The AOC, however, will release only aggregate statistical information, by jurisdiction, as required by the Government Code and will not identify any specific justice or judge.”

Politico reports:

A divided federal appeals court panel has upheld the constitutionality of California's DNA "test on arrest" policy, which is building a massive database compiled from the DNA of people arrested for felonies in the Golden State — regardless of whether they are ultimately convicted of anything.

The "test on arrest" policy has been endorsed by President Barack Obama, who has encouraged states and federal governments to link up their databases in order to solve crimes. Law enforcement officials say DNA databases have solved numerous crimes, including murders and sex assaults.

In a 2-1 decision issued Thursday (and posted here), the U.S. Court of Appeals for the 9th Circuit ruled that collecting and maintaining the DNA sample —obtained from swabbing the inside of an arrestee's mouth — does not violate the Fourth Amendment's protection against unreasonable searches and seizures

There's still time to register for the Federalist Society's National Student Symposium at Stanford Law School. 

Senator Mike Lee will be the keynote speaker at the banquet.

Tickets to the banquet will sell out, so be sure to register early and tell your friends to register early so they're not left out.

As a reminder, FedSoc can reimburse 50% of your airfare if you are a national member. To become a national member click here. 

Yesterday a federal judge ruled that the Defense of Marriage Act (DOMA) is unconstitutional.  The San Francisco Chronicle reports:

The government's denial of all federal benefits to same-sex married couples is an irrational and unconstitutional act of discrimination, a federal judge ruled Wednesday, a step toward a likely Supreme Court test of the law known as the Defense of Marriage Act.

DOMA is based on unfounded assumptions about marriage and the suitability of gays and lesbians as parents and was enacted in 1996 by a Congress avid to show its disapproval of homosexuality, said U.S. District Judge Jeffrey White of San Francisco. . . .

The law "treats gay men and lesbians differently on the basis of their sexual orientation" without any legal basis, said White . . . . "The imposition of subjective moral beliefs of a majority on a minority cannot provide a justification."

His ruling is the second in the nation to declare the law unconstitutional, and the first since President Obama abandoned defense of DOMA a year ago.

For audio of a Federalist Society talk on DOMA by Hon. Gregory G. Katsas--partner at Jones Day and former Assistant Attorney General, Civil Division, U.S. Department of Justice--click here.

On Thursday March 1st, the Federalist Society's D.C. Lawyer's Chapter will hosting a luncheon with O. Carter Snead, professor at University of Notre Dame Law School.  He will be speaking on "The Current Battle Over Religious Conscience Rights."

Details below:

Start : Thursday, March 1, 2012 12:00 PM

End   : Thursday, March 1, 2012 1:30 PM

Location: Tony Cheng's Restaurant, 619 H St. NW (Gallery Place Metro)

Space is limited for this event. Click here to register online; you can still pay at the door after completing your registration online. Please include the names of all registrants.

Please call 202-822-8138 with questions.

On January 20th, the Supreme Court announced its decision in Perry v. Perez.  The case involved efforts to redraw Texas’ electoral districts subsequent to the 2010 Census.  Texas proposed a new electoral plan, but since the state is a “covered jurisdiction,” the Voting Rights Act required the state to obtain preclearance from a special court in Washington, D.C. before the plan could take effect.  While Texas’ petition for preclearance was pending, several groups challenged the proposed plan in federal court in Texas, which then drafted an interim electoral plan for use in upcoming 2012 elections.  The question before the Supreme Court was whether this interim plan improperly disregarded details of the plan proposed by Texas.

In a per curiam opinion, the Court unanimously held that it was unclear whether the federal court in Texas had followed appropriate standards in drafting its interim plan.  The Court therefore vacated the interim plan and remanded the case for further proceedings.  Justice Thomas filed a concurring opinion.

To discuss the case, we have Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute.

Click here to view this article on the source site »

Blogging for The New York Times, Professor Stanley Fish details what he sees as serious problems plaguing law schools:

Uneasiness about the state of legal education has been around for some time, but in the wake of the financial meltdown of 2008, uneasiness ripened into a conviction that something was terribly wrong as law school applications declined, thousands of lawyers lost their jobs, employers complained that law school graduates had not been trained to practice law, and law school graduates complained that they had been led into debt by false promises of employment and high salaries. And while all this was happening, law schools continued to raise tuition, take in more and more students, and construct elaborate new facilities.

That at least is the story told in a book to be published later this year, “Failing Law Schools,” by Brian Tamanaha. . . . Tamanaha faults the American Bar Association for instituting policies that have the effect of forcing all law schools, no matter what demographic they serve, to model themselves on wealthy elites like Yale, Harvard and Stanford.  ABA requirements that accredited law schools have state-of-the-art facilities, substantial libraries, an academically credentialed faculty and low student-teacher ratios operate to dis-accredit law schools “built on a low cost model which emphasizes teaching rather than research, relies upon a smaller number of full time faculty without tenure at lower pay, uses a large number of lawyers and judges to teach courses … possesses basic facilities and library collections, and focuses on teaching students practice skills.”

The U.S. News and World Report rankings, says Tamanaha, produce even worse deformations; in fact they produce behavior that is at least deceptive and borders on fraud. A law school dean who knows that the rank of her school will in large part determine the faculty it can attract, the quality of the applicants, the support provided by her university and the job opportunities of graduates will be tempted to fiddle with the numbers by (among other things) reporting high salaries for graduates when the pool surveyed is a tiny fraction of those who have the school’s degree, devising schemes to keep students with low test scores off the books by shunting them off to evening programs and inflating the employment rate by hiring its own for a short term.

This afternoon, the Federalist Society's Professional Responsibility & Legal Education Practice Group will be hosting a teleforum on the very topic.  Professor John O. McGinnis will be speaking on "Lawyers Without Law School Degrees?":

In many other nations, students learn law as undergraduates and after a brief apprenticeship are able to become practicing lawyers. Should states within the United States offer this option? Would this option reduce legal fees in the long run by reducing the costs of legal education? John O. McGinnis and Russell B. Mangas discussed this issue in a recent op-ed in the Wall Street Journal. Professor McGinnis will offer a Federalist Society teleforum to continue the debate over this question. After his remarks, he will take questions from the callers.

Here is the info:

Start : Wednesday, February 22, 2012 2:00 PM

End   : Wednesday, February 22, 2012 3:00 PM

Registration details: Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up here. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

The Supreme Court today granted cert to Fisher v. University of Texas, an affirmative action case.  The Huffington Post reports:

Affirmative action is heading back to the Supreme Court, and this time its prospects for survival are poorer than ever.

The Court announced on Tuesday that it has agreed to hear a challenge to the University of Texas' affirmative action program, which is used in sorting through applications after the automatic admission of all in-state applicants who graduated in the top 10 percent of their high school class.

The state's top 10 percent law was passed as a race-neutral way of facilitating diversity on campus after a federal appeals court in 1996 banned affirmative action in Texas' public universities. Then in 2003, the U.S. Supreme Court -- in a majority opinion written by Justice Sandra Day O'Connor for herself and the Court's four liberals -- approved of certain types of race-conscious admissions practices in higher education for the purpose of achieving a diverse student body. In response, the University of Texas reinstated affirmative action, this time to assess applicants who would not be automatically admitted under the top 10 percent law. . . .

Justice Elena Kagan has recused herself, likely because of her participation in the early stages of the case when she served as U.S. solicitor general.

The Federalist Society recently co-hosted a debate on the case at the Heritage society.  It pitted James Ho and Loren AliKhan versus the Honorable Gail Heriot and Roger Clegg.  The video of the event can be found here.

Volokh Conspirator Ilya Somin comments on the property rights issues involved in the use of private drone aircraft, including those used for surveillance, over private property:

The recent incident in which pigeon hunters shot down a surveillance drone launched by animal rights activists has generated a great deal of commentary. Although this incident may have occurred over publicly owned land (at least according to the animal rights activists), co-blogger Ken Anderson asks what would happen if similar private drones took pictures over private property.

One can easily imagine such a thing happening, as drone technology spreads. Paparazzi could use them to try to take pictures of celebrities, businesses to spy on competitors, private investigators to collect evidence, and so on. However, property law does impose at least some constraints, especially with respect to low-flying drones.

Under the traditional common law, a landowner’s property rights extended infinitely up into the sky. This doctrine was largely abandoned after the invention of the airplane. However, as the Supreme Court recognized in the famous 1946 case of United States v. Causby, owners still retain the right to “exclusive control of the immediate reaches of the enveloping atmosphere,” which includes “at least as much of the space above the ground as he can occupy or use in connection with the land.” Neither the Supreme Court nor most state courts have ever explained precisely how far this “exclusive control” extends. But in most cases it surely covers at least 100 or so feet up, and sometimes more (in Causby, the Court ruled there was a taking of private property when government-owned planes regularly flew some 80 feet above the owner’s land).

Therefore, owners of low-flying surveillance drones that fly over private property could be liable for trespass. On the other hand, higher-flying drones are likely immune, unless they somehow “unreasonably” interfere with the owners’ use of the land below. . . .

On January 18, the Supreme Court heard oral argument for Holder v. Gutierrez and Holder v. Sawyers, as well as Vartelas v. Holder. Under current immigration law, non-citizens may be able to avoid deportation if they have lived in the U.S. for at least seven years and have been lawful permanent residents for at least five years.  The central issue in Holder v. Gutierrez and Holder v. Sawyers is whether a non-citizen who cannot himself meet these requirements can nevertheless avoid deportation if when he was a minor he lived with a parent who could meet the requirements.

The issue in Vartelas v. Holder regards a statute providing for the denial of reentry to a lawful permanent resident who travels abroad after having been convicted of certain offenses.  The question in the case is whether the statute may be applied retroactively to a legal permanent resident who was convicted prior to the passage of the statute.

To discuss these cases we have Michael Scaperlanda, a professor at the University of Oklahoma College of Law.

Click here to view this article on the source site »