FedSoc Blog

WSJ: Fewer and Fewer Students Are Applying to Law School

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by Publius
Posted January 15, 2015, 2:11 PM

Fewer and Fewer Students Are Applying to Law SchoolThe Wall Street Journal Law Blog reports:

The law school applicant pool appears to be getting more and more shallow.

The number of people applying to law school is down 8.5% compared to last year at this time, according to the latest figures released by the Law School Admission Council.

As of Jan. 9, just shy of 20,000 would-be lawyers had submitted applications to law schools. The downward trend is even starker if you compare it to figures from three years ago. By this point in 2012, about 30,000 students had applied.

Read the full article.

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SCOTUS Opinions 1/14/2015

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by Publius
Posted January 14, 2015, 10:39 AM

SCOTUS Opinions 1/14/2015The Court issued two opinions today:

(1) T-Mobile South, LLC v. City of Roswell. (Telecomms case)  By a vote of 6-3 the judgment of the Eleventh Circuit is reversed and the case remanded. The issue and outcome are summarized in the opening paragraph of Justice Sotomayor's opinion for the Court:

"The Telecommunications Act of 1996 provides, in relevant part, that '[a]ny decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.' 110 Stat. 151, 47 U. S. C. §332(c)(7)(B)(iii). The question presented is whether, and in what form, localities must provide reasons when they deny telecommunication companies’ applications to construct cell phone towers. We hold that localities must provide or make available their reasons, but that those reasons need not appear in the written denial letter or notice provided by the locality. Instead, the locality’s reasons may appear in some other written record so long as the reasons are sufficiently clear and are provided or made accessible to the applicant essentially contemporaneously with the written denial letter or notice."

Justice Sotomayor was joined by Justices Scalia, Kennedy, Breyer, Alito, and Kagan.  Justice Alito also filed a concurring opinion.  Chief Justice Roberts dissented, joined by Justice Ginsburg, and by Justice Thomas as to Part I.  Justice Thomas also filed a separate dissenting opinion.

(2) Jennings v. Stephens. (Habeas case).  By a vote of 6-3, the judgment of the Fifth Circuit is reversed and the case remanded. Justice Scalia delivered the opinion of the Court, compressed here into the following summary:

"Petitioner Robert Mitchell Jennings was sentenced to death for capital murder. He applied for federal habeas corpus relief on three theories of ineffective assistance of counsel, prevailing on two. The State appealed, and Jennings defended his writ on all three theories. We consider whether Jennings was permitted to pursue the theory that the District Court had rejected without taking a cross-appeal or obtaining a certificate of appealability....[A]n appellee who does not cross-appeal may not “attack the decree with a view either to enlarging his own rights thereunder or of lessening the rights of his adversary....Since Jennings did not cross-appeal the denial of his Spisak theory [rejected below], we must determine whether urging that theory sought to enlarge his rights or lessen the State’s under the District Court’s judgment granting habeas relief....Because Jennings’ Spisak theory would neither have enlarged his rights nor diminished the State’s rights under the District Court’s judgment, he was required neither to take a cross-appeal nor to obtain a certificate of appealability. We reverse the judgment of the Fifth Circuit and remand the case for consideration of Jennings’ Spisak claim."

Justice Scalia was joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Thomas filed a dissenting opinion, which Justices Kennedy and Alito joined.

Categories: SCOTUSreport

In Memoriam

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by Publius
Posted January 13, 2015, 10:34 AM

The Federalist Society mourns the passing of Walter Berns and Harry Jaffa. In a coincidence reminiscent of the deaths of John Adams and Thomas Jefferson, these two towering figures in American political thought died on the same day, January 10, 2015. 

Walter Berns was a particularly close friend of the Federalist Society, having participated in our first student symposium at Yale Law School in 1982--the first of many--and leant his voice and credibility to the then-fledgling student organization. His and Harry Jaffa's debate over the role of the Declaration of Independence in understanding the Constitution remains a topic of lively discussion among Federalist Society members to this day, one that has enriched our understanding of both documents and of the American Founding. RIP.

Categories: Federalist Society

Los Angeles v. Patel & the Constitutional Structure of Judicial Review

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by Publius
Posted January 07, 2015, 3:13 PM

Los Angeles v. Patel and the constitutional structure of judicial reviewAt the Volokh Conspiracy, Professor Nicholas Quinn Rosenkranz comments:

On March 3, at 10 a.m., the Supreme Court will hear arguments in Los Angeles v. Patel, a fascinating case about the proper structure of a Fourth Amendment challenge.

Los Angeles has an ordinance that requires hotels to maintain certain records about their guests and to produce those records for police officers upon request — which is to say, the officer need not necessarily have a warrant or any particular suspicion. Hoteliers claim this regime violates the Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Oddly, though, the hoteliers have chosen to challenge the ordinance “on its face.”  They do not allege that any particular search was unreasonable; indeed, they do not present the facts of any particular search at all.  Los Angeles contends that this “facial” challenge is improper: In its view, a Fourth Amendment challenge must be an “as-applied” challenge.  (Los Angeles has the great good fortune to be represented, in part, by our own co-Conspirator Orin Kerr; the Los Angeles brief is available here.)  The case thus presents the question of whether a Fourth Amendment challenge can be purely “facial” or must be “as-applied.”

Read the full article.

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The Supreme Court’s Shadow Docket

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by Publius
Posted January 07, 2015, 1:10 PM

Photo by Flickr user Danny Huizinga https://www.flickr.com/photos/dhuiz/In a forthcoming article to be published in the NYU Journal of Law & Liberty, Prof. William Baude argues:

The 2013 Supreme Court Term provides an occasion to look beyond the Court’s merits cases to the Court’s shadow docket — a range of orders and summary decisions that defy its normal procedural regularity.

I make two claims: First, many of the orders lack the transparency that we have come to appreciate in its merits cases. Some of those orders merit more explanation, and should make us skeptical of proposals to depersonalize the Court.

Second, I address summary reversal orders in particular. As a general matter, the summary reversal has become a regular part of the Supreme Court’s practice. But the selection of cases for summary reversal remains a mystery. This mystery makes it difficult to tell whether the Court's selections are fair.

I catalogue the Roberts Court’s summary reversals and suggest that they can be grouped into two main categories — a majority that are designed to enforce the Court’s supremacy over recalcitrant lower courts, and a minority that are more akin to ad hoc exercises of prerogative, or “lightning bolts.” The majority, the supremacy-enforcing ones, could be rendered fairer through identification of areas where lower-court willfulness currently goes unaddressed. We may simply be stuck with the lightning bolts.

Read the full article.

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WSJ: Curbing Congress’s Crime Addiction

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by Publius
Posted January 05, 2015, 11:34 AM

Curbing Congress’s Crime AddictionAn editorial in The Wall Street Journal applauds House Republicans for debating an important rule change. They comment:

On Monday the House Republican conference will debate the rules of the chamber, including a measure to refer proposed new criminal offenses to the House Judiciary Committee. This is supposed to be the routine practice, but Members can sidestep Judiciary by adding to an existing statute.

This loophole can contribute to over-criminalization or duplicating state law. The Congressional Research Service (CRS) reports that 403 crimes were added to the federal code between 2008 and 2013, 39 of which weren’t referred to the Judiciary Committee.

The proposed rule change has bipartisan and cross-ideological support, from the Heritage Foundation to the National Association of Criminal Defense Lawyers.

Read the full article.

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Opinion: The Clean Power Plan Is Unconstitutional

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by Publius
Posted December 31, 2014, 10:13 AM

The Clean Power Plan Is UnconstitutionalIn The Wall Street Journal, Harvard Law Professor Laurence H. Tribe comments:

As a law professor, I taught the nation’s first environmental law class 45 years ago. As a lawyer, I have supported countless environmental causes. And as a father and grandfather, I want to leave the Earth in better shape than when I arrived.

Nonetheless, I recently filed comments with the Environmental Protection Agency urging the agency to withdraw its Clean Power Plan, a regulatory proposal to reduce carbon emissions from the nation’s electric power plants. In my view, coping with climate change is a vital end, but it does not justify using unconstitutional means.

Although my comments opposing the EPA’s proposal were joined by a major coal producer, they reflect my professional conclusions as an independent legal scholar. I say only what I believe, whether I do so pro bono, or in this case having been retained by others. After studying the only legal basis offered for the EPA’s proposed rule, I concluded that the agency is asserting executive power far beyond its lawful authority.

Read the full article.

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Study: How Academia’s Liberal Bias Is Killing Social Science

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by Publius
Posted December 30, 2014, 9:54 AM

Photo by Flickr user velkr0In The Week Pascal-Emmanuel Gobry discusses a new report about bias in academia. He comments:

I was very gratified to read this very enlightening draft paper written by a number of social psychologists on precisely this topic, attacking the lack of political diversity in their profession and calling for reform. For those who have the time and care about academia, the whole thing truly makes for enlightening reading. The main author of the paper is Jonathan Haidt, well known for his Moral Foundations Theory (and a self-described liberal, if you care to know).

Although the paper focuses on the field of social psychology, its introduction as well as its overall logic make many of its points applicable to disciplines beyond social psychology.

The authors first note the well-known problems of groupthink in any collection of people engaged in a quest for the truth: uncomfortable questions get suppressed, confirmation bias runs amok, and so on.

But it is when the authors move to specific examples that the paper is most enlightening.

They start by debunking published (and often well-publicized) social psychology findings that seem to suggest moral or intellectual superiority on the part of liberals over conservatives, which smartly serves to debunk both the notion that social psychology is bereft of conservatives because they're not smart enough to cut it, and that groupthink doesn't produce shoddy science.

Read the full article.

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Two States Sue to Block Colorado Marijuana Markets

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by Publius
Posted December 19, 2014, 10:14 AM

Two States Sue to Block Colorado Marijuana MarketsSCOTUSblog reports:

Two of Colorado’s neighboring states, arguing that the legalization of marijuana for Coloradans is causing crime problems across state borders, asked the Supreme Court on Thursday to allow them to file a lawsuit directly before the Justices.  If the suit goes forward, Nebraska and Oklahoma’s filing said, the Court should rule that the commercial part of the Colorado scheme is unconstitutional and could no longer be enforced.

Under the Constitution, states with legal complaints against other states have a right to sue them in the Supreme Court without first going through a lower court, but they need the Justices’ permission to do so.  Nebraska and Oklahoma chose that route, their filing said, because no other court can protect neighboring states from the impact of Colorado’s marijuana marketing law and rules.

Read the full article.

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SCOTUS Sides with Police in 4th Amendment Case

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by Publius
Posted December 15, 2014, 2:04 PM

Supreme Court Sides With Police In 4th Amendment Case Arising from Officer’s ‘Mistake of Law’Reason reports:

In a decision issued this morning, the U.S. Supreme Court sided with the police in a case arising from an officer’s “mistake of law.” At issue in Heien v. North Carolina was a 2009 traffic stop for a single busted brake light that led to the discovery of illegal drugs inside the vehicle.

According to state law at the time, however, motor vehicles were required only to have “a stop lamp,” meaning that the officer did not have a lawful reason for the initial traffic stop.

Did that stop therefore violate the 4th Amendment’s guarantee against unreasonable search and seizure? Chief Justice John Roberts held that it did not. “Because the officer’s mistake about the brake-light law was reasonable,” Roberts declared, “the stop in this case was lawful under the Fourth Amendment.”

Read the full post.

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Why Doesn’t the U.S. Public Agree with International Law’s Absolute Ban on Torture?

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by Publius
Posted December 12, 2014, 11:11 AM

Why Doesn’t the U.S. Public Agree with International Law’s Absolute Ban on Torture?Julian Ku, writing at Opinio Juris, comments:

FiveThirtyEight.com points out that the Pew Research Survey, which has polled Americans on whether torture can be justified since 2004, has found a decline in support for the absolute ban on torture.  Indeed, in its last survey back in 2011, 53% of those surveyed said torture could “sometimes” or “often” (!!) be justified.  Another nearly 20% were willing to allow torture in “rare” cases.  Only 30% or so of those polled supported an absolute ban on torture, which is the position taken by international law.  This means nearly 70% of the U.S. public seems to be willing to tolerate torture in some exceptional circumstances.

Read the full post.

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Judge Posner: “I think privacy is actually overvalued.”

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by Publius
Posted December 10, 2014, 9:33 AM

Judge Posner: Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, spoke at a privacy and cybercrime conference this week. Computerworld reports:

"Much of what passes for the name of privacy is really just trying to conceal the disreputable parts of your conduct," Posner added. "Privacy is mainly about trying to improve your social and business opportunities by concealing the sorts of bad activities that would cause other people not to want to deal with you."

Congress should limit the NSA's use of the data it collects -- for example, not giving information about minor crimes to law enforcement agencies -- but it shouldn't limit what information the NSA sweeps up and searches, Posner said. "If the NSA wants to vacuum all the trillions of bits of information that are crawling through the electronic worldwide networks, I think that's fine," he said.

In the name of national security, U.S. lawmakers should give the NSA "carte blanche," Posner added. "Privacy interests should really have very little weight when you're talking about national security," he said. "The world is in an extremely turbulent state -- very dangerous."

Read the full article.

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Epstein: Curbing the Abuses of China’s Anti-Monopoly Law

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by Publius
Posted December 03, 2014, 2:09 PM

Epstein: Curbing the Abuses of China’s Anti-Monopoly LawThe Center for the Protection of Intellectual Property blog has a sneak peek of a forthcoming policy brief by Professor Richard A. Epstein, who was the keynote speaker at our recent Patents & Innovation Conference. Prof. Epstein writes:

There are increasing complaints in both the European Union and the United States about a systematic bias in China’s enforcement of its Anti-Monopoly Law (AML). In an extensive report on China’s abuse of its antitrust laws in advancing its own domestic economic policies, for instance, the U.S. Chamber of Commerce noted among many wide-ranging examples a recent action against Microsoft in which Chinese antitrust authorities used a “speculative possibility of licensor hold-up” following Microsoft’s acquisition of Nokia to justify a decree under the AML to “cap license fees for domestic licensees of mobile handset-related software.” . . .

The unfortunate situation in China is one example of a dangerous set of practices which could spread to other countries, motivated either by imitating what China has done or retaliating against its abuses. The risk is that the disease can spread all too easily. Until reforms are implemented in both the substance of the AML and the enforcement practices of the Chinese authorities, American policymakers and enforcement authorities should do everything they can to avoid aiding this misuse of antitrust as a domestic economic policy cudgel.

Read the full preview.

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17th Annual Faculty Conference

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by Publius
Posted November 25, 2014, 9:56 AM

17th Annual Faculty ConferenceRegistration is now open for the 17th Annual Faculty Conference at the Omni Shoreham Hotel in Washington, DC. Jaunary 3 & 4, 2015.

The purpose of our Annual Faculty Conferences is to provide an opportunity for those interested in the Society to share ideas and scholarship with each other.

Featured panels and events:

  • The Executive Power to Not Enfore the Law
  • Debate: Resolved, that the Affordable Care Act does not authorize subsidies for individuals purchasing health insurance through federal exchanges
  • Private Enforcement versus Government Regulation
  • The Administrative State: Within the Bounds of Law?

For more information or to register, please visit our website

Categories: Federalist Society

Commentary: President Obama Should Not Act Unilaterally on Immigration

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by Publius
Posted November 20, 2014, 10:00 AM

Commentary: President Obama should not act unilaterally on immigrationAt the Volokh Conspiracy, David Bernstein comments:

Previous presidents have had the same discretion under the immigration laws that Obama has. But no president had ever used his immigration discretion simply to evade Congressional opposition to his policies, nor to extend de facto legal status to so many people. It corrodes public respect for the legal system when the president uses loopholes to evade the normal legislative process and enact an extremely controversial, wide-ranging policy that Congress has rejected. And if President Obama can do this with regard to immigration, what’s to stop future presidents, including conservative Republican presidents, from using similar tactics? Bad behavior by one president inevitably becomes precedent for bad behavior by future presidents.

I’ll quote Jonathan Chait here: “Our Constitution and legal structure alone don’t secure the Republic. We also depend on norms — or an implied understanding of what sort of behavior is acceptable.” . . .

Read the full post.

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