FedSoc Blog

Can Judge-Found Facts Be Used to Increase Federal Sentences?


by Publius
Posted August 26, 2014, 11:51 AM

Can Judge-Found Facts Be Used to Increase Federal Sentences? At the Volokh Conspiracy, Will Baude provides some good background information and context about an issue the Supreme Court may decide in the near future: 

Last May I noted a recent cert. petition challenging the use of judge-found facts to increase a federal sentence. (The Supreme Court has already said that it is unconstitutional for statutes to rely on judge-found facts to justify a longer sentence; the new question is whether it is also unconstitutional for common-law rules like appellate reasonableness review to do the same thing. I first blogged about the case here.)

I thought I’d post with a short update about the petition. Two amicus briefs were filed in support of the petition — one from the Cato Institute and Rutherford Institute, and one from Professor Douglas Berman, known to all of the blogosphere for his tireless work at Sentencing Law and Policy. . . .

Looking at the petition and the amicus briefs, I was struck by something: Different people are concerned about different types of judge-found facts. Some are most concerned about facts that are made legally dispositive (emphasized by the cert. petition). Some are most concerned about facts about the offense, as opposed to facts about the offender (noted at the end of the Cato brief). Some are most concerned about facts on which the jury acquitted, as opposed to those that were simply never charged (emphasized by the Berman brief).

So far as I can tell, these defendants’ case lies at the center of all three concerns. So if the Court is indeed interested in deciding whether appellate common-law rules are subject to the same constraints as statutory law—as Justices Scalia and Thomas have argued—the case seems like the right vehicle. . . .

Read the full post.

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Thoughts on Argentina’s World Court Lawsuit Against the U.S.


by Publius
Posted August 25, 2014, 2:10 PM

Copyright: UN Photo/CIJ-ICJ/Frank van Beek. Courtesy of the ICJ. All rights reserved.At the Opinio Juris blog, Julian Ku has some thoughts about Argentina's lawsuit against the United States. He comments:

Based on Argentina’s own description of its legal arguments, I stand by my earlier assessment: Argentina’s international law claim against the United States is frivolous and would have almost no chance of succeeding, even if Argentina somehow convinced the U.S. to accept [International Court of Justice] jurisdiction. . . .

What makes this claim ridiculous is that Argentina chose to grant the U.S. judicial system a wide-ranging jurisdiction over bonds it sold to private investors. When issuing those bonds, Argentina promised that it had “irrevocably agreed not to claim and has irrevocably waived” immunity “to the fullest extent permitted by the laws of the U.S. and New York. Argentina also agreed to allow “any of its revenues, assets or properties” to be subject to judicial execution and enforcement to whatever degree permitted by U.S. law.

The power of a country to give up its sovereign immunity rights is well-established under international law. As Article 19 of the 2004 Convention on Jurisdictional Immunities states, sovereign assets will be immune from judicial measures unless that sovereign “has expressly consented to the taking of such measures as indicated by…a written contract.” In other words, nations can waive judicial seizure of sovereign assets, and there is no doubt Argentina did so here. . . .

Read the whole post

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Contraception Mandate Changes Its Address


by Publius
Posted August 25, 2014, 8:48 AM

Contraception Mandate Changes Its AddressJon Healey, writing in the Los Angles Times, comments on the Obama administration's proposed changes to the contraception mandate:

Under the previous approach, a religious-affiliated nonprofit (such as a Catholic hospital) could get an exemption from the contraception mandate by sending a specific form to the government and its insurer or insurance administrator. The insurer would then, on its own dime, offer the coverage to the nonprofit's female employees with no out-of-pocket costs.

In the new setup, such a nonprofit could claim an exemption by informing the Department of Health and Human Services in writing -- but not using any particular federal form -- that it had a sincerely held religious objection to the mandate. The notice would have to identify which contraceptive services the nonprofit objected to, as well as providing contact information for its insurer or insurance administrator. HHS and the Department of Labor would then inform said insurer or administrator that it had to provide the coverage, even though the nonprofit employer would have no financial or administrative involvement.

In short, a nonprofit will now exempt itself by sending a letter to the government, which will effectively shift the cost of providing and administering the contraceptive coverage to the insurer or third-party administrator. That's almost exactly the way it used to work. The main difference is that the insurer will be notified of the change by the government, not by an employer sending it a copy of a federal form. . . .

Read the full article

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Supreme Court Signals on Same-Sex Marriage


by Publius
Posted August 22, 2014, 12:56 PM

Photo by Nicolas STAMBACH via Wikimedia Commons.SCOTUSblog has in-depth and interesting commentary about which way the Supreme Court might be leaning on same-sex marriage. Lyle Denniston comments:

Since early this year, the Supreme Court has stepped back into the same-sex marriage controversy five times.  While it has done little to explain those actions, it has sent some signals about its thinking.  Its most important signals may have been those it appeared to have sent Wednesday, in putting off the issuance of marriage licenses to same-sex couples in Virginia.

Between the nine lines of that order, the Court implied that it will not be rushed into a decision about which, if any, cases it is going to review.  And it left no doubt that the Justices themselves, not the lawyers or their clients, are in charge of the timing.  The Court, in short, has not yet gotten caught up in the race to settle the basic constitutional issue just as soon as it could possibly do so. . . .

With a little more than five weeks until the Justices assemble in their first private Conference, in advance of the new Term starting October 6, it is by no means clear that any same-sex marriage case will be ready for the Justices to consider it on September 29.  That depends, in part, on whether the Court will have cases before it one at a time, as each is ready, or in a group., when several are ready. . . .

Read the full article

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NC Judge: Private School Voucher Program Unconstitutional


by Publius
Posted August 22, 2014, 8:43 AM

Jurist reports:

Judge Robert Hobgood of the Wake County Superior Court specifically ruled that [North Carolina's school voucher program] violates article 1 section 15 and article 9 section 2(1) of the North Carolina constitution, ordering a permanent injunction against the Opportunity Scholarships program. Hobgood said:

The plaintiffs—public schools grades K through 12 and the taxpayers of North Carolina—will suffer irreparable harm if the state is not permanently enjoined from making unconstitutional disbursement of taxpayer funds to parents for the enrollment of their children in private schools. The court issues a permanent injunction to any further implementation of the opportunity scholarship program.

The judge denied a request for a stay pending appeal citing that it has been proven beyond a reasonable doubt that the program is unconstitutional.

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GAO: Department of Defense Broke the Law with Bergdahl Swap


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?


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”


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


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”


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


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?


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


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


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?


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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