FedSoc Blog

Article: “Rethinking Presumed Knowledge of the Law in the Regulatory Age”

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by Publius
Posted March 24, 2015, 2:13 PM

Article: Michael Anthony Cottone has an interesting new article in the Tennessee Law Review. The abstract:

In this article, I will examine the doctrine of ignorantia legis, or presumed knowledge of the law, as it functions in the current milieu of American criminal justice, the age of the regulatory crime. Much ink has been spilled over this doctrine, and many pieces argue against ignorantia legis, hinting at normative values of fairness and economic efficiency. With this article, I intend to formalize and synthesize these discussions, approaching the problem explicitly from both perspectives. As a framework for evaluating the doctrine, I will apply both Lon Fuller’s idea of “internal morality of the law” and general principles of economic analysis of law. While I do not subscribe completely to either view for all purposes, my intent is to demonstrate that the current application of presumed knowledge of the law is extremely troublesome under at least two distinct methods of evaluating law, indicating a strong need for reconsideration of the doctrine. Part II of this article gives an overview of the doctrine of presumed knowledge of the law in the context of the regulatory state, ultimately arguing that it pervades the current legal system. Part III contains the two critiques of the doctrine based on Fuller’s “internal morality of the law” and on the economic analysis of law, determining that the current application of ignorantia legis is suspect under both. Finally, the Article concludes by synthesizing these arguments and offering a few thoughts on the doctrine moving forward.

Read the full article.

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Judge Rules Missouri’s Membership in Common Core Testing Group Is Illegal

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by Publius
Posted February 27, 2015, 11:32 AM

Judge Rules Missouri's Membership in Common Core Testing Group is IllegalThe Washington Post reports on the ruling in Sauer v. Nixon:

The fighting over the Common Core initiative continues: A Missouri judge said the state’s membership in a federally funded testing consortium charged with creating an assessment aligned with the Common Core standards is illegal. And what’s more, he ruled that the state should stop paying fees to the group, the Smarter Balanced Assessment Consortium.

The ruling, which is expected to be appealed and well may not stand, is the newest salvo in what is an increasingly heated debate over Common Core State standards. The Associated Press reported that the state had budgeted about $4.3 million to pay dues to the SBAC this fiscal year.

The tactic of going to court to stop membership in a Core consortium could spread to other states by Core critics.

Read the full article.

Read the ruling.

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The Federalist Society recently hosted a Teleforum call on the topic of Common Core that featured the Sauer v. Nixon case.

The Common Core State Standards attempts to define what K-12 students should know at the end of each school year in key subject areas. The initiative garnered strong and broad support, but has come under increasingly heavy criticism from state and local officials, and parents. Supporters argue that uniform standards are an essential part of assuring quality education throughout the nation. Criticisms range from concerns about top-down, federal control of a traditionally state and local government function, to attempts to impose a nationwide curriculum, to a lack of field testing of the standards. Our experts discussed the standards and who has the better argument.

  • Jimmy R. Faircloth, Jr., Managing Partner, Faircloth, Melton & Keiser, LLC
  • D. John Sauer, Partner, Clark & Sauer, LLC

Listen to the podcast.

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TX Federal Judge Blocks Obama Immigration Orders

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by Publius
Posted February 17, 2015, 10:52 AM

Hon. Andrew HanenThe Washington Post reports:

A federal judge in Texas last night temporarily blocked the Obama administration’s executive actions on immigration. The judge, responding to a suit filed by 26 Republican-run states, did not rule on the legality of immigration orders but said there was sufficient merit to the challenge to warrant a suspension while the case goes forward.

No law gave the administration the power “to give 4.3 million removable aliens what the Department of Homeland Security itself labels as ‘legal presence,’” the judge said in a memorandum opinion. “In fact the law mandates that these illegally-present individuals be removed.” The Department of Homeland Security “has adopted a new rule that substantially changes both the status and employability of millions.”...

The administration’s directives announced in November have been vigorously challenged by Republicans in Congress and across the country, who cite them as examples of what House Speaker John A. Boehner (R-Ohio) has called Obama’s “legacy of lawlessness.” The administration has defended them as routine exercises of presidential authority, made necessary by Congress’s failure to enact comprehensive revisions to U.S. immigration law. U.S. District Judge Andrew S. Hanen in Brownsville strongly disagreed. . . .

Read the full article.

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In January, our Engage journal published an article by Prof. John C. Eastman on President Obama's executive action on immigration. He writes:

There has been a lot of talk about prosecutorial discretion since November 20, 2014, when President Obama announced that he was unilaterally suspending deportation proceedings against millions of illegal immigrants.  Despite the President’s claim that his actions were simply “the kinds of actions taken by every single Republican president and every single Democratic President for the past half century,” whether or not prosecutorial discretion can be stretched so far is actually an issue of first impression.  But as serious as that issue is, it masks a much more fundamental constitutional question about executive power, for the President has not just declined to prosecute (or deport) those who have violated our nation’s immigration laws. He has granted to millions of illegal immigrants a lawful status to remain in the United States as well, and with that the ability to obtain work authorization, driver’s licenses, and countless other benefits that are specifically barred to illegal immigrants by U.S. law.  In other words, he has taken it upon himself to drastically re-write our immigration policy, the terms of which, by constitutional design, are expressly to be set by the Congress.

Read the full article.

 

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Senators Introduce The Law Enforcement Access to Data Stored Abroad (LEADS) Act

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by Publius
Posted February 12, 2015, 4:42 PM

The Law Enforcement Access to Data Stored Abroad (LEADS) ActToday Senators Hatch, Coons, and Heller reintroduced The Law Enforcement Access to Data Stored Abroad (LEADS) Act. [FULL TEXTThe Hill reports:

“As Congress works to reform our domestic privacy laws, we must also clarify and modernize the legal framework for government access to digital data stored around the world,” Hatch said at the Reboot Congress conference on Thursday. “These two issues are inextricably linked.”

The bill would require law enforcement to obtain a warrant if it wants emails or other communications stored in the cloud. Under current law, only a subpoena is needed to force U.S. companies to hand over electronic communications more than 180 days old.

The second piece of the bill would put restrictions on what kind of information the government can force a U.S. company to hand over, when that data is stored overseas.

Under the change, the government could use a warrant to get access only to Americans’ data stored overseas, and not from foreigners. But a U.S. company could fight the government order if it would violate the foreign country’s laws.

Read the full article.

Read a summary of the bill

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In a recent Teleforum, two expercts discussed the reach of federal warrants when it comes to data stored outside the United States. If you're interested in learning more about the issue, that Teleforum call is now available for download as a podcast: The Reach of Federal Warrants - The Microsoft Case.

In December of 2014, Microsoft filed a brief with the Federal Court of Appeals for the Second Circuit in New York to prevent the U.S. Department of Justice from seizing a customer’s data stored in Dublin, Ireland. It’s a case that raises important questions about the right of Americans to know what the government and companies are doing with sensitive electronic data. How do we ensure accountability both to the law through reasonable regulation, and to the courts through effective judicial review? The case also raises questions about the rights of people in other countries. Will they continue to have their privacy rights protected by their own laws? Anticipating a world where every device is a connected device, these are but a few of the important questions raised by this case regarding the future of privacy and regulations going forward.

  • James M. Garland, Partner, Covington & Burling LLP
  • David Howard, Corporate Vice President & Deputy General Counsel, Microsoft

Listen to the podcast.

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National Constitution Center Announces Members Of Coalition Of Freedom Advisory Board

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by Publius
Posted February 04, 2015, 1:43 PM

The National Constitution Center made an exciting announcement earlier today:

The National Constitution Center in Philadelphia is pleased to announce the members of its new scholarly Coalition of Freedom Advisory Board, co-chaired by leaders of the Federalist Society and the American Constitution Society. The new board was created to oversee a three-year initiative made possible by a $5.5 million grant from the John Templeton Foundation to increase awareness of the rights set forth in the United States Constitution and other founding documents. The initiative will bring together the best scholars in America to participate in Town Hall constitutional debates across America and to create the best non-partisan Interactive Constitution on the web.

The Coalition of Freedom board is composed of 27 constitutional scholars from across the political spectrum, and it is co-chaired by Lee Otis, Senior Vice President and Faculty Division Director of the Federalist Society, and Caroline Fredrickson, President of the American Constitution Society for Law and Policy. It also includes scholarly co-chairs Richard Pildes, Sudler Family Professor of Constitutional Law at New York University School of Law, and Nicholas Quinn Rosenkranz, Professor of Law at Georgetown University Law Center and Senior Fellow at the Cato Institute.

Coalition of Freedom Advisory Board

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Read the full announcement.

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First Amendment Rights of Judges in the Spotlight

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by Publius
Posted January 28, 2015, 10:00 AM

Flickr user Leon Reed (lreed76) https://www.flickr.com/photos/leonandloisphotos/The Wall Street Journal reports:

Just a few days ago, the U.S. Supreme Court heard arguments on whether states can bar judicial candidates from soliciting campaign donations without violating their speech rights.

Across the coast in California, the state’s highest court has decided that judges there will no longer be allowed to belong to nonprofit youth organizations that discriminate on the basis of race, sex, sexual orientation or other criteria, effectively barring membership to the Boy Scouts of America.

The group wasn’t mentioned specifically by name, but the California rule was proposed last year in response to the Boy Scout’s policy of excluding gays from staff and leadership roles. After hearing from scores of judges and lawyers, some of whom fiercely opposed it, the California Supreme Court on Friday voted to adopt the rule, which takes effect next year.

The U.S. Supreme Court case is about the political speech rights of judges, while the California ethics rule deals with limits on free association. But both raise the question of how much First Amendment protection should be granted to judges who have a special duty to be fair and impartial, says Harvard University constitutional scholar Noah Feldman. . . .

Read the full article.

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McGinnis: Another Step Toward Neutral Principles in Campaign Regulation

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by Publius
Posted January 22, 2015, 2:30 PM

McGinnis: Another Step Toward Neutral Principles in Campaign RegulationAt the Library of Law and Liberty Blog, John O. McGinnis discusses the Williams-Yulee v. The Florida Bar case and its implications. He comments:

This week the Supreme Court heard argument in Williams-Yulee v. The Florida Bar. The case is the sixth campaign finance case heard by the Roberts Court but the first to focus on judicial elections. The Florida bar disciplined Ms. Williams-Yulee for sending a letter to solicit contributions for her campaign for election as a Florida trial judge. The bar found her solicitation to violate a rule of the Florida Code of Judicial Conduct that barred personal solicitation of campaign contributions.

A central doctrinal question in the case is whether the Court will apply its overinclusiveness/ under inclusiveness test to these regulations. The Court in First Amendment cases typically assesses whether the legislative solution offered by a statute fits the problem by asking whether it is underinclusive or overinclusive. One way of understanding this test is that a focus on the fit between the proffered purpose of the regulation and its scope helps to ferret out pretext, uncovering regulation that claims to solve a problem but is directed at impermissible objective. If the regulation is underinclusive with respect to its objective, it suggests that regulation is pretextual because it does not solve the problem. If it is overinclusive, it suggests that it is burdening more speech rights than is necessary because it applies regardless of whether the rationale for the legislation is present.

Assuming that the government interest is to avoid corruption or appearance of corruption,  preventing solicitation by personal letter is both over and underinclusive.

Read the full post.

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SCOTUS Grants Same-Sex Marriage Cases

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by Publius
Posted January 16, 2015, 3:50 PM

SCOTUS Grants Same-Sex Marriage CasesOrder pasted below:

14-556 ) ) OBERGEFELL, JAMES, ET AL. V. HODGES, RICHARD, ET AL.
14-562 ) ) TANCO, VALERIA, ET AL. V. HASLAM, GOV. OF TN, ET AL.
14-571 ) ) DeBOER, APRIL, ET AL. V. SNYDER, GOV. OF MI, ET AL.
14-574 ) ) BOURKE, GREGORY, ET AL. V. BESHEAR, GOV. OF KY, ET AL.

The cases are consolidated and the petitions for writs of certiorari are granted limited to the following questions:

1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?

2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

A total of ninety minutes is allotted for oral argument on Question 1. A total of one hour is allotted for oral argument on Question 2. The parties are limited to filing briefs on the merits and presenting oral argument on the questions presented in their respective petitions. The briefs of petitioners are to be filed on or before 2 p.m., Friday, February 27, 2015. The briefs of respondents are to be filed on or before 2 p.m., Friday, March 27, 2015. The reply briefs are to be filed on or before 2 p.m., Friday, April 17, 2015.

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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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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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