FedSoc Blog

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.

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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.

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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.”

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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.

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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.

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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.”

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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.

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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."

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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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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.” . . .

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